1769 - Ordinance - Repealing Ordinances 1180 and 1197 Utility Business and Occupational Taxr J
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NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their
regular Council meeting held September 13, 1999,
ORDINANCE NO. 1769
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON, REPEALING ORDINANCE NO. 1180 AND 1197
AND REESTABLISHING PORT ORCHARD MUNICIPAL CODE
CHAPTER 5.08 AND ADDING A NEW SECTION 5.08.035
PROVIDING FOR DEFINITIONS RELATING TO THE IMPOSING
OF A UTILITY BUSINESS AND OCCUPATIONAL TAX UPON THE
TELEPHONE BUSINESS, PROIVIDING FOR THE COLLECTION
THEREOF, DEFINING OFFENSES AND PRESCRIBING
PENALTIES.
Copies of Ordinance No. 1769 are available for review at the office of the City
Clerk of the City of Port Orchard. Upon written request a statement of the full text
of the Ordinance will be mailed to any interested person without charge. Thirty
days after publication, copies of Ordinance No. 1769 will be provided at a nominal
charge.
City of Port Orchard
Michelle Merlino
Deputy Clerk
Publish: Port Orchard Independent
September 22,1999
ORDINANCE NO. 1769
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON, REPEALING ORDINANCE NO. 1180 AND 1197
AND REESTABLISHING PORT ORCHARD MUNICIPAL CODE
CHAPTER 5.08 AND ADDING A NEW SECTION 5.08.035
PROVIDING FOR DEFINITIONS RELATING TO THE IMPOSING
OF A UTILITY BUSINESS AND OCCUPATIONAL. TAX UPON THE
TELEPHONE BUSINESS, PROVIDING FOR THE COLLECTION
THEREOF, DEFINING OFFENSES AND PRESCRIBING
PENALTIES.
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. That Port Orchard Municipal Code 5.08.010 shall read as follows:
5.08.010 Power of city. The provisions of this chapter shall be deemed to be
an exercise of the power of the city to license for revenue.
SECTION 2. That Port Orchard Municipal Code 5.08.020 shall read as follows:
5.08.020 Application and issuance of license. No person, firm or
corporation shall engage in or carry on any business, occupation, act or privilege for which a tax is
imposed by Section 3 without first having obtained, and being the holder of, a license as established
in Ordinance No. 1701 and POMC 5.12. Each such person, firm or corporation shall promptly apply
to the City Treasurer for such license upon such forms as the Treasurer shall prescribe.
SECTION 3. That Port Orchard Municipal Code 5.08.030 shall read as follows:
5.08.030 Levy of tax. There is levied upon, and there shall be collected
from, every person, firm or corporation engaged in carrying on the following business for hire or for
sale of a commodity or a service within or partly within the corporate limits of the city, the tax for the
privilege of so doing business as hereinafter defined:
Upon any telephone business there shall be levied a utility tax equal to six percent of the total gross
operating revenues, including revenues from intrastate toll, derived from the operation of such
business within the city. Gross operating revenues shall not include charges which are passed on
to subscribers by a telephone company pursuant to tariffs required by regulatory order to
compensate for the cost to the company of the tax imposed by this chapter.
SECTION 4. That Port Orchard Municipal Code 5.08.035 shall read as follows:
5.08.035 Definitions. The words and phrases used in this ordinance, unless
the context otherwise indicates, shall have the following meanings:
(1) "Telephone business" means the business of providing access to a local
telephone network, local telephone network switching service, toll service, coin
telephone services, telephonic, video, data, pagers, or similar communication or
transmission for hire, via a local telephone network, toll line or channel, cable,
microwave or similar communication or transmission system. The term includes
Ordinance No. 1769
Page 2 of 5
cooperative or farmer -line telephone companies or associations operating
exchanges.
(2) "Telephone business" does not include the providing of competitive
telephone service, nor the providing of cable television service, or other providing
of broadcast services by radio or television stations.
(3) "Competitive telephone service" means the providing by any person of
telecommunications equipment or apparatus, directory advertising and lease of
telephone street directories, or service related to that equipment or apparatus such
as repair or maintenance service, if the equipment or apparatus is of a type which
may be provided by persons not subject to regulation as telephone companies
under Title 80 RCW, and which a separate charge is made. Transmission of
communication through cellular telephones is classified as "telephone business"
rather than "competitive telephone service."
(4) "Cellular telephone service" is a two-way voice and data
telephone/telecommunications system based in whole or substantial part on
wireless radio communications and which is not subject to regulation by the
Washington Utilities and Transportation Commission (WUTC). This includes
cellular mobile service. Cellular mobile service includes other wireless radio
communications services such as Specialized Mobile Radio (SMR), Personal
Communications Services (PCS), and any other evolving wireless radio
communications technology which accomplishes the same purpose as cellular
mobile service. Cellular telephone service is included within the definition of
"telephone business" for the purposes of this chapter.
(5) "Pager service" means service provided by means of an electronic device
which has the ability to send or receive voice or digital messages transmitted
through the local telephone network, via satellite or any other form of voice or data
transmission.
SECTION 5. That Port Orchard Municipal Code 5.08.040 shall read as follows:
6.08.040 Deductions. In computing the utility tax there shall be deducted
from the gross operating revenues the following items:
(1) The amount of credit losses and uncollectibles actually sustained by the
taxpayer;
(2) Amounts derived from transactions in interstate or foreign commerce or
from any business which the city is prohibited from taxing under the Constitutions
of the United States or the state;
(3) Amounts derived by the taxpayer from the city.
SECTION 6. That Port Orchard Municipal Code 5.08.050 shall read as follows:
5.08.050 Payment periods. The utility tax imposed by this ordinance shall
be due and payable in monthly installments and remittance shall be made on or before the thirtieth
day of the month next succeeding each month in which the tax accrued. On or before the due date,
Ordinance No. 1769
Page 3 of 5
the taxpayer shall file with the City Treasurer a written return, upon such form and setting forth such
information as the Treasurer shall reasonably require, together with the payment of the amount of
utility tax.
SECTION 7. That Port Orchard Municipal Code 5.08.060 shall read as follows:
5.08.060 Records kept. Each taxpayer shall keep records reflecting the
amount of his gross operating revenues, and such records shall be open at all reasonable times to
the inspection of the, City Treasurer or his duly authorized subordinates, for verification of the utility
tax returns or for the fixing of the utility tax of a taxpayer who fails to make such returns.
SECTION B. That Port Orchard Municipal Code 5.08.070 shall read as follows:
5.08.070 Failure to pay utility tax - Penalty. if any person, firm or
corporation subject to this chapter fails to pay any utility tax required by this chapter within 30 days
after the due date thereof, there shall be added to such utility tax a penalty of 10 percent of the
amount of such utility tax and interest charged at the rate of 18 percent in addition to the penalty.
Any utility tax due under this chapter and unpaid, and all penalties and interest thereon, shall
constitute a debt to the city and may be collected by court proceedings, which remedy shall be in
addition to all other remedies.
SECTION 9. That Port Orchard Municipal Code 5.08.080 shall read as follows:
5.08.080 Credits to taxpayer. Any money paid to the city through error or
otherwise not in payment of the utility tax imposed hereby or in excess of such utility tax shall, upon
request of the taxpayer, be credited against any utility tax due or to become due from the taxpayer
hereunder, or upon the taxpayer's ceasing to do business in the city, be refunded to the taxpayer.
No taxpayer may demand a refund of utility tax collected more than three years from the date of the
demand. The city may not demand utility tax more than three years after the utility tax is accrued.
SECTION 10. That Port Orchard Municipal Code 5.08.090 shall read as follows:
5.08.090 Wiring regulations. The license shall authorize and allow the
licensee to commence or to continue the maintenance and operation of its telephone and telegraph
business in the city. The licensee's cables and other appliances and conductors may be strung on
poles or other fixtures above ground, or at the option of the licensee may be laid underground in
pipes or conduits or otherwise protected, and such other apparatus may be used as may be
necessary or proper to operate and maintain the same. Whenever such wires, cables and other
appliances and conductors are laid underground in pipes or conduits or otherwise protected, the
licensee shall fumish to the city one duct in its main underground system excluding pipe or other
conduit dips connecting one pole with another, or two pairs of wire in underground cable, free of
charge to the city, to be used for low-tension police and fire alarm purposes, the licensee having the
option as to whether two pairs of wires shall be given or a duct in the underground system;
provided, however, that the city shall, in its use and maintenance of such fixtures, wires or ducts,
comply with the reasonable plans and rules of the licensee so that there may be a minimum of
danger of contact between its fixtures, wires or ducts and the fixtures, wires, cables or ducts of the
licensee. The wires of the city shall not be unduly exposed to foreign electrical current in excess of
5,000 volts. In case of a rearrangement of the plant, the city will, at its own expense, care for its
own fixtures, wires and construction. The licensee shall have no liability whatsoever, either to the
city or to any person, for any damage or claim of any kind arising out of the construction,
maintenance, operation, removal or presence of the equipment herein described and to be used by
the city solely in maintaining the efficiency of its fire alarm system and police force.
Ordinance No. 1769
Page 4 of 5
SECTION 11. That Port Orchard Municipal Code 5.08.100 shall read as follows:
5.08.100 Excavations on streets. It shall be lawful under the license for
the licensee to make all needful excavations in any of the streets, alleys, avenues, thoroughfares,
public highways and public grounds and places in the city for the purpose of placing, erecting,
laying, maintaining, operating, repairing, removing or replacing poles, conduits or other supports or
conductors for wires and cables. The work performed under the license shall be done in compliance
with the rules, regulations, ordinances or orders which may be adopted from time to time by the city.
SECTION 12. That Port Orchard Municipal Code 5.08.110 shall read as follows:
5.08.110 Restoration of streets. Whenever a licensee disturbs any of the
streets, alleys, avenues, thoroughfares, public highways or public grounds for the purposes set
forth in Section 11, the licensee shall restore the same to good order and condition as soon as
possible without unnecessary delay. upon failure to do so, the city shall have the right to fix a time
which shall be reasonable within which such repairs and restoration of streets shall be completed,
and upon failure of such repairs being made by the licensee, the city shall cause such repairs to be
made at the expense of the licensee. The licensee shall save the city harmless from any and all
damages or claims arising out of, or in any way connected with, such excavations or disturbance of
the streets, alleys, avenues, thoroughfares, public highways or public grounds, or the maintenance
of the licensee's appliances and fixtures thereon, thereunder or thereover.
SECTION 13. That Port Orchard Municipal Code 5.08.120 shall read as follows:
5.08.120 Tree trimming. Where tree trimming is necessary in public streets
or places for the proper operation of the lines and conductors of the licensee, such trimming shall
be done by competent employees of the licensee upon application for the granting of a permit by
the superintendent of public works or such other official as the city council may designate.
SECTION 14. That Port Orchard Municipal Code 5.08.130 shall read as follows:
5.08.130 Rearrangement of aerial cables. Whenever it becomes
necessary to temporarily rearrange, remove, lower or raise the aerial cables or wires or other
apparatus of the licensee to permit the passage of any building, machinery or other object, the
licensee will perform such rearrangement on seven days' notice to its manager at Bremerton from
the person or persons desiring to move the building, machinery or other objects. The notice shall
bear the approval of the superintendent of public works or such other official as the city council may
designate; shall detail the route of movement of the building, machinery or other objects; shall
provide that the costs incurred by the licensee in making such rearrangements of its aerial plant will
be bome by the person or persons giving notice; and shall further provide that the person or
persons giving notice will indemnify and save the licensee harmless from any and all damages or
claims of whatsoever kind or nature caused directly or indirectly from such temporary
rearrangement of the licensee's aerial plant.
SECTION 15. That Port Orchard Municipal Code 5.08.140 shall read as follows:
5.08.140 Street improvements - Moving telephone apparatus. Nothing
in this Ordinance shall be construed in any way to prevent the proper authorities of the city from
sewering, grading, planking, rocking, paving, repairing, altering or improving any of the streets,
alleys, avenues, thoroughfares, public highways or places within the city in or upon which the poles,
wires or other conductors of the licensee shall be placed. If it becomes necessary that the poles,
Ordinance No. 1769
Page 5 of 5
wires, cables or other apparatus of the licensee shall be moved in order for the city to cant' out
such work or improvements, the licensee shall move its poles, wires, cables and other apparatus at
its own expense within a reasonable time after notice of such proposed work or improvements is
given to the licensee by the city.
SECTION 16. That: Port Orchard Municipal Code 5.08.150 shall read as follows:
5.08.150 Noncompliance - Penalty. Any person, firm or corporation
subject to this chapter who fails or refuses to apply for an occupational license or to make the utility
tax return or to pay the utility tax when due, or who makes any false statement or representation in
or in connection with any application for an occupational license or such utility tax return, or
otherwise violates or refuses or fails to comply with this chapter, shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be punished by a fine of not to exceed $500.00. Each day's
offense shall be deemed a separate violation.
SECTION 17. That Port Orchard Municipal Code 5.08.160 shall read as follows:
5.08.160 Power of clerk to make rules and regulations. The city clerk is
authorized to adopt, publish and enforce, from time to time, such rules and regulations for the proper
administration of this ordinance as shall be necessary, and it shall be a violation of this ordinance to
violate or to fail to comply with any such rule or regulation lawfully promulgated hereunder.
SECTION 18. That Port Orchard Municipal Code 5.08.170 shall read as follows:
5.08.170 Validity. The invalidity or unconstitutionality of any provision or
section of this ordinance shall not render any other provision or section of this ordinance invalid or
unconstitutional.
SECTION 19. Repealer. Ordinance Nos. 1180 and 1197 are hereby repeated in
their entirety.
SECTION 19. Savings Clause. Ordinance No 1180, and Ordinance No. 1197,
which have been repealed by this ordinance, shall remain in force and effect until the effective date of
this ordinance.
PASSED by the City Council of the City of Port rchard, APPROVED by the Mayor
and attested by the Clerk in authentication of such passage thi th day September 1999.
LESLIE J. WEATHERILL, MAYOR
ATTEST:
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Patricia Parks, City Clerk
Sponsored by:
C-cilman Geiger