Chapter 5.04
BUSINESS LICENSES
Sections:
5.04.030 Business license required.
5.04.040 Exemptions within town limits.
5.04.050 Application procedure.
5.04.070 Procedure of renewing a license.
5.04.140 Authority to stop work.
5.04.150 Transient merchants, peddlers, and solicitors.
5.04.170 Violation and penalty.
5.04.010 Purpose.
The purpose of this chapter is to regulate and ensure the legal conduct of businesses, to assist in the effective administration of health, fire, building, zoning and other codes of the town of Index, to impose fees for revenue purposes, and to provide a means for obtaining public information and compiling statistical information on existing and new businesses. (Ord. 496 § 5.1, 2022).
5.04.020 Definitions.
For the purposes of this chapter:
A. 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.
1. This definition sets forth examples of activities that constitute engaging in business in the town, and establishes safe harbors for certain of those activities so that a person who meets the criteria may engage in de minimus business activities in the town 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.” If an activity is not listed, whether it constitutes engaging in business in the town shall be determined by considering all the facts and circumstances and applicable law.
2. Without being all inclusive, any one (1) of the following activities conducted within the town 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 town.
b. Owning, renting, leasing, using, or maintaining, an office, place of business, or other establishment in the town.
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 town, 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.
3. 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 town 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 town.
e. Attending, but not participating in, a “trade show” or “multiple vendor events.” Persons participating at a trade show shall review the town’s trade show or multiple vendor event ordinances.
f. Conducting advertising through the mail.
g. Soliciting sales by phone from a location outside the town.
4. A seller located outside the town merely delivering goods into the town 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 town. Such activities do not include those in subsection (A)(3) of this section.
The town expressly intends that engaging in business includes 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.
B. “Person” means any individual, receiver, assignee, trustee in bankruptcy, trust, estate, firm, co-partnership, joint venture, club, company, joint stock company, business trust, corporation, association, society or any group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit or otherwise, and includes the United States or any instrumentality thereof.
C. “Peddler” means any person with no fixed place of business who goes from house to house, from place to place or from state to state, carrying or transporting goods, wares or merchandise and offering or exposing the same for sale, or making sales and deliveries to purchasers.
D. “Solicitor” means any person who goes from house to house, from place to place, or from state to state, soliciting, taking or attempting to take orders for any goods, wares or merchandise, including books, periodicals, magazines or personal property of any nature whatsoever, including any services for future delivery.
E. “Transient merchant” means any person, firm or corporation who engages temporarily in the business of selling and delivering goods, wares or merchandise within the town of Index, or who, in furtherance of such purposes, leases, uses or occupies any building, structure, vacant lot, motor vehicle, or trailer for up to thirty (30) days. (Ord. 496 § 5.2, 2022).
5.04.030 Business license required.
It is unlawful for any person to be engaging in business within the Index town limits without having first obtained a business license from the town of Index. (Ord. 496 § 5.3, 2022).
5.04.040 Exemptions within town limits.
A. The following are exempt from applying for a business license under Section 5.04.050:
1. Minors doing business or operating a business concern where no other person is employed by the minor.
2. The United States or any instrumentality thereof and the state of Washington or any political subdivision thereof.
3. The sale, delivery or peddling of fruits, vegetables, berries, eggs or farm produce exempt from licensing pursuant to RCW 36.71.090.
4. Casual and isolated sales, including festivals, yard sales, garage sales, hobbyists, artists, and craft persons in compliance with all Index Municipal Codes; provided, that such sales are not conducted on the same location for more than six (6) days (whether consecutive or not) during any ninety (90) day period.
5. Persons engaged in acts as agents, officials or representatives of the town of Index.
B. The license fee portion of this chapter shall not apply to nonprofit and not-for-profit activities and fundraising sales carried on by religious, charitable, educational, benevolent, fraternal or social organizations which have been determined by the Internal Revenue Service (IRS) of the United States to be exempt from payment of income tax and whose charitable contributions would be deemed tax deductible; provided, that the organization shall file a true and correct copy of a current IRS 501(c) or 501(d) exemption certificate.
C. Any person or business whose annual value of products, gross proceeds of sales, or gross income of the business in the town is equal to or less than two thousand dollars ($2,000) and who does not maintain a place of business within the town shall be exempt from the general business license requirements in this chapter. The exemption does not apply to regulatory license requirements or activities that require a specialized permit.
D. In addition to the other exemptions set forth in this section, the requirements of this chapter shall not apply to any activity or person to the extent such application: (1) would be clearly preempted by state or federal law, or (2) would violate the state or federal constitutional rights of a person.
E. Any person claiming an exemption from the requirements of this chapter shall bear the burden of demonstrating the person’s entitlement to such exception by providing appropriate documentation and/or legal authority to the town of Index. (Ord. 496 § 5.4, 2022).
5.04.050 Application procedure.
A. A business license application must be filed with the State Department of Revenue Business Licensing Service to apply for a town business license. Payment of the license fee shall accompany the application for the license. Application for the license shall be made to and issued by the town council on forms approved by the town mayor. The town reserves the right to request additional information from the applicant beyond that furnished on the application and may toll processing of the application until any such requested information has been provided. In addition, the town mayor or his/her designee, from time to time, may request from a person holding a business license that they supply to the town an update of the information that was given on the original license application. Failure to supply said update as requested shall be sufficient grounds for revocation of the business license.
B. Business license applications must be filed by the fifteenth day of the month, for consideration at the next Index town council meeting. Applicants must post visible signs at the site of the proposed business when notified that a business license will be required. Those businesses with potential impacts to neighbors such as parking, noise, hours of operation, and types of service (ex. sales of alcohol or food, or services expected to bring in customers or attendees) will be required to notify, at the applicant’s expense, residences and businesses within one hundred fifty (150) feet of the proposed business.
C. The town of Index will post notice of application, at the Index Town Hall and in other commonly used points of public communication upon receipt of a completed business license application. The notice will include dates of the public comment period. All public comments must be signed and received by the town of Index, in writing or email, by the Friday preceding the date of the council meeting.
D. All business applications will be approved through council action. The town council may deny an application if it determines that the business would be operated contrary to adopted town regulations. Any denial must include the reason for denial, which must adhere to requirements or guidelines set forth in the Town of Index Municipal Code. The applicant shall be given an opportunity to speak on behalf of his/her application to the town council. Approval of a business license shall not be deemed a final determination on the legality of any aspect of business operations. The Index town council may elect to act on an application at the time of submittal, or may elect to table a decision in cases where further information is required, research is required, or more time is needed for notification. Business license approval should be considered a preliminary assessment of regulatory compliance and the applicant bears the sole responsibility of assuring that its business operations are in full conformance with all applicable law. Approval of a business license shall not collaterally estop the town from future enforcement of any of its regulations.
E. The filing of an application for license, or the payment of any application fee, shall not authorize a person to engage in or conduct a business until such license has been granted. (Ord. 496 § 5.5, 2022).
5.04.060 Term of license.
All business licenses issued pursuant to the provisions of this chapter shall be personal, nontransferable, and valid until December 31st of the year for which they are issued. All renewals thereafter shall be for a period of one (1) calendar year commencing January 1st of the year for which the license is issued and terminating and expiring December 31st of the same year. (Ord. 496 § 5.7, 2022).
5.04.070 Procedure of renewing a license.
The town of Index shall post a renewal notification at the Index Town Hall and in areas commonly used for public information by January 1st. If any license hereunder is not renewed on or before January 31st the business owner will be charged a late fee and given two (2) weeks to either renew the license or notify the town of Index in writing that the business has closed. If a response is not received by the date in the notification, the town of Index will consider the business terminated and may require a new application to be made accompanied by a fee of one hundred fifty percent (150%) of the regular fee payable upon application hereunder. (Ord. 496 § 5.8, 2022).
5.04.080 Posting required.
Each person required to obtain a business license under this chapter shall at all times post such business license in a conspicuous place at the place of business for which it is issued. (Ord. 496 § 5.10, 2022).
5.04.090 Transfer of license.
No business license shall be transferable to another owner or another location. Should a business move, be sold, or transfer ownership, the new owner of said business shall apply for a new business license. A pending application for a new business license for an existing licensed business shall be deemed in compliance with this chapter unless the applicant is notified by the clerk in writing that such application may not be granted because of noncompliance with the provisions of this chapter. In the event such notice is given, the applicant shall have thirty (30) days from the date of such notice to comply with any section violated hereunder prior to final action upon such application unless an extension for compliance is granted by the Index town council. (Ord. 496 § 5.11, 2022).
5.04.100 Illegal use.
No person holding a town of Index business license shall suffer or allow any other person for whom a separate license is required to operate under or display such person’s license, and no person may maintain a business license obtained through a false or fraudulent application or return or any false statement or representation in or in connection with any such application or return for such business license. (Ord. 496 § 5.12, 2022).
5.04.110 Revocation.
The town of Index mayor or his/her designee may revoke the license issued to any person required to obtain a business license who is in default in any payment of any license fee and/or any other fee or who shall fail to comply with any of the provisions of this chapter or any other provision of the Town of Index Municipal Code. Notice of such revocation shall be mailed to the person by the clerk, and on and after the date thereof any such person who continues to engage in business shall be deemed to be operating without a license and shall be subject to any or all penalties provided for in this chapter. (Ord. 496 § 5.13, 2022).
5.04.120 Fees.
Unless otherwise set forth under other provisions of this code, new and renewing business license fees and late fees shall be set by resolution. (Ord. 496 § 5.14, 2022).
5.04.130 Illegal activity.
A. Notwithstanding any contrary provision hereof, a business license hereunder may not be issued to any person using or occupying any real property in violation of the provisions of the Town of Index Municipal Code and all amendments thereto or any special use permit or written understanding with the town of Index concerning such real property.
B. The town of Index mayor or his/her designee may revoke any business license obtained for a structure that is not in compliance with all applicable codes and any special permits required therefor. Upon notice of revocation, the business shall immediately cease operations until said building is brought into code compliance and the license reinstated. (Ord. 496 § 5.15, 2022).
5.04.140 Authority to stop work.
Whenever any business is being conducted or any work done by persons engaged in business which is in violation of the licensing requirements of this chapter, the town of Index mayor or his/her designee is authorized to order the work stopped by notice in writing served on any persons engaged in the doing or causing such work to be done, or engaging in such business, and any such persons shall forthwith stop such work until a business license is obtained as provided herein. (Ord. 496 § 5.16, 2022).
5.04.150 Transient merchants, peddlers, and solicitors.
A. Registration Required. It is unlawful and a nuisance for any person to engage in commercial or business solicitation and/or canvassing or call at residences without the previous consent of the occupant for purposes of soliciting orders, sales, subscriptions or business commercial information without first having registered with the town clerk. The applicant shall provide a written signed application stating:
1. The name, address, telephone number and contact person for the principal applicant;
2. The nature of the products or services involved and the names of manufacturers, if any;
3. The proposed method of operation in the town of Index;
4. A list of persons who will solicit or canvass in the town of Index, including each person’s name, address and telephone number, and a general description of each person; and
5. Any other information required by the town of Index.
B. Identification. No peddler, solicitor, or transient merchant shall conduct business within the town of Index without possessing a valid copy of their solicitor/peddler/transient merchant license at all times.
C. Hours of Operation. Peddlers, solicitors, and transient merchants shall not operate within the town of Index between the hours of eight p.m. and eight a.m. without a prearranged appointment.
D. No Soliciting Signs Compliance. No peddler, solicitor, or transient merchant shall contact any residence that is posted by signage that such contacts are not desired by the residents.
E. Use of Streets, Parks or Rights-of-Way. No peddler, solicitor, registered or transient merchant shall have any exclusive right to any location in the public streets, parks or public rights-of-way, nor be permitted a stationary location, without first having obtained a street right-of-way use permit; further, they shall not be permitted to operate in any congested area where operations might impede or inconvenience the public. For the purpose of this section the judgment of a town of Index employee or a Snohomish County deputy, exercised in good faith, shall be conclusive as to whether the area is congested or the public impeded or inconvenienced.
F. Exemptions. Charitable, religious, nonprofit organizations, any political campaign on behalf of (or in opposition to) any candidate for public office or other similar civic, charitable, or nonprofit organizations shall be exempt from all provisions of this section except the section pertaining to compliance with “No soliciting” signage. (Ord. 496 § 5.17, 2022).
5.04.160 Appeal.
Any decision of the town of Index mayor or his/her designee authorized by this chapter with respect to an application for business license may be appealed to the Index town council by filing a written notice of appeal with the clerk within fourteen (14) calendar days of notice of determination. The notice of appeal shall be accompanied by an administrative fee in an amount established by resolution of the Index town council. The right to appeal shall be deemed waived if said notice is not filed within fourteen (14) calendar days of the date of the decision being appealed. The notice of appeal shall set forth the alleged reasons why the challenged decision is erroneous. Upon receipt of an appeal, the council shall conduct a hearing on the appeal at the next regularly scheduled Index town council meeting, and shall issue a written decision within thirty (30) days of the hearing. (Ord. 496 § 5.18, 2022).
5.04.170 Violation and penalty.
A. Any person in violation of this chapter shall first receive a letter instructing them to cease, desist, and follow the licensing process, with a date to comply by. If the person does not comply, the violations stated in subsection (B) of this section then apply.
B. Any violation of this chapter shall be deemed a civil violation and shall be punished by a fine not to exceed five hundred dollars ($500.00) and any person who engages in or carries on any business subject to the provisions of this chapter without obtaining a business license, or who carries on such activities in violation of this chapter shall be guilty of a separate violation of this chapter for each day during which the business is so engaged in or carried on. A business owner who fails or refuses to pay the business license fee or any part thereof on or before the due date shall be deemed to be operating a business without having a proper license to do so.
C. The town of Index may require reimbursement from the business owner for all costs incurred during the enforcement of a violation.
D. Fines and reimbursement expenses shall be assessed by a notice of violation issued by the town mayor or designee. The notice of violation shall identify the business, a brief description of the violation, the applicable code provisions violated, the date(s) of violation and the right to appeal as outlined in Section 5.04.160. (Ord. 496 § 5.19, 2022).
5.04.180 Effective date.
A. The ordinance codified in this chapter shall go into effect on January 1, 2023. All persons conducting legal business under licenses issued under the previous business license ordinance who are in compliance with the Index Municipal Code will be allowed to continue such business activity and will be issued a renewal business license on payment of the renewal fee. Should any provision of the revised business license code be construed to restrict any business activity that was permitted under the former business license ordinance, that business activity will be allowed to continue as a legal nonconforming use in accordance with the Zoning Code, for as long as the business license continues to be renewed, and all other requirements of the Index Municipal Code continue to be met.
B. Any person issued a license under the former business license code who believes that such business activity may be exempt from the business license requirement of the new code may submit a revised business application form for the purposes of applying for such exemption.
C. Nothing in the business licensing code shall be construed to waive any business licensing requirement imposed by federal, state, or county law, or any other provision of the Index Municipal Code. (Ord. 496 § 5.20, 2022).