HomeMy WebLinkAboutMC-14841
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ORDINANCE NO. MC -1484
ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA AMENDING SAN BERNARDINO MUNICIPAL
CODE CHAPTERS 3.55, 3.64, 5.44, 8.60, 12.32, AND 14.08 TRANSFERRING
LICENSING OF CERTAIN BUSINESSES AND USES FROM THE CITY CLERK TO
THE FINANCE DEPARTMENT OF THE CITY OF SAN BERNARDINO AND
REPEALING SAN BERNARDINO MUNICIPAL CODE CHAPTER 3.60 RELATED
TO THE CIGARETTE TAX
WHEREAS, at the November 8, 2016 general election, the People of the City of San
Bernardino adopted Measure L which amended the City of San Bernardino's Charter ("New
Charter"); and
WHEREAS, the New Charter was filed with the California Secretary of State on
January 31, 2017 and became effective on that date; and
WHEREAS, Section 505 of the New Charter changes the duties of the City Clerk, in
part by eliminating the City Clerk's responsibility for issuing business licenses and regulating
certain businesses; and
WHEREAS, the City Council is adopting amendments to various chapters relating to
licensing of certain businesses in accordance with Section 505 of the New Charter articulating
the duties of the City Clerk, by transferring responsibilities for certain licensing and regulation
of uses from the City Clerk to the Finance Department to effectuate the City Council's desire
to transfer these duties from the City Clerk to the Finance Department.
NOW, THEREFORE, THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO DO ORDAIN AS FOLLOWS:
SECTION 1. Sections 3.55.030(E), 3.55.035(B), 3.55.040, 3.55.045(C),
3.55.050(A)(3)(ii), 3.55.050(B), 3.55.060(A), 3.55.060(B), 3.55.065, 3.55.080, 3.55.090,
3.55.110 and 3.55.150 of Chapter 3.55 of the San Bernardino Municipal Code entitled
"Transient Lodging Tax" are hereby amended to read as follows:
3.55.030(E) Collection of tax
In lieu of paying the transient lodging tax to an operator, a transient may remit the tax
directly to the Finance Department. Any transient who opts to remit the transient lodging tax
directly to the Finance Department shall provide written proof of such remittance to the
operator.
3.55.035(B) Exemptions
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B. Procedure. Each transient desiring an exemption from the transient lodging tax
must file a tax exemption certificate with the hotel at the time room rental payment is made to
the operator. The tax exemption certificate shall indicate the basis for the exemption and shall
be signed under penalty of perjury. Tax exemption certificate forms shall be prescribed by,
and may be obtained from, the Finance Department.
3.55.040 Reports and remittances
On or before the twenty fifth day of each month, each operator shall deliver to the
Finance Department a lodging information report for the prior month and shall remit to the
Finance Department the transient lodging tax collected during the prior month. The lodging
information report shall indicate the amount received for room rental and the amount of
transient lodging tax required to be collected, and shall be signed under penalty of perjury.
Lodging information report forms shall be prescribed by, and may be obtained from, the
Finance Department.
3.55.045(C) Refunds
C. Procedure. Each person desiring a refund must file a refund claim with the Finance
Department within three years of the date of remittance of the transient lodging tax. The
refund claim shall indicate the basis for the refund and shall be signed under penalty of
perjury. Refund claim forms shall be prescribed by, and may be obtained from, the Finance
Department. No refund shall be paid unless the claimant produces written records
demonstrating entitlement to the refund. The Finance Department shall refund any tax
improperly paid by any person directly to such person.
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3.55.050(A)(3)(ii) Penalties
A. Interest on the total of the tax and the delinquency penalty. Interest shall be at the
I rate of ten percent per annum and shall be computed from the sixty-first day of delinquency
until the date of remittance of the tax and delinquency penalty to the Finance Department.
3.55.050(B) Penalties
B. Fraud. If the Finance Department determines that the nonpayment of a transient
lodging tax is due to fraud of the operator, then the operator shall pay, in addition to the
amount of the tax, a fraud penalty of twenty-five percent of the amount of the tax.
3.55.060(A) & (B) Determination of tax by Finance Department
A. Determination. If an operator fails to collect and remit the transient lodging tax in
accordance with this Chapter, then the Finance Department shall determine the amount of tax
owed by such operator. The Finance Department may make such determination based on an
estimate of the amount due based on the information available.
B. Notice. Upon determining the amount of transient lodging tax and penalty due, the
Finance Department shall notify the operator in writing. If the operator does not request a
hearing on such amount in writing within ten days of the date of issuance of the notice, then
the amount shall be conclusive and shall be remitted to the City on or before the deadline
specified in the notice.
C. Hearing. If a timely hearing request is made, then the Finance Department shall
notify the operator in writing of the date, time and place of a hearing on the amount of
transient lodging tax and penalty owed to the City at least ten days prior to the date of the
hearing. At such hearing, the operator may offer evidence to rebut the determination of the
Finance Department. After such hearing, the Finance Department shall revise the initial
determination as deemed appropriate and shall notify the operator in writing of the final
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determination of the transient lodging tax and penalty that is due. Such amount shall be
remitted to the City within fifteen days from the issuance of the notice, unless an appeal is
filed as provided in this Chapter.
3.55.065. Appeal
Any operator who is aggrieved by a Finance Department decision regarding the
amount of transient lodging tax or penalty owed by the operator may appeal to the Mayor and
City Council in accordance with the provisions of Chapter 2.64 of this Code. Any transient
who is aggrieved by a Finance Department decision regarding the amount of transient lodging
tax owed by the transient may appeal to the Mayor and City Council in accordance with the
provisions of Chapter 2.64 of this Code. Any amount that the Mayor and City Council
determines is owed to the City shall be remitted to the Finance Department on or before the
deadline set by the Mayor and City Council.
3.55.080 Hotel registration
Within thirty days after the effective date of the ordinance codified in this Chapter, or
within thirty days after commencing business, whichever is later, each operator of a hotel
providing lodging space to transients shall register such hotel with the Finance Department.
Upon registration, the Finance Department shall issue the operator a "Transient Lodging
Registration Certificate" that at a minimum states the following:
A. The name of the operator.
B. The address of the hotel.
C. The issuance date of the certificate.
D. This Transient Lodging Registration Certificate signifies that the person named on
the face thereof has fulfilled the requirements of the Transient Lodging Tax Ordinance by
registering with the Finance Department for the purpose of collecting from transients the
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Transient Lodging Tax and remitting said tax to the Finance Department. This certificate does
not authorize any person to conduct any unlawful business or to conduct any lawful business
in an unlawful manner, nor to operate a hotel without strictly complying with all local
applicable laws, including but not limited to those requiring a permit from any board,
commission, department or office of this City. This certificate does not constitute a permit.
Each operator shall at all times conspicuously post its Transient Lodging Certificate on
the premises of its hotel.
3.55.090 Immediate payment of tax on cessation of business
Any operator who ceases providing lodging space to transients shall deliver to the
Finance Department a final lodging information report and shall remit to the Finance
Department any transient Lodging tax owed the City. Such delivery and remittance shall be
performed within twenty-five days of the operator's cessation of such activity.
3.55.110 Liens
A. The Finance Department shall periodically prepare for the Mayor and City Council
a report showing:
(i) delinquent transient lodging taxes and penalties that have not been received
by the City; and
(ii) the corresponding parcel number designations and addresses of the
properties on which the hotels are operated. The Mayor and City Council shall
consider such report and hear any objections thereto at a hearing for which no less than
a ten-day advance written notice has been provided to the subject operators and
property owners. The Mayor and City Council may modify the report as deemed
necessary and shall confirm the final report by resolution.
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B. The Finance Department shall file a certified copy of the confirmation resolution
with the Auditor of the County of San Bernardino, directing that the unpaid transient lodging
taxes and penalties be entered as lien charges against the respective properties as they appear
on the current assessment rolls. Liens will be collected at the same time and in the same
manner, subject to the same penalties and interest upon delinquencies, as the general taxes for
the City of San Bernardino are collected. The Finance Department shall present for recording
appropriate notices of the imposition of these liens with the County Recorder.
3.55.150 Enforcement -Citing authority
It shall be the duty of the Finance Department, or its authorized representatives, to
enforce the provisions of this Chapter. The Finance Director and his or her authorized
representatives are hereby authorized and empowered to issue citations and notices to appear
for violations of the provisions of this Chapter.
SECTION 2. Chapter 3.60 of the San Bernardino Municipal Code is hereby repealed.
Chapter 3.64 of the San Bernardino Municipal Code entitled "Tax on Parking and
Business Improvement Area" is hereby amended to read as follows:
3.64.010 Parking and Business Improvement Area
3.64.020 Rates
3.64.030 Proposed uses for proceeds
3.64.040 Collection
3.64.050 Special fund
3.64.060 Issuance of business license - Payment of assessment required
3.64.070 Delinquency Assessment of Penalties
on
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3.64.010 Parking and Business Improvement Area
A. The Mayor and City Council may establish by ordinance in accordance with state
law one or more parking and business improvement areas within boundaries as described in
the ordinance.
B. There may be imposed upon each type of business, including any profession,
conducted within said parking and business improvement area, an annual assessment after
formation, in addition to the tax imposed upon such business pursuant to the business
licensing provisions of this Municipal Code. Such additional assessment shall be imposed at
the rates set forth in the enacting ordinance for the specified classifications regardless of
whether the business is taxed upon a flat rate or gross receipts or other basis, and reassessed
annually as required by state law. Such additional assessment shall be imposed upon each
business in accordance with the classifications set forth in Chapter 5.04 of this Municipal
Code.
3.64.020 Rates
Rates for such assessments in addition to business license taxes shall be established in
the ordinance creating each specific Parking and Business Improvement Area based upon the
classifications specified in Chapter 5.04 of this Municipal Code.
3.64.030 Proposed uses for proceeds
The proposed uses to which the proceeds obtained from the additional assessments on
businesses within the specific area shall be put are:
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A. The acquisition, construction and maintenance of parking facilities for the benefit
of the area;
area;
B. Decoration of any public place in the area;
C. Promotion of public events which are to take place on or in public places in the
D. Furnishing of music in any public place in the area;
E. The general promotion of retail trade activities in the area.
3.64.040(B) Collection
B. All moneys and revenue collected pursuant to this Chapter and the applicable
enacting ordinance shall be deposited in the general fund, to be transferred from the general
fund to the applicable parking and business improvement fund as provided in Section
3.64.050.
3.64.050 Special fund
A special fund designated as the "parking and business improvement fund" is created.
If more than one parking and business improvement area is created in the City, a special fund
shall be designated for each such area by name. All moneys and revenue collected pursuant to
this Chapter shall be deposited in the general fund, and the Finance Department will prepare
monthly a statement showing the moneys collected and to be transferred from the general
fund to each specific parking and business improvement fund.
3.64.060 Issuance of business license - Payment of assessment required
A. No business license shall be issued to any business within the boundaries of the
area pursuant to Chapter 5.04 unless the assessment imposed by the enacting ordinance is paid
together with the business license tax payable pursuant to Chapter 5.04 of this Municipal
Code.
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B. Any person, firm, or corporation operating or carrying on a business as provided for
in this section shall be subject to all penalties, both civil and criminal, as are provided therefore
I in Chapter 5.04 and Business and Professions Code Section 16240 for operating a business
without a valid business license.
3.64.070 Delinquency - Assessment of penalties
A. The time of delinquency for the assessment of penalties for all assessments covered
by this Chapter shall be the same as set forth in Section 5.04.075 for the business license tax.
B. Payments of the assessment which are received in the Finance Department after the
applicable delinquent dates, or bearing a postmark after said dates, as set forth in Section
5.04.075, shall be deemed delinquent and subject to penalty assessment.
C. For failure to pay the assessment on or before the start of business, or for failure to
pay the assessment before the applicable delinquent date, there is imposed a penalty of fifty
percent of the assessment. An additional penalty of fifty percent of the assessment shall be
imposed on the last day of the third consecutive month of delinquency. Such penalties shall be
added to the assessment due.
SECTION 4. Sections 5.44.025, 5.44.030, 5.44.040, 5.44.050, 5.44.070, 5.44.086 and
5.44. 100 of Chapter 5.44 of the San Bernardino Municipal Code entitled "COIN-OPERATED
GAME MACHINES" are hereby amended as follows:
5.44.025 Responsibilities of business operator upon whose premises game
machines are found
A. It is unlawful for any person operating any business enterprise within the City to
have in operation upon the premises of such person any coin-operated game machine as
defined in this chapter which does not have affixed thereto or posted in a conspicuous place
nearby the tag or plate issued under this chapter as required by Section 5.44.080. This section
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shall not apply to a person owning, operating and maintaining not more than two coin -
operated games as an incidental business used at a local place of business having the requisite
business license pursuant to Article I of this title, so long as the person actually owns, operates
and maintains the machine himself.
B. Any person operating any business enterprise within the City which has in
operation upon the premises of such person any coin-operated game machine as defined in
this chapter shall, at the time of renewal of the annual business license for such business,
provide to the Finance Department a list of all game machines then on the premises, and the
names and addresses of the distributors of each such machine.
C. Each such business operator shall notify the Finance Department within ten days
after any change is made in the number of game machines on his premises for which a license
is required, or after any change in the name or address of the distributor of any such machine
is made. Any such person shall also notify the Finance Department immediately if an
untagged game machine is installed upon his premises.
5.44.030 Operator's permit - Application
A. An applicant for a game machine operator's permit shall submit an application to
the Finance Department which application shall be under penalty of perjury and upon a form
supplied by the Finance Department. Such application shall include the true names, addresses,
and past criminal record, if any, of the applicant and of all persons financially interested in the
applicant's business, and such other information as may be deemed necessary by the Finance
Department and Chief of Police to determine whether such game machine operator's permit
shall be granted. The application shall be accompanied by a fully executed fingerprint card as
to each such applicant, prepared under the direction of the Chief of Police. An applicant shall
pay a fee of two hundred and ninety three dollars or such fee as may be subsequently be set by
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Resolution of the Mayor and City Council, to cover the costs of the investigation required by
Section 5.44.040, and shall provide to the Chief of Police a money order payable to the
California Department of Justice in such amount as required by that agency to process its
report to the City based upon the fingerprint card provided. A fifty dollar annual permit fee, or
such fee as may subsequently be set by Resolution of the Mayor and City Council, shall be
paid at the time of issuance of a permit, which fee shall be prorated in the event that a permit
is only for part of a year. A permit may be renewed annually upon payment of the annual
permit fee.
B. "Persons financially interested" includes all persons who are officers or directors of
a corporation or share -holders holding more than three percent of the shares thereof or persons
who share in the profits of a non -corporate business on the basis of gross or net revenue, but it
does not include persons who receive a portion of such gross or net revenue in return for the
privilege of permitting any other person to maintain such coin-operated game machine in their
place of business.
5.44.040 Investigation
The Chief of Police shall carefully investigate the applicant and the facts and
circumstances concerning the application submitted to him/her pursuant to Section 5.44.030.
5.44.050 Issuance of permits
A. The Chief of Police shall either approve or deny the issuance of the permit to the
applicant within forty-five days of the date that the copy of the application is submitted to
him. The Chief of Police may deny a permit on any of the following grounds:
1. The operation will not comport with the peace, health, safety, convenience and
general welfare of the public;
2. The application is not complete in that all requested information is not supplied;
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3. The operation has been or is a public nuisance;
4. The operation would be in violation of a City ordinance, state law or federal law;
5. The applicant has been found guilty, pled guilty and/or pled no contest to a crime of
moral turpitude;
6. The applicant made a false, misleading or fraudulent statement of fact in his
application for a permit;
7. The operation by the applicant will be carried on in a building, structure and
location which does not comply with and meet all of the health, zoning, fire and safety
requirements and standards of the laws of the state and ordinances of the City;
8. The applicant, his employee, agent, or any person connected or associated with the
applicant as a partner, director, officer, stockholder, associate, or manager has allowed or
permitted acts of sexual misconduct or lewd conduct to be committed within prior or present
business operations;
9. The applicant has within the year prior to the application date willfully violated any
provisions of this Chapter or of the City licensing provisions in Title 5.
B. The Chief of Police shall notify the applicant of the grant of a permit, or of the
denial of his or her application for a permit and the reasons therefor. Service of such notice
shall be made personally or by certified mail. The notice shall include or be accompanied by a
statement that the applicant may request a hearing before the City Manager by filing with the
City Clerk a written request thereof within ten days after service upon him of the notice of the
denial of his application and that failure to do so will constitute a waiver of his or her right to
a hearing.
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5.44.060 Hearing upon denial of permit
Within ten days after service upon the applicant of a written notice of the Police
Chiefs denial of application for a permit, the applicant may file a request for hearing in
writing and signed by or on behalf of the applicant and shall state his or her mailing address. It
need not be verified or follow any particular form. Failure to file such a request for a hearing
shall constitute a waiver of the applicant's right to a hearing. No further notice other than
notice of the date and place of hearing need be served on the applicant. Hearings granted
under this section shall allow for the applicant to be represented by counsel. The decision of
the City Manager shall be final.
5.44.070 Game machine tag
Upon the issuance of any game machine operator's permit, the applicant therefore shall
notify the Finance Department in writing of the location of each coin-operated game machine,
and in the event of any change in the location of any machine, the permittee shall notify the
Finance Department of the change within ten days including the address of the new location.
At the time of issuing a business license for any coin-operated game machine, the Finance
Department shall issue a tag or plate for each machine to be operated by the game operator
within the City limits, and such tags or plates shall be given serial numbers consecutively in
the order of their issuance. The tags and plates shall be of wear -resistant materials.
5.44.086 Untagged machines; nuisance; reconnection fees; administrative fees
A. Any machine not having the tags required by Section 5.44.080 or the information
required by Sections 5.44.085 and 5.44.025 Subsection B is declared a nuisance, and shall be
subject to disconnection by the City. A representative of the City shall be authorized to
disconnect and render said machine inoperative, following which the machine shall not be
reconnected or returned to operation within the City until the game machine operator has paid
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to the Finance Department a reconnect fee of twenty-five dollars, or such amount as
subsequently set by Resolution of the Mayor and City Council, and has paid the business
license fee applicable to each machine under Section 5.04.275 of the Code. No person shall
reconnect any machine which has been disconnected or rendered inoperative by a
representative of the City, without prior payment of the reconnect fee to the City. No operator
of the business upon whose premises the machine is located shall permit such machine to be
reconnected without prior payment of the reconnect fee.
B. The Finance Department shall assess the person operating a business enterprise
within the City upon whose premises one or more untagged game machines are found for each
such untagged game machine, and for each game machine for which the information required
under Sections 5.44.085 and 5.44.025 Subsection B has not been provided, an administrative
fee in an amount computed to cover the average cost of investigating, locating, disconnecting
and controlling untagged game machines and inadequately identified game machines. This
assessment shall be the average cost of such procedures, initially in an amount of fifty dollars,
or such amount as subsequently set by Resolution of the Mayor and City Council, for each
such untagged game machine, and for each inadequately identified machine, which
administrative fee shall hereafter be subject to periodic review and determination by the
Mayor and City Council, based upon the experienced costs of such control and regulation.
Such assessment shall be in addition to any reconnection fee imposed under Section 5.44.086
Subsection A. No such fee shall be assessed as to any such untagged machine when the
business operator has notified the Finance Department, under the provisions of Section
5.44.025 Subsection B, in advance of the City's representative appearing at the scene, that
such untagged machine was located upon the premises. Failure to pay any assessment within
I ten days after notice of imposition thereof shall be an omission justifying suspension of any
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business licensee's business license under the provisions of San Bernardino Municipal Code
Section 5.04.650. In the alternative, the Finance Department may notify the person assessed
that the business license for those premises will not be renewed, or reissued uritil all
outstanding assessment fees have been paid.
5.44.100 Revocation of permit
The Finance Department shall have the power, for good cause shown, to revoke or
suspend any game machine operator's permit issued under this Chapter. Failure to pay any
reconnect fee provided for in Section 5.44.086, or any conduct deleterious to the public
health, welfare or morals, and the existence of any of the reasons for a denial of a permit as set
forth in Section 5.44.050, shall each constitute good cause for suspension or revocation. Any
such suspension or revocation shall be subject to appeal to the City Manager. The City
Manager shall provide a hearing of such appeal, with notice and opportunity to present
evidence, witnesses, and arguments. The formal rules of evidence shall not apply. The City
Manager shall issue a written decision explaining the basis of his or her decision on the appeal
and a copy of the written decision shall be mailed to the appellant. The suspension or
revocation shall be stayed pending the hearing.
SECTION 5. Sections 8.60.020, 8.60.030, 8.60.040, 8.60.050(E), 8.60.060, 8.60.080,
8.60.090 and 8.60.160 of Chapter 8.60 of the San Bernardino Municipal Code entitled
"Fireworks" are hereby amended as follows:
8.60.020 License - Required
Except as provided in this Chapter, it is unlawful for any person, organization, group
or association, etc. to offer for sale or sell at retail any fireworks of any kind in the City
without having first applied for and received a license from the Finance Department.
8.60.030 License - Application - Public liability insurance
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All applications for a license to sell fireworks shall:
A. Be made in writing and accompanied by the tax set forth in Section
8.60.090 in addition to a non-refundable fireworks administrative fee of fifty dollars,
or such other amount as shall be subsequently set by Resolution of the Mayor and City
Council. The fee will be used to defray the administrative costs of the fireworks
program. Applications shall be made between the first day and the last day of March
of each year except when the last day falls on a Saturday, Sunday or legal holiday, the
following business day shall be determined to be the last day;
B. Set forth the proposed location of the fireworks stand applied for. The
stands must be on private property located in Commercial General (CG) or
Commercial Regional (CR) General Plan Land Use Districts and the written
permission of the owner of record or lessee must accompany the application;
C. Be accompanied by an assurance that if the license is issued to applicant,
applicant shall, at the time of receipt of the license, deliver to the Finance Department
a minimum of one -million dollars public liability and property damage insurance
policies with riders attached to the policies designating the City as an additional
insured under this Chapter, and a copy of the requisite permit from the State Fire
Marshal.
D. Include a copy of the applicant's 501(c) (3),(4),(5),(6),(8),(10),(19),(20), or
501(d) verification of nonprofit status, or demonstrate that it is a non-profit
organization, group, association, etc., which is organized primarily for veteran,
patriotic, welfare, civic or social betterment (including public or private school clubs,
groups, organizations or such other public or private school affiliates), or charitable
purposes.
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E. All applicants shall be required to demonstrate how revenues received
would benefit the citizens of San Bernardino by submitting official board minutes
detailing the intent and authorization to sell fireworks. Such minutes shall detail what
sites, populations, or projects within the City will benefit and for what purposes;
F. Have attached a completed financial statement form that describes
anticipated revenues, expenses, and profits. Such form will be provided by the Finance
Department to each applicant. The information contained in this form shall
furthermore detail how much money will be provided to the projects mentioned
pursuant to subsection (E) above. No less than ninety percent of the net profits derived
from the sale of fireworks in the City by the applicant shall be utilized for the direct
advancement of the applicant's stated non-profit purposes within the City of San
Bernardino in accordance with subsection (E) above.
8.60.040 Licenses - Notice of granting or rejection
Applicants for any such license shall be notified by the Finance Department by
April 15th of the granting or rejection of such application for a license. No license shall be
issued if the applicant fails to provide all the information or fails to meet all the criteria
specified in Section 8.60.030, or any other provision of this Chapter. The decision of the
Finance Department may be appealed to the Mayor and City Council under the provisions of
Chapter 2.64. The decision of the Mayor and City Council shall be final.
8.60.050 License - Prerequisites to issuance
E. All qualified applicants who held a license the immediate previous year, whether as
an individual or as part of a joint venture, shall have priority for the available licenses for the
immediate next year. However, if the total number of qualified applicants who were licensees
or co -licensees from said previous year exceeds 35 licenses because the membership(s) of
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joint venture(s) has changed or the joint venture ceases to exist, then those qualified applicants
which were part of such joint venture(s) shall lose their priority and shall be placed in a lottery
drawing for any remaining available licenses after all other qualified applicants from the
immediate previous year are granted licenses. If the total number of qualified applicants who
were licensees or co -licensees from the immediate previous year does not exceed 35 licenses,
then any remaining licenses shall be determined by lottery and shall be granted by a drawing
supervised by the Finance Director. Any prior licensee. the license of'which has been
suspended under the provisions of Section 8.60.060, shall be eligible for a new license only
upon satisfying the Fire Chief or the Police Chief that suitable arrangements have been made
to preclude future violations.
8.60.060 Suspension of license - Appeal procedure
A. The Fire Chief or his/her designee and the Police Chief or his/her designee shall
each be authorized to suspend immediately and without notice or formal hearing the license of
any licensee which violates any rule, regulation or ordinance while operating or preparing to
operate a fireworks stand during or immediately preceding any period of sale. If the Fire Chief
or his/her designee or the Police Chief or his/her designee establishes that a violation has
occurred too late to suspend the license during the period of sale, he/she shall have power to
suspend the licensee from future licenses, and to suspend the priority of the licensee, for any
such violation found to have occurred during or immediately preceding or immediately
following the authorized period of sale.
B. The decision of the Fire Chief or his/her designee or the Police Chief or his/her
designee to suspend the license of any licensee shall be subject to review by the City
Manager. In view of the limited sales period each year, for suspensions affecting the sale
period, such hearing shall be held at the earliest possible time that the licensee, the City
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Manager or his/her designee, and the representative of the Fire Chief or Police Chief can
schedule such hearing, provided that in every case, said hearing shall be held within 72 hours
of the Fire Chief's or Police Chiefs decision. For suspensions after the sale period, the
hearing shall be held within one month after the request for hearing, which request must be
made within fifteen days after notice of the suspension. The City Manager is authorized to set
aside the suspension, or to modify the suspension by limiting its effect to only one or more
days, or by setting aside the forfeiture of priority status for future years. The decision of the
City Manager may be appealed to the Mayor and City Council under the provisions of
Chapter 2.64. The decision of the Mayor and City Council shall be final.
8.60.080 Requirements for Fireworks Supplier
Prior to the issuance of a license, each applicant shall file with the Finance Department
a cash deposit, certificate of deposit or a surety bond posted by the fireworks supplier and
made payable to the City in the amount of three hundred dollars ($300.00), or such other
amount as may be subsequently set by Resolution of the Mayor and City Council to ensure
compliance with the provisions of this Chapter. Such deposit or certificate shall be refundable
upon compliance with the provisions and requirements of this Chapter, including but not
limited to the removal of the stand and the cleaning of the site. In the event the fireworks
supplier does not so comply to remove the stand or clean the site in the manner required by
the Community Development Department, the City may do so, or cause the same to be done
by other persons, and the reasonable cost thereof shall be a charge against the fireworks
supplier and his/her surety and the deposit, certificate or bond.
8.60.090 License tax
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As set by Ordinance No. 2884, the license tax for the selling of fireworks within the
City shall be two hundred dollars per year per stand which tax must be paid at the time
application for a stand is filed with the Finance Departinent.
8.60.160 Financial Reporting
No later than August 31 st of each year (or the next working day if August 31 falls on a
Saturday, Sunday or legal holiday), each licensee operating a stand or participating in a joint
venture shall submit to the Finance Department a financial summary of the total sales from
fireworks on the financial summary form provided by the Finance Department. The financial
summary shall have a summary of actual expenses, revenues, and profit for that year and shall
have receipts attached for all expenses for each stand as well as any incentive payments, gifts,
or other financial consideration provided to members of the licensee or its volunteers.
Licensees failing to comply with the afore -mentioned financial summary deadline of August
31 st shall be ineligible to receive a license for the sale of fireworks the following year either
as an individual licensee or as a member of a joint venture.
SECTION 6. Section 12.32.050 of Chapter 12.32 of the San Bernardino Municipal
Code entitled "HOUSE NUMBERS" is hereby amended as follows:
12.32.050 Curb house number business license required
It is unlawful for any person, firm, corporation, co -partnership or association, either as
owner, agent or otherwise to paint or otherwise place house numbers on curbs of streets in the
City without first obtaining a curb house number business license from the Finance
Department, and paying the fee therefore.
SECTION 7. Sections 14.08.08, 14.08.09, 14.08.10, 14.08.11, 14.08.12, 14.08.15,
14.08.17B, 14.08.19, 14.08.23D.3, and 14.08.27 of Chapter 14.08 of the San Bernardino
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Municipal Code entitled "Cable, Video and Telecommunications Service Providers" are
13ereby amended as follows:
14.08.08 Rights Reserved to the City
A. Subject to any restrictions that are mandated by state or federal law, neither
the granting of any franchise nor any provisions of this chapter shall be construed to
preclude the City from granting additional franchises.
B. By its acceptance of a franchise, a Grantee agrees to comply with all lawful
ordinances and regulations of general application now in effect or subsequently
enacted; provided, however, that such ordinances and regulations shall not materially
affect Grantee's rights or obligations under the franchise.
C. Neither the granting of a franchise, nor any provisions of this chapter, shall
constitute a waiver or bar to the City's lawful exercise of any governmental right or
power.
D. This chapter shall not be construed to impair or affect, in any way, the right
of the City to acquire the Grantee's property through the exercise of the power of
eminent domain, in accordance with applicable law.
E. The Mayor and City Council may do all things necessary in the exercise of
its jurisdiction under this chapter and may determine any question of fact that may
arise during the term of any franchise granted under this chapter.
F. Any right or power in, or duty imposed upon any officer, employee,
department, or board of the City shall be subject to transfer by the City to any other
officer, employee, department, or board of the City.
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14.08.09. Transfers and Assignments
A. Grantee may not sell, transfer, lease, assign, sublet, or dispose of, in whole or in
part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation, or
otherwise, the franchise or any of the rights or privileges therein granted, without the prior
written consent of the Mayor and City Council. Any attempt to sell, transfer, lease, assign, or
otherwise dispose of the franchise without the written consent of the Mayor and City Council
is null and void. The granting of a security interest in any assets of the Grantee, or any
mortgage or other hypothecation, will not be deemed a transfer for the purposes of this
section.
B. The requirements of paragraph A of this section apply to any change in control of
Grantee. The word "control" as used herein is not limited to the ownership of major
stockholder or partnership interests, but includes actual working control in whatever manner
exercised. If Grantee is a partnership or a corporation, prior authorization of the City is
required where ownership or control of 25% or more of the partnership interests or of the
voting stock of the corporation, or any company in the tier of companies controlling the
Grantee, whether directly or indirectly, is acquired by a person or a group of persons acting in
concert, none of whom, individually or collectively, owns or controls those partnership
interests or that voting stock of the Grantee, or Grantee's upper tier of controlling companies,
as of the effective date of the franchise.
C. Unless precluded by federal law, Grantee must give prior written notice to the City
of any proposed foreclosure or judicial sale of all or a substantial part of the Grantee's
franchise property. That notification will be considered by the City as notice that a change in
control of ownership of the franchise will take place, and the provisions of this section that
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require the prior written consent of the Mayor and City Council to that change in control of
ownership will apply.
D. For the purpose of determining whether it will consent to an acquisition, transfer, or
change in control, the City may inquire about the qualifications of the prospective transferee
or controlling party, and Grantee must assist the City in that inquiry. In seeking the City's
consent to any change of ownership or control, Grantee or the proposed transferee, or both,
must complete Federal Communications Commission Form 394 or its equivalent. This
application must be submitted to the City not less than 120 days prior to the proposed date of
transfer. The transferee must establish that it possesses the legal, financial, and technical
capability to remedy all then -existing defaults and deficiencies, and during the remaining term
of the franchise, to operate and maintain the cable system and to comply with all franchise
requirements. If the legal, financial, and technical qualifications of the proposed transferee are
determined to be satisfactory. then the City will consent to the transfer of the franchise.
E. Any financial institution holding a pledge of Grantee's assets to secure the advance
of money for the construction or operation of the franchise property has the right to notify the
City that it, or a designee satisfactory to the City, will take control of and operate the cable
television system upon Grantee's default in its financial obligations. Further, that financial
institution must also submit a plan for such operation within 90 nays after assuming control.
The plan must ensure continued service and compliance with all franchise requirements
during the period that the financial institution will exercise control over the system. The
financial institution may not exercise control over the system for a period exceeding one year
unless authorized by the City, in its sole discretion, and during that period it will have the
right to petition the City to transfer the franchise to another Grantee.
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F. Unless prohibited by applicable law, Grantee must reimburse the City for the City's
reasonable review and processing expenses incurred in connection with any transfer or change
in control of the franchise, as provided for in Section 14.08.15.
14.08.10 Franchise Service Area; Annexations
A. The franchise service area shall be established in the franchise agreement.
B. Territory annexed to the City that is not within the service area of a franchised or
licensed cable operator at the time of annexation may be included within the franchise service
area of an incumbent cable operator, as determined by Mayor and City Council resolution.
C. Territory annexed to the City that is included within the service area of a franchise
or license issued by a local franchising authority other than the City is subject to the following
provisions:
1. If the franchisee or licensee has not commenced construction or installation
of a cable system before the annexation becomes effective, then all rights acquired by
a cable operator under that franchise or license will terminate by operation of law.
2. If the franchisee or licensee has commenced construction or installation of a
cable system before the annexation becomes effective, then that franchisee or licensee
may continue to provide cable service to the annexed territory in accordance with the
terms and conditions of the existing franchise or license, provided that all obligations
thereunder, including the timely payment of franchise fees and PEG support fees, if
any, shall be due and owing to the City by operation of law.
14.08.11 Application for New Franchise; Contents
A. An application for the grant of a new franchise may be submitted by any person
pursuant to the requirements of this chapter and subject to the terms of the City's schedule of
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fees, as such schedule may from time to time be amended. The City may, by advertisement or
I any other means, solicit applications for a new franchise by issuing a request for proposals.
B. An application for a new franchise to construct, install, operate, or maintain a cable
system in the City shall be filed with the Finance Department and shall be on forms prescribed
by the City. The City reserves the right to waive all application formalities where the City
determines that the best interests of the City would be served by such waiver.
14.08.12 Franchise Approval
A. The City may make such investigation as it deems necessary to determine the
ability of an applicant to satisfactorily perform its obligations under a franchise. The applicant
shall timely furnish to the City such additional information as the City may request.
B. Upon receipt of a complete application, and following the City's investigation and
review of that application, the City Manager shall prepare a report and make
recommendations to the Mayor and City Council concerning the application.
C. The Mayor and City Council shall hold a noticed public hearing on the application.
Written notice shall be given to the applicant at least 10 days prior to the hearing by U.S. mail,
postage prepaid, and by publication once in a newspaper of general circulation within the
City. Within 60 days after the close of the hearing, unless an extension of time is mutually
agreed upon by the City and the applicant, the Mayor and City Council shall make a written
decision on whether the franchise should be granted, and if granted, subject to what
conditions.
D. In determining whether to grant an application for a new franchise, the City may
consider all factors that affect the interests of the community including, but not limited to, the
quality of the proposed cable service, the areas to be served, the rates to be charged, the
amount of franchise fees to be generated, the experience, character, background, performance
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history, and financial responsibility of an applicant (and its management and owners), the
technical performance and quality of equipment, the applicant's willingness and ability to
meet construction requirements, and all other matters deemed relevant by the City to protect
the interests of the City and the public.
E. The decision of the Mayor and City Council concerning the granting or denial of a
franchise pursuant to this chapter shall be final.
14.08.15 Franchise Application Processing Costs
A. In connection with any application for a new franchise, a franchise modification
requesting entry into a new area of the City, a franchise renewal, or a franchise transfer,
applicant shall pay an application fee deposit equal to the City's estimated costs in processing
and reviewing the application, as such costs may be established from time to time by
resolution of the Mayor and City Council. Such costs shall include all estimated
administrative, consultant, noticing, and document preparation expenses. No application shall
be considered without payment of the application fee deposit. If the application fee deposit is
less than the City's actual costs, the applicant shall pay such additional costs to the City within
30 days after written notice from the City that such additional payment is required. If payment
of such amount is not made within such time, the City shall cease all further proceedings
related to the application. If actual costs are less than the application fee deposit, the
remaining balance will be refunded to the applicant.
14.08.17 Contents of Cable Television Franchise Agreements
B. If there is any conflict or inconsistency between the provisions of a franchise
agreement authorized by the Mayor and City Council and provisions of this Section 14.08.17,
the provisions of the franchise agreement will control.
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14.08.19 Application Required
A. Before commencing the delivery of video programming services to consumers in
the City over an open video system, the open video system operator must file an application
with the City. That application must include or be accompanied by the following, as
applicable:
1. The identity of the applicant, including all affiliates of the applicant.
2. Copies of FCC Form 1275, all "Notices of Intent" filed under 47 CFR
§76.1503(b)
(1), and the Order of the FCC, all of which relate to certification of the
applicant to operate an open video system in accordance with Section 653(a)(1)
of the Communications Act and the FCC's rules.
3. The area or areas of the City that the applicant desires to serve.
4. A description of the open video system services that will be offered by the
applicant over its existing or proposed facilities.
5. A description of the transmission medium that will be used by the applicant
to deliver the open video system services.
6. Information in sufficient detail to establish the applicant's technical
qualifications, experience. and expertise regarding the ownership and operation of the
open video system described in the application.
7. Financial statements prepared in accordance with generally accepted
accounting principles that demonstrate the applicant's financial ability to:
a. Construct, operate, maintain and remove any new physical plant that
is proposed to be constructed in the City.
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b. Comply with the City's PEG access channel requirements as
specified below in Section 14.08.21 (13)(4).
c. Comply with the City's requirement that gross revenue fees be paid
in the sum of 5 percent (5%), as specified below in Section 14.08.21 (B)(2).
8. An accurate map showing the location of any existing telecommunications
facilities in the City that the applicant intends to use, to purchase, or to lease.
9. If the applicant's operation of the open video system will require the
construction of a new physical plant in the City, the following additional information
must be provided:
a. A preliminary construction schedule and completion dates.
b. Preliminary engineering plans, specifications, and a network map of
any new facilities to be constructed in the City, in sufficient detail to identify:
(i) The location and route requested for the applicant's proposed
facilities.
(ii) The locations, if any, for interconnection with the facilities
of other telecommunications service providers.
(iii) The specific structures, improvements, facilities relocate on
a temporary or permanent basis.
c. The applicant's statement that, in constructing any new physical
plant, the applicant will comply with all applicable ordinances, rules, and
regulations of the City, including the payment of all required permit and
processing fees.
10. The information and documentation that is required to be submitted to the
City by a video provider, as specified below in paragraph B of Section 14.08.23.
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11. Such additional information as may be required by the City Manager.
12. A nonrefundable filing fee in an amount established by resolution of the
Mayor and City Council.
B. If any item of information specified above in paragraph (a) is determined under
paramount federal or state law to be unlawful, the City Manager is authorized to waive the
requirement that such information be included in the application.
14.08.23 Video Providers - Registration; Customer Service Standards
D. (3) Administration, Notice, and Appeal.
a. The City Manager is authorized to administer this paragraph D. Decisions by the
City Manager to assess penalties against a video provider must be in writing and must contain
findings supporting the decisions. Decisions by the City Manager are final, unless appealed to
the Mayor and City Council.
b. If the video provider or any interested person is aggrieved by a decision of the City
Manager, the aggrieved party may, within 10 days of the written decision, appeal that decision
in writing to the Mayor and City Council. The appeal letter must be addressed to the City
Clerk and must be accompanied by any applicable fee established by the Mayor and City
Council for processing the appeal. The Mayor and City Council may affirm, modify, or
reverse the decision of the City Manager.
c. The imposition of monetary penalties under subsection (1) above is subject to the
following requirements and limitations:
(i) The City must give the video provider written notice of any alleged material breach
of the consumer service standards and must allow the video provider at least 30 days from
receipt of that notice to remedy the breach.
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(ii) For the purpose of assessing monetary penalties, a material breach will be deemed
I to have occurred for each day following the expiration of the period for cure specified in
subparagraph (i) above that the material breach has not been remedied by the video provider,
irrespective of the number of customers affected.
(iii) In assessing monetary penalties under this paragraph D, the City Manager, any
designated hearing officer, or the Mayor and City Council, as applicable, may take into
account the nature, circumstances, extent and gravity of the violation and, with respect to the
video provider, the degree of culpability, any history of prior violations, and such other
matters as may be relevant. If warranted under the circumstances, the monetary penalty to be
assessed may be less than the maximum penalty authorized above in subsection D (1).
14.08.27 Violations; Enforcement
A. Any person who willfully violates any provision of this chapter is guilty of a
1 misdemeanor and is punishable as provided for in Chapter 1.12 of Title 1 of this Code.
B. The misdemeanor penalty specified above in paragraph A is not applicable to a
violation of any provision of this chapter for which another sanction or penalty may be
imposed under any franchise, license, lease, or similar written agreement between the City
and a multichannel video programming distributor or other telecommunications service
provider.
C. The City may initiate a civil action in any court of competent jurisdiction to enjoin
any violation of this chapter.
SECTION 8. INCONSISTENCIES. Any provision of the San Bernardino Municipal
Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of
such inconsistencies, is hereby repealed or modified to the extent necessary to effect the
provisions of this Ordinance.
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SECTION 9. SEVERABILITY. If any section, subsection, subdivision, sentence,
clause, phrase, or word in this Ordinance or any part thereof is for any reason held to be
unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision
shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any
part thereof. The Mayor and City Council hereby declares that it would have adopted each
section irrespective of the fact that any one or more subsections, subdivisions, sentences,
clauses, phrases, or words be declared unconstitutional, invalid, or ineffective.
SECTION 10. PUBLICATION. This Ordinance shall take effect and be in full force
thirty (3 0) days from and after the passage thereof, and prior to the expiration of fifteen (15) days
from its passage shall be published once in a newspaper of general circulation, printed and
published in the City of San Bernardino or, in the alternative, the City Clerk may cause to be
published a summary of this Ordinance and a certified copy of the text of this Ordinance shall be
posted in the office of the City Clerk five (5) days prior to the date of adoption of this Ordinance,
and within fifteen (15) days after adoption, the City Clerk shall cause to be published the
aforementioned summary and shall post in the office of the City Clerk a certified copy of this
Ordinance together with the names of the members of the City Council voting for and against
the same.
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ORDINANCE NO. MC -1484
ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA AMENDING SAN BERNARDINO MUNICIPAL
CODE CHAPTERS 3.55, 3.64, 5.44, 8.60, 12.32, AND 14.08 TRANSFERRING
LICENSING OF CERTAIN BUSINESSES AND USES FROM THE CITY CLERK TO
THE FINANCE DEPARTMENT OF THE CITY OF SAN BERNARDINO AND
REPEALING SAN BERNARDINO MUNICIPAL CODE CHAPTER 3.60 RELATED
TO THE CIGARETTE TAX
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor
and City Council of the City of San Bernardino at a joint regular meeting thereof, held on the
18'b day of Apri12018, by the following vote, to wit:
Council Members:
MARQUEZ
BARRIOS
VALDIVIA
SHORETT
NICKEL
RICHARD
MULVIHILL
AYES NAYS
r
I -
ABSTAIN ABSENT
r
�'Cs)
George- Hanna, -CW, City Clerk
The foregoing Ordinance is hereby approved this 18a' day of April 2018.
/� ( - 1 '0" a
R. Carey Da s, Mayor
City of San ernardino
Approved as to form:
Gary D. Saenz, City Attorney
By.
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