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HomeMy WebLinkAbout1993-02 Special Elec- Food/BevRESOLUTION NO. 93'-d~ [F&B TAX ONLY] A RESOLUTION CALLING A'SPECIAL ELECTION FOR MARCH 23, 1993, IN THE CITY OF ASHLAND FOR THE PURPOSE OF REFERRING TO THE VOTERS OF THE CITY A MEASURE APPROVING AN ORDINANCE IMPOSING A TAX ON THE SALE OF FOOD AND BEVERAGES IN RESTAURANTS. THE CITY OF ASHLAND RESOLVES AS FOLLOWS: SECTION 1. A special election is called to be held in the City of Ashland, Oregon on March 23, 1993, at which election there shall be referred to the voters for their adoption or rejection, the ordinance attached to this resolution entitled "AN ORDINANCE OF THE CITY OF ASHLAND'ADDING A NEW CHAPTER 13.24 TO THE ASHLAND MUNICIPAL CODE CONCERNING MEALS, FOOD AND BEVERAGE TAXATION." SECTION 2. The foregoing ordinance shall be effective upon its passage by the electorate at a special election to be held on March 23, 1993. SECTION 3. The ballot title for this measure is as set forth on the attached Exhibit A.' SECTION 4. The City Recorder is requested and directed to give notice of this special election as provided in the laws of the' State of Oregon and the charter and ordinances of the City of Ashland. The foregoing resolution was READ and DULY ADOPTED at a regular meeting of the city Council of the city of Ashland on the / -- day of~~,~J~~ Nan E. Franklin, City Recorder SIGNED and APPROVED this , 1993. Catherine M. Golden, Mayor PAGE 1-RESOLUTION EXHIBIT A NOTICE OF MEASURE ELECTION CITY OF ASHLAND JACKSON COUNTY, OREGON Notice is given than on Tuesday, March 23, 1993, an election will be held in the City of Ashland, Jackson County, Oregon. The election will be conducted by mail. The following shall be the ballot title for the measure submitted to the electors: CAPTION: Tax on food and beverages sold in restaurants. QUESTION: Shall tax on prepared food. and beverages be imposed for park land acquisition and sewage treatment which may include wetlands? EXPLANATION: Imposes one percent tax on sales of food and beverages, excluding alcoholic beverages, in restaurants and hot prepared foods and salads from grocery stores. Tax is dedicated for acquisition of park lands and other purposes for Open Space Park Program as determined by city council and park commission. Allows council to raise tax to five percent after public hearing to fund state mandated sewage treatment methods which may include wetlands. Allows restaurants to retain part of tax collected to apply to collection costs. Pursuant of section 11b, Article XI, Oregon Constitution, and implementing legislation, the proposed tax measure if approved would not reduce property tax collections for other units of local government. ORDINANCE NO. AN ORDINANCE OF THE CITY OF ASHLAND ADDING A NEW CHAPTER 13.24 TO THE ASHLAND MUNICIPAL CODE CONCERNING RESTAURANT FOOD AND BEVERAGE TAXATION. THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. Chapter 4.34 is added to the Ashland Municipal Code and shall read as follows: Chapter 4.34 FOOD AND BEVERAGE TAX Sections: 4.34.010 4.34.020 4.34.030 4.34.040 4.34.050 4.34.060 4.34.070 4.34.080 4.34.090 4.34.100 4.34.110 4.34.120 4.34.130 4.34.140 4.34.150 4.34.160 Definitions. Tax Imposed. Exemptions. Operator's Duties. Reporting and remitting. Penalties and Interest. Failure to Collect and Report Tax--Determination of Tax by Director. Appeal. Records. Refunds. Actions to Collect. Violations--Infractions. Confidentiality. Examining Books, Records. Special account. Termination of tax. 4.34.010~ Definitions. The following words and phrases whenever used in this chapter shall be construed as defined in this section unless from the context a different meaning is intended. A. "Caterer" means a person who prepares food at a business site, for compensation, for consumption off the business premises but within the corporate limits of the city. B. "Combination facility" has the same meaning as defined in Oregon Administrative Rule 333-150-000(8) which the State of Oregon Department of Agriculture licenses or inspects under Oregon Administrative Rule 333-158-000. C. "Director" means the Director of Finance of the City of Ashland, or designee. D. "Food" includes all meals and beverages, excluding alcoholic beverages, served in a restaurant including "takeout", "to go" or delivered orders. E. "Open Space Park Program" and "Open Space lands or easements" have the same meaning as used in Article XIX A of the Ashland City Charter. F. "Operator" means the person who is proprietor of the restaurant, whether in the capacity of owner, lessee, sublessee, PAGE i-PARK COMMISSION FOOD & BEVERAGE TAX PROPOSAL mortgagee in possession, licensee or any other capacity. Where the operator is a corporation, the term operator shall also include each and every member of the Board of Directors of such corporation for the time involved. G. "Restaurant" means any establishment required to be licensed as a restaurant by the State of Oregon Health Division and includes any establishment where food or beverage is prepared for consumption by the public or any establishment where the public obtains food or beverage so prepared in form or quantity consumable then and there, whether or not it is consumed within the confines of the premises where prepared, and also includes establishments which prepare food or beverage in consumable form for service outside the premises where prepared. The term restaurantsalso includes establishments where such food or beverage is prepared in a combination facility. 4.34.020 Tax imposed. A. The city imposes and levies, in addition to all other taxes, fees and charges.of every kind, a tax upon: 1. All food and beverages sold by restaurants located within the city to the public, except for whole cakes, pies, and loaves of bread if purchased for consumption off premises, and for alcoholic beverages; 2. All food and beverages, except alcoholic beverages, sold by a caterer for an event located within the city; and 3. The following items sold by combination facilities: a. Salads from salad bars; b. Dispensed soft drinks and coffee; and c. Sandwiches or hot prepared foods ready for immediate consumption. B. Such tax shall be imposed at a rate of one percent on the total amount charged by the seller for the food and beverages, or for the meal, including any amount or percentage, whether designated as a gratuity, tip, or service charge, that is added to the price by the seller, and required to be paid by the purchaser. In the computation of this tax any fraction of one- half cent or more shall be treated as one cent. C. All taxes collected by the city under this chapter shall be paid into the Open Space Park Account. Such taxes shall be used for the acquisition of Open Space lands or easements and for such other purposes pertinent to the Open Space Park Program as the Council and Park Commission may jointly determine. D. The council may increase the rate of the tax described in subsection 4.34.020.A up to a maximum of five percent after a public hearing. Notice of the hearing shall be given by publication in a newspaper of general circulation in the City at least 10 days prior to the date of the public hearing. Notwithstanding subsection 4.34.020.C, taxes collected by the City as a result of any increased rate under this subsection shall be used for the purpose of researching, designing and constructing State of Oregon mandated sewage treatment methods, which may include, but not be limited to, wetlands. 4.34.030 Exemptions. The tax levied by section 4.34.020 shall PAGE 2-PARK COMMISSION FOOD & BEVERAGE TAX PROPOSAL not be collected or assessed on food or beverages: A. Sold by public or private schools or colleges, except that food sold by independent contractor operators at such schools or colleges shall be subject to the tax imposed by this chapter; B. C. guests. D. E. Provided by hospitals; Provided by bed and breakfast establishments to their Sold in vending machines; Sold in temporary restaurants including food stands, booths, street concessions and similar type operations, operated by non-profit organizations or service clubs. F. Served in connection with overnight or residential facilities--including, but not limited to, convalescent homes, nursing homes, retirement homes and motels--if the food and beverage are provided as part of the cost of sleeping accommodations. G. Provided by nonprofit tax-exempt organizations to citizens over 60 years of age as a part of a recognized senior citizen nutritional program. 4.34.040 Operator's Duties. Each operator shall collect the tax imposed by this chapter, to the same extent and at the same time as the amount for the food or beverage is collected from every purchaser. The amount of tax shall be separately stated from the amount of the food or beverage. Every operator required'to collect the tax imposed in this chapter shall be entitled to retain five percent of all taxes collected to defray the costs of collections and remittance. 4.34.050 Reportinq and remittinq. On or after July 1, 1993, every operator shall, on or before the 25th day of the month following the end of each calendar quarter (in the months of April, July, October and January), make a return to the director, on forms provided by the city, specifying the total sales subject to this chapter and the amount of tax collected under this chapter. At the time the return is filed, the full amount of the tax collected shall be remitted to the director. The director may establish shorter reporting periods for any operator if the administrator deems it necessary in order to insure collection of the tax and the administrator may require further information in the return relevant to payment of the liability. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this chapter shall be held in trust for the account of the City until payment is made to the director. 4.34.060 Penalties and interest. A. Any operator who fails to remit any portion of any tax imposed by this chapter within the time required, shall pay a penalty of ten percent of the amount of the tax, in addition to the amount of the tax. B. Any operator who fails to remit any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent, shall pay a second PAGE 3-PARK COMMISSION FOOD & BEVERAGE TAX PROPOSAL ~:~ delinquency penalty of ten percent of the amount of the tax in addition to the amount of the tax and the penalty first imposed. C. If the director determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25% percent of the amount of the tax shall be added thereto in addition to the penalties stated in subparagraphs A and B of this section. D. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of one percent per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid. E. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax required to be paid. 4.34.070 Failure to Collect and ReDort Tax--Determination of Tax by Director. If any operator should fail to keep adequate records or refuse to pay the tax imposed by this chapter, or to make, within the time provided in this chapter, any report and remittance of the tax or any portion required by this chapter, the director shall proceed in such manner as deemed best to obtain facts and information on which to base the estimate of tax due. As soon as the director shall procure such facts and information as is able to be obtained, upon which to base the assessment of any tax imposed by this chapter and payable by any operator who has failed or refused to collect the same and to make such report and remittance, the administrator shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the director shall give a notice of the amount so assessed by having it served personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at the last known place of address. Such operator may within ten days after the serving of mailing of such notice make an appeal of such determinations as provide in section 4.34.060. If no appeal is filed, the director's determination is final and the amount thereby is immediately due and payable. 4.34.080 ADDeal. Any 0Derat0r aggrieved by an decision of the director with respect to the amount of such tax, interest and · penalties, if any, may appeal to the city council by filing a notice of appeal with the city administrator within 15 days of the serving or mailing of the determination of tax due. The~ council shall fix a time and place for hearing such appeal, and the city administrator shall give five days written notice of the time and place of hearing to such operator at the last known place of address. The council shall hear and consider any records and evidence presented bearing upon the director's determination of amount due, and make findings affirming, reversing or modifying the determination. The findings of the council shall be final and conclusive, and shall be served upon the appellant in the manner prescribed above for service of PAGE 4-PARK COMMISSION FOOD & BEVERAGE TAX PROPOSAL notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice. 4.34.090 Records. It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by this chapter to keep and preserve, for a period of three years, all such records as may be necessary to determine the amount of such tax. The director shall have the right to inspect all records at all reasonable times. 4.34.100 Refunds. A. Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once, or has been erroneously or illegally collected or received by the city under this chapter, it may be refunded as provide in subparagraph B of this section, provided a claim in writing, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the director within three years of the date of payment. The claim shall be on forms furnished by the director. B. An operator may claim a refund, or take as credit against taxes collected and remitted, the amount overpaid, paid more than once or erroneously or illegally collected or received in a manner prescribed by the director. C. No refund shall be paid under the provisions of this section unless the claimant established the right by written records showing entitlement to such refund. 4.34.110 Actions to Collect. Any tax required to be paid by any operator under the provisions of this chapter shall be deemed a debt owed by the operator to the city. Any such tax collected by an operator which has not been paid to the city shall be deemed a debt owned to the operator to the city. Any person owing money to the city under the provisions of this chapter shall be liable to an action brought in the name of the City Of Ashland for the recovery of such amount. 4.34.120 Violations--Infractions. Any operatorPor other person who fails or refuse to comply as required herein, or to furnish any return required to be make, or fails or refuse to furnish a supplemental return or other data required by the director, or who renders a false or fraudulent return or claim, or who fails, refuses or neglects to remit the tax to the city by the due date, is guilty of an infraction and shall be punished as set forth in section 1.08.020 of the Ashland Municipal Code. 4.34.130 Confidentiality. Except as otherwise required by law, it shall be unlawful for the city, any officer, employee or agent to divulge, release or make known in any manner any financial information submitted or disclosed to the city under the terms of this chapter. Nothing in this section shall prohibit: A. The disclosure of the names and addresses of any person who are operating a restaurant; or B. The disclosure of general statistics in a form which would prevent the identification of financial information regarding an individual operator; or PAGE 5-PARK COMMISSION FOOD & BEVERAGE TAX PROPOSAL C. Presentation of evidence to the court, or other tribunal having jurisdiction in the prosecution of a claim by the Administrator or an appeal form the city administrator for amount due the city under this chapter. 4.34.140 Examininq Books. Records, or Persons. The city, for the purpose of determining the correctness of any operator of a restaurant tax return, or for the purpose of an estimate of taxes due, may examine or may cause to be examined by an agent or representative designed by it for that purpose, any books, papers, records, or memoranda, including copies of operator's state and federal income tax return, bearing upon the matter of the operator's tax return. 4.34.150 Special account. The monies collected from this tax shall be expended only for the Open Space lands or easements, for costs of acquisition, for costs of development, for costs of collection and for such other purposes pertinent to the Open Space Park Program as the Council and Park Commission may jointly determine. All monies dedicated under this chapter shall remain under the financial management of the City of Ashland. 4.34.160 Termination of tax. This chapter shall expire on December 31, 2010, unless extended by a vote of the electorate. PAGE 6-PARK COMMISSION FOOD & BEVERAGE TAX PROPOSAL