HomeMy WebLinkAbout2707 Adding 4.34 Food & Beverage TaxORDINANCE NO. 2707-E
AN ORDINANCE OF THE CITY OF ASHLAND ADDING A NEW
CHAPTER 4.34 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
restaurant also 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 ()pen 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
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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 Reporting and remitting. 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 re~orting 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 Report 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 Appeal. Any operator 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 operator or 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.
Ordinance referred to the voters by RESOLUTION NO.
Ordinance approved by the Voters. YES: 3658
NO: 2980
93-02 for March 23, 1993 election.
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