Title 5
BUSINESS LICENSES, TAXES AND REGULATIONS*

Chapters:

5.04 Business Licenses

5.12 Cabarets, Taverns and Restaurants

5.16 Merchant Patrol Services

5.20 Peddlers and Transient Merchants

5.24 Pool, Billiard Table Games and Video Games

5.32 Utility Business

5.36 Authorized Gambling and Tax

5.40 Repealed

5.44 Adult Entertainment Business Licensing and Regulation

5.48 Pawnbrokers and Secondhand Dealers

*Code reviser’s note: Ord. 1472 reenacts Ord. 1434, adopting Title 5 in its entirety.

Chapter 5.04
BUSINESS LICENSES*

Sections:

5.04.010 Short title.

5.04.020 Definitions.

5.04.030 Requirement generally.

5.04.040 Exemptions.

5.04.050 Business license – Fees.

5.04.060 License – Fee – Certain businesses outside corporate limits.

5.04.070 Posting.

5.04.080 Renewal.

5.04.090 Fee – Nonpayment action – Monetary penalty.

5.04.100 Responsibility for regulation compliance by nonresidents.

5.04.110 Separate licenses for branch establishments.

5.04.120 Dual businesses at the same location.

5.04.130 License officer duties.

5.04.140 Application – Required – Form.

5.04.150 Application – Fee accompanying.

5.04.160 Issuance delay – Fee payment receipt.

5.04.170 Duplicate license – Fee.

5.04.180 Application – Denial or revocation.

5.04.190 Application – Disapproval action.

5.04.200 License denial – Appeal.

5.04.210 License – Fees a civil debt.

5.04.220 Criminal penalty.

5.04.230 Severability.

*Prior legislation: Ords. 573, 780, 861, 1097, 1204, and 1333.

5.04.010 Short title.

The ordinance codified in this chapter shall be known and may be cited as the “general licensing ordinance of the city.” (Ord. 1434 § 1, 1999).

5.04.020 Definitions.

For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given in this section:

A. “Business” includes all kinds of vocations, occupations, professions, enterprises, establishments, and all other kinds of activities and matters, intended to generate revenue or conducted for private profit or benefit, either directly or indirectly, within the city’s jurisdiction, except when said vocation, occupation or otherwise is an undertaking primarily involving the use of land in the city for agricultural purposes. Transient merchants, peddlers, and street peddlers are businesses for the purpose of this chapter.

B. “City license officer” is the city clerk.

C. “Licensee,” as used generally in this chapter, includes any person, or persons, who engage in business, who provides professional services or who is required to have a business license under this chapter or who performs any act for which a license fee is imposed by this chapter.

D. “Peddler” means any person who sells, attempts to sell, by going from place to place or from house to house, whether he or she carries with him/her for delivery such property or whether he/she merely solicits orders for future delivery or performance.

E. “Person” includes individual natural persons, partnerships, joint ventures, societies, associations, trustees, trusts or corporations, or any officer, agent, employee, factor or any kind of personal representative thereof, in any capacity, acting either for himself, or any other person, under either personal appointment or pursuant to law.

F. “Premises” include all lands, structures and places, and also any personal property which is either affixed to or is otherwise used in connection with any such business conducted on such premises.

G. “Transient merchant” means any person, firm or corporation who engages in, does or transacts any temporary business at wholesale or retail for the sale of goods, wares, or merchandise, or services, and who for such purpose shall use or occupy any building, vehicle, booth or other structure, either temporary or permanent, for the exhibition and/or sale of such property or services.

H. “Contractor” means any firm or individual or persons providing construction, engineering, or professional services within the city’s jurisdiction, either temporarily or permanently.

I. “Year” means the calendar year. (Ord. 1434 § 1, 1999).

5.04.030 Requirement generally.

A. Every business shall obtain from the city license officer a general business license for the current calendar year or unexpired portion thereof before commencing business. The license shall be nontransferable.

B. It shall be unlawful for any person to conduct any business, either directly or indirectly, for which a license is required by any law or ordinance of the city, without first procuring and keeping said license in effect at all times as required by this chapter or other law or ordinance of this city.

C. No license shall be issued pursuant to the provision of this chapter to the following persons:

1. Any person who is not 18 years of age at the time of the application, save and except those applicants who apply for a license solely to act as an employee of any other licensee hereunder, and who shall obtain the written consent of said applicant’s parent or guardian to make said application, together with a covenant on behalf of said parent or guardian that he or she will be responsible for and guarantee performance of the minor making application in accordance with the terms and conditions of said licensing provisions, except as may specifically otherwise be provided herein.

2. Any person who, if licensed, is likely to present a danger to the public health, safety, or welfare by reason of any of the following:

a. The applicant has been convicted of a crime, which relates directly to the specific occupation, trade, vocation, or business for which the license is sought, provided the time elapsed between the violation and the date of license application is less than three years for felony conviction, or less than one year for a misdemeanor conviction.

b. The applicant has had a similar license revoked or suspended pursuant to the provisions of this chapter.

c. The city license officer has reasonable grounds to believe applicant to be dishonest or to desire such license to enable applicant to practice some illegal act or some act injurious to the public health or safety.

3. Any person who is not qualified under any specific provision of this title for any particular license for which application is made. (Ord. 1434 § 1, 1999).

5.04.040 Exemptions.

A. The license requirements of this chapter shall not apply to religious, charitable or benevolent societies or organizations. The license agent may require proof of nonprofit status.

B. While the ordinance codified in this section remains in effect, the license requirements of this chapter shall not apply to the following types of businesses that do not have permanent offices located within the city of Milton:

1. Subcontractors who are licensed and bonded as required by state law for any public or private development or repair project;

2. Licensed professionals, such as doctors, lawyers, accountants and professional engineers;

3. Consultants hired to provide their expertise or opinion to other businesses, including financial and management consultants and experts hired to provide information for permit applications to government agencies;

4. Street vendors who do not operate for more than three consecutive days per year for community events open to all citizens of the city of Milton, such as street festivals, parades, and carnivals. (Ord. 1587 § 1, 2003; Ord. 1434 § 1, 1999).

5.04.050 Business license – Fees.

A. Application for a business license shall be made at the office of the city license officer on a form to be furnished for that purpose and shall be accompanied by the following fee:

1. Home occupations: $30.00;

2. Persons employing one to two employees: $30.00;

3. Persons employing three to five employees: $60.00;

4. Persons employing six to 12 employees: $120.00;

5. Persons employing 13 to 25 employees: $300.00;

6. Persons employing 26 to 50 employees: $600.00;

7. Persons employing 51 or more employees: $900.00.

Each such application shall be signed by the person, firm, or corporation to be licensed. Licenses must thereafter be renewed on or before the last day of January each year.

B. Licenses issued pursuant to this chapter shall be valid for the calendar year, or balance thereof, in which application is received. There shall be no reduction of any license fee because of the fact that an application is received late in the calendar year or for any other reason.

C. New businesses will be charged a one-time application fee of $50.00 to help recover the cost of issuing the original business license. All current businesses will be grandfathered in, and will not need to pay this fee. (Ord. 1632 § 1, 2004; Ord. 1434 § 1, 1999).

5.04.060 License – Fee – Certain businesses outside corporate limits.

Certain businesses located outside the city limits, but which conduct business in whole or part within the city, but the principal place of business of which is not located within the corporate limits of the city, shall hereafter pay to the city an annual fee prior to the thirty-first day of January of the year in which the license is due.

A. U.S. West: $240.00;

B. Puget Sound Energy: $240.00;

C. Comcast Cable Company: $240.00. (Ord. 1632 § 1, 2004; Ord. 1434 § 1, 1999).

5.04.070 Posting.

A. Every business shall keep and post the license issued it pursuant to this chapter on the premises of the business.

B. Every transient merchant or peddler shall have in his or her possession at all times, while conducting business as such, the license issued pursuant to this chapter. (Ord. 1434 § 1, 1999).

5.04.080 Renewal.

All licenses shall be renewable, and the annual license fee shall be due on January 1st of each year. The city license officer is authorized, but not required, to mail business forms for application for license renewal. Failure of the business to receive any such form shall not excuse the business from applying for and securing the license, and paying of the license fee due. (Ord. 1434 § 1, 1999).

5.04.090 Fee – Nonpayment action – Monetary penalty.

Failure to obtain a license, or failure to pay the license fee within 30 days after the day on which it is due, shall render the business subject to a penalty of 50 percent of the amount of the license fee for the first month of delinquency and an additional penalty of 10 percent for each succeeding month of delinquency; provided, that the total penalty shall not exceed the license fee. (Ord. 1434 § 1, 1999).

5.04.100 Responsibility for regulation compliance by nonresidents.

The agents or other representatives of nonresidents who are doing business in the city shall be personally responsible for the compliance of their principals and the businesses they represent with this chapter. (Ord. 1434 § 1, 1999).

5.04.110 Separate licenses for branch establishments.

A. A license shall be obtained in the manner prescribed in this chapter for each branch establishment or location, as if each such brand establishment or location were a separate business; provided, that warehouses and distributing plants used in connection with and incidental to a business licensed under the provisions of this chapter shall not be deemed to be separate places of business or branch establishments.

B. Each rental real property shall be deemed a branch establishment or separate place of business for the purpose of this chapter, when there is a representative of the owner or the owner’s agent on the premises who is authorized to transact business for such owner or owner’s agent or there is a regular employee of the owner or of the owner’s agent working on the premises. (Ord. 1434 § 1, 1999).

5.04.120 Dual businesses at the same location.

A person engaged in two or more businesses at the same location shall be required to purchase a business license for each business that is conducting business. (Ord. 1434 § 1, 1999).

5.04.130 License officer duties.

The city license officer shall collect all license fees and shall issue licenses in the name of the city to all persons qualified under the provisions of this chapter and shall:

A. Adopt all forms and prescribe the information to be given therein as to character and other relevant matters for all necessary papers;

B. Submit all applications, in a proper case, to interested city officials for their endorsements thereon as to compliance by the applicant with all city regulations which they have the duty of enforcing;

C. Notify all applicants of the acceptance or rejection of his application and shall, upon his/her refusal of any license or permit, at the applicant’s request, state in writing the reasons therefor and deliver them to the applicant;

D. Adopt, publish and enforce, from time to time, such rules and regulations for the proper administration of this chapter as shall be necessary. (Ord. 1434 § 1, 1999).

5.04.140 Application – Required – Form.

Every person required to procure a license under the provisions of any ordinance or law of the city shall submit an application for such license to the city license officer. The application shall be a written statement upon a form provide by the city license officer and which city license officer finds to be reasonably necessary to the fair administration of this chapter. (Ord. 1434 § 1, 1999).

5.04.150 Application – Fee accompanying.

The application for license shall be accompanied by the full amount of the fee chargeable for such license. (Ord. 1434 § 1, 1999).

5.04.160 Issuance delay – Fee payment receipt.

Whenever a license cannot be issued at the time the application for the same is made, the city license officer shall issue a receipt to the applicant for the money paid in advance, subject to the following conditions: Such receipt shall not be construed as the approval of the city license officer for the issuance of a license, nor shall it entitle or authorize the applicant to open or maintain any business contrary to the provisions of this chapter. (Ord. 1434 § 1, 1999).

5.04.170 Duplicate license – Fee.

A duplicate license or a special permit shall be issued by the license officer to replace any license previously issued which has been lost, stolen, defaced or destroyed without any willful conduct on the part of the licensee, upon the filing by the licensee of an affidavit attesting to such facts. There shall be a fee of $10.00 for such issuance of a duplicate license. (Ord. 1434 § 1, 1999).

5.04.180 Application – Denial or revocation.

The city license officer may deny an application for a business license, or revoke a business license previously issued, upon the following grounds:

A. The making of a false statement of material fact in the application for a business license or in any data or information required to be submitted with such application; or

B. The licensee has failed to comply with any of the provisions of this title; or

C. The licensee’s continued conduct of the business for which the license was issued will result in a danger to the public health, safety, or welfare by reason of any of the following:

1. The licensee, his/her employees or agents have been convicted of a crime which bears a direct relationship to the conduct of the business under the license issued pursuant to this title; or

2. The licensee, or his/her agents or employees, have in the conduct of the business violated any law or ordinance relating to public health or safety; or

3. The conduct of the business for which the license was issued has resulted in the creation of a public nuisance as defined in the Milton Municipal Code, or in state law. (Ord. 1434 § 1, 1999).

5.04.190 Application – Disapproval action.

Upon denial of a business license or revocation of an existing license the license officer shall notify the applicant or business owner in writing, by certified mail, of the denial or revocation and the grounds therefor.

When the issuance of a license is denied the applicant shall not engage in the business for which the license was denied, nor shall any business be conducted during any appeal process by the applicant/business. (Ord. 1434 § 1, 1999).

5.04.200 License denial – Appeal.

A. Any applicant or licensee may, within 10 days after receipt of such notice of denial, suspension or revocation, appeal to the hearing examiner by filing a written notice of appeal setting forth the grounds therefor with the hearing examiner. The court clerk shall set a date for the hearing of such appeal before the court. The hearing examiner shall notify the applicant or licensee by mail of the time and place of the hearing. After the hearing thereon the hearing examiner shall, after appropriate findings of fact, and conclusions of law, affirm, modify, or in the case of a denial, order granting of the license, or in the case of a suspension or revocation may overrule the suspension or revocation and reinstate the license, and may impose any terms upon the continuance of the license which to the hearing examiner may seem advisable.

B. No suspension or revocation of a license issued pursuant to the provisions of such chapters shall take effect until 10 days after receipt of the notice thereof by the licensee, and if appeal is taken as herein prescribed, the suspension or revocation shall be stayed pending final action by the hearing examiner. All licenses which are suspended or revoked shall be surrendered to the office of the city clerk on the effective date of such suspension or revocation.

C. Upon revocation of any license as provided in this chapter, no portion of the license fee shall be returned to the licensee.

D. Appeals brought under this section shall be required to substantially comply with the provisions of this chapter.

E. An appeal may be had by a decision of the examiner to superior court by filing an appeal within 30 days after official decision of the examiner. (Ord. 1434 § 1, 1999).

5.04.210 License – Fees a civil debt.

A. Any license fee due and unpaid and delinquent under this chapter, and all penalties thereon, may be collected by civil action, which remedy shall be in addition to any other existing remedies and penalties.

B. In the event the city is successful in proceeding under this section, then the city is entitled to recover from the responsible person such additional amounts as are necessary to reimburse the city for identifiable costs of collection, including attorney’s fees. (Ord. 1632 § 2, 2004; Ord. 1434 § 1, 1999).

5.04.220 Criminal penalty.

Violation of any of the terms of this chapter is a misdemeanor. Any business enterprise violating or failing to comply with any of the provisions of this chapter or any lawful rule or regulation adopted by the council pursuant to this chapter, upon conviction thereof, shall be punished by a fine not to exceed $500.00, or by imprisonment in jail for a term not to exceed 90 days, or by both such fine and imprisonment. Any business enterprise which engages in any business required to be licensed hereunder without having a business license shall be guilty of a separate violation of this chapter for each day during which the business is so engaged. (Ord. 1434 § 1, 1999).

5.04.230 Severability.

If any action, subsection, paragraph, sentence, clause or phrase of this chapter is declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining portion of this chapter. (Ord. 1434 § 1, 1999).

Chapter 5.12
CABARETS, TAVERNS AND RESTAURANTS*

Sections:

5.12.010 Definitions.

5.12.020 License – Required when.

5.12.030 License – Classes.

5.12.035 Licensing restrictions.

5.12.040 License – Fees.

5.12.050 License – Grounds for revocation – Appeal – Fee nonrefundable.

*Prior legislation: Ords. 596 and 1204.

5.12.010 Definitions.

As used in this chapter:

A. “Cabaret” means any establishment licensed for the sale of liquor where dancing, entertainment, or music other than phonograph or radio is provided for the amusement of the patrons thereof.

B. “Restaurant” means any place where food or drink is prepared or served to or provided for the public, either on the premises or elsewhere, with or without charge, such as restaurants, cafes, cafeterias, dining rooms, street vendors, sandwich stands, soda fountains, drive-ins, and all other public eating and drinking establishments.

C. “Tavern” means any establishment licensed for the sale of liquor. (Ord. 1434 § 1, 1999).

5.12.020 License – Required when.

It is unlawful for any person, firm, corporation or association to operate or engage in the business of operating a tavern, cabaret, or restaurant in the city without first obtaining a license pursuant to the provisions of this chapter. (Ord. 1434 § 1, 1999).

5.12.030 License – Classes.

Licenses for the cabarets, taverns and restaurants shall be divided into three classes:

A. Class 1. A license authorizing music and entertainment only – cabarets;

B. Class 2. A license authorizing music, entertainment and dancing by the patrons – cabarets;

C. Class 3. A license for taverns and restaurants. (Ord. 1434 § 1, 1999).

5.12.035 Licensing restrictions.

A. Class 1 and Class 2 licenses shall not be issued for anyone whose place of business, within the one-year period immediately prior to the date of application for the license, or within the calendar year prior to the effective year of the license sought, has had 10 or more arrests with ensuing criminal charges resulting from activities within the place of business. The licensing restrictions of this subsection do not apply to Class 3 licenses.

B. Class 1, Class 2 and Class 3 licenses shall not be issued for anyone who, within five years prior to filing the application, has been convicted of a felony that is reasonably related to his/her fitness or ability to conduct, manage or operate the business. Furthermore, licenses shall not be issued for anyone whose Class 1, Class 2 or Class 3 license has been revoked by the city pursuant to MMC 5.12.050 within three years prior to filing the application, unless he or she can demonstrate to the city council, following a hearing on the same, that the cause or condition leading to the revocation has been clearly corrected or rectified. (Ord. 1703 § 1, 2007).

5.12.040 License – Fees.

The license fees shall be fixed as follows:

A. Class 1: $120.00 per year, payable in advance;

B. Class 2: $180.00 per year, payable in advance;

C. Class 3: $60.00 per year, payable in advance. (Ord. 1632 § 1, 2004; Ord. 1434 § 1, 1999).

5.12.050 License – Grounds for revocation – Appeal – Fee nonrefundable.

A. Any owner, manager, operator or employee of any of the licensed premises, as defined in this chapter, who violates any provision of this chapter as now adopted or hereafter amended or the following set forth restrictions, or violates any city ordinance or provision thereof, or who violates any of the laws of the state or the rules, regulations, and permits under the Washington State Liquor Control Board shall, in addition to the penalty as provided for in this chapter, have the license as provided for in this chapter of said person, firm or corporation revoked or suspended by the mayor and the council:

1. Not to permit any gambling, card playing, or immoral conduct on such premises nor to keep, sell, give away or otherwise dispose of any narcotics on such premises nor permit the same to be kept, sold, given away or otherwise disposed of thereon by any person;

2. Not to have in his employ or financially interested in the business to be conducted any person who has had his license revoked for cause by the council or who has been convicted of a crime involving moral turpitude;

3. Not to permit any intoxicating liquor kept for unlawful use, sale or distribution or to allow any act done or any omission to perform a duty, which act or omission shall:

a. Annoy, injure, or endanger the safety, health, comfort, or repose of any considerable number of persons; or

b. Offend public decency; or

c. Unlawfully interfere with, befoul, obstruct, tend to obstruct, or render dangerous for passage a public park, square, street, alley, highway or stream; or

d. In any way render a considerable number of persons insecure in life or the use of property;

4. In the event that 10 or more arrests with ensuing criminal charges resulting from activities occurring within the cabaret establishment occur within a one-year period, or within the calendar year for which the establishment’s current Class 1 or Class 2 license is effective, the establishment shall be permitted to continue as a tavern or restaurant, but no dancing, entertainment, or music other than phonograph or radio shall be allowed for the amusement of the patrons thereof;

5. Sponsors, encourages, condones, knowingly allows, or fails to reasonably prevent gross misdemeanor or felony activities at the establishment;

6. Violates any provision of the rules and regulations of the Tacoma-Pierce County health department and resolutions of Pierce County regarding restaurants which are now codified in Pierce County Code Chapter 4.16 as now constituted or as hereinafter amended.

B. Provided, that said person, firm or corporation may request a hearing before the council by giving written notice of appeal to the clerk within 15 days of notice of revocation or suspension; provided further, that the mayor and council may suspend said license for any term they deem appropriate.

C. If a license is revoked or suspended hereunder, the license fee shall be forfeited and not refundable. (Ord. 1703 § 2, 2007; Ord. 1434 § 1, 1999).

Chapter 5.16
MERCHANT PATROL SERVICES*

Sections:

5.16.010 Definitions.

5.16.020 License – Required when – Hiring by another person required.

5.16.030 License – Fees – Expiration date – Nontransferable.

5.16.040 License – Application – Contents.

5.16.050 License – Bond required.

5.16.060 Possession of identification card required.

5.16.070 License – Revocation.

5.16.080 Applicability to government and private employees.

5.16.090 Unauthorized entry onto private property prohibited.

5.16.100 Violation – Penalty.

*Prior legislation: Ord. 766.

5.16.010 Definitions.

The following terms, for the purposes of this chapter, shall have the following meanings:

A. “Guard” means any person engaged in the guard business as that term is defined in this section, and includes any employee of a guard agency performing such duties.

B. “Guard agency” means any person, firm or corporation engaged in the guard business, as that term is defined in this section, employing one or more persons as employees, assistants, clerks or operatives.

C. “Guard business” means the business of, or the representation of being engaged in the business of, guarding as an independent contractor the personal safety or property of a client by continuous physical presence at the premises of a single client during the periods for which such services are purchased by such client. This term does not include the business of acting for more than one client during any given period of operation purchased by said client, nor shall it include policing of recreational or sporting events for purposes of crowd control or observation of criminal conduct at such events.

D. “Merchant patrol agency” means any person, firm or corporation engaged in the merchant patrol business, as that term is defined in this section, employing one or more persons as employees, assistants, clerks or operatives.

E. “Merchant patrol business” means the business of or the representation of being engaged in the business of patrolling buildings, streets or districts as an independent contractor for hire by private clients for the purpose of periodically inspecting certain premises or locales, including private residences, to ensure the safety of such clients and their property. This term includes both lessors and lessees of merchant patrol districts or routes as the same are designated by the council pursuant to this chapter.

F. “Merchant patrolman” means any person engaged in the merchant patrol business, as that term is defined in this section, including employees of a merchant patrol agency.

G. “Private police officer” means an employee of a merchant or business concern who shall be employed for the purpose of deterring the possible commission of crimes upon the premises of such a merchant or concern through physical presence in uniform or non-uniform attire at such premises. Such private police officer shall not carry police commissions and shall have no greater power of arrest than any other citizen.

H. “Security agency” means any person, firm or corporation engaged in the business of employing a security officer for the purposes of providing services of such security officers to other persons, firms, corporations or agencies.

I. “Security officer” means any person employed by, or under contract with, any merchant for the primary purposes of safeguarding merchandise and property, and detecting and apprehending shoplifters. A security officer shall carry a special police officer commission, issued and approved by the chief of police, for effecting the arrest of such offenders.

1. The term “security officer” may also include any person who has been so designated and commissioned pursuant to MMC 1.02.010 by the chief of police and who is hired or under contract with any governmental agency, private institution, school, organization or firm, to provide security to the premises of such agency, organization, school or firm or, where necessary, crowd control of recreational or sporting events by guarding buildings and property owned solely by that employing agency, observing violations that occur, and making arrests, if necessary. Any person commissioned for this purpose shall have authority to arrest only on the property of the employing agency unless it becomes necessary to pursue an offender for an unlawful act, which occurred thereon. Said security officer shall in no way compete with those firms licensed as merchant patrol agencies assigned designated merchant patrol district and routes. (Ord. 1434 § 1, 1999).

5.16.020 License – Required when – Hiring by another person required.

It is unlawful for any person, firm or corporation to act as a merchant patrolman, guard, or security officer, or to engage in business as a merchant patrol agency, merchant guard agency, or security agency within the city without first obtaining a license pursuant to the provisions of this chapter. No person shall be eligible for licensing as a merchant patrol, guard or security officer unless specifically hired by or under a contract or a lease agreement with another person, firm or corporation to perform such services. (Ord. 1434 § 1, 1999).

5.16.030 License – Fees – Expiration date – Nontransferable.

The fee for a merchant patrol agency, guard agency or security agency shall be $50.00 per year. The fee for a merchant patrolman, guard, or security officer shall be $10.00 per year. All licenses shall expire on the thirty-first day of December of the year of issue. No license shall be transferable. (Ord. 1434 § 1, 1999).

5.16.040 License – Application – Contents.

A. Application for licenses shall be made to the clerk on such forms as the clerk may require, which shall show thereon the applicant’s name, age, present and previous residence, and occupation for a period of not less than five years immediately prior to such application, and the address of his/her place of business and name of his/her employer, if any, and shall show sufficient facts to prove good character, competency and integrity and shall list any police criminal records. Such application shall be signed and verified by the applicant. If the applicant is a firm or corporation, the application shall be made by the manager who shall meet the qualification herein set forth.

B. All applications for licenses shall be forwarded to the chief of police for investigation and report. The chief of police shall require that each applicant be fingerprinted and his/her photograph taken and a full investigation made into the character, reputation and ability of the applicant.

C. If the chief of police finds that the applicant is a proper person to hold a license, he shall direct the clerk to issue the license; otherwise he shall direct the clerk to deny said license. Licenses may be renewed from year to year by the clerk without referral to the chief of police except as to those licenses which the chief of police in writing requires further investigation and so advises the clerk, which applications for renewal shall then be handled in the same manner as original applications.

D. No license required herein shall be issued to any person unless he/she is of good moral character and has never been convicted of a felony. If the issuance of a license hereunder is denied, the applicant shall have the right of hearing before the council by filing an appeal within 10 days after such permit is denied. The findings of the council on such appeal shall be final and conclusive. (Ord. 1434 § 1, 1999).

5.16.050 License – Bond required.

No license shall be issued until the applicant has filed with the clerk a bond in the sum of $5,000 running to the city in a form approved by the attorney conditioned upon the faithful and honest conduct of such business by the applicant, the compliance with the requirements of this chapter and, further, conditioned that any person who has been injured by the willful, malicious or wrongful act of such licensees may bring an action of said bond in his/her name to recover damages suffered by reason of such willful, malicious or wrongful act. (Ord. 1434 § 1, 1999).

5.16.060 Possession of identification card required.

Every merchant patrolman and employer of merchant patrolman agencies shall at all times have in his/her possession an identification card in form approved by the chief of police and having thereon, in addition to such information as may be required by the chief of police, the licensee’s photograph, thumbprint, and signature. Upon the revocation or expiration of any license, such identification card shall be surrendered to the chief of police. (Ord. 1434 § 1, 1999).

5.16.070 License – Revocation.

Any license issued under this chapter may be revoked by the council for sufficient cause after a public hearing held before the council; provided, that the licensee shall be given prior written notice of said hearing and be given an opportunity to be heard. (Ord. 1434 § 1, 1999).

5.16.080 Applicability to government and private employees.

Nothing in this chapter shall apply to any person or employer of any department or agency of the United States or of any state, county, city or municipal corporation while engaged in the performance of his/her official duties. This chapter shall also not apply to private police or watchmen, not acting as independent but acting as employees of a person, firm or corporation other than one engaged in the business as a merchant patrol agency. (Ord. 1434 § 1, 1999).

5.16.090 Unauthorized entry onto private property prohibited.

This chapter is not intended to and does not license any merchant patrol agency or merchant patrolman or any other person not having been requested or invited to do so by the owner or occupant thereof to go in or upon private property used for residential purposes for the purposes of his/her said business; and the practice of going in and upon private property used for residential purposes in the city by any merchant patrol agency or merchant patrolman or any other person not having been required or invited to do so by the owner or occupant of said property, for the purpose of selling, attempting to sell, or soliciting the sale and purchase of any goods or services is declared to be a public nuisance and a misdemeanor, punishable as a violation of this chapter. (Ord. 1434 § 1, 1999).

5.16.100 Violation – Penalty.

Any person, firm, corporation or association violating or failing to comply with any of the provisions of this chapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punishable as set forth in RCW Titles 9 and 77. (Ord. 1434 § 1, 1999).

Chapter 5.20
PEDDLERS AND TRANSIENT MERCHANTS*

Sections:

5.20.010 Short title – Effective date.

5.20.020 Definitions.

5.20.030 License – Not required when.

5.20.040 License – Bond required.

5.20.050 License – Appointment of clerk as agent required.

5.20.060 License – Application – Contents – False statements prohibited.

5.20.070 License – Rates.

5.20.080 License – Refusal to issue – Appeal.

5.20.090 License – Possession required – Limitation of hours authorized.

5.20.100 Unauthorized entry onto private property prohibited.

5.20.110 Sign posting required.

5.20.120 Violation – Penalty.

*Prior legislation: Ords. 456 and 841.

5.20.010 Short title – Effective date.

This chapter shall be known as the “Green River Ordinance” and becomes effective from and after December 11, 1961. (Ord. 1434 § 1, 1999).

5.20.020 Definitions.

For the purposes of this chapter, the following terms are defined as follows:

A. A “peddler” is any person who sells, attempts to sell, or solicits the sale or purchase of goods, wares or merchandise or services by going from place to place or from house to house, whether he carries with him for delivery such property or whether he merely solicits orders for future delivery or performance.

B. A “street seller” is a person who sells, attempts to sell, or solicits the sale or purchase of goods, wares or merchandise or services from a location on any street, alley, sidewalk or other public thoroughfare, whether he carries with him for such delivery such property or whether he merely solicits for future delivery or performance.

C. A “transient merchant” is any person, firm or corporation who engages in, does or transacts any temporary business at wholesale or retail for the sale of goods, wares or merchandise or services and who for such purpose has, uses or occupies any building, vehicle, booth or other structure, either temporary or permanent, for the exhibition and/or sale of such property or services. (Ord. 1434 § 1, 1999).

5.20.030 License – Not required when.

The license provided in this chapter shall not be required for the following:

A. Delivery persons for an established business;

B. Religious, charitable or benevolent societies or organizations;

C. Salesperson on pre-established routes;

D. Vendors of newspapers;

E. Wholesalers or drummers;

F. Individuals exempted under RCW 36.71.090: farmers, gardeners, etc. (Ord. 1434 § 1, 1999).

5.20.040 License – Bond required.

It is unlawful for any transient merchant, peddler or street seller to transact business as such within the city without first obtaining a license, posting a bond and paying the license fee, as provided as follows: Applicant shall deposit with the clerk a bond in the sum of $500.00, executed by a surety company or two responsible freeholders in the city, which bond shall be approved by the clerk and shall be conditioned that all goods, wares and merchandise sold, or for which orders are taken, shall be as represented by him, and that he will refund any purchase money paid on goods, wares or merchandise which are not as represented, so as to indemnify any person dealing with him, in a sum equal to at least the amount of any payment or payments, such purchaser may have been induced to make through misrepresentation as to the kind and character of the goods, wares or merchandise. Any person so misled or aggrieved by the representations of any licensee under this chapter shall have a right of action of the bond for the recovery of the amount of his/her payment or damages suffered or both. In the event a cash bond is deposited, the same shall be retained by the clerk for a period of 120 days after the expiration of any such license. (Ord. 1434 § 1, 1999).

5.20.050 License – Appointment of clerk as agent required.

Applicant shall file with the city clerk an instrument in writing nominating and appointing the clerk as his/her true and lawful agent, with full power and authority to acknowledge service of notice of process for and on behalf of said applicant, and service of summons on any action brought upon said bond shall be deemed made when served upon the clerk. (Ord. 1434 § 1, 1999).

5.20.060 License – Application – Contents – False statements prohibited.

A. All applications for license shall be made at the office of the clerk on forms to be provided by the city, in writing, filed with the clerk at least seven days before beginning said business solicitation, and shall contain the following information:

1. The name of the applicant;

2. The permanent home address of the applicant, and temporary address, if any;

3. The length of time for which license is desired;

4. Description of the nature or type of property or services offered for sale;

5. Whether or not the applicant has ever been convicted of a law violation and, if so, the nature of such violation;

6. Whether property will be sold for present or future delivery and, if the latter, a statement of the name of the person or firm from whom, and the place where, such goods will be sent;

7. In case of transient merchants and street sellers, a statement of the location, if any, by street and number, from which such person intends to conduct his business.

B. Any false statement made by an applicant in his/her said application shall be deemed a violation of this chapter. (Ord. 1434 § 1, 1999).

5.20.070 License – Rates.

The following rates shall be charged for a license:

A. The rate per day: $5.00.

B. The rate per month: $10.00.

C. The rate per calendar year: $25.00. (Ord. 1434 § 1, 1999).

5.20.080 License – Refusal to issue – Appeal.

In the event the clerk refuses to issue a license, he shall endorse his reasons for such action upon the application form, and the applicant may then apply to the council at any regularly called meeting for a review of such action, and may present such evidence as may be pertinent. The action of the council upon such application shall be final (Ord. 1434 § 1, 1999).

5.20.090 License – Possession required – Limitation of hours authorized.

Every licensee shall have in his possession the license or a copy of same as issued to him. Soliciting and peddling shall take place during reasonable hours, and the clerk can limit the hours if complaints are received at the City Hall. (Ord. 1434 § 1, 1999).

5.20.100 Unauthorized entry onto private property prohibited.

This chapter is not intended, and does not license, any transient merchant, peddler, street seller, or any other person not having been requested or invited to do so by the owner or occupant thereof, to go in or upon private property used for residential purposes for the purposes of his/her business, and the practice of going in or upon private property used for residential purposes in the city by any transient merchant, peddler, street seller, or any other person, not having been required or invited to do so by the owner or occupant of said property, whether licensed or not, for the purpose of selling, attempting to sell, or soliciting the sale and purchase of any goods or services, is declared to be a public nuisance and a misdemeanor, punishable as a violation of this chapter. (Ord. 1434 § 1, 1999).

5.20.110 Sign posting required.

Signs reading “Green River Ordinance Enforced” shall be posted at the arterial entrances to the city. (Ord. 1434 § 1, 1999).

5.20.120 Violation – Penalty.

Violating any of the terms of this chapter shall constitute a misdemeanor, and any person found guilty and convicted of any such violation may be punished as set forth in Chapter 1.08 MMC. Conviction of any such violation shall automatically revoke any license issued, and no person whose license. has been revoked shall be entitled to a return of any portion of the license fee previously paid or to a new license for a least 30 days following the date of such conviction and revocation. (Ord. 1434 § 1, 1999).

Chapter 5.24
POOL, BILLIARD TABLE GAMES
AND VIDEO GAMES*

Sections:

5.24.010 License – Required.

5.24.020 Ineligible persons.

5.24.030 License – Term.

5.24.040 License – Fees.

5.24.050 License – Transfer.

5.24.060 License – Revocation.

5.24.070 Penalty for violation.

*Prior legislation: Ord. 907.

5.24.010 License – Required.

It is unlawful for any person, firm or corporation to open, maintain, carry on or conduct any shuffleboard, automatic baseball, bowling alley games, or video games, whether manually run or operated or automatic, which are maintained for public use for hire without first having obtained a license pursuant to the provision of this chapter. (Ord. 1434 § 1, 1999).

5.24.020 Ineligible persons.

In addition to the general qualifications of licenses set forth in this title, no license for the operation of billiard tables, pool tables, shuffleboards, video games or automatic baseball or bowling alley games shall be granted or issued to the following persons:

A. Any person who has been convicted of violation of federal, state or city laws or ordinances regulating the manufacture, transportation, possession or sale of narcotics or intoxicating liquors or of any crime involving moral turpitude;

B. Any person who names another person to have the active management of such place where billiard tables, pool tables, shuffleboards, video games and automatic baseball or bowling alley games are maintained for public use for hire, who has been convicted as described in subsection A of this section or had a similar license previously revoked;

C. Any person where in the opinion of the council the location for the place where billiard or bowling alley games are maintained for public use for hire is not proper or for the best interest of public safety or morals. (Ord. 1434 § 1, 1999).

5.24.030 License – Term.

Licenses issued pursuant to this chapter shall be valid for the calendar year, or balance thereof, in which application is received, and the license fee provided for in this chapter shall be payable annually. There shall be no reduction of any license fee because of the fact that an application is received late in the calendar year or for any other reason. No license issued shall be transferable. (Ord. 1434 § 1, 1999).

5.24.040 License – Fees.

A. The license fees for conducting any place where billiard tables, pool tables, shuffleboards, video games, automatic baseball or bowling alley games, whether manually or automatically operated, are maintained shall be and are fixed as follows:

1. For each video game: $35.00 per annum payable in advance, nontransferable;

2. For each billiard table or pool table: $25.00 per annum payable in advance, nontransferable;

3. For each automatic baseball table, bowling table or shuffleboard table: $40.00 per annum, payable in advance, nontransferable.

B. The license fee required in this section shall be in addition to any state or city license fee required by other ordinances. (Ord. 1434 § 1, 1999).

5.24.050 License – Transfer.

Licenses issued pursuant to the terms of this chapter shall not be assignable in the event of sale or transfer of such business to other ownership except upon the application and approval by the city for such transfer or assignment. (Ord. 1434 § 1, 1999).

5.24.060 License – Revocation.

A. If any person, firm or corporation licensed under this chapter violates any provision of this chapter or any other city ordinance or provision thereof or violates any of the rules or regulations set forth in this chapter, the license of said person, firm or corporation shall be revoked or suspended by the mayor and council; provided, that said person, firm or corporation may request a hearing before the council by giving written notice of appeal to the clerk within 15 days of receipt of notice of revocation or suspension.

B. The mayor and council retains the authority to suspend said license as provided for in this section for any term they deem appropriate and if a license is revoked or suspended under this section, the license fee shall be forfeited and not refundable. (Ord. 1434 § 1, 1999).

5.24.070 Penalty for violation.

Every person, firm or corporation who violates any of the provisions of this chapter shall, in addition to the procedure of revocation or suspension provided for in this chapter, upon conviction thereof, be punished by a fine not exceeding $250.00, or by imprisonment for a period of not more than 90 days or both such fine and imprisonment. (Ord. 1434 § 1, 1999).

Chapter 5.32
UTILITY BUSINESS*

Sections:

5.32.010 Exercise of power.

5.32.020 License required.

5.32.030 Definitions.

5.32.040 Tax – Imposed.

5.32.050 Tax – Payment schedule.

5.32.060 Allocation of income – Cellular telephone service.

5.32.070 Records required.

5.32.080 Tax – Late penalty.

5.32.090 Tax – Credit or refund for overpayment.

5.32.100 Annexation notification.

5.32.110 Failure to comply – Fraud.

5.32.120 Constitutionality and severability.

5.32.130 Regulation promulgation.

*Prior legislation: Ords. 789, 885, 1034, 1205, 1434, and 1549.

5.32.010 Exercise of power.

The provisions of this chapter shall be deemed to be an exercise of the power of the city. (Ord. 1583 § 1, 2003).

5.32.020 License required.

No person, firm or corporation shall engage in or carry on any business, occupation, act or privilege for which a tax is imposed by MMC 5.32.040 without first having obtained, and being the holder of, a license so to do, to be known as an occupation license. Each such person, firm or corporation shall promptly apply to the Milton city clerk for such license upon such forms as the clerk shall prescribe, giving such information as the clerk shall deem reasonably necessary to enable the clerk’s office to administer and enforce this chapter, and, upon acceptance of such application by the clerk, the clerk shall thereupon issue such license to the applicant. Such occupation license shall be personal and nontransferable and shall be valid as long as the licensee shall continue in the business and shall comply with this chapter. (Ord. 1583 § 1, 2003).

5.32.030 Definitions.

In construing the provisions of this chapter, except when otherwise plainly declared or clearly apparent from the context, the following definitions shall be applied:

A. “Cable television service” means the business of delivery or distribution of cable television picture or signal.

B. “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, or similar communication or transmission system, and as more fully defined in RCW 82.04.065. It includes cooperative or farmer line telephone companies or associations operating an exchange. “Telephone business” does not include the providing of competitive telephone service, nor the providing of cable television service, nor the providing of broadcast services by radio or television stations.

C. “Cellular telephone service” is a two-way voice and data telephone/telecommunications system based in whole or substantially in 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. The definition of 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 a purpose similar to cellular mobile service.

D. “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 services, if the equipment or apparatus is of a type which can be provided by persons that are not subject to regulation as telephone companies under RCW Title 80, and for which a separate charge is made. Transmission of communication through cellular telephones is classified as “telephone business” rather than “competitive telephone service.”

E. “Gross income” means the value proceeding or accruing from the sale of tangible property or services, and receipts (including all sums earned or charged, whether received or not) by reason of the investment of capital in the business engaged in, including rentals, royalties fees or other emoluments, however designated (excluding receipts or proceeds from the use or sale of real property or any interest therein and proceeds from the sale of notes, bonds, mortgages, or other evidences of indebtedness, or stock or the like) and without any deduction on account of the property sold, the cost of materials used, labor costs, interest or discount paid or any expenses whatsoever, without any deduction on account of losses. (Ord. 1583 § 1, 2003).

5.32.040 Tax – Imposed.

There are levied upon and shall be collected from persons on account of the business activities annual license fees and occupation taxes, in the amounts to be determined by the application of the rates against gross income, as follows:

A. Upon every person, firm or corporation engaged in or carrying on the following business for hire or for sale of a commodity or a service within or partly within the city limits, a tax for the privilege of so doing business as defined in MMC 5.32.030. Upon any telephone business, there shall be levied a license fee and occupation tax equal to six percent of the total gross income including revenues from intrastate toll, derived from the operation of such businesses within the city. Gross operating revenues for this purpose shall not include charges which are passed on to the 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.

B. Upon every person, firm or corporation engaged in carrying on the business of selling or furnishing natural gas, a license fee and occupation tax equal to six percent of the total gross income from such business in the city, due hereunder pursuant to MMC 5.32.050; provided, that there shall not be any tax levied for installation charges.

C. Upon every person, firm or corporation engaged in or carrying on the business of a cellular telephone service, a fee or tax equal to six percent of the total gross income derived from conducting such business within the city of Milton, as indicated by billings and/or charges to Milton customers, due hereunder pursuant to MMC 5.32.050; provided, that there shall not be any tax levied for installation charges.

D. There is levied a tax on the sale, delivery or distribution of electricity, water, storm, and sewer utilities, and for the privilege of carrying on said business, such tax to be equal to the following percentages of the total gross revenue derived from the sale of such electricity, water, storm, and sewer to ultimate users within the city; provided, however, that there shall not be any tax levied for the installation charges of said utilities.

1. Electricity: six percent;

2. Water: six percent;

3. Sewer: six percent;

4. Storm water: six percent.

E. There is levied a tax on the collection of solid waste and recycling and the privilege of carrying on said businesses, such tax to be equal to six percent of the total gross income from such business in the city. (Ord. 1631 § 1, 2004; Ord. 1583 § 1, 2003).

5.32.050 Tax – Payment schedule.

A. Monthly Installments. The taxes imposed by MMC 5.32.040 shall be due and payable in monthly installments, and remittance therefor shall be made on or before the last day of the month following the end of the monthly period in which the tax is accrued. Annual returns for smaller entities may be allowed upon written approval from the finance director. On or before said due date, the taxpayer shall file with the finance director a written return upon such form and setting forth such information as the finance director shall reasonably require relating to the accurate computation and collection of this tax, together with the payment of the amount. (Ord. 1631 § 1, 2004; Ord. 1583 § 1, 2003).

5.32.060 Allocation of income – Cellular telephone service.

A. Service Address. Payments by a customer for the telephone service from telephones without a fixed location shall be allocated among taxing jurisdictions to the location of the customer’s principal service address during the period for which the tax applies, regardless of the location of the facilities used to provide the service. The customer’s “principal service address” is, with respect to each telephone (1) the customer’s plant, store, office, or other facility where the telephone is normally assigned for use in conjunction with the customer’s business activity; or (2) the customer’s place of residence if the telephone is for personal use.

B. Presumption. There is a presumption that the service address shown on the telephone service company’s records is current and accurate, unless the taxpayer has knowledge to the contrary and conveys such knowledge to the city and the telephone service company.

C. Roaming Phones. When service is provided while a subscriber is roaming outside the subscriber’s normal cellular network area, the gross income shall be assigned consistent with the taxpayer’s accounting system to the location of the originating cell site of the call, or to the location of the originating cell site of the call, or to the location of the main cellular switching office that switched the call.

D. Dispute Resolution. If there is a dispute between or among the city of Milton and another city or cities as to the service address of a customer who is receiving cellular telephone services and the dispute is not resolved by negotiation among the parties, then the dispute shall be resolved by the city and the other city or cities by submitting the issue for settle-

ment to the Association of Washington Cities (AWC). Once taxes on the disputed revenues have been paid to one of the contesting cities, the cellular telephone service company shall have no further liability with respect to additional taxes, penalties, or interest on the disputed revenues so long as it promptly changes its billing records for future revenues to comport with the settlement facilitated by AWC. (Ord. 1583 § 1, 2003).

5.32.070 Records required.

Each taxpayer shall keep records reflecting the amount of gross operating revenues, and such records shall be open at all reasonable times to the inspection of the city clerk, or his/her duly authorized subordinates, for verification of the tax returns or for the fixing of the tax or a taxpayer who shall fail to make such returns. (Ord. 1583 § 1, 2003).

5.32.080 Tax – Late penalty.

If any person, firm or corporation subject to this chapter shall fail to pay any tax required by this chapter within 30 days after the due date thereof, there shall be added to such tax a penalty of 12 percent of the amount of such tax, and any tax due under this chapter and unpaid, and all penalties thereon, shall constitute a debt to the city of Milton, Washington, and may be collected by court proceedings, which remedy shall be in addition to all other remedies. (Ord. 1583 § 1, 2003).

5.32.090 Tax – Credit or refund for overpayment.

If, upon application by a taxpayer for a refund, it is determined by the city clerk that within two years immediately preceding the receipt of said application for refund a tax has been paid in excess of that properly due, the excess amount paid within such period of two years shall be credited to the taxpayer’s account or, upon the taxpayer’s ceasing to do business in the city, shall be refunded to the taxpayer. (Ord. 1583 § 1, 2003).

5.32.100 Annexation notification.

Whenever the boundaries of the city of Milton, Washington, are extended by annexation, all persons, firms or corporations subject to this chapter will be provided copies of all annexation ordinances by the first of the succeeding year. (Ord. 1583 § 1, 2003).

5.32.110 Failure to comply – Fraud.

It shall be unlawful for any person liable to tax hereunder to fail or refuse to make application or return for a license or to pay the fee or tax or installment thereof when due, or for any person to make any false or fraudulent application or return or any false statement or representation in, or in connection with, any such application or return, or to aid or abet another in any attempt to evade payment of the fee or tax, or any part thereof, or for any person to fail to appear and/or, testify in response to subpoena issued pursuant hereto, or to testify falsely upon any investigation of the correctness of a return or in any manner to hinder or delay the city or any of its officers in carrying out the provisions of this chapter. (Ord. 1583 § 1, 2003).

5.32.120 Constitutionality and severability.

The invalidity or unconstitutionality of any provision or section of this chapter shall not render any other provision or section of this chapter invalid or unconstitutional. (Ord. 1583 § 1, 2003).

5.32.130 Regulation promulgation.

The city clerk is authorized to adopt, publish and enforce, from time to time, such rules and regulations for the proper administration of this chapter as shall be necessary, and it shall be a violation of this chapter to violate or to fail to comply with any such rule or regulation lawfully promulgated under this section. (Ord. 1583 § 1, 2003).

Chapter 5.36
AUTHORIZED GAMBLING AND TAX*

Sections:

5.36.010 Definitions.

5.36.020 Tax levied.

5.36.030 Exemptions from tax.

5.36.040 Procedure for payment.

5.36.050 Administration and collection.

5.36.060 Terms of acceptance of payment.

5.36.070 Penalties and interest charges for late payment.

5.36.080 Filing required before operation of taxable activity.

5.36.090 Filing – New declaration necessary after license expiration, suspension or revocation.

5.36.100 Records of activity required.

5.36.110 Overpayment and underpayment – Refunds and penalties.

5.36.120 Failure of taxpayer to file return – Administration and finance director authorized to set tax due.

5.36.130 Tax separate from license fee.

5.36.140 Rules and regulations – Council to adopt, publish and enforce.

5.36.150 Tax due constitutes debt.

5.36.160 Three-year limit on recovery.

5.36.170 Violations – Penalty.

5.36.180 Pierce County Code sections adopted by reference.

5.36.190 Revised Code of Washington statutes adopted by reference.

*Prior legislation: Ord. 1091.

5.36.010 Definitions.

For the purpose of this chapter, the words and terms used shall have the same meaning each has under Chapter 218, Laws of 1973, 1st Extraordinary Session and Chapter 9.46 RCW, each as amended, and under the rules of the Washington State Gambling Commission, WAC Title 230, unless otherwise specifically provided or as the context in which they are used clearly indicates that they be given some other meaning. (Ord. 1434 § 1, 1999).

5.36.020 Tax levied.

There is levied upon all persons, associations and organizations conducting or operating within the city any of the activities listed in this section, a tax in the following amounts to be paid to Milton:

A. Bingo and raffles in the amount of five percent of the gross revenue received therefrom less the amount paid for or as prizes;

B. Any punch boards or pull-tabs in the amount of five percent of the gross receipts directly from the operation of the punch boards or pull-tabs themselves;

C. Card playing in the amount of 20 percent of the gross receipts received as fees charged persons for the privilege of playing in card games;

D. Amusement games only to the extent of an amount sufficient to pay the actual costs of enforcement of the provisions of this chapter, and in no event shall such taxation exceed two percent of the gross revenue therefrom, less the amount paid for or as prizes. (Ord. 1533 § 1, 2002; Ord. 1434 § 1, 1999).

5.36.030 Exemptions from tax.

No tax shall be imposed under the authority of this chapter on bingo, raffles or amusement games when such activities, or any combination thereof, are conducted by any bona fide charitable or nonprofit organization as defined in RCW 9.46.020(3), and which organization has not paid operating or management personnel and has gross income from such activities not exceeding $5,000 per year less the amount paid for as prizes. (Ord. 1434 § 1, 1999).

5.36.040 Procedure for payment.

The taxes imposed under this chapter shall be due and payable in monthly installments and remittance therefor shall be made on or before the fifteenth day of the month next succeeding the end of the monthly period in which the tax accrued. The taxpayer shall, on or before the fifteenth day of said month, make out a return on such forms and setting forth such information as the administration and finance director may require showing the amount of the tax for which he is liable for the preceding monthly period, sign and transmit the same to the city clerk together with a remittance for such amount, provided:

A. Whenever a person, association or organization taxable under this chapter conducting or operating a taxable activity on a regular basis terminates the business, sells out or otherwise disposes of this business, any tax due under this chapter shall become due and payable and such taxpayer shall within 10 days thereafter make a return and pay the tax due.

B. Whenever it appears to the administration and finance director that the collection of taxes from any person, association or organization may be in jeopardy, the administration and finance director after not less than 10 days notice to the taxpayer, is authorized to require that the taxpayer remit taxes and returns at such shorter intervals than monthly as the city clerk shall deem appropriate under the circumstances. (Ord. 1434 § 1, 1999).

5.36.050 Administration and collection.

Administration and collection of the various taxes imposed by this chapter shall be the responsibility of the administration and finance director. The taxpayer shall be required to swear and affirm by signature that the information given on the return is true, accurate and complete under penalty of perjury. The administration and finance director shall make forms available to the public in reasonable numbers in the administration and finance director’s office during regular business hours. Along with the tax remittance and return form for each month ending a calendar quarter year, each taxpayer shall submit to the administration and finance director a copy of his quarterly report to the Washington State Gambling Commission required by Chapter 230-08 WAC as now or hereafter amended. (Ord. 1434 § 1, 1999).

5.36.060 Terms of acceptance of payment.

Taxes payable under this chapter shall be remitted to the administration and finance director on or before the time required by bank draft, certified check, cashier’s check, personal check, money order or in cash. If payment is made by a draft or check the tax shall not be deemed paid until the draft or check is accepted in the usual course of business. Nor shall the acceptance of any sum by the administration and finance director be an acquittance or discharge of the tax unless the amount paid is the full amount due. The return and copy of the quarterly report to the Washington State Gambling Commission shall be filed with the administration and finance director after notation of that office upon the return of the amount actually received. (Ord. 1434 § 1, 1999).

5.36.070 Penalties and interest charges for late payment.

A. If full payment of any tax or fee due under this chapter is not received by the administration and finance director on or before the due date, there shall be added to the amount due a penalty fee as follows:

1. One through 10 days late: 10 percent of tax due;

2. Eleven through 20 days late: 15 percent of tax due;

3. Twenty-one through 30 days late: 20 percent of tax due;

4. Thirty-one through 60 days late: 25 percent of tax due.

B. In addition to the penalty set out in subsection A of this section, the administration and finance director shall charge the taxpayer interest for all taxes and fees due at the rate of one percent per month or portion thereof that the amounts are past due. Failure to make payment in full of all tax amounts and penalties within 60 days following the day the tax amount initially became due shall be both a civil and a criminal violation of this section. (Ord. 1434 § 1, 1999).

5.36.080 Filing required before operation of taxable activity.

In order that the city may identify those persons who are subject to taxation under this chapter, each person, association or organization shall file with the administration and finance director a sworn declaration of intent to conduct an activity taxable under this chapter upon a form to be prescribed by the administration and finance director together with a copy of the license issued therefor by the Washington State Gambling Commission. The filing shall be made not later than 15 days prior to conducting or operating the taxable activity. No fee shall be charged for such filing which is not for the purpose of regulation of this activity but for the purposes of administration of this taxing chapter only. Failure to timely file shall not excuse any person, association or organization from tax liability. (Ord. 1434 § 1, 1999).

5.36.090 Filing – New declaration necessary after license expiration, suspension or revocation.

A new declaration of intent to conduct or operate any of the activities taxable under this chapter shall be required prior to the recommencement of the activity following the expiration, suspension or revocation of any license previously issued by the Washington State Gambling Commission in the same manner as described in MMC 5.36.080. (Ord. 1434 § 1, 1999).

5.36.100 Records of activity required.

Each person, association or organization engaging in an activity taxable under this chapter shall maintain records respecting that activity which truly, completely and accurately disclose all information necessary to determine the taxpayer’s tax liability under this chapter during each base tax period. Such records shall be kept and maintained for a period of not less than three years. In addition, all information and items required by the Washington State Gambling Commission under Chapter 230-08 WAC and the United States Internal Revenue Service respecting taxation shall be kept and maintained for the period required by those agencies. All books, records and other items required to be kept and maintained under this section shall be subject to and immediately made available for inspection and audit during normal business hours with or without notice at the place where such records are kept on demand by the administration and finance director for the purpose of enforcing the provisions of this taxing chapter. Failure of a taxpayer to keep books and records as required by this section shall be a bar to contesting the assessment of taxes as estimated by the city clerk. Where a taxpayer does not keep all of the books, records, or items required to be kept or maintained under this section in this jurisdiction so that the above state officials or their designees may examine them conveniently, the taxpayer shall either:

A. Produce all of the required books, records or items within this jurisdiction for such inspection within five days following a request of the above officials that he do so; or

B. Bear the actual cost of inspection by the above officials or their designees at the location where such books, records or items are located; provided, that a taxpayer choosing to bear these costs shall pay in advance to the above-stated officials or their designees the estimated costs thereof, including, but not limited to, round trip fare by the most rapid means, lodging, meals and incidental expenses; the actual amount due or to be refunded for expenses shall be determined following said examination of the records. (Ord. 1434 § 1, 1999).

5.36.110 Overpayment and underpayment – Refunds and penalties.

If upon application by a taxpayer for a refund or for an audit of his records or upon any examination of the returns or records of any taxpayer it is determined by the administration and finance director that within three years immediately preceding receipt by the administration and finance director of the application by the taxpayer for a refund or an audit in the absence of such an application within the three years immediately preceding the commencement by the city clerk of such examination:

A. A tax or other fee has been paid in excess of that properly due, the total excess paid over all amounts due to the city within such period of three years shall be credited to the taxpayer’s account or shall be refunded to the taxpayer at the taxpayer’s option. No refund or credit shall be allowed with respect to the city clerk for more than three years before the date of such application for examination.

B. A tax or other fee has been paid which is less than that properly due or no tax or other fee has been paid, the administration and finance director shall mail a statement by certified mail to the taxpayer showing the balance due including the tax amount of the penalty, assessments and fees, and it shall be a separate additional violation of this chapter if a taxpayer fails to make a payment in full within 10 calendar days of such mailing. (Ord. 1434 § 1, 1999).

5.36.120 Failure of taxpayer to file return – Administration and finance director authorized to set tax due.

If any taxpayer fails, neglects or refuses to make and file his return as and when required under this chapter, the administration and finance director is authorized to determine the amount of tax payable together with any penalty and/or interest assessed under the provisions of this chapter and by certified mail to notify such taxpayer of the amount so determined, which amount shall thereupon become the tax penalty and/or interest and shall become immediately due and payable. (Ord. 1434 § 1, 1999).

5.36.130 Tax separate from license fee.

The tax levied in this chapter shall be additional to any license fee or tax imposed or levied under any law or any other resolution of the city except as otherwise expressly provided in this chapter. (Ord. 1434 § 1, 1999).

5.36.140 Rules and regulations – Council to adopt, publish and enforce.

The council shall have the power and it shall be their duty from time to time to adopt, publish and enforce rules and regulations not inconsistent with this chapter or with superior law for the purposes of carrying out the provisions hereof and it shall be unlawful to violate or fail to comply with any such rule or regulation. (Ord. 1434 § 1, 1999).

5.36.150 Tax due constitutes debt.

Any tax due and unpaid under this chapter and all penalties or fees shall constitute a debt to the city, a legal subdivision of the state of Washington, and may be collected by court proceedings the same as any other debt in like amount which shall be in addition to all other existent remedies. (Ord. 1434 § 1, 1999).

5.36.160 Three-year limit on recovery.

The right of recovery by the city from the taxpayer for any tax provided under this chapter shall be outlawed after the expiration of three calendar years from the date said tax became due. The right of recovery against the city because of overpayment of tax by any taxpayer shall be outlawed after the expiration of three calendar years from the date such payment was made. (Ord. 1434 § 1, 1999).

5.36.170 Violations – Penalty.

Any person violating or failing to comply with any of the provisions of this chapter or any lawful rule or regulation adopted by the administration and finance director pursuant thereto shall be guilty of a misdemeanor. Any taxpayer who engages in or carries on any gambling activities subject to a tax under this chapter without having complied with the provisions of this chapter shall be guilty of a violation of this chapter for each day in which the gambling activity is carried on. (Ord. 1434 § 1, 1999).

5.36.180 Pierce County Code sections adopted by reference.

Pierce County Code Sections 4.04.010 through 4.04.170 are adopted by reference. (Ord. 1434 § 1, 1999).

5.36.190 Revised Code of Washington statutes adopted by reference.

The following sections of the Revised Code of Washington as now or hereafter amended are hereby adopted by reference as part of this chapter as though such sections were set forth herein in full:

RCW

9.46.010 Legislative declaration.

9.46.0201 Amusement game.

9.46.0205 Bingo.

9.46.0209 Bona fide charitable or nonprofit organization.

9.46.0213 Bookmaking.

9.46.0217 Commercial stimulant.

9.46.0221 Commission.

9.46.0225 Contest of chance.

9.46.0229 Fishing derby.

9.46.0233 Fund raising event.

9.46.0237 Gambling.

9.46.0241 Gambling device.

9.46.0245 Gambling information.

9.46.0249 Gambling premises.

9.46.0253 Gambling record.

9.46.0257 Lottery.

9.46.0261 Member, bona fide member.

9.46.0265 Player.

9.46.0269 Professional gambling.

9.46.0273 Punch boards, pull-tabs.

9.46.0277 Raffle.

9.46.0281 Social card game.

9.46.0285 Thing of value.

9.46.0289 Whoever, person.

9.46.0305 Dice or coin contests for music, food, or beverage payment.

9.46.0311 Charitable, nonprofit organizations – Authorized gambling activities.

9.46.0315 Raffles – No license required when.

9.46.0321 Bingo, raffles, amusement games – No license required, when.

9.46.0325 Social card games, punch boards, pull-tabs authorized.

9.46.0331 Amusement games authorized.

9.46.0335 Sports pools authorized.

9.46.0341 Golfing sweepstakes authorized.

9.46.0345 Bowling sweepstakes authorized.

9.46.0351 Social card, dice games – Use of premises of charitable, nonprofit organizations.

9.46.0355 Promotional contests of chance authorized.

9.46.0361 Turkey shoots authorized.

9.46.070 Gambling commission – Powers and duties.

9.46.110 Taxation of gambling activities – Limitations – Restrictions on punch boards and pull-tabs.

9.46.120 Restrictions as to management or operation personnel – Restriction as to leased premises.

9.46.130 Inspection and audit of premises, paraphernalia, books and records – Reports for the commission.

9.46.150 Injunctions – Voiding of licenses, permits, or certificates.

9.46.153 Applicants and licensees – Responsibilities and duties – Waiver of liability – Investigation statement as privileged.

9.46.158 Applicants, licensees, operators – Commission approval for hiring certain persons.

9.46.170 False or misleading entries or statements, refusal to produce records, as violations – Penalty.

9.46.185 Causing person to violate rules or regulation as violation – Penalty.

9.46.190 Violations relating to fraud or deceit – Penalty.

9.46.192 Cities and towns – Ordinance enacting certain sections of chapter – Limitations – Penalties.

9.46.193 Cities and towns – Ordinance adopting certain sections of chapter – Jurisdiction of courts.

9.46.195 Obstruction of public servant in administration or enforcement as violation – Penalty.

9.46.196 Defrauding or cheating other participant or operator as violation – Causing another to do so as violation – Penalty.

9.46.198 Working in gambling activity without license as violation – Penalty.

(Ord. 1434 § 1, 1999).

Chapter 5.40
ANIMAL KENNELS

(Repealed by Ord. 1707)

Chapter 5.44
ADULT ENTERTAINMENT BUSINESS LICENSING AND REGULATION*

Sections:

5.44.010 Definitions.

5.44.020 Findings of fact.

5.44.030 Penalties.

5.44.040 Additional enforcement.

5.44.050 Business hours.

5.44.060 Activities not prohibited.

5.44.070 License suspension or revocation.

5.44.080 Administrative appeal.

5.44.090 Hearing examiner – Appeal, general powers and duties.

5.44.100 Hearing examiner – Conflict of interest and freedom from improper influence.

5.44.110 Appeal briefs.

5.44.120 Public hearing.

5.44.130 Date, time, place for hearing.

5.44.140 Burden of proof.

5.44.150 Hearing examiner’s decision – Findings required.

5.44.160 Reconsideration.

5.44.170 Action after hearing.

5.44.180 Appeal from hearing examiner’s decision.

5.44.190 Waiver of right to appeal.

5.44.200 Stay during administrative and judicial appeal.

5.44.210 License for establishment required – Fee.

5.44.220 License for managers, entertainers required – Fee.

5.44.230 Due date for license fees.

5.44.240 License applications.

5.44.245 Manager’s, entertainer’s license denial.

5.44.250 Manager on premises.

5.44.260 Advertising rules and regulations.

5.44.270 Standards of conduct and operation.

5.44.280 List of entertainments, fees.

5.44.290 Physical layout of premises – Sight obstructions.

5.44.300 Notice to customers.

5.44.310 Additional requirements for panorams.

5.44.320 Additional requirements for adult entertainment establishments.

5.44.330 Severability.

*Prior legislation: Ords. 1292 and 1333.

5.44.010 Definitions.

For the purpose of this chapter the words and phrases used in this chapter shall have the following meanings unless the context otherwise indicates:

A. “Adult entertainment” means:

1. Any exhibition, performance or dance of any type conducted in a premises where such exhibition, performance or dance involves a person who is unclothed or in such costume, attire or clothing as to expose any portion of the pubic region, anus, buttocks, vulva or genitals, or any portion of the female breast below the top of the areola or wearing any device or covering exposed to view which simulates the appearance of any portion of the pubic region, anus, buttocks, vulva or genitals, or the female breast below the top of the areola or human male genitals in a discernibly turgid state, even if completely and opaquely covered; or

2. Any exhibition, performance or dance of any type conducted in a premises where such exhibition, performance or dance is distinguished or characterized by a predominant emphasis on the depiction, description, simulation or relation to the following specified sexual activities:

a. Human genitals in a state of sexual stimulation or arousal;

b. Acts of human masturbation, sexual intercourse or sodomy; or

c. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast; or

3. Any exhibition, performance or dance intended to sexually stimulate any patron and conducted in a premises where such exhibition, performance or dance is performed for, arranged with or engaged in with fewer than all patrons on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance. For purposes of example and not limitation, such exhibitions, performances or dances are commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or straddle dancing; or

4. Any “panoram premises,” which shall mean a business or commercial establishment where on the premises or a portion of the premises, for any form of consideration, one or more still or motion picture projectors, slide projectors, computer generated or enhanced pornography, panoram, peep show, or similar machines, or other image producing machines, are used to show films, motion pictures, video cassettes, slides, or other photographic reproductions for individual viewing by the public on the premises of the business, with the viewed materials being characterized by the depiction or description of nudity or of specified sexual activities as defined above at subsection (A)(2) of this section and/or where on the premises there is individual viewing by use of a panoram device of live adult entertainment; or

5. Any “adult motion picture theater,” which shall mean a motion picture theater business or commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions characterized by the depiction or description of nudity or of specified sexual activities as defined above at subsection (A)(2) of this section are regularly shown.

B. “Adult entertainment establishment” means any commercial premises to which any patron is invited or admitted and where adult entertainment as defined above at subsection A of this section is provided.

C. “Applicant” means the individual or entity seeking an adult entertainment license in the city of Milton.

D. “Applicant control persons” means all partners, corporate officers and directors and any other individuals in the applicant’s business organization who hold a significant interest in the adult entertainment establishment, based on responsibility for management of the adult entertainment business.

E. “Employee” means any and all persons, including managers, entertainers, and independent contractors who work in or at or render any services directly related to the operation of any adult entertainment establishment.

F. “Entertainer” means any person who provides live adult entertainment whether or not a fee is charged or accepted for such entertainment.

G. “Manager” means any person who manages, directs, administers, or is in charge of the affairs and/or the conduct of any portion of any activity involving adult entertainment occurring at any adult entertainment establishment.

H. “Operator” means any person operating, conducting or maintaining an adult entertainment establishment.

I. “Panoram” or “peep show” means any device which, upon insertion of a coin or by any other means of payment, including membership fee or other charge, exhibits or displays a picture or view by film, video or by any other means, including observation of live performances.

J. “Panoram premises” means any premises or portion of a premises or portion of a premises on which a panoram is located and which is open to the public, including through membership.

K. “Person” means any individual, partnership, corporation, trust, incorporated or unincorporated association, marital community, joint venture, governmental entity, or other entity or group of persons, however organized.

L. “Sexual conduct” means acts of:

1. Sexual intercourse within its ordinary meaning; or

2. Any contact between persons involving the sex organs of one person and the mouth or anus of another; or

3. Masturbation, manual or instrumental, of oneself or of one person by another; or

4. Touching of the sex organs or anus of oneself or of one person by another. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.020 Findings of fact.

Based on public testimony and other evidence presented to it, the city council on February, 1996, makes the following findings of fact by adoption of Ordinance 1292:

A. The secondary effects of the activities defined and regulated in this chapter are detrimental to the public health, safety, morals and general welfare of the citizens of the city and, therefore, such activities must be regulated. Studies and reports from other jurisdictions relied upon include the August 9, 1995, report by Federal Way city attorney Londi K. Lindell to the Federal Way mayor and councilmembers and the summary of land use studies from 13 other jurisdictions, copies of which are attached to the ordinance codified in this chapter as Exhibits “A” and “B.”

B. Regulation of the adult entertainment industry is necessary because in the absence of such regulation significant criminal activity has historically and regularly occurred. This history of criminal activity in the adult entertainment industry has included prostitution, illegal employment of minors, narcotics and alcoholic beverage law violations, breaches of the peace, tax evasion and the presence within the industry of individuals with hidden ownership interests and outstanding arrest warrants.

C. Proximity or contact between entertainers and patrons during adult entertainment performances or between patrons in panorams and adult motion picture theaters can facilitate sexual contact, prostitution and related crimes. Concerns about crime and public sexual activity are legitimate and compelling concerns of the city which demand reasonable regulation of adult entertainment establishments in order to protect the public health, safety and general welfare.

D. The activities described in subsections B and C of this section occur, in the absence of regulation, regardless of whether the adult entertainment is presented in conjunction with the sale of alcoholic beverages.

E. It is necessary to license entertainers in the adult entertainment industry to prevent the exploitation of minors, to ensure that each such entertainer is an adult and to ensure that such entertainers have not assumed a false name, which would make regulation of the entertainer difficult or impossible.

F. It is necessary to have a licensed manager on the premises of establishments offering adult entertainment at such times as such establishments are offering adult entertainment so that there will at all necessary times be an individual responsible for the overall operation of the adult entertainment establishment, including the actions of patrons, entertainers and other employees.

G. The license fees required in this chapter are necessary as nominal fees imposed as necessary regulatory measures designed to help defray the substantial expenses incurred by the city in regulating the adult entertainment industry.

H. Hidden ownership interests for the purposes of skimming profits and avoiding the payment of taxes have historically occurred in the adult entertainment industry in the absence of regulation. These hidden ownership interests have historically been held by organized and white-collar crime elements. In order for the city to effectively protect the public health, safety, morals and general welfare of its citizens and effectively allocate its law enforcement resources, it is important that the city be fully apprised of the actual ownership of adult entertainment establishments, and identities and backgrounds of persons responsible for management and control of the adult entertainment establishment.

I. It is not the intent of this chapter to suppress or censor any expressive activities protected by the First Amendment of the United States Constitution or Article 1, Section 5 of the Washington State Constitution, but rather to enact time, place and manner regulations which address the compelling interests of the city in mitigating the secondary effects of adult entertainment establishments.

J. In an undercover operation in 1995, police officers entered the Deja Vu live adult entertainment establishment in neighboring Federal Way, Washington over an approximately five-month period. Approximately 24 criminal violations were charged for acts occurring while the officers were inside Deja Vu. Police officers repeatedly observed managers ignoring criminal law violations committed inside Deja Vu, within a short distance from the manager. Managers would look at the patrons/officers while criminal violations were committed by the entertainers. Entertainers continuously violated the Federal Way City Code. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.030 Penalties.

A. Criminal Penalty. Any person violating any of the terms of this chapter shall be guilty of a misdemeanor and upon conviction thereof be punished as provided in Chapter 1.08 MMC.

B. Civil Penalty. In addition to any other penalty provided in this section or by law, any person who violates any provision of any business license ordinance shall be subject to a civil penalty in an amount not to exceed $250.00 per violation, to be directly assessed by the city clerk. The city clerk, in a reasonable manner, may vary the amount of the penalty assessed to consider the appropriateness of the penalty to the size of the business of the violator; the gravity of the violation; the number of past and present violations committed; and the good faith of the violator in attempting to achieve compliance after notification of the violation. All civil penalties assessed will be enforced and collected in accordance with the procedure specified under this chapter. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.040 Additional enforcement.

Notwithstanding the existence or use of any other remedy, the city clerk may seek legal or equitable relief to enjoin any acts or practices which constitute or will constitute a violation of any provision of this chapter. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.050 Business hours.

No adult entertainment shall be conducted between the hours of 2:00 a.m. and 10:00 a.m. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.060 Activities not prohibited.

A. This chapter shall not be construed to prohibit:

1. Plays, operas, musicals or other dramatic works which are not obscene as defined below at subsection B of this section;

2. Classes, seminars and lectures held for serious scientific or educational purposes; or

3. Exhibitions or dances which are not obscene.

B. Whether or not activity is obscene shall be judged by consideration of the following factors:

1. Whether the average person, applying contemporary community standards, would find that the activity taken as a whole appeals to a prurient interest in sex; and

2. Whether the activity depicts or describes in a patently offensive way, as measured against community standards, sexual conduct as described in RCW 7.48A.010(2) (b); and

3. Whether the activity taken as a whole lacks serious literary, artistic, political or scientific value. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.070 License suspension or revocation.

A. The city clerk may, at any time upon the recommendation of the chief of police and as provided below, suspend or revoke any license issued under this chapter:

1. Where such license was procured by fraud or false representation of fact; or

2. For the violation of, or failure to comply with, the provisions of this chapter or any other similar local or state law by the licensee or by any of its servants, agents or employees when the licensee knew or should have known of the violations committed by its servants, agents or employees; or

3. For the conviction of the licensee of any crime or offense involving prostitution, promoting prostitution, or transactions involving controlled substances (as that term is defined in Chapter 69.50 RCW) committed on the premises, or the conviction of any of the licensee’s servants, agents or employees of any crime or offense involving prostitution, promoting prostitution, or transactions involving controlled substances (as that term is defined in Chapter 69.50 RCW) committed on the licensed premises when the licensee knew or should have known of the violations committed by its servants, agents or employees.

B. A license procured by fraud or misrepresentation shall be revoked. Where other violations of this chapter or other applicable ordinances, statutes or regulations are found, the license shall be suspended for a period of 30 days upon the first such violation, 90 days upon the second violation within a 24-month period, and revoked for third and subsequent violations within a 24-month period, not including periods of suspension.

C. The clerk shall provide at least 10 days’ prior written notice to the licensee of the decision to suspend or revoke the license. Such notice shall inform the licensee of the right to appeal the decision for hearing by a hearing examiner and shall state the effective date of such revocation or suspension and the grounds for revocation or suspension.

D. Notification shall be by personal service or registered or certified mail, return receipt requested, of the decision. Notice mailed to the address on file shall be deemed received three days after mailing. The notice shall specify the grounds for the suspension or revocation. The suspension or revocation shall give notice that it shall become effective 10 days from the date the notice is delivered or deemed received unless the person affected thereby files a written request with the city clerk for a hearing before the hearing examiner within such 10-day period.

E. Where the city of Milton public works director or designee, fire marshal, police chief, or the Pierce or King County health department finds that any condition exists upon the premises of an adult entertainment establishment which constitutes a threat of immediate serious injury or damage to persons or property, said official may immediately suspend any license issued under this chapter pending a hearing in accordance with MMC 5.44.080. The official shall issue notice setting forth the basis for the action and the facts that constitute a threat of immediate serious injury or damage to persons or property, and informing the licensee of the right to appeal the suspension to the hearing examiner under the same appeal provisions set forth in subsection C of this section; provided, however, that a suspension based on threat of immediate serious injury or damage shall not be stayed during the pendency of the appeal. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.080 Administrative appeal.

A. Notice of Appeal. Any person falling under the provisions of this chapter may appeal for a hearing before an appointed hearing examiner from any notice of suspension, denial or revocation or civil penalty assessment by filing with the city clerk within 10 days from the date the notice is delivered or deemed received, a written appeal containing:

1. A caption reading: “Appeal of _______” giving the names of all appellants participating in the appeal;

2. A brief statement setting forth the legal interest of each of the appellants participating in the appeal;

3. A copy of the order being appealed together with a brief statement in concise language of the specific order or action protested, and, if relevant, any material facts claimed to support the contentions of the appellant;

4. A brief statement in concise language of the relief sought, and the reasons why it is claimed the protested order or action should be reversed, modified or otherwise set aside;

5. The signatures of all parties named as appellant, and their official mailing addresses;

6. The verification, by declaration under penalty of perjury, of each appellant as to the truth of the matters stated in the appeal; and

7. An affidavit or declaration of service upon the city clerk personally or by mail to the City Hall of the original appeal.

B. Notice to Mayor. Upon receipt of the notice of appeal set forth in subsection A of this section, the city clerk shall provide within one working day of receipt a copy to the mayor. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.090 Hearing examiner – Appeal, general powers and duties.

A. Appeals shall be heard by the city’s hearing examiner (appointed pursuant to Chapter 2.54 MMC).

B. The hearing examiner shall have the power and duty to receive and examine relevant information in any appeal for which he/she is appointed, to conduct all appeal hearings for each case for which he/she is appointed, to prepare and enter findings of fact and conclusions of law and issue final decisions for each case heard on appeal.

C. The hearing examiner’s decision shall be based upon the policies and provisions of this chapter and all relevant provisions of the city’s comprehensive plan, municipal code, and any other relevant plan, regulation, federal or state law, including case law.

D. Upon application of either party to an appeal or upon the independent action of the hearing examiner, the hearing examiner may consolidate appeals where the evidence or underlying issues are related, and consolidation would expedite the efficiency of the appeals process without jeopardizing the rights of the parties. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.100 Hearing examiner – Conflict of interest and freedom from improper influence.

A. The appearance of fairness doctrine, as set forth in Chapter 42.36 RCW, shall apply to the hearing examiner.

B. No councilmember, city official, or any other person shall interfere or attempt to interfere with the hearing examiner in the performance of his/her designated duties. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.110 Appeal briefs.

Each party to an appeal shall be entitled to file an opening brief with the hearing examiner; provided, that a copy is also served upon all parties no later than three working days prior to a hearing. The hearing examiner shall have the authority to impose conditions upon the filing of briefs, including time and service. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.120 Public hearing.

A. Before rendering a decision on any application or appeal, the hearing examiner shall hold at least one public hearing thereon with participation at the hearing limited to the parties, their attorney(s) of record, and witnesses called by the parties.

B. All public hearings conducted by the hearing examiner shall be tape-recorded. Any testimony provided shall be under oath.

C. The hearing examiner shall review all appeals by reviewing all evidence admitted and by taking testimony. The hearing examiner shall give consideration to, but shall not be bound to, follow the superior court civil rules of evidence.

D. The hearing examiner shall prescribe rules and regulations for the conduct of hearings. The hearing examiner may make rulings that include, but are not limited to, provisions for the issuance of preliminary decisions in complex cases, and the authorization for parties to propose draft findings of fact.

E. The opportunity to cross-examine witnesses shall be afforded all parties or their counsel. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.130 Date, time, place for hearing.

As soon as practicable after receiving the written appeal, the hearing examiner shall fix a date, time and place for the hearing of the appeal. Such date shall be not less than 10 days nor more than 30 days from the date the hearing examiner is appointed, unless the parties agree to an extension of time. Written notice of the time and place of the hearing shall be given at least 10 days prior to the date of the hearing to each appellant and to the city clerk, as the respondent, by the hearing examiner either by causing a copy of such notice to be delivered to the parties personally or by mailing a copy thereof, postage prepaid, addressed to the parties or to their attorney of record, if any party is represented by counsel. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.140 Burden of proof.

In any appeal filed pursuant to this chapter, the city shall have the burden of proving, by a preponderance of the evidence, that it correctly determined that a violation of the chapter has occurred supporting the city’s enforcement action. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.150 Hearing examiner’s decision – Findings required.

When the hearing examiner renders a decision he or she shall make and enter findings of fact from the record and conclusions of law thereof which support such decision. The findings of fact shall be supported by substantial evidence in the record and the conclusions of law shall be based upon the applicable law. All decisions of the hearing examiner shall be rendered within 10 working days following the conclusion of all testimony and hearings and closing of the record, unless a longer period is mutually agreed to by the applicant or appellant and the hearing examiner. Upon issuance of the hearing examiner’s decision, the hearing examiner shall transmit a copy of the decision by certified mail to the appellant and by regular mail to other parties of record. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.160 Reconsideration.

Any party believing that the decision of the hearing examiner was not supported by substantial evidence in the record or that the hearing examiner failed to apply the law correctly may make a written request for reconsideration by the hearing examiner within seven working days of the written decision. The request shall specifically set forth the alleged errors. The hearing examiner may, after review of the record, take such further action as he or she deems proper including convening an additional hearing, and may render a revised decision. The decision of the hearing examiner shall be subject to reconsideration only one time, even if the hearing examiner reverses or modifies his or her original decision. (Ord. 1447 § 1, 2000; Ord. 1434 § 1, 1999).

5.44.170 Action after hearing.

Upon completion of the hearing, the hearing examiner shall:

A. Render his/her written decision including findings and conclusions within 15 days following the close of the appeal hearing. Any person aggrieved by the decision of the hearing examiner shall have the right to appeal the decision to the Pierce County superior court within 14 days of the hearing examiner’s decision, by writ of certiorari. The decision of the clerk shall be stayed during the pendency of any judicial appeals except as provided in MMC 5.44.200.

B. Affirm the city clerk’s or official’s decision.