2022-06-21 CC Agenda Packet - Additional Information related to Item #15 - Cannabis InitiativeORDINANCE NO.
AN ORDINANCE OF THE CITY OF EL SEGUNDO,
CALIFORNIA ADDING CHAPTER 17 (CANNABIS
BUSINESS TAX) TO TITLE 4 OF THE EL SEGUNDO
MUNICIPAL CODE ESTABLISHING A TAX ON CANNABIS
AND HEMP BUSINESS ACTIVITIES WITHIN THE CITY
THE PEOPLE OF THE CITY OF EL SEGUNDO DO ORDAIN AS FOLLOWS:
SECTION 1. CODE AMENDMENT. Chapter 17 is added to Title 4 of the El Segundo
City Municipal Code to read as follows:
CHAPTER 17
4-17-1 Title.
4-17-2 Authority and purpose.
4-17-3 1 ntent.
4-17-4 Definitions.
4-17-5 Tax imposed.
4-17-6 Registration, reporting, and remittance of tax.
4-17-7 Payments and communications —timely remittance.
4-17-8 Payment — when taxes deemed delinquent.
4-17-9 Notice not required by City.
4-17-10 Penalties and interest.
4-17-11 Refunds and credits.
4-17-12 Refunds and procedures.
4-17-13 Personal cultivation not taxed.
4-17-14 Administration of the tax.
4-17-15 Appeal procedure.
4-17-16 Enforcement —action to collect.
4-17-17 Apportionment.
4-17-18 Constitutionality and legality.
4-17-19 Audit and examination of premises and records.
4-17-20 Other licenses, permits, taxes or charges.
4-17-21 Payment of tax does not authorize unlawful business.
4-17-22 Deficiency determinations.
4-17-23 Failure to report — nonpayment, fraud.
4-17-24 Tax assessment —notice requirements.
4-17-25 Tax assessment — hearing, application, and determination.
4-17-26 Relief from taxes -disaster relief.
4-17-27 Conviction for violation — taxes not waived.
4-17-28 Violation deemed misdemeanor.
4-17-29 Severability.
4-17-30 Remedies cumulative.
4-17-31 Amendment or modification.
4-17-1 Title.
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This ordinance shall be known as the Cannabis Business Tax Ordinance. This
ordinance shall be applicable in the City of El Segundo, California which shall be
referred to herein as "City."
4-17-2 Authority and Purpose.
The purpose of this Ordinance is to adopt a tax, for revenue purposes, pursuant to
Sections 37101, and 37100.5 of the Revenue and Taxation Code, upon cannabis and
hemp businesses that engage in business in the City. The Cannabis Business Tax is
levied based upon business gross receipts except for commercial cannabis cultivation or
commercial industrial hemp cultivation which shall be taxed on square footage. It is not a
sales and use tax, a tax upon income, or a tax upon real property and shall not be
calculated or assessed as such. The Cannabis Business Tax shall not be separately
identified or otherwise specifically assessed or charged to any member, customer,
patient, or caretaker. The Cannabis Business Tax is a general tax enacted solely for
general, governmental purposes of the City and not for specific purposes. All of the
proceeds from the tax imposed by this chapter shall be placed in the City's general fund
and be available for any lawful City purpose.
4-17-3 Intent.
The intent of this Ordinance is to levy a tax on all cannabis or industrial hemp
businesses that operate in the City, regardless of whether such business would have
been legal at the time this chapter was adopted. Nothing in this chapter shall be
interpreted to authorize or permit any business activity that would not otherwise be legal
or permissible under laws applicable to the activity at the time the activity is undertaken.
4-17-4 Definitions.
The following words and phrases shall have the meanings set forth below when
used in this chapter:
A. An "arm's length transaction" is a sale entered into in good faith and for
valuable consideration at a sales price that reflects the fair market value in
the open market between two informed and willing parties, neither under
any compulsion to participate in the transaction.
B. "Business" shall include all activities engaged in or caused to be engaged
in within the City, including any commercial or industrial enterprise, trade,
profession, occupation, vocation, calling, or livelihood, whether or not carried on
for gain or profit, but shall not include the services rendered by an employee to his
or her employer.
C. "Calendar year" means January 1 through December 31, of the same year.
D. "Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis
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indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin,
whether crude or purified, extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.
"Cannabis" also means the separated resin, whether crude or purified, obtained from
cannabis. "Cannabis" shall not include "industrial hemp," unless otherwise specified.
E. "Cannabis product" means raw cannabis that has undergone a process
whereby the raw agricultural product has been transformed into a concentrate, an edible
product, or a topical product. "Cannabis product" also means cannabis products as
defined by Section 11018.1 of the California Health and Safety Code and is not limited to
medicinal cannabis products.
F. "Canopy" means all areas occupied by any portion of a cannabis or
industrial hemp plant whether contiguous or noncontiguous on any one site. When plants
occupy multiple horizontal planes (as when plants are placed on shelving above other
plants) each plane shall be counted as a separate canopy area.
G. "Cannabis business" means any business activity involving cannabis or
industrial hemp, including but not limited to cultivating, transporting, distributing,
manufacturing, compounding, converting, processing, preparing, storing, packaging,
delivering, testing, dispensing, retailing, and wholesaling of cannabis, cannabis products,
industrial hemp, industrial hemp products or of ancillary products and accessories,
whether or not carried on for gain or profit.
H. "Cannabis business tax" means the tax due pursuant to this chapter for
engaging in a cannabis business in the City.
I. "Commercial cannabis cultivation" means cultivation of cannabis or
industrial hemp undertaken in the course of conducting a cannabis business.
J. "Commercial cannabis permit" means a permit, license, certificate, or other
approval issued by the City to a person to authorize that person to operate a cannabis
business or engage in business as a cannabis business within the City.
K. "Cultivation" means any activity involving the planting, growing, harvesting,
drying, curing, grading, or trimming of cannabis or industrial hemp and includes, but is not
limited to, the operation of a nursery.
L. "Employee" means each and every person engaged in the operation or
conduct of any business, whether as owner, member of the owner's family, partner,
associate, agent, manager, or solicitor, and each and every other person employed or
working in such business for a wage, salary, commission, barter or any other form of
compensation.
M. "Engaged in business as a cannabis business" means the commencing,
conducting, operating, managing, or carrying on of a cannabis business, whether done
as owner, or by means of an officer, agent, manager, employee, or otherwise, whether
operating from a fixed location in the City or coming into the City from an outside location
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to engage in such activities. A person shall be deemed engaged in business within the
City if:
1. Such person or person's employee maintains a fixed place of
business within the City for the benefit or partial benefit of such person;
2. Such person or person's employee owns or leases real property
within the City for business purposes;
3. Such person or person's employee regularly maintains a stock of
tangible personal property in the City for sale in the ordinary course of business;
4. Such person or person's employee regularly conducts solicitation of
business within the City; or
5. Such person or person's employee performs work or renders
services in the City.
The foregoing specified activities shall not be a limitation on the meaning of
"engaged in business."
N. "Evidence of doing business" means evidence such as, without limitation,
use of signs, circulars, cards, or any other advertising media, including the use of internet
or telephone solicitation, or representation to a government agency or to the public that
such person is engaged in a cannabis business in the City.
O. "Fiscal year" means July 1, through June 30, which is the period used by
the City for financial reporting and budgeting.
P. "Gross Receipts," except as otherwise specifically provided, means,
whether designated as a sales price, royalty, rent, membership fee, ATM service fee,
delivery fee, slotting fee, any other fee, vaping room service charge, commission,
dividend, or other designation, the total amount (including all receipts, cash, credits,
services and property of any kind or nature) received or payable for sales of goods, wares
or merchandise, or for the performance of any act or service of any nature for which a
charge is made or credit allowed (whether such service, act or employment is done as
part of or in connection with the sale of goods, wares, merchandise or not), without any
deduction therefrom on account of the cost of the property sold, the cost of materials
used, labor or service costs, interest paid or payable, losses or any other expense
whatsoever. In the event the business is involved in a "non -arms" length transaction the
gross receipts will be subject to the fair market value using a methodology approved by
the Tax Administrator. However, the following shall be excluded from Gross Receipts:
1. Cash discounts were allowed and taken on sales;
2. Any tax required by law to be included in or added to the purchase
price and collected from the consumer or purchaser;
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3. Such part of the sale price of any property returned by purchasers to
the seller as refunded by the seller by way of cash or credit allowances or return
of refundable deposits previously included in gross receipts;
4. Receipts derived from the occasional sale of used, obsolete or
surplus trade fixtures, machinery or other equipment used by the taxpayer in the
regular course of the taxpayer's business;
5. Cash value of sales, trades or transactions between departments or
units of the same business located in the City of El Segundo and if authorized by
the Tax Administrator in writing in accordance with Section 4-17-14 (B);
6. Whenever there are included within the gross receipts amounts
which reflect sales for which credit is extended and such amount proved
uncollectible in a subsequent year, those amounts may be excluded from the gross
receipts in the year they prove to be uncollectible; provided, however, if the whole
or portion of such amounts excluded as uncollectible are subsequently collected,
they shall be included in the amount of gross receipts for the period when they are
recovered;
7. Receipts of refundable deposits, except that such deposits when
forfeited and taken into income of the business shall not be excluded;
8. Amounts collected for others where the business is acting as an
agent or trustee and to the extent that such amounts are paid to those for whom
collected. These agents or trustees must provide the Tax Administrator with the
names and the addresses of the others, and the amounts paid to them. This
exclusion shall not apply to any fees, percentages, or other payments retained by
the agent or trustees;
9. Retail sales of non -cannabis products, such as t-shirts, sweaters,
hats, stickers, key chains, bags, books, posters, rolling papers, cannabis
accessories such as pipes, pipe screens, vape pen batteries (without cannabis or
industrial hemp) or other personal tangible property which the Tax Administrator
has excluded in writing by issuing an administrative ruling per Section 4-17-14 shall
not be subject to the cannabis business tax under this chapter.
10. Payments made by the tax -reporting cannabis business (Seller) to a
cannabis business (Buyer) for the difference in the original acquisition price and
subsequent renegotiated or finalized selling price of products or services sold to a
specific end customer. This type of transaction is referred to as a "Billback". The
tax -reporting cannabis business must provide supporting documentation to
substantiate the transaction in order to be eligible for an exemption.
11. Any business which sells industrial hemp and/or hemp products or
offers services or activities related to industrial hemp or hemp products and /or
which is not required to obtain a cannabis or industrial hemp permit or license from
the City or the State for the purpose of cultivating, growing, drying, curing,
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manufacturing, processing, packaging, transporting, distributing, testing or selling
of industrial hemp either wholesale or retail shall be exempt from the cannabis tax
provided that such business does not generate more than 50% of their total gross
receipts in the reporting period from the business from industrial hemp activities.
However, the exemption may be amended by the City Council by resolution or
ordinance pursuant to Section 4-17-5 (B) to increase or decrease the percentage
of the business's hemp and/or hemp products gross receipts reporting from zero
to one hundred percent. To the extent the gross receipts from the hemp activities
do not meet the relevant percentage to be included, this exclusion shall reduce the
gross receipts to zero for the sole purpose of calculating the cannabis tax.
Q. "Industrial hemp" means a crop that is limited to types of the plant Cannabis
sativa L. having no more than three -tenths of 1 percent tetrahydrocannabinol (THC)
contained in the dried flowering tops, whether growing or not; the seeds of the plant; the
resin extracted from any part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.
However, should the federal or state legislative body increase or decrease the percentage
of tetrahydrocannabinol (THC) then this new limit shall be applicable to the tax unless
modified by resolution or ordinance of the City Council pursuant to Section 4-17-31.
R. "Industrial hemp products" means any raw hemp that has undergone a
process whereby the raw agricultural product has been transformed into a concentrate,
an edible product, or a topical product. "Hemp product" also means hemp products as
defined by Section 11018.5 of the California Health and Safety Code.
S. "Lighting" means a source of light that is primarily used for promoting the
biological process of plant growth. Lighting does not include sources of light that primarily
exist for the safety or convenience of staff or visitors to the facility, such as emergency
lighting, walkway lighting, or light admitted via small skylights, windows, or ventilation
openings.
T. "Medicinal cannabis" or "medicinal cannabis product" means cannabis or a
cannabis product, intended to be sold or sold for use pursuant to the Compassionate Use
Act of 1996 (Proposition 215), found at Section 11362.5 of the Health and Safety
Code, for a medicinal cannabis patient in California who possesses a physician's
recommendation, or a cannabis card issued pursuant to Health and Safety Code Section
11362.71.
U. "Nursery" means a facility or part of a facility that is used only for producing
clones, immature plants, seeds, and other agricultural products used specifically for the
planting, propagation, and cultivation of cannabis or industrial hemp.
V. A "non-arm's length transaction" is a transaction that does not meet the
definition of an "arm's length transaction." In other words, the transaction is not a sale
entered into in good faith and that reflects fair market value in the open market. One
example of a non-arm's length transaction would be when a cultivator sells cannabis
goods to a cannabis distributor at a sales price that is lower than what the same cultivator
would to other cannabis distributors, or which does not reflect the fair market value in the
open market.
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W. "Person" means an individual, firm, partnership, joint venture, association,
corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or
any other group or combination acting as a unit, whether organized as a nonprofit or for -
profit entity, and includes the plural as well as the singular number.
X. "Processing" means a cultivation site that conducts only trimming, drying,
curing, grading, packaging, or labeling of cannabis, industrial hemp and nonmanufactured
cannabis products.
Y. "Retailer" means a person as defined in Section 4-17-4 (W) who sells
cannabis, cannabis products, hemp and/or hemp products at their place of business or
by delivery to an end user or customer for use or consumption rather than to another
person or business for resale.
Z. "Sale" "Sell" and "to sell" means and includes any sale, exchange, or barter
either as a retailer or wholesaler by a person as defined by Section 4-17-4 (W) . It shall
also mean any transaction whereby, for any consideration, title to cannabis, cannabis
products, industrial hemp and/or industrial hemp products are transferred from one
person to another and includes the delivery of cannabis, cannabis products, industrial
hemp and/or industrial hemp products pursuant to an order placed for the purchase of
the same, but does not include the return of cannabis, cannabis products, industrial hemp
and/or industrial hemp products to the licensee from whom the cannabis, cannabis
product, industrial hemp and/or industrial hemp product was purchased.
AA. "State" means the State of California.
AB. "State license," "license," or "registration" means a state license issued
pursuant to California Business & Professions Code Section 26050, and all other
applicable state laws, required for operating a cannabis business.
AC. "Tax Administrator" means the City Manager of the City of El Segundo or
his/her designee(s).
AD. "Testing Laboratory" means a cannabis business that (i) offers or performs
tests of cannabis, cannabis products, industrial hemp and/or industrial hemp products (ii)
offers no service other than such tests, (iii) sells no products, excepting only testing
supplies and materials, (iv) is accredited by an accrediting body that is independent from
all other persons involved in the cannabis industry in the state and (v) is registered with
the Department of Cannabis Control or other state agency.
4-17-5 Tax Imposed.
A. Beginning January 1, 2023, there is imposed upon each person who is
engaged in business as a cannabis business a cannabis business tax. Such
tax is payable regardless of whether the person has been issued a
commercial cannabis business license, permit, or certificate to operate
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lawfully in the City or is operating unlawfully. The City's acceptance of a
cannabis business tax payment from a cannabis business operating illegally
shall not constitute the City's approval or consent to such illegal operations.
B. The City Council may, by resolution or ordinance, increase or decrease the
rate of the cannabis business tax, including the initial rate of cannabis
business tax. The City Council may, by resolution or ordinance, increase or
decrease the rate of the medicinal cannabis business tax, including the
initial rate of the medicinal cannabis business tax, independent of other
cannabis business tax activities. In addition, the City Council may, by
resolution or ordinance, increase or decrease the rate of the cannabis
business tax on hemp or hemp products, including the initial rate of the tax
on hemp or hemp products independent of other cannabis activities.
Notwithstanding the foregoing, in no event shall the City Council repeal this
tax or set any adjusted rate that exceeds the maximum rates calculated
pursuant to this chapter.
C. The maximum rate of the cannabis business tax shall be calculated as
follows:
1. For every person engaged in commercial cannabis cultivation, including
cultivation of industrial hemp, in the City:
a. Through January 1, 2026, the annual maximum rate shall be:
Twenty dollars ($20.00) per square foot of canopy space in a
facility that uses exclusively artificial lighting.
ii. Fourteen dollars ($14.00) per square foot of canopy space in
a facility that uses a combination of natural and supplemental
lighting as defined in Section 4-17-4 (S) of this chapter.
iii. Eight dollars ($8.00) per square foot of canopy space in a
facility that uses no artificial lighting.
iv. Four dollars ($4.00) per square foot of canopy space for any
nursery.
b. On January 1, 2026 and on each January 1, thereafter, the maximum
annual tax rates specified in Subsection 4-17-5 (C) (1) (a), shall
increase by the percentage increase in the Consumer Price Index
("CPI") for consumers in the Los Angeles -Riverside -Orange County
area as published by the United States Government Bureau of Labor
Statistics. However, no CPI adjustment resulting in a decrease of any
tax imposed by this subsection shall be made.
2. For every person engaged in the operation of a testing laboratory for
cannabis, cannabis products, industrial hemp and/or industrial hemp
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products the person shall be subject to the maximum tax rate not to
exceed two percent (2%) of gross receipts.
3. For every person engaged in retail sales of cannabis, cannabis
products, industrial hemp, and/or industrial hemp products, including as
a retailer (dispensary) or non -storefront retailer (retail delivery business),
or microbusiness, the person shall be subject to the maximum tax rate
not to exceed ten percent (10%) of gross receipts.
4. For every person engaged in distribution of cannabis, cannabis
products, industrial hemp and/or industrial hemp products, the person
shall be subject to the maximum tax rate not to exceed ten percent
(10%) of gross receipts.
5. For every person engaged in manufacturing or processing of
cannabis, cannabis products, industrial hemp and/or industrial hemp
products, or any other type of cannabis business not described in
Section 4-17-5 (C) (1), (2), (3), or (4) the person shall be subject to the
maximum tax rate not to exceed ten percent (10%) of gross receipts.
D. Persons subject to the cannabis business tax shall register with the City and
if applicable pay the registration fee adopted by resolution or ordinance by
the City Council.
4-17-6 Registration, reporting and remittance of tax.
A. Registration of Cannabis Business. All cannabis businesses shall be
required to annually register as follows:
1. All persons engaging in business as a cannabis business, whether an
existing, newly established or acquired business shall register with the
Tax Administrator within thirty (30) calendar days of commencing
operation and shall annually renew such registration within 30 calendar
days of the business registration anniversary date of each year
thereafter. In registering, such persons shall furnish to the Tax
Administrator a sworn statement, upon a form prescribed by the Tax
Administrator, setting forth the following information:
i. The name of the business
ii. The names and addresses of each owner
iii. The exact nature or kind of business;
iv. The place where such business is to be carried on; and
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v. Any additional information which the Tax Administrator may
require.
B. An annual registration fee in accordance with the current and approved City
fee schedule shall be presented with the sworn statement submitted under
this chapter. This fee shall not be considered a tax as described in Section
4-1-4 and may be adjusted annually by resolution or ordinance of the City
Council.
C. The cannabis business tax imposed by this chapter shall be paid, in arrears,
on a monthly basis. Each person owing a cannabis business tax shall on or
before the last day of the month following the close of each month file with
the Tax Administrator a statement ("tax statement") of the tax owed for that
calendar month and the basis for calculating that tax. The Tax Administrator
may require that the tax statement be submitted on a form prescribed by
the Tax Administrator. The tax for each calendar month shall be due and
payable on the same date that the tax statement is due.
D. Upon cessation of a cannabis business, tax statements and payments shall
be immediately due for all calendar months up through the calendar month
during which cessation occurred.
E. In the event that there is a change in ownership of any cannabis business:
a. The new owner is required to submit an updated registration form to the
Tax Administrator;
b. The new owner is subject to an audit by the Tax Administrator; and
c. Unless otherwise provided by law, it is the joint and several liability of
both the seller and buyer to remit any taxes, interest, penalties, and fees
due up until the date of sale; otherwise, enforcement action may be
taken pursuant to Section 4-17-16 of this chapter against both the seller
and/or buyer in an amount to be determined by the Tax Administrator.
F. The Tax Administrator may, at his or her discretion, establish alternative
reporting and payment periods for any taxpayer as the Tax Administrator
deems necessary to ensure effective collection of the cannabis business
tax. The Tax Administrator may also require that a deposit, to be applied
against the taxes for a calendar month, be made by a taxpayer at the
beginning of that calendar month. In no event shall the deposit required by
the Tax Administrator exceed the tax amount he or she projects will be owed
by the taxpayer for the calendar month. The Tax Administrator may require
that a taxpayer make payments via a cashier's check, money order, wire
transfer, or similar instrument.
4-17-7 Payments and communications — timely remittance.
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Whenever any payment, statement, report, request, or other communication is
due, it must be received by the Tax Administrator on or before the due date. A postmark
will not be accepted as timely remittance. If the due date would fall on a Saturday, Sunday
or a holiday observed by the City, the due date shall be the next regular business day on
which the City is open to the public.
4-17-8 Payment - when taxes deemed delinquent.
Unless otherwise specifically provided under other provisions of this chapter, the
taxes required to be paid pursuant to this chapter shall be deemed delinquent if not
received by the Tax Administrator on or before the due date as specified in Sections 4-
17-6 and 4-17-7.
4-17-9 Notice not required by the City.
The City may as a courtesy send a tax notice to the cannabis business which owes
the City a cannabis business tax. However, the Tax Administrator is not required to send
a delinquency or other notice or bill to any person subject to the provisions of this chapter.
Failure to send such notice or bill shall not affect the validity of any tax or penalty due
under the provisions of this chapter.
4-17-10 Penalties and interest.
A. Any person who fails or refuses to pay any cannabis business tax required
to be paid pursuant to this chapter on or before the due date shall pay penalties and
interest as follows:
1. A penalty equal to ten percent (10%) of the amount of the tax, in
addition to the amount of the tax, plus interest on the unpaid tax calculated from
the due date of the tax at the rate of one percent (1 %) per month.
2. If the tax remains unpaid for a period exceeding one calendar month
beyond the due date, an additional penalty equal to twenty-five percent (25%) of
the amount of the tax, plus interest at the rate of one percent (1 %) per month on
the unpaid tax and on the unpaid penalties.
3. Interest shall be applied at the rate of one percent (1 %) per month
on the first day of the month for the full month and will continue to accrue monthly
on the tax and penalty until the balance is paid in full.
B. Whenever a check or electronic payment is submitted in payment of a
cannabis business tax and the payment is subsequently returned unpaid by the bank for
any reason, the taxpayer will be liable for the tax amount due plus any fees, penalties,
and interest as provided for in this chapter, and any other amount allowed under state
law.
C. The Tax Administrator may waive the penalties imposed upon any person
under this Section 4-17-10 if:
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1. The person requests a waiver of penalties by submitting a written
request for waiver to the Tax Administrator no later than June 30 of the second
fiscal year following the fiscal year in which the tax became delinquent; and
2. The person provides evidence satisfactory to the Tax Administrator
that the failure to pay timely was due to circumstances beyond the control of the
person and occurred notwithstanding the exercise of ordinary care and in the
absence of willful neglect; and the person paid the delinquent taxes, penalties,
accrued interest, and fees owed prior to applying to the Tax Administrator for a
waiver.
D. The waiver provisions specified in Section 4-17-10 (C) shall not apply to
interest accrued on the delinquent taxes and a waiver shall be granted only once during
any twenty-four month period. The Tax Administrator's decision on a request for a waiver
of penalties is final and conclusive and not subject to appeal under Section 4-17-15.
4-17-11 Refunds and credits.
A. No refund shall be made of any tax collected pursuant to this chapter,
except as provided in Section 4-17-12.
B. No refund of any tax collected pursuant to this chapter shall be made
because of the discontinuation, dissolution, or other termination of a business.
4-17-12 Refunds and procedures.
A. Whenever the amount of any cannabis business tax, penalty or interest has
been overpaid, paid more than once, or has been erroneously collected or received by
the City under this chapter, it may be refunded to the claimant who paid the tax provided
that a written claim for refund signed under the penalty of perjury is filed with the Tax
Administrator within one (1) year of the date the tax was originally due or paid, whichever
came first. A person may only file a claim for refund if the person paid the tax. No person
shall be entitled to a refund unless the person can support the claim by written records
sufficient to show entitlement thereto. The Tax Administrator's decision on a claim for
refund is final and conclusive and not subject to appeal under Section 4-17-15.
B. The Tax Administrator, his or her designee which may include a third party,
or any other City officer charged with the administration of this chapter shall have the right
to examine and audit all the books and business records of the claimant in order to
determine the eligibility of the claimant to the claimed refund. No claim for refund shall be
allowed if the claimant refuses to allow such examination of claimant's books and
business records after requested by the Tax Administrator to do so. The Tax
Administrator may collect a fee adopted by resolution by the City Council to pay for the
cost of examination and audit should the books and records be provided in a form
insufficient to allow the Tax Administrator to make a determination on the claim for refund.
C. In the event that the cannabis business tax was erroneously paid in an
amount in excess of the tax due, and the error is attributable to the City, the City shall
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refund the amount of tax erroneously paid; provided that (i) a claim for refund has been
timely filed with the Tax Administrator; and (ii) the refund cannot exceed, under any
circumstance, the amount of tax overpaid during the twelve months preceding the last
month for which the claim states the tax was overpaid.
4-17-13 Personal Cultivation Not Taxed.
The provisions of this chapter shall not apply to personal cannabis cultivation or
personal use of cannabis, to the extent those activities are authorized in the "Medicinal
and Adult Use Cannabis Regulation and Safety Act," as may be amended. This chapter
shall not apply to personal use of cannabis that is specifically exempted from state
licensing requirements, that meets the definition of personal use or equivalent terminology
under state law, and provided that the individual receives no compensation whatsoever
related to that personal cultivation or use.
4-17-14 Administration of the tax.
A. It shall be the duty of the Tax Administrator to collect the taxes, interest,
penalties, fees, and perform the duties required by this chapter.
B. For purposes of administration and enforcement of this chapter generally,
the Tax Administrator may from time to time promulgate such administrative
interpretations, rules, and procedures consistent with the purpose, intent, and express
terms of this chapter as he or she deems necessary to implement or clarify such
provisions or aid in enforcement.
C. The Tax Administrator may take such administrative actions as needed to
administer the cannabis business tax, including but not limited to:
1. Provide to all cannabis business taxpayers forms for the reporting of the
tax;
2. Provide information to any taxpayer concerning the provisions of this
chapter;
3. Receive and record all taxes remitted to the City as provided in this chapter;
4. Maintain records of taxpayer reports and taxes collected pursuant to this
chapter;
5. Assess penalties and interest to taxpayers pursuant to this chapter;
6. Determine amounts owed under and enforce collection pursuant to this
chapter.
4-17-15 Appeal procedure.
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A taxpayer aggrieved by a decision of the Tax Administrator with respect to the
amount of tax, interest, penalties, and fees, if any, due under this chapter may appeal
only if a hearing was requested and attended pursuant to Section 4-17-25. An appeal
may be made by filing a notice of appeal with the City Clerk within thirty (30) calendar
days of the serving or mailing of the Tax Administrator's decision of the amount due. Upon
receipt of a timely notice of appeal, the City Clerk, or his or her designee, shall fix a time
and place for hearing such appeal with a hearing officer or other appointed body by the
City Council. The City Clerk, or his or her designee, shall give at least ten (10) calendar
days' notice of the appeal hearing in writing to such taxpayer at the last known place of
address. The hearing officer shall render a written decision that shall be served on the
taxpayer at the last known place of address. The decision of the hearing officer shall be
final and conclusive. Any amount found to be due by the hearing officer shall be
immediately due and payable upon the service of the decision. If no notice of appeal is
filed within the time prescribed in this Section, the Tax Administrator's decision with
respect to the amount of tax, interest, penalties, and fees due is final and conclusive.
4-17-16 Enforcement - action to collect.
A. Any taxes, interest, penalties, and/or fees required to be paid under the
provisions of this chapter shall be deemed a debt owed to the City. Any person owing
money to the City under the provisions of this chapter shall be liable in an action brought
in the name of the City for the recovery of such debt. The provisions of this chapter shall
not be deemed a limitation upon the right of the City to bring any other action including
criminal, civil and equitable actions, based upon the failure to pay the tax, interest,
penalties, and/or fees imposed by this chapter or the failure to comply with any of the
provisions of this chapter.
4-17-17 Apportionment.
If a person subject to the tax is operating both within the City and outside the City, it is
the intent of the City to apply the cannabis business tax so that the measure of the tax
fairly reflects the proportion of the taxed activity actually carried on in the City. To the
extent federal or state law requires that any tax due from any taxpayer be apportioned,
the taxpayer may indicate said apportionment on his or her tax return. The Tax
Administrator may promulgate administrative procedures for apportionment as he or she
finds useful or necessary.
4-17-18 Constitutionality and legality. This tax is intended to be applied in
a manner consistent with the United States and California Constitutions and state law.
None of the tax provided for by this chapter shall be applied in a manner that causes an
undue burden upon interstate commerce, a violation of the equal protection or due
process clauses of the Constitutions of the United States or the State of California or a
violation of any other provision of the California Constitution or state law. If a person
believes that the tax, as applied to him or her, is impermissible under applicable law, he
or she may request that the Tax Administrator release him or her from the obligation to
pay the impermissible portion of the tax.
4-17-19 Audit and examination of premises and records.
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A. For the purpose of ascertaining the amount of cannabis business tax owed
or verifying any representations made by any taxpayer to the City in support of his or her
tax calculation, the Tax Administrator or his/her designees which may include a third party
shall have the power to inspect any location where commercial cannabis activity occurs
and to audit and examine all books and records (including, but not limited to bookkeeping
records, access to space utilized for cannabis related activities. METRC data, and/or
point -of -sale data, state and/or federal income tax returns, excise tax returns, and other
records relating to the gross receipts of the business) of persons engaged in cannabis
businesses. In conducting such investigation, the Tax Administrator, or his/her designees
which may include a third party shall have the power to inspect space utilized for cannabis
related activities, any equipment or software, such as computers, software systems,
platforms, and databases (including METRC), and/or point of sale systems, to include
any keys or access codes for access to and use of the equipment and/or software, that
may contain such records.
B. It shall be the duty of every person liable for the collection and payment to
the City of any tax imposed by this chapter to keep and preserve, for a period of at least
three (3) years, all records as may be necessary to determine the amount of such tax as
he or she may have been liable for the collection of and payment to the City, which records
the Tax Administrator or his/her designee which may include a third party shall have the
right to inspect at all reasonable times.
4-17-20 Other licenses, permits, taxes, fees, or charges.
A. Nothing contained in this chapter shall be deemed to repeal, amend, be in
lieu of, replace or in any way affect any requirements for any commercial cannabis permit,
City license, permit, or other certificate required by, under or by virtue of any provision of
any other Chapter of this code or any other ordinance or resolution of the City, nor be
deemed to repeal, amend, be in lieu of, replace or in any way affect any tax, fee or other
charge imposed, assessed or required under any other Chapter of this code or any other
ordinance or resolution of the City. Any references made or contained in any other
Chapter of this code to any licenses, permits, certificates, taxes, fees, or charges, or to
any schedule of license, permit, certificate, or fees, shall be deemed to refer to the
licenses, permits or certificates, and their respective taxes, fees or charges, or schedule
of fees, provided for in other Chapters of this code.
B. A commercial cannabis permit issued under the El Segundo Municipal Code
may be revoked, suspended or not renewed in the event that the business holding that
permit has failed to (i) make a deposit required by the Tax Administrator pursuant to Section
4-17-6 or (ii) timely pay all taxes, interest and penalties owed by that business under this
chapter.
4-17-21 Payment of tax does not authorize unlawful business.
A. The payment of a cannabis business tax required by this chapter, and its
acceptance by the City, shall not entitle any person to carry on any cannabis business
unless the person has complied with all of the requirements of this code and all other
applicable state laws.
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B. No tax paid under the provisions of this chapter shall be construed as
authorizing the conduct or continuance of any illegal or unlawful business, or any
business in violation of any local or state law.
4-17-22 Deficiency determinations.
If the Tax Administrator is not satisfied that any statement filed as required under
the provisions of this chapter is correct, or that the amount of tax is correctly computed,
he or she may compute and determine the amount to be paid and make a deficiency
determination upon the basis of the facts contained in the statement or upon the basis of
any information in his or her possession or that may come into his or her possession
within three (3) years of the date the tax was originally due and payable. One or more
deficiency determinations of the amount of tax due for a period or periods may be made.
When a person discontinues engaging in a cannabis business, a deficiency determination
may be made at any time within three (3) years thereafter as to any liability arising from
engaging in such cannabis business whether or not a deficiency determination is issued
prior to the date the tax would otherwise be due. Whenever a deficiency determination is
made, a notice shall be given to the person concerned in the same manner as notices of
assessment are given under Sections 4-17-24 and 4-17-25.
4-17-23 Failure to report —nonpayment, fraud.
A. Under any of the following circumstances, the Tax Administrator may make
and give notice of an assessment of the amount of tax owed by a person under this
chapter at any time:
If the person has not filed a complete statement required under the
provisions of this chapter;
2. If the person has not paid the tax due under the provisions of this
chapter;
3. If the person has not, after demand by the Tax Administrator, filed a
corrected statement, or furnished to the Tax Administrator adequate substantiation
of the information contained in a statement already filed, or paid any additional
amount of tax due under the provisions of this chapter; or
4. If the Tax Administrator determines that the nonpayment of any
cannabis business tax due under this chapter is due to fraud, a penalty of twenty-
five percent (25%) of the amount of the tax shall be added thereto in addition to
penalties and interest otherwise payable under this chapter and any other
penalties allowed by law.
B. The notice of assessment shall separately set forth the amount of any tax
known by the Tax Administrator to be due or estimated by the Tax Administrator, after
consideration of all information within the Tax Administrator's knowledge concerning the
business and activities of the person assessed, to be due under each applicable provision
of this chapter and shall include the amount of any penalties or interest accrued on each
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amount to the date of the notice of assessment. The notice shall state that the person has
thirty (30) calendar days from the date of the notice to make a written request for an
informal hearing before the Tax Administrator. The notice shall also state that if the
person fails to timely request an informal hearing within the time allowed, the amount
determined by the Tax Administrator is final and conclusive and is immediately due and
payable.
4-17-24 Tax assessment - notice requirements.
The notice of assessment shall be served upon the person either by personal
delivery, by overnight delivery by a nationally -recognized courier service, or by a deposit
of the notice in the United States mail, postage prepaid thereon, addressed to the person
at the address of the location of the business or to such other address as he or she shall
register with the Tax Administrator for the purpose of receiving notices provided under
this chapter; or, should the person have no address registered with the Tax Administrator
for such purpose, then to such person's last known address. For the purpose of Section
4-17-24, a service by overnight delivery shall be deemed to have occurred one (1)
calendar day following deposit with a courier and service by mail shall be deemed to have
occurred three (3) days following deposit in the United States mail.
4-17-25 Tax assessment - hearing, application, and determination.
Within thirty (30) calendar days after the date of service of the notice of assessment
the person may apply in writing to the Tax Administrator for an informal hearing on the
assessment. If application for an informal hearing is not made within the time herein
prescribed, the tax assessed by the Tax Administrator shall become final and conclusive.
Within thirty (30) calendar days of the receipt of any such application for an informal
hearing, the Tax Administrator shall cause the matter to be set for an informal hearing
before him or her, or his/her designee, no later than thirty (30) calendar days after the
receipt of the application, unless a later date is agreed to by the Tax Administrator and
the person requesting the informal hearing. Notice of such informal hearing shall be given
by the Tax Administrator to the person requesting such informal hearing no later than five
(5) calendar days prior to such informal hearing. A hearing under this section shall be
informal and need not follow any formal rules of evidence. At such hearing said applicant
may appear and offer evidence why the assessment as made by the Tax Administrator
should not be confirmed and fixed as the tax due. After such hearing the Tax Administrator
shall determine and reassess (if necessary) the proper amount of tax, interest, penalties,
and fees to be charged and shall give written notice of the decision to the person in the
manner prescribed in Section 4-17-24 for giving notice of assessment. No appeal of a
notice of assessment may be made under Section 4-17-15 unless an informal hearing is
timely requested and the person attends the hearing. If the person fails to appear at the
informal hearing, the amount due determined by the Tax Administrator in the notice of
assessment is final and conclusive.
4-17-26 Relief from taxes — disaster relief.
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A. If a person is unable to comply with any tax requirement imposed under this
chapter due to a disaster impacting its cannabis business, the person may notify the Tax
Administrator of its inability to comply and request relief from the tax requirement. For
purposes of this chapter, "disaster" means fire, flood, storm, tidal wave, earthquake, or
similar public calamity resulting in physical damage to real property, whether or not
resulting from natural causes.
B. The person shall provide any information required by the Tax Administrator
including, without limitation, why relief is requested, the time period for which the relief is
requested, and the reason relief is needed for the specific amount of time. The person
agrees to grant the Tax Administrator or his/her designee access to the location where
the cannabis business has been impacted due to a disaster.
C. The Tax Administrator, in his/her sole discretion, may provide relief from the
cannabis business tax requirement for businesses whose operations have been impacted
by a disaster if such tax relief does not exceed ten thousand ($10,000) dollars. Such
temporary relief may be granted for a reasonable amount of time, in the Tax
Administrator's sole discretion, and the amount and duration of relief should be based
upon how long it would reasonably take for the cannabis business to recover from the
disaster. The Tax Administrator may require that the cannabis business follow certain
conditions to receive temporary relief from the cannabis business tax requirement. The
Tax Administrator's decision on a request for relief and the conditions that may be
imposed for relief under this section are final and conclusive and not subject to appeal
under Section 4-17-15.
4-17-27 Conviction for violation - taxes not waived.
The conviction and punishment of any person for failure to pay the required tax
shall not excuse or exempt such person from any civil action for the tax debt unpaid at
the time of such conviction. No civil action shall prevent a criminal prosecution for any
violation of the provisions of this chapter or of any state law requiring the payment of all
taxes.
4-17-28 Violation deemed misdemeanor.
Any person violating any of the provisions of this chapter shall be guilty of a
misdemeanor.
4-17-29 Severability.
If any provision of this chapter, or its application to any person or circumstance, is
determined by a court of competent jurisdiction to be unlawful, unenforceable, or
otherwise void, that determination shall have no effect on any other provision of this
chapter or the application of this chapter to any other person or circumstance and, to that
end, the provisions hereof are severable.
4-17-30 Remedies cumulative.
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All remedies and penalties prescribed by this chapter, or which are available under
any other provision of this code and any other provision of law or equity are cumulative.
The use of one or more remedies by the City shall not bar the use of any other remedy
for the purpose of enforcing the provisions of this chapter.
4-17-31 Amendment or modification.
Except as set forth in Section 4-17-31, this chapter may be amended or modified
but not repealed by the City Council without a vote of the people. However, as required
by Article XIII C of the California Constitution, voter approval is required for any
amendment that would expand, extend, or increase the rate of any tax levied pursuant to
this chapter beyond the maximums set forth in this chapter. The people of the City of El
Segundo affirm that the following actions shall not constitute an increase of the rate of a
tax:
A. The restoration or adjustment of the rate of the tax to a rate that is no higher
than that allowed by this chapter, in those circumstances where, among others, the City
Council has previously acted to reduce the rate of the tax or is incrementally implementing
an increase authorized by this chapter;
B. An action that interprets or clarifies (i) the methodology of applying or
calculating the tax or (ii) any definition applicable to the tax, so long as the interpretation
or clarification (even if contrary to some prior interpretation or clarification) is not
inconsistent with the provisions of this chapter; or
C. The collection of the tax imposed by this chapter even if the City had, for
some period of time, failed to collect the tax.
SECTION 2. SEVERABILITY. If any section, subsection, sentence, clause, or
phrase of this ordinance is for any reason held to be invalid, such decision shall not affect
the validity of the remaining portions of this ordinance. The people of the City of El
Segundo hereby declare that they would have passed this ordinance and each section,
subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, or phrases be declared invalid.
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SECTION 3. ENVIRONMENTAL COMPLIANCE. The City Council hereby finds
and determines that this resolution or ordinance is exempt from the California
Environmental Quality Act, Public Resources Code Sections 21000 et seq. ("CEQA") and
14 Cal. Code Re. Sections 15000 et seq. ("CEQA Guidelines"). The calling and noticing
of an election for the submission of a ballot measure to voters is not a project within the
meaning of CEQA Guidelines 15378. The tax submitted to the voters is a general tax that
can be used for any governmental purpose; it is not a commitment to any particular action
or actions.
As such, under CEQA Guidelines Section 15378 (b)(4), the tax is not a project
within the meaning of CEQA because it creates a government funding mechanism that
does not involve any commitment to any specific project that may result in a potentially
significant physical impact on the environment. If revenue generated by the tax were used
for a purpose that would have such an effect, the City of El Segundo would undertake the
required CEQA review for that particular project. Therefore, pursuant to CEQA Guideline
Section 15060 CEQA analysis is not required.
SECTION 4. EFFECTIVE DATE. Pursuant to the California Constitution, Article
XIIIC(2)(b) and California Elections Code § 9217, if a majority of the voters voting in the
election on this measure vote in favor of the adoption of this measure, this ordinance shall
be deemed valid and binding and shall be considered adopted upon the date that the vote
is declared by the City Council and shall go into effect ten (10) days after that date.
This Ordinance was approved and adopted by the People of the City of El Segundo at
the City's November 8, 2022 statewide election.
This Ordinance was approved by Declaration of the vote by the City Council of El
Segundo on
Drew Boyles, Mayor
ATTEST:
Tracy Weaver, City Clerk
Approved as to form:
Mark D. Hensley, City
Attorney
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