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Ord G-58(21-48) ORDINANCE NO. G.-~8 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, LEVYING AND IMPOSING AN EXCISE TAX ON EVERY SALE AT RETAIL OF ANY TOBACCO PRODUCT AS IN SUCH ORDINANCE DEFI~3ED; TO FIX THE RATi AND AMOUNT OF SUCH ~CISE TAX AND PROVIDE FOR THE ~AI~£NT TH~ZCF TO SUCH CITY BY EVERY SELLER OF ANY SUCH TOBACCO P'RCDUCT; TO PROVtD FOR THE UTILIZATION BY SUCH CITY OF THE R-~VE~UEB RESULTING THERE- FROM; TO DEFINE VIOLATIONS OF THE PROVISIONS OF SUCH ORDINANCE, AND TO ~RESCRIBE PENALTIES THEREFOR; TO PROVIDE FOR THE SEVERABILITY OF THE PROVISIONS THEREOF; TO REPEAL kLL ORDINANCES OR PARTS OF ORDI~ NANCES INCONSISTENT OR IN CONFLICT WITH THE ~'ROVISIONS OF SUCH ORDINANCE; AND FOR OTHER PURPOSES. BE IT', AND TT IS HEREBY ORDAINED BY THE CITY COUNCIL THE CTTY OF DELRAY BEACH, FLORIDa: Section 1. DEFINITIONS O? TERMS USED IN THIS ORDINANCE. Whenever used in this ordinance, the following terms shall have the meanlng~ set opposite each: (a) The word "City" shall mean the City of Delray Be~ch, Florida. (b) The masculine pronoun shall include the neuter, and the singular shall include theplu~_!, (c) The word ,,and,, shall also mean ,'or,' and the word "or" shall also mean "and", whenever the context or ?urpose so requires; (d) The word "person" shall mean and lnclu~.e any Indlvidual partnership, society, association, joint stock company, corporation estate, receiver, trustee, assignee, referee or any other person acting in s fiduciary or representative capacity, whether appointe~ by a court or otherwise, and any combination of individual~; (e) The words "City Tax Collector", shall mean and include ithe City Tax Collector of the City and every person duly authorized ~,by him to serve as his representative; (f) The words "Tobacco product", shall mean and include , t~i~cigars, ~togies, tobies, cigarettes, smoking tobacco, chewing ?tobacco, snuff, and any other product of the tobacco plant, pre- pared by drying and manufacturing processes, and used by human beings either for smoking, or for chewing, or ss snuff, irrespectiv, of whether or not tobacco in any such product is flavored, adulter- ated or mixed with any other in~zredient; (g) The word "sale" shall mean and include every act or transaction irrespective of the method or means employed, includingi the use of vending machines and other mechanical devices, whereby title to any tobacco product shall be transferred from the sellers, as herein defined, to any other person within the corporate limits ~ of t~e City, ~ut shall not include any such act or tr~ns~ctlon the i! taxatlon w~ereof by the City is precluded or prohibited under the Constitution or the General Laws of the State of Florida; (h) The word "Seller" shall mean and include every person~ engaged in the business of selling tobacco products who transfers title or in whose place of business title to ~ny of s~ch products is transferred within the corporate limits of the City for any purpose other than resale; (i) The word "dealer" shall mean and include every manu- facturer, jobber, wholesale dealer or other person who supplies a seller ~ith tobacco products; (J) The word ,'agent" shall mean an~. include every dealer ~nd other person who shall be authorized by the City Tax Collector to purchase and affix stamps to tobacco products under the provisions of this ordinance; (k) The word "purchaser,, shall mean and include every person to whom the title to any tobacco product is transferred by a seller within the corporate limits of the City; (1) The word ,'package" shall mean and include every pack-: age, box, can or other container of any tobacco product, irrespec- tive of the material from which such container is made, to which the Internal Revenue stamp of the United States Government is re- quired to be affixed byaad under Federal Statutes and Regulations and in or from which retail sales of such tobacco product are nor- mally made or intended to be made. (m) The word "stamp" shall mean the small gummed piece cfi paper or decalcomania to be sold by the City Tax Collector and to be affixed by an agent to every package of tobacco products, but iti shall also denote any insignia or symbol printed by a meter machine) upon any such package under the authorization of the City Tax Col- lector. Section 2. RATE AND A~OUNT OF EXCISE TAX ON S&LE OF TO- BACCO PRODUCTS. That, in addition to all other ta~es of every kind now imposed by law, and which are not specifically repealed by the provisions of this ordinance, there 19 hereby levied and imposed by the City upon each and every sale of any tobacco productl on and after the 1st day of October, 1948, an excise tax, the amount whereof to be paid by the seller in the manner hereinafter prescribed shall be one (1~) for each ten cents (10~) or fractional part thereof of the retail price at which any such tobacco product ~ is sold, exclusive of such excise tax. Section 3 PREPARATION AND SALE OW ST.~PS BY CITY AND DUTIES AND POWERS OF CITY TAX COLLECTOR IN CON!'~ECTION THERU~ITH. That the e×cise tax imposed by this ordinance shall be paid by every dealer or other agent by affixing a stamp or stamps, or causing a st~mp or stamps to be affixed to each and every pack- ! s.ge of tobacco products in the manner and at the time or times hereinafter stated. Every dealer in the City shall have the right to buy and affix such stamps as an agent, and the City Tax Coliectom may appoint, in addition to dealer, such other persons as agents for the purpose of buying and affixing stamps as he may deem neces-i sary; provided, howsver, that a seller shall not be entitled to be appointed as an agent. Every agent shall at all times have the right to appoint a person in his employ to affix the stamps to any tobacco products under the agent's control. For the purpose of making such stamps available for use by de~iers and other agent~ the City Tax Collector shall prescriDe, prepare, furnish and sell sSamps of such denominations and quanti~ies as may be necessary for the payment of the excise tax imposed by this ordinance. In the sale of such stamps to a dealer or other agent the City Tax Collector shall allow a discount of ten per cen~um (10%) of the denominational or face value thereof to cover the cost which will be incurred, by such dealer.'or agent in affixing the stamps to pack- ages of tobacco products, and in the event that printing by a mater machine is used in lieu of gumned stamps, there shall be allowed a further discount equal in amount to the cost to the City of the stamps that would otherwise be required. The City Tax Col- lector may from time to time and as often as he deems advisable provide for the issuance and exclusive use of stamps of a new design and forbid the use of stamps of any other design, and he is hereby empowered to m~ke and carry into effect all such reason- able rules and regulations relating to the preparation, furnishing and sale of stamps as he may deem necessary. He is hereby further ~uthorized and empowered to prescribe the method to be employed and the conditions to be observed in the use of meter machines for printing upon p~cksges of any such tobacco products insignia to represent the D~yment of said excise tax. Section 4. DUTIES O? DEALERS AND OF SELLERS WITH RESPECT ~0 EXCISE TAX ON SALE OF TOBACCO PRODUCTS. That every dealer in tobacco products is hereby required and it shall be his duty to purchase such stamps at the office of ~the City Tax Collector as shall be necessary to pay the exci~e ?tax imposed under the provisions of this ordin~nce, and to affix ~a stamp or stamps of the monetary value prescribed by this ordi- !nance, or cause such stamp or stamps to be affixed, to each pack- i!age of toOacco products prior to delivering or furnishing such il tobacco products to any seller; provided, however, that nothing ilherein contained s~all preclude any dealer fro~ authorizing ~nd ii employing any other agent to purchase and affi~ such stamps in his behalf or to have a stamp meter machine used in lieu of ~ummed stamps to effectuate the provisions of this ordinance. Stamps or the printed markings of a meter machine sh~i! be placed upon each ~ipsckag~ of any tobacco product in such~m~nner as to be readily [visible to the purches~r. Every seller is hereby required to e~- i~amine every ~ck~ge of to? ~ ~ ~ .~ ~ o.cco u~rod, ucts prior to exoosin~ it for ils~le for the pur?ose of ascertaining whether such packc,~e has the i, proper excise stamp affixed thereto in comoliance with the pro- lvisions of this section. If, uu. on such examln~tion, uno, to ~m~d- or ~llimpr°pe~lY stamped packages of tobacco products are discovered, iithe seller shall immediately notify the dealer from whom such (4) packages were oDtained, and upon such notification the dealer shalli forthwith either affix to such unstamped or improperly stamped packages the proper ~mount of stamps or shall repls, ce such packagesl i~with others to which stamps have been properly affixed. If s sell-i ~er shall obtain or acquire possession of unstamped or improperly {i stamped tobacco products from any person other than a dealer, the ~eller shall forthwith notify the City Tax Collector of such fact and the City Tax Collector shall thereupon designate an agent to affix the proper et~mp~ to such tobacco products, the funds require8 ire purch, se such stamps to be advanced to such agent by such seller:. iiln the event that any packages of tobacco products are found in thei ~Ipossesslon, of a seller without the proper stamps being affixed Ithereto, or without authorized printed markings of a meter machine thereon, and the aeller shall be unable to submit evidence estab- t lishing that he received such packages within the immediately ~re- ceding twenty-four (2~) hours, the presumption shall be that such !ipacka~es are bein~ ~ept by ~he seller in viol~tion of the provlslon~ of t~is Section and shall subject him to all of the penalties here-i inafter provided. In ~he event thor the City Tax Collector sh~ll promulgste rules and regulations so requiring, every de~:ler, agent or seller is hereby further required, and it ~hall be his duty, to cancel all stamps upon packages of tobacco products in accordence with such rules and regulations. It shallslso be the duty of everyl dealer and seller, an~ he is hereby required, to maintain and to keep for a period of two (2) years such records of tobacco productsi received ~nd ~old by him as may be requ~.~ed by the City Tax Collec-i tor, to ~ske ell of such reco~d~ xwsil~ble for e×amination at ~ll reasonable times. Section 5. POW~S OF CITY T^V COLL~C.OR RELA*IVE ~0 TAX ON SALE 0~~ TOBACCO PRODUCT~. That, in addition to ~he powers granted to him in Sections! 3 and 4 of this ordinance, the City Tax Collector is hereby author-~ ized and empowered to preac~ibe, adopt, promulgate and enforce i!rules and regulations relating to (a) the method and means to be used in the c~ncel!ation of stamps, (b) the de!egetion of any of his power6 to his representstlve or representatives, and (c) any other matter pertainln6 to the administration and enforcement of the .iprovlslons of Sections 2 to 4, inclusive, of this ordinance. The City Tax Collector is hereby authorized and empowered to examine ibooks, records, invoices, papers and any and all tobacco products in and upon any ?remises where the game are placed, stored, sold, ~'offered for sale or displayed for s~le by a seller. In The event that the Ci~y ~s~ Collector shall discover any tobacco products ~which are ~ubJect to the excise tax imposed under the provisions iof Section 2 of thi~ ordinance, bu~ upon which such excise tax has ii!not been paid, or upon which stamps have not been ~fflxed or evi- ~dence of payment shown thereon by the printed m~rklngs of a meter !imachine in compliance with the provisions of Section ~ ~nd 4 of this ordinance, the City Tax Collector is hereby authorized and iiempowered to seize and take possession forthwith of such tobacco ilproducts, which shall thereupon be deemed to be forfeited to the City. The City Tax Collector may within a reasonable time there- after, by public notice given at least five (5) days before the date of sale, sell such forfeited tobacco products at a place deslg~ nated by him, and from the proceeds of such sale shall collect the tax due thereon, together with a penalty of fifty per centum (50%) ~thereof and the costs incurred in such proceedings, and shall pay ~the balance, if any, of such proceeds to the seller in whose pos- ~isesslon such forfeited tobacco products were found; provided, how- ever, that such seizures and sale shall not be deemed to relieve ~iany person from any of the penalties hereinafter provided in thl~ ~ordlnance. The City Tax Collector is further authorized and em- ipowered to administer oaths and to take affid~vlts in relation to ii auy matter or proceedings in the exercise of his powers and duties ilrelating, to such excise tax, and he shall have power to subpoena an~ i:to require the attendance of witnesses and the production of books, ~'papers or documents, and to examine such witnesses, books, papers (6) and documents~ for the purpose of securing information pertinent to the performance of such duties. Section 6. UTILIZATION OF MONEYS DERIVED BY CITY FROM EXCISE TAX ON SALE OF TOBACCO PRODUCTS. That all moneys derived by the City from the exci~e tax on the sale of tobacco products imposed ~nder the provisions of Section 2 of this ordinance shall be deposited by the City' Tax Collector to the credit of the General Fund of the City for utiliza4 '~tion for such legal purposes as the City Council may from time to time determine. Section ?. VIOLATIONS DEFINED. That it shall be unlaw- ful and a violation of this ordinance for any person any act, or fail to perform any act, for the purpose of evading the payment of such excise tax, or of any part thereof; or for any dealer ov sellez to fail or refuse to perform any of the duties imposed upon him under the provisions of Section 4 of this ordinance, or to fail or refuse to obey any lawful order which the City Tax Collector m~y issue under the provisions of Section 5 of this ordinance. It shall also be unlawful for any person falsely or fraudulently to msa~e, forge, alter or counterfeit any stamp or the printed markings iiof a meter machine, or to procure or cause to be made, fora'ed, altered or counterfeited any such stamp or printed markings of a i. meter machine, or knowingly and willfully to alter, publish, pass ~!or tender as true any false, altered, forged or counterfeited stamp~ ~,or stamps or printed markings of a meter machine. It shall further be unlawful for any person to sell and dispense through a vending machine or other mechanical device any cigarettes or other tobacco products upon which such excise tax has not been paid and upon which evidence of the payment thereof is not shown on each package of ~uch cigarettes or other tobacco products. Section 8. EACH VIOLATION A 8EPARKTE OFFENSE. That e~ch violation of, or non-compliance with, any of the provisions of Sec- ~tions 2 to 7 inclumive, of this ordinance shall be and constitute a separate offense and shall subject every person guilty thereof to all of the penalties prescribed in Section 9 of this ordinance. Section 9. PENkLTIES FOR VIOLATIONS. That any person violating any of the provisions of this ordinance shall, upon con- viction thereof, Oe punished by a fine not to exceed FiVe Hundred Dollars ($500.00) or by imprisonment not to exceed 60 days or by both such fine and imprisonment. Section 10. SEPARABILITY OF PROVISIONS. That if any section, part of section, sentence or clause of this ordinance shall be adjudged to be invalid by a court of competent Jurisdic- tion, such decision shall not affect the validity of any other portion of this ordinance, but shall be restricted and limited in its operations and effect to that specific portion of such ordinanc~ involved in the litigation in which such decision shall have been rendered. Section ll. REPEAL OF INCONSISTE53T AND CONFLICTING PROVISIONS. That all provisions or parts of provisions of the ordinances of the City of Delray Beach insofar ss they are incon- sistent with or in conflict with the provisions of this ordinance are hereby repealed. PASSED in Regular Session on second and final reading on this the fourteenth day of September, A.D. 1948. President, -City Council ATTEST: APPROVED: ls~ Reading - August ~, 1948 9nd Reading - September 14, 1948 Passed and adopted - September 14, 1948 Affidavit of Publication DELRAY BEACH NEWS Published Weekly Delray Beach, Palm Beach County, Florida STATE OF FLORIDA COUNTY OF PALM BEACH Before the undersigned autho~rity personally William K. korrison appeared who on oath says that h~-is D13bl~ ~b of the Delray Beach News, a weekly newspaper' published at Delray Beach in Palm Beach County, Florida; that the attached copy of advertisement, being a Legal Notice ORD'NANOE NO~ AN ,ORDINANCE OF THE CITY' COLIN- CIL OF ' THE CITY OF DELRAY in the matter of O~'dirlgrlC~ ND. G-58 ~EACH. FLORIDA, LEVYING AND IMPOSING AN Excise TAX~ o~ City of Delray Beach EVERY SALI~JAT RETAILO10 ANY~ ~OEA¢,~.O PRODUCT AS IN SUCH. ORDINANCE DEFINED; TO FIX THE RATE Ak-ND AMOUNT' OF SUCH EXCISE TAX AND PRO- VIDE FOR THE PAYMENT THERE- OF TO SUCH CITY BY EVERY SELLER OF ANY SUCH TOBACCO PRODUCT; 'TO PROVIDE FOR THE UTILIZATION B~SUCH CITY OF TtIE in the Court, REVENUES RESULTING'r ~ER~ FROM: TO DEFINE VIOLATIONS OF was published in said newspaper in the issues of THE PROVISIONS OF 'SUCH ORDI. NANC~E, AND/TO PRESCRIBE PEN- September 17, 1948 ALTIES THI~0R;:'TO! PROVIDE FOR-, THE: SEVE~tABILITY OF 'I~-IE PROVISIOiNT~ ~T~II~I~,~'IOIO; To RE'PEAL ALLr, ORdiNANCES%OR PARTS, OF ORDINANCF~S ( INCONStBTENT OR'IN CONFLICT WITH. 'PH~~ PP~OVISIONS OF SUCH ORDINA. NCE; AND FOR OTHER PURPOSES. Affiant further says that the said Delray ~e above 0rd'in'nee Is pubnshed Beach News is a newspaper published at Delray caption only. Copy of same is on file at the City Clert~'s Ofllce ~or inspection Beach, in said Palm Beach County, Florida, and interested Person~.~ This, Ordinance v/as passed by the City C~tlncil ~t ~ meetin~ that the said newspaper has heretofore been con- i~'eld September' llth, 1948. tinuously published in said Palm Beach County, aUTH P~ SMIT~, Florida, each Friday and has been entered as qlt~ Clt)rk. 9-17 second class mail matter at the post office in Delray Beach, in said Palm Beach County, Flor- ida, for a period of one year next preceding the first publication of the attached copy of adver- tisement; and affiant further says that hz has neither paid nor promised any person, firm or corporation any discount, rebate, commission or refund for the purpose of securing this adver- tisement for--oublic~tion in the~ said newspaper. <<< ?" /// //<: / < , Sworn to and subscribed before me this day of ~~4/ //~/, A. D. 19~f (SEAL) ' / Notary Public