Chapter 5.04
BUSINESS LICENSES
Sections:
5.04.040 License application and process – Resident, nonresident, and peddlers.
5.04.050 License application and process – Home occupation.
5.04.060 Appeal upon denial or issuance of license.
5.04.070 Separate licensing required.
5.04.140 License renewal – Residential, nonresident, peddlers and home occupation.
5.04.010 Definitions.
The following definitions shall apply in construing the provisions of this chapter, except where otherwise declared or clearly apparent from the context:
A. “Amusement center” means any place operated principally for the use of amusement games or board games or a combination of businesses that includes more than one amusement game or board game.
B. “Amusement game” means any game played on a device or machine, table or board for entertainment in which:
1. No cash or merchandise prizes are awarded;
2. The outcome depends to a material degree on the skill of the contestants;
3. The contestant actively participates; and
4. The outcome is not under control of a third party.
“Amusement games” include, but are not limited to, the following: pinball machines, flipper machines and video games. “Board or table-type games” include, but are not limited to, pool tables, billiard tables and shuffleboards.
C. “Business Licensing Service” or “BLS” means the office within the Washington State Department of Revenue providing business licensing services to the city.
D. Engaging in Business.
1. The term “engaging in business” means commencing, conducting, or continuing in business, and also the exercise of corporate or franchise powers, as well as liquidating a business when the liquidators thereof hold themselves out to the public as conducting such business.
2. This section sets forth examples of activities that constitute engaging in business in the city, and establishes safe harbors for certain of those activities so that a person who meets the criteria may engage in de minimis business activities in the city without having to pay a business license fee. The activities listed in this section are illustrative only and are not intended to narrow the definition of “engaging in business” in subsection (D)(1) of this section. If an activity is not listed, whether it constitutes engaging in business in the city shall be determined by considering all the facts and circumstances and applicable law.
3. Without being all-inclusive, any one of the following activities conducted within the city by a person, or its employee, agent, representative, independent contractor, broker or another acting on its behalf, constitutes engaging in business and requires a person to register and obtain a business license:
a. Owning, renting, leasing, maintaining, or having the right to use, or using, tangible personal property, intangible personal property, or real property permanently or temporarily located in the city.
b. Owning, renting, leasing, using, or maintaining an office, place of business, or other establishment in the city.
c. Soliciting sales.
d. Making repairs or providing maintenance or service to real or tangible personal property, including warranty work and property maintenance.
e. Providing technical assistance or service, including quality control, product inspections, warranty work, or similar services on or in connection with tangible personal property sold by the person or on its behalf.
f. Installing, constructing, or supervising installation or construction of real or tangible personal property.
g. Soliciting, negotiating, or approving franchise, license, or other similar agreements.
h. Collecting current or delinquent accounts.
i. Picking up and transporting tangible personal property, solid waste, construction debris, or excavated materials.
j. Providing disinfecting and pest control services, employment and labor pool services, home nursing care, janitorial services, appraising, landscape architectural services, security system services, surveying, and real estate services including the listing of homes and managing real property.
k. Rendering professional services such as those provided by accountants, architects, attorneys, auctioneers, consultants, engineers, professional athletes, barbers, baseball clubs and other sports organizations, chemists, psychologists, court reporters, dentists, doctors, detectives, laboratory operators, teachers, veterinarians.
l. Meeting with customers or potential customers, even when no sales or orders are solicited at the meetings.
m. Training or recruiting agents, representatives, independent contractors, brokers or others, domiciled or operating on a job in the city, acting on its behalf, or for customers or potential customers.
n. Investigating, resolving, or otherwise assisting in resolving customer complaints.
o. In-store stocking or manipulating products or goods, sold to and owned by a customer, regardless of where sale and delivery of the goods took place.
p. Delivering goods in vehicles owned, rented, leased, used, or maintained by the person or another acting on its behalf.
4. If a person, or its employee, agent, representative, independent contractor, broker or another acting on the person’s behalf, engages in no other activities in or with the city but the following, it need not register and obtain a business license:
a. Meeting with suppliers of goods and services as a customer.
b. Meeting with government representatives in their official capacity, other than those performing contracting or purchasing functions.
c. Attending meetings, such as board meetings, retreats, seminars, and conferences, or other meetings wherein the person does not provide training in connection with tangible personal property sold by the person or on its behalf. This provision does not apply to any board of director member or attendee engaging in business such as a member of a board of directors who attends a board meeting.
d. Renting tangible or intangible property as a customer when the property is not used in the city.
e. Attending, but not participating in a “trade show” or “multiple vendor events.” Persons participating at a trade show shall review the city’s trade show or multiple vendor event ordinances.
f. Conducting advertising through the mail.
g. Soliciting sales by phone from a location outside the city.
5. A seller located outside the city merely delivering goods into the city by means of common carrier is not required to register and obtain a business license; provided, that it engages in no other business activities in the city. Such activities do not include those in subsection (D)(4) of this section.
The city expressly intends that engaging in business include any activity sufficient to establish nexus for purposes of applying the license fee under the law and the Constitutions of the United States and the State of Washington. Nexus is presumed to continue as long as the taxpayer benefits from the activity that constituted the original nexus generating contact or subsequent contacts.
E. “Employee” means:
1. In a sole proprietorship, any individual hired by the proprietor to work for and in the business in any capacity;
2. In a partnership, any individual engaged in the conduct of the business, except one partner;
3. In a corporation, all persons engaged in the course of business, including corporate officers and those hired by the corporation as workers of any kind.
F. “Home occupation” means any business activity as defined in BMC 17.04.040 and Chapter 17.12 BMC.
G. “Neighborhood business” means a business occupying a fixed place of operation within the city’s NB neighborhood business zone, as defined in Chapter 17.30 BMC and within the current Brier zoning map.
H. “Nonresident business” means and includes any business conducted in the city from an office outside of the city, not occupying a fixed place of operation within the city, but which business performs work or carries on business within the city.
I. “Peddler” is:
1. Any person who goes from house to house or place to place within the city selling, making offers to sell or soliciting offers to buy any goods, wares, merchandise, service or things of value to persons not retailers in such commodities; or
2. Any person who, while offering for sale any goods, wares, merchandise, services, or things of value, stands or sits in a doorway, any unenclosed vacant lot, parcel of land, or in any other place not used by such person as a permanent place of business.
J. “Person” includes one or more persons of either sex, corporations, partnerships, associations, or other entity capable of having an action at law brought against such entity, but does not include employees licensed pursuant to this chapter.
K. “Resident business” means and includes a business occupying a fixed place of operations within the city and not specifically included in the nonresident or home occupation class of business. (Ord. 468 § 1 (Exh. A), 2020; Ord. 455 § 1, 2018: Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.020 License required.
It is unlawful for any person or persons, firm, corporation, partnership or other business category to either conduct, operate, peddle or engage in business, as defined in BMC 5.04.010(D), or any business activity or perform any services within the city without first having secured a license to do so, and paying all applicable fees in the city fee schedule that is adopted pursuant to Chapter 3.04 BMC; provided, that any person or business meeting the threshold requirements of BMC 5.04.130(B) shall be exempt from paying the business license fee. (Ord. 468 § 1 (Exh. A), 2020; Ord. 455 § 2, 2018: Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.030 Exemptions.
The following shall be exempt from this chapter:
A. Bona fide charitable or nonprofit organizations, as below:
1. Religious organizations solely conducting their core religious activities and no other actual business activities.
2. Any organization for which contributions to such organizations qualify for federal charitable contribution deduction purposes or which otherwise provides proof of being exempt from payment of federal income taxes, pursuant to provisions of 26 USC Section 501(c) of the Internal Revenue Code of 1954, as amended.
3. All other organizations claiming a nonprofit status, but failing to qualify under either subsection (A)(1) or (A)(2) of this section, must comply with all licensing requirements of this chapter.
B. Insurance agent as defined in RCW 48.17.010 as now existing or hereafter amended. This exemption shall not apply to insurance brokers as defined in RCW 48.17.020 as now existing or hereafter amended.
To qualify for an exemption as an insurance agent, a person claiming the exemption must file with the city an affidavit setting forth a description of the business, the address and telephone number from which it is conducted, and an affirmation that the person is doing business solely as an insurance agent and not as an insurance broker.
C. Real estate agent; provided, that real estate offices located within the city are not exempt from the requirements of this chapter.
D. Peddling newspapers of general circulation. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.040 License application and process – Resident, nonresident, and peddlers.
A. Application for the general business license for resident and nonresident businesses is made through the Business Licensing Service (BLS), and must include all information required for each license requested, the total fees due for all licenses, including the fee for the city license as stated in Chapter 3.04 BMC, and the application handling fee required by RCW 19.02.075. BLS will provide information from the application to the city for review.
Application for the peddler licenses is made directly to the city, and must include the following:
1. The physical address and the mailing address for the proposed business or occupation;
2. The type and nature of the proposed business or occupation which the applicant intends to operate on said premises;
3. The identity of the person or persons holding an ownership interest in the business, and those responsible for operation of the business, such as owners, agents, officers, or business managers. If the applicant is a partnership, the application must be made by one of the partners; if a corporation, by one of the officers thereof; if a foreign corporation, partnership or nonresident individual, by the resident agent or local manager of the corporation, partnership or individual. Telephone and/or email contact information shall be provided for each person identified;
4. Each license for engaging in business as a peddler shall specify the articles, services or things to be peddled, and the time of day and dates during which such items are to be peddled;
5. A copy of a valid Washington State business license and any required state permits, insurance, and bonding including the license type, identification, bonding agency and the amount thereof;
6. Any such other information as requested by the city or required by this code to evaluate the application; and
7. The license fee(s) as set forth by Chapter 3.04 BMC.
B. Upon review of a complete license application, the mayor or designee shall take one of the following actions:
1. Approve the application;
2. Approve the application with conditions necessary to ensure compliance with this chapter;
3. Request additional information regarding the type and nature of the proposed business or the responsible party; or
4. Deny the application as provided by this section.
C. In the event the city denies a business license application, the city shall provide a written explanation of the reason for the denial to the applicant, with information regarding the right of appeal. The city may deny a business license application for reasons including but not limited to:
1. If the applicant fails to submit a complete application or additional information requested by the city;
2. If the business or business practices would cause any person to violate any federal, state, or local law or regulation;
3. If the application contains misleading or inaccurate information;
4. If the applicant or other responsible party has previously had a business license denied or revoked in Brier or elsewhere, or has been convicted of, forfeited bonds for, or has pled guilty to offenses related to the operation of the same or a substantially similar business in Brier or elsewhere, and the city has reliable, objective information that approval of the application will result in unlawful business activity;
5. If the application fails to demonstrate compliance with adopted building, zoning, safety, fire, or health regulations; or
6. If violation(s) of the building, zoning, safety, fire or health regulations exist on the premises of the proposed business, after receiving instruction from the city or other regulatory agency to correct such violation(s).
D. Upon approval of an application submitted through BLS, the city clerk will approve issuance of the license through BLS. Upon approval of a peddler license application submitted directly to the city, the city clerk shall issue the peddler license and deliver it to the applicant. Upon denial of the application, the fee shall be returned to the applicant together with notice that the application has been denied; provided, that if the applicant was engaged in the business activity while the application was being processed, the fee shall not be returned. (Ord. 468 § 1 (Exh. A). 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.050 License application and process – Home occupation.
Home occupation business license applications will be processed in accordance with Chapter 17.12 BMC. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.060 Appeal upon denial or issuance of license.
Any applicant denied a license, or any person objecting to the issuance of any license, may appeal the issuance or denial pursuant to Chapter 1.20 BMC. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.070 Separate licensing required.
A separate license must be obtained for each separate and distinct business activity carried on in any one location by one person, and each such license shall authorize the licensee to carry on, pursue or conduct only that business described in the application for the license and only at the location or in the manner indicated therein. If a person conducts their business in more than one location in the city, each location must be licensed separately. If two or more persons each conduct their own business at the same location in the city, each person must obtain their own license for their respective business. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.080 Period of license.
All licenses are valid for a specified period of time as follows:
A. A resident, nonresident, or a home occupation license is valid for one year, or as otherwise prorated through the Business Licensing Service.
B. A peddler’s license shall be valid for six months.
C. An event license to provide goods or services at a city event shall be valid for one city event for which the license is issued. The application shall be submitted directly to the city. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 431 § 1, 2016: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.090 Display of license.
Each business shall display the license at the place of business and each peddler shall carry the license upon his or her person, and each business and peddler shall produce the license for inspection upon the demand of any city official or employee or any customer. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.100 License revocation.
In addition to other powers, the city shall revoke a business license where the licensee uses or occupies property, or conducts or operates the business, in violation of the laws of the city, the state of Washington, the United States of America, or any other governmental agency with jurisdiction. The city clerk shall send a notice by certified mail to the licensee, at the licensee’s business address, stating the intention of the city to revoke the license fifteen days after the date of the notice and describing the reasons for revocation. The license shall be revoked at the expiration of the fifteen days, unless the licensee appeals the revocation pursuant to Chapter 1.20 BMC. No license may be reissued to the licensee for sixty days following a final revocation. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.110 Inspections.
A. The city shall have access to any property during the review and consideration of an application for a business license or thereafter to ensure compliance with the terms of the license, to inspect or investigate any reason related to enforcement of this chapter and to ensure compliance with BMC Title 17.
1. An inspection may be required by the fire district or fire department, police department, health department, planning department, public works department and/or the building department.
2. The city is authorized to enter at all reasonable times in or upon any property; provided the city shall first obtain permission to enter from the responsible party for such property. If entry is refused, the city shall have recourse to every remedy provided by law to secure entry.
3. Notwithstanding the foregoing, whenever it appears to the city that conditions exist requiring immediate action to protect the public health or safety, the city is authorized to enter at all reasonable times in or upon any property, public or private, for the purpose of inspection, investigating or correcting such an emergency condition.
B. Adult family homes, family daycare providers, and group homes as defined in BMC 17.04.040, and any business with one or more violations in the past year shall be required to complete an inspection upon initial application and application for license renewal.
1. Any items requiring correction shall be completed within the time frame specified on the correction notice prior to license issuance or reissuance.
2. Upon application in writing, the city clerk or designee may grant a one-time extension up to the amount of time specified on the original correction notice, if:
a. Unforeseen circumstances or conditions necessitate the extension;
b. The applicant is not responsible for the delay; and
c. The extension will not be substantially detrimental to existing uses in the immediate vicinity of the subject business.
3. If the applicant fails to complete the corrections within the specified period of time, the city may initiate license revocation proceedings pursuant to BMC 5.04.100.
C. Whenever the city has cause to believe that a violation of this chapter has been or is being committed for which no active license has been issued, the city is authorized to inspect the property pursuant to the following:
1. Prior to making any inspections, the city shall present identification credentials, state the reason for the inspection and request entry.
2. If the property or any building or structure on the property is unoccupied, the city clerk or designee shall first make a reasonable effort to locate the owner or other individual(s) having charge or control of the property or portions of the property and request entry.
3. If, after reasonable effort, the city is unable to locate the owner or other individual(s) having charge or control of the property, and has reason to believe the conditions create an imminent hazard to individuals or property, the city may enter the property. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.130 Fees designated.
A. The business license fees shall be as set forth in the city’s fee schedule adopted pursuant to Chapter 3.04 BMC.
B. For purposes of the license by this chapter, any person or business whose annual value of products, gross proceeds of sales, or gross income of the business in the city is equal to or less than two thousand dollars and who does not maintain a place of business within the city shall submit a business license registration to the city; provided, such a person or business shall not pay a business license fee. The threshold does not apply to regulatory license requirements or activities that require a specialized permit (i.e., building, mechanical, plumbing and other development permits). (Ord. 468 § 1 (Exh. A), 2020; Ord. 455 § 3, 2018: Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.140 License renewal – Residential, nonresident, peddlers and home occupation.
A. The resident, nonresident, and home occupation licenses expire on the date established by the BLS, and must be renewed on or before that date to continue to engage in business in the city.
1. Application for renewal of these licenses is made through BLS, and must include all information required to renew all licenses involved, the total fees due for all licenses, and the renewal application handling fee required by RCW 19.02.075.
2. As part of the renewal, the city may also require a re-inspection of the business, as per BMC 5.04.110, prior to approving renewal of the license.
3. The license term and respective fee amount due may be prorated as necessary to synchronize the license expiration with that of the business license account maintained by BLS.
4. Failure to complete the license renewal by the expiration date will incur the late renewal penalty required by RCW 19.02.085 in addition to all other fees due.
5. Failure to complete the renewal within one hundred twenty days after the expiration date will result in the cancellation of the license and will require submitting a new application for license, as provided in this chapter, to continue to engage in business in the city.
B. Within forty-five days before the expiration of the peddler license’s term, the applicant may submit directly to the city a complete application for renewal of the license for a subsequent term. Each license renewal application shall be on forms prescribed by the city, and shall be accompanied by the appropriate fee.
C. Upon review of a complete license renewal application and completion of any inspection required per BMC 5.04.110(C), the city shall take one of the following actions:
1. Approve the application;
2. Approve the application with conditions necessary to ensure compliance with this chapter;
3. Request additional information regarding the type and nature of the proposed business or the responsible party; or
4. Deny the application as provided by BMC 5.04.040(C).
D. In the event the city denies a license renewal application, the city shall provide a written explanation of the reason for the denial to the applicant, with information regarding the right of appeal.
E. If a license expires prior to the submittal of a complete and good-faith application for renewal as required by this section, the business shall be considered to be in violation of the provisions of this chapter. In addition to any other penalties provided in this chapter, an amount equal to ten percent of the city license fee due may be assessed by the city as a penalty for such late application and/or payment. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.150 Scope of license.
Notwithstanding any provision in this chapter, a license required by this chapter may not be issued to any person who uses or occupies or proposes to use or occupy any real property or otherwise conducts or proposes to conduct any business in violation of the provisions of any ordinance of the city or the statutes of the state of Washington. The granting of a license under this chapter shall in no way be construed as permission or acquiescence in a prohibited activity or other violation of the law. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 391 § 1 (Exh. A) (part), 2011)
5.04.160 Violation – Penalty.
Violations of this chapter shall be subject to the following penalties:
A. Nonresident, Resident, Peddler’s and Event Licenses.
1. Any person who owns, operates, or is employed by a business performing work in the city, and is required to be licensed by this chapter or is in violation of this chapter, shall be subject to a nontraffic civil infraction, in the amount set forth in Chapter 1.28 BMC, and shall be punished in accordance with the current fine and penalty provisions for a Class A nontraffic civil infraction.
2. Failure to respond to a Class A nontraffic civil infraction or a second violation for failure to abate the violation shall constitute a Class B nontraffic civil infraction. Failure to respond and continuation of a violation shall constitute a Class C nontraffic civil infraction.
3. Continued failure to respond or continued violation shall constitute a misdemeanor and shall be punished according to the provisions of BMC 1.28.030(A).
B. Home Occupations.
1. The responsible party shall be notified and served with a notice of violation and order of correction as provided for in BMC 1.32.050.
2. Any appeal of the determinations in the notice of violation and order of correction shall follow the appeals process in accordance with provisions of Chapter 1.32 BMC.
3. Failure to comply with the notice of violation and order of correction shall constitute a nontraffic civil infraction and shall be punished in accordance with the provisions of Chapter 1.28 BMC. The first offense for a violation of this chapter shall constitute a Class A nontraffic civil infraction. Any failure to abate in accordance with an order of correction shall be punished as a Class C nontraffic civil infraction. The continued failure to abate after the issuance of a Class C nontraffic civil infraction shall constitute a misdemeanor.
C. Repeat offenses as defined in BMC 1.32.010 of the violation of any provision of this chapter shall be a misdemeanor which shall be punished in accordance with the provisions of BMC 1.28.030(A). Repeat violations shall not require a notice of violation and order of correction before the issuance of a misdemeanor citation. (Ord. 468 § 1 (Exh. A), 2020; Ord. 445 § 1 (Exh. A) (part), 2017: Ord. 435 § 2 (Exh. B) (part), 2016: Ord. 391 § 1 (Exh. A) (part), 2011)