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HomeMy WebLinkAbout34-City Clerk CITY OF SAN BERNARDIt.O - REQUE_ r FOR COUNCIL AC'. .ON Dept: City Clerk Subject: Ordinance Amending Section 5.04.525, Subsection E of Municipal Code - Inclusion of Temporary Employment Services Under Wholesalers for Business From: Shauna Clark Date: August 4, 1988 T,; ("'pn~; ng Synopsis of Previous Council action: None Recommended motion: That further reading of the ordinance be waived and that said ordinance be laid over for final passage. cc: Mayor wilcox City Attorney Penman ~(7//?74/~~.( Signature Contact person: Shauna Clark Phone: 5002 Supporting data attached: Ordinance, Legal Opinion Ward: All 88-33, Letter dated February 29, 1988 FUNDING REQUIREMENTS: Amount: Source: (ACCT. NO.) (ACCT. DESCRIPTION) Finance: Council Notes: "-J . / ~ /, ) Jo' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDINANCE NO. ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.525 SUBSECTION E OF THE SAN BERNARDINO MUNICIPAL CODE TO INCLUDE TEMPORARY EMPLOYMENT SERVICES UNDER WHOLESALERS FOR BUSINESS LICENSE PURPOSES. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION 1. Section 5.04.525 Subsection E of the San Bernardino Municipal Code is amended to read as follows: liE.. Manufacturers/Wholesalers. Every person, firm or corporation manufacturing and selling any goods, wares, merchandise or services at wholesale, and not otherwise specifically taxed by other provisions of this article, shall pay an annual license fee of forty dollars or a fee of one-fourth of one-tenth of one percent (.00025) of annual gross receipts from sales originating within the boundaries of the City, provided such goods, wares, merchandise or services are not shipped outside the State of California, whichever is greater, payable quarterly in four equal payments. Temporary employment services shall be included within this subsection." I HEREBY CERTIFY that the foregoing ordinance was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of 1988, by the following' vote, to wit: 28 7-11-88 DAB:cm 1 1 2 3 4 5 6 7 8 AYES: NAYS: ABSENT: The foregoing ordinance is hereby approved this day of 1988. 9 10 11 Approved as to form 12 and legal content: 13 ~~ 14 Cit Attorne 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7-11-88 2 DAB:cm EVLYN WILCOX, Mayor City of San Bernardino c BERNARDINO 300 NORTH "0" STREET. SAN BERNARDINO. CALIFORNIA 92418 JAMES F. PENMAN CITY ATTORNEY 17141384.5355 July 27, 1988 Opinion No. 88-33 10.38 SHAUNA CLARK City Clerk Re: Temporary Employment Services ISSUE You have asked two questions: The first relates to whether the gross receipts of a temporary employment service may be used to determine the amount of the business license fee when some of the employment services are performed outside the City limits. You also question whether you may administratively move the designation of such temporary services from "employment agencies" to the designation as wholesalers. ANALYSIS Gross Receipts: The first question receipts" as used in business licenses, services. relates to the meaning of the term "gross the Municipal Code provisions relating to and as applied to temporary employment Such temporary employment services have been administratively included under the category of "Employment Agency" in San Bernardino Municipal Code Section 5.04.525. The license fee is based on "annual gross receipts or commissions". : :. ,'"J ,',7~'''''' ) .. l' I~...J ,'L 10,1 -J~. .CJ .' _:i"Ii:;J~d ., 'j "4, . I , ...-1 " 1-. "f)"!"'" Shauna Clark July 27, 1988 Page Two San Bernardino Municipal Code Section 5.04.055 provides how fees based on gross receipts are to be applied. "Gross receipts" are defined in Municipal Code Section 5.05.060 as follows: "'Gross receipts' as used in this article, except as otherwise specifically provided, means the total amount of revenue received as the sale prices of all sales and the total amount charged or received for the performance of any action, service or employment of whatever nature it may be, for which a charge is made or credit allowed, when such service, or employment is done as a part of or in connection with the sale of materials, goods, wares and merchandise, or the performance of services; 'gross receipts' includes all receipts, cash, credits and property of any kind or nature, and any amount for which a credit is allowed by the seller to the purchaser without any deduction therefrom on account of the cost of the property sold, the cost of the materials used, labor or service costs, interest paid or payable, or losses or other expenses whatsoever; 'gross receipts' further includes commissions received for the sale of real property and the annual gross receipts, fees or commission of every person, firm or corporation conducting, managing, carrying on or engaged in any business or profession of any nature whatsoever, including the providing of services relating thereto; but 'gross receipts' does not include cash discounts allowed and taken on sales and any sales tax paid to the state, a municipality or public entity." The sections is silent on whether it relates to services provided outside the city or billed from outside the city. The general rule is stated as follows: " [M]unicipal licensing under the police power is confined to businesses, activities and privileges conducted or exercised within the municipal limits. "(McQuillin, Municipal Corporations, Section 16.09) The California Supreme Court case of City of Los Angeles v. Belridge Oil Co. (1954) 42 Cal.2d 823, discussed a business license tax on the sale of an oil company. The challenge to the tax was based on the fact that the oil was produced in Kern County and delivered to the purchasers without ever entering the City of Los Angeles. The court concluded: - Shauna Clark July 27, 1988 Page Three "In the case at bar defendant company, being a corporation, is a person as defined in Section 21.08(p) of the Los Angeles tax ordinance. The petroleum products with which it deals are considered in the nature of merchandise. . and the gross receipts of defendant company are derived from the sale of such merchandise. Most negotiations for these sales were conducted through the defendant's Los Angeles office and all contracts were signed by defendant in Los Angeles. Also payment for all sales is received from purchasers at the Los Angeles office . . "The mere fact that the products sold never entered the City of Los Angeles does not prevent the selling activi ties from taking place in Los Angeles . the business license tax in question here, is based on the fact that the selling activity is carried on within the city and it is immaterial where the products are produced or delivered. In the case at bar it is true that some of the gross receipts are attributable to extraterritorial elements such as the production and delivery of the goods. However, there is no constitutional objection to resorting to extraterritorial elements in determining the rate of tax." (Los Angeles v. Belridge Oil Co., (1954) 42 Cal.2d 823, 830-831) The court warned, however, that although extraterritorial elements cold be resorted to in determining the rate of the tax, they would not be relied upon to determine the fact of the tax (at 832). In the present situation, if the offices of the temporary agencies in question are located within the City and solicitations are made and individuals are sent out from that location, the fact that the temporary services are actually performed outside the City is immaterial. On the other and, if the offices are located elsewhere, and the services occur within the city, this would not be sufficient to impose a tax on the gross receipts. The second question relates to whether, since the temporary services were placed within the employment agency category, your office can make an administrative decision to move them to another category. It is our opinion that due to the length of time involved that you cannot. We have prepared an ordinance (see attached) which would accomplish this objective. - - Shauna Clark July 27, 1988 Page Four CONCLUSION A business license fee based on gross receipts for a temporary employment service may be based on services solicited and sent from a San Bernardino office, even though performed elsewhere. Your office may not administratively move the designation of temporary services from employment agencies to wholesalers. Respectively submitted, BARLOW City Attorney DAB:cm Enclosure cc: Mayor City Administrator Approved: I '~~1 L,-,- c.i'ty Attorney ( / ,~ CITY OF SAN BERNARDINO - MEMORANDUM To James F. Penman, City Attorney From SHAUNA CLARK City Clerk February 29, 1988 Subject Temporary Services/Business License Date Approved Date In the process of auditing businesses, ing the determination of gross receipts agencies have arisen. two 1ssues concern- for temporary help Please see the attached letter dated February 17, 1988, from Remedy and the letter dated February 16, 1988, from Mayday. Both help agenc1es question whether gross receipts for services provided outside the City of San Bernardino must be included for computation of business license. Remedy goes a little farther and questions whether serV1ces inside San Bernardino, but billed from their main office, must be included. I feel that gross receipts should include fees for ser- vices provided within the City of San Bernardino and a per- centage of what comes through the San Bernardino office but is placed outside the City limits. The second issue concerns the classification of the temporary services businesses. Prior to 1983, temporary help businesses ',",ere charged $40 per year. The business license ordinance was amended to convert most flat rate licenses to pay on gross receipts. There were several gross receipts categories that already existed in the code so converted licenses were placed 1n existing categories <-lith like busi- nesses. Employment Agencies were in the professional rate category so temporary help services were added. There is a di fference between an employment agency and a temporary help agency in terms of gross receipts. The employ- ment agency gets a percentage of flat fee, usually on a one time basis, for placing an employee. A temporary help agency acts like a labor retailer. For example, a temporary place- ment is made and a fee of $15.00 per hour is charged fOr the service, the employee receives $10.00 per hour, and the temporary agency nets $5.00 per hOUr. According to the professional rate the business license computation would be based on the $15.00 per hour; the $10.00 per hour paid the employee is a cost of doing business to the temporary service prov ider. As you can see, the vol ume of gross rece i pts is much higher to a temporary agency than it is far an employment agency. Jim Penman Page 2 2/29/88 I would like to have temporary agencies classed as whole- salers which is a lower rate category. The business license for one of our temporary agencies went from $40 in 1983 to $4600 per year in 1988. The wholesale rate category would be lower than the professional rate category. I feel the whole- sale rate would be more equitable but need a legal inter- preta t i on as to whether or not I can change ca tegor i es for this type of business. If you determine that a code change is necessary, I feel comfortable in taking it before the Council. As the audits for these temporary agencies are being held in suspense pending legal clarification, a prompt reply would be appreciated. ~//r4/, ~1,6/ ./ cc: Mayor wilcox SCire