Sec. 5-31. - Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Age refers to, and includes, any person who has attained the age of 40 years.

Business includes any and all activities or acts on the part of any person engaged in any trade, occupation, business, profession, pursuit or calling with the object of gain, benefit or advantage, either direct or indirect, within the city. In addition:

(1)

Any religious, fraternal, educational, distinctly private membership organization, or other nonprofit organization shall be exempt from the payment of a license fee for conducting any operation exclusively by them and where the proceeds therefrom are utilized for their sole benefit. However, such organizations are required to obtain the appropriate license or licenses from the department of licenses and inspection for activities corresponding to those of business licensees operating with the object of gain and each such organization shall provide the department of licenses and inspections with such information as is deemed necessary by the department for the issuance of a license in the proper category. The exemption provided in this subsection is from payment of a license fee, but not from the requirement of obtaining a license. Any organization claiming an exemption from the license fee requirements shall file, with the commissioner of licenses and inspections, a notarized affidavit of its officers setting forth the reasons for the claimed exemption together with any supporting documentation deemed necessary by the commissioner.

(2)

Notwithstanding any provisions appearing in this subsection to the contrary, the term "business" when used in this article shall not apply to any domestic or foreign corporation whose only activities within the city are the maintenance of a statutory office, so as to comply with any statute of the state or with any act of the Congress of the United States, nor shall this article be applicable to railroad companies subject to part 1 of the Interstate Commerce Act.

(3)

The term "business" shall include any membership organization that is not considered in its nature distinctly private because it is an institution, club, or place of accommodation that has public or quasi-public characteristics based on the criteria of its size, purpose, policies, selectivity, congeniality, and other pertinent characteristics and that has 150 or more members, that provides, as detailed in section 5-57(f), regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmember persons or business entities presumptively for the furtherance of trade or business; provided, however, that for purposes of this article, every religious corporation, and every purely charitable corporation, including corporations exempt under section 501(c)(3) of the Internal Revenue Code, and every fraternal beneficiary society, order, or association exempt under section 501(c)(8) of such code, that retains its distinctly private nature and every educational corporation or association formed or incorporated under state law and approved by the state board of education and the institutions, clubs, or places of accommodation of any of the same shall be deemed to be in their nature distinctly private. Every membership club deemed to be not distinctly private in nature, in addition to obtaining from the department of licenses and inspections the license in the category deemed by the department appropriate in light of the type of business conducted by the club, shall pay the license fee required for its license.

Company, owner or person is used interchangeably throughout this article, except where the context indicates a different meaning, and pertains to, means and includes any individual, estate, trust receiver, trustee in bankruptcy, business trust, corporation, firm, copartnership, joint venture, association or any other group or combination acting as a unit.

Dish antenna means an antenna consisting of a radiation element which transmits or receives radiation signals generated as electrical, light or sound energy, and supported by a structure which may or may not provide a reflective component to the radiating dish, usually in a circular shape with a parabolic curve design constructed of a solid or open mesh surface, and includes those known as personal earth stations.

Emergency shelter for the homeless means the operation of a building or structure in which a private, nonprofit organization, a church, or a public entity operating as an agency of local, state or federal government provides shelter, or food and shelter for a limited period of time to individuals or families consisting of one or more adults and one or more children under the age of 18 years who have neither a home of their own nor the means to obtain a home or any temporary lodging other than such emergency shelter for the homeless. A class A emergency shelter for the homeless shall mean such shelter that has private or semi-private rooms, each of which may be occupied by up to four unrelated individuals or by a family, provided that a ratio of one staff person for every 25 residents is maintained. A class B emergency shelter for the homeless shall mean such shelter that, in whole or in part, has an open, dormitory-type of area for occupancy by up to 75 residents, provided that a ratio of one staff person for every 15 residents is maintained. The class A and class B staff to resident ratios each refer to the total numbers of staff and residents and each is not a strict requirement of a specific number of staff persons on duty at any particular time each day. A halfway house and a residential child care facility, as both terms are defined in section 48-2, are not to be construed as emergency shelters for the homeless.

Employee means any person who renders services to another for a consideration or its equivalence, under an expressed or implied contract; and shall include temporary provisional, casual, or part-time employment. The term "employee" shall not apply to or include any member of the board of directors of any corporation licensed under this article, unless such director is also an officer or employee of such licensee and thereby subject to the provisions of the social security and federal or state unemployment insurance laws.

Handicap is a physical impairment which does not make the person incapable of adequately functioning as an adult with a reasonable accommodation to his handicap, and does not make the person incapable of functioning as an adult in a manner which would not endanger his health and safety or the health and safety of others.

Licensee means any person liable for any license fee payable under this article.

Market Street Mall vendor means, applies to and includes any retailer as defined herein who displays for sale or sells for immediate or future delivery any permitted edible or nonedible commodities using a pushcart ("mobile vendor") for such purposes and who has a valid permit for the same, as administered pursuant to chapter 42 by the WDBID vending committee, at authorized locations only on the Market Street Mall, including Market Street from Second to Seventh Streets, but only the sidewalk areas from Second to Seventh Streets, and also means, applies to and includes any person conducting a merchant display or special event on the Market Street Mall from Second to Tenth Streets as regulated by the Market Street Mall Review Board pursuant to the provisions of chapter 42. No mobile vendor activities shall be authorized on the Market Street Mall from Seventh to Tenth Streets.

Mobile home park operator means and includes the owner or lessor or the agent for the owner or lessor who operates an area or tract of land consisting of not less than 1½ acres and two or more mobile home lots to be rented or leased to accommodate mobile homes on permanent foundations for residential use only, subject to the provisions of the building, housing, and zoning codes of the city.

Place of public accommodation, resort or amusement means and includes any business that, whether at a fixed location or a variety of locations, caters to or offers goods or services to the public including but not limited to, soda fountains, restaurants, bars, taverns, and inns; hotels and motels, but not other residential properties; any place where food or drink is sold to the general public for consumption on the premises; and any membership club that is not distinctly private.

Satellite television antenna means a television receive-only (TVRO) dish antenna used to receive commercial wide band video and audio signals from extraterrestrial satellite transponders in geostationary orbits, a low-noise amplifier (LNA) which is situated at the focal point of the receiving component for the purpose of magnifying the transferring signals, a coaxial cable for the purpose of carrying signals to the interior of a building, or a combination of any of these elements.

Sex means the character of being male or female.

(Code 1968, § 35-1; Ord. No. 94-071(sub 1), § 1, 12-1-94; Ord. No. 95-024(sub 1), § 1, 6-1-95)

Cross reference— Definitions and rules of construction generally, § 1-2.

Sec. 5-32. - Administration and enforcement generally.

(a)

The license fees set out in section 5-101 shall be paid at the office of the department of finance. Except as otherwise provided, the duty of administration and enforcement of this article shall be vested in and imposed upon the department of licenses and inspections. The collection of license fees as are required by the provisions of this article shall be the duty of the department of finance. This article shall be enforced and the license fees collected in the same manner as all taxes are collected. The license fees imposed by this article shall be in addition to all other taxes imposed by any other provision of this Code or any other ordinances, resolutions or regulations in force within the city.

(b)

The chief of police shall render such assistance in the enforcement of this article and the collection of license fees as from time to time may be required by the commissioner of licenses and inspections or the director of finance.

(c)

The commissioner of licenses and inspections in the exercise of the duties imposed upon him and acting through his deputies, or the director of finance and his or her agent shall examine all places of business in the city to ascertain whether or not there is compliance with the provisions of this article. The commissioner of licenses and inspections and his deputies, or the director of finance or his or her agent, shall have the power to examine all places of business and all necessary books, records, tax forms or receipts of any person carrying on or engaging in any business, profession, pursuit or calling within the city for the purpose of ascertaining and determining if there has been compliance by licensees with the provisions of this article, and for the further purpose of ascertaining the amount of license fees required to be paid under this article. The commissioner of licenses and inspections and all of his deputies, or the director of finance and his or her agent, shall have the power and authority to enter, free of charge, at any time, any place of business required to be licensed by the provisions of this article, and to demand an exhibition of such license. Any person having any such license theretofore issued in his possession or under his control, who fails to exhibit the same on demand, shall be guilty of a misdemeanor.

(Code 1968, § 35-2; Ord. No. 97-060, § 1, 8-27-97)

Sec. 5-33. - Rules and regulations.

The commissioner of licenses and inspections and the director of finance are hereby authorized to make such rules and regulations as may be necessary to aid or assist in the administration and enforcement of the provisions of this article, such rules and regulations to be subject to and in accordance with the provision of the city charter.

(Code 1968, § 35-24; Ord. No. 92-088, § 1, 12-17-92)

Sec. 5-34. - License required.

No person shall engage in any business, profession, pursuit or calling or perform any act in connection therewith or preparatory thereto until a license is first obtained in accordance with the provisions of this article; provided, that no license shall be required for any person or entity described in subsection (c) of section 44-107.

(Code 1968, § 35-3; Ord. No. 05-052(sub 1), § 1, 8-18-05)

Related laws reference—General power to license, § 6-1 et seq.

Sec. 5-35. - Prerequisites for issuance of licenses.

No license shall be issued under this article when under the provisions of any other provision of this Code or other law or ordinance a permit is required to be obtained or to be applied for as a prerequisite to entering into or performing any such business, profession, pursuit or calling, until such license is first so applied for and obtained. No license shall be issued pursuant to the provisions of this article unless the applicant for the same, at the time of application to the department of licenses and inspections for such license, shows evidence of a current, valid and unexpired license or permit, as may be applicable, issued by the state for the conduct of the business, profession, pursuit or calling at the location, including any branch location, for which the applicant seeks issuance of a city license and, further, shall by filing a duly notarized affidavit with the department at the time of such application affirm that to the applicant's best knowledge and belief the requirements of the statutes, rules and regulations of the state applicable to the conduct of such business, profession, pursuit or calling have been, and currently are being, met. Notwithstanding the requirements of this section, nothing contained in this article, including the issuance of a license by the city, shall be construed as any manner of warranty or guarantee by the city or by its agent, the department of licenses and inspections that any particular business, profession, pursuit or calling at any particular time fully complies with the applicable statutes, rules or regulations of the state, or with this chapter or with other applicable provisions of this Code and all rules and regulations adopted or promulgated pursuant thereto. Any licenses issued in violation of this section shall be wholly void and ineffective.

(Code 1968, § 35-4)

Sec. 5-36. - Application and issuance generally; basis of fee; contents of licenses.

(a)

Any owner desiring to engage in any business, profession, pursuit or calling operated, carried on or engaged in within the city shall apply to the department of finance in conjunction with the department of licenses and inspections for a license on a form to be furnished by such department. The application shall be prepared by the applicant in writing and shall state all required information under oath.

(b)

The license shall be prepared and issued by the department of finance in conjunction with the department of licenses and inspections and the license fee shall be based upon the information set forth in the application. The application shall set forth each classification of license fee liability of the applicant, based upon the nature of the various business activities in which the applicant is engaged.

(c)

Each license so issued shall state upon the face thereof the following:

(1)

The person to whom the license is issued;

(2)

The kind of business, profession, pursuit or calling licensed thereby;

(3)

The location of such business, profession, pursuit or calling; and

(4)

The date of expiration of such license.

The following language shall be set forth on the back of each license issued hereunder, as follows:

This license constitutes a receipt for the payment of a license fee imposed by authority of the City of Wilmington for the privilege of engaging in a business, profession, pursuit or calling operated, carried on or engaged in within the corporate limits of the City of Wilmington, and shall have no other legal effect. Said receipt does not authorize the licensee or any agent or employee thereof to conduct the business, profession, pursuit or calling, or to perform any act incident thereto, or to conduct or perform any other business, profession, pursuit or calling within the corporate limits of the City of Wilmington, unless licensed hereunder and without strictly complying with all provisions of the Code of the City of Wilmington, Delaware, and all other ordinances of said city and of the statutes of the State of Delaware, including but not limited to those Code provisions, ordinances and statutes requiring a permit from any board, commission, department or officer. THIS RECEIPT DOES NOT CONSTITUTE A PERMIT TO CARRY ON ANY BUSINESS, PROFESSION, PURSUIT OR CALLING FOR WHICH THE STATUTES OF THE STATE OF DELAWARE REQUIRE A PERMIT.

Any receipt upon the payment by check of any license fee shall be wholly void and ineffective for all purposes unless the amount due is actually received.

(Code 1968, § 35-5; Ord. No. 92-088, § 1, 12-17-92)

Sec. 5-37. - Compliance with Code requirements.

(a)

In accordance with and in addition to the provisions of section 5-36, all licensees, their agents and employees, engaged in the conduct of any business, profession, pursuit or calling licensed under this article, or performing any act pursuant to this article, shall strictly comply with all applicable provisions of this Code, particularly including, but not limited to, such Code provisions regarding the payment of taxes, water and sewer charges, fees and other charges of any kind which are related to the operation of such licensed business and which are payable to the city, and such Code requirements regarding compliance with the building, fire, health and sanitation, housing, zoning, and noise control and abatement codes, and any other rules and regulations affecting the public health, safety and welfare, as a condition to any license issued pursuant to this article.

(b)

The provisions of this section shall not be construed as limiting, repealing or superseding the provisions of any other section of this Code, or of any rule or regulation issued pursuant to this Code, that authorizes the suspension or revocation of a business license for violation of any building or fire code requirement specifically related to fire prevention or other measures affecting the public safety.

(Code 1968, § 35-5.1(a))

Sec. 5-37.1. - Reserved.

Editor's note—

Ord. No. 01-017, § 1, adopted Feb. 15, 2001, repealed section 5-37.1 in its entirety. Former section 5-37.1 pertained to building permit notice and presentation to neighborhood planning councils and derived from Ord. No. 99-075(sub 1), § 1, adopted Dec. 14, 2000.

Sec. 5-38. - Computation of fee.

In all cases, the annual license fees required by this article shall be ascertained and computed upon the information set forth in the license application.

(Code 1968, § 35-6)

Sec. 5-39. - Examination of books, records.

The department of finance in conjunction with the department of licenses and inspections is hereby authorized to require any applicant for a license under this article to submit for examination any book, record or tax form or receipt filed with the United States Internal Revenue Service or with the tax commissioner of any state, which shows the nature of the applicant's business and number of employees, in order to determine the veracity and truth of any affidavit or application for a license.

(Code 1968, § 35-6; Ord. No. 92-088, § 1, 12-17-92)

Sec. 5-40. - Liability for fee; miscellaneous fees.

Every person shall pay annually a license fee for carrying on any business, profession, pursuit or calling operated, carried on or engaged in within the city, in the amount as is provided in this article and in accordance with the terms and provisions of this article or other ordinance or resolution of this city; provided, however, that:

(1)

No license shall be required of any person for serving as a member of the board of directors of a corporation; and

(2)

If any person required to be licensed under this article shall not be covered and included within any classification as provided in section 5-101, such person shall be liable for and pay the license fee as a miscellaneous business as required in section 5-101, as well as the amount of license fee as measured by the number of employees, as provided in section 5-101.

(Code 1968, § 35-7)

Sec. 5-41. - Written applications—Generally.

(a)

Every applicant for a license or authorized agent or person having knowledge of the facts shall complete a business license application with the department of finance showing all information upon which the license fee is to be computed.

(b)

No application filed under this article by any applicant shall be conclusive as to the city as to the matters set forth therein, nor shall the filing of such application preclude the city from collecting, by appropriate action, such sum as may be found to be truly due and payable under this article. The application and each of the items therein contained shall be subject to audit and verification by the commissioner of licenses and inspections or by one of his deputies, each of whom is hereby authorized to examine and audit all necessary books, records, tax forms or receipts of any licensee or applicant for license as may be necessary, in his judgment, to ascertain the correct amount of the license fee due. All licensees, applicants for licenses and persons operating, carrying on or engaging in any business, profession, pursuit or calling within the city are hereby required to permit such examination for such purposes. The information or data obtained from such examination or audit or from any statement required under this section shall be used for the purpose of enforcing the provisions of this article.

(c)

Any person making or filing a false certificate, application, statement or return under the provisions of this article shall be guilty of a misdemeanor.

(Code 1968, § 35-19)

Sec. 5-42. - Same—Failure to file applications or corrections thereto.

(a)

If any person fails to file any application required by this article within the time prescribed or if after demand therefor made by the department of licenses and inspections fails to file a corrected statement, the department of licenses and inspections may determine the amount of license fee due from such person from such information as may be available to such department and if necessary may estimate the license fee required under this article upon the basis of the amount of license fees paid by other persons in like businesses, professions, pursuits or callings or by considering other facts which may be available to such department.

(b)

In case such a determination is made, the department of licenses and inspections shall give notice of the amount so assessed by serving the same personally upon the licensee, or when this is not possible, by depositing the same in the United States post office of the city, postage prepaid thereon, addressed to the person so assessed at his last-known address. Such person may, within ten days after the serving of such notice or of the mailing thereof, make application in writing to the commissioner of licenses and inspections for a hearing on the amount of the fee.

(c)

If application is not so made within the time prescribed the assessment shall become final. If such an application is filed, the commissioner of licenses and inspections shall cause the matter to be set down for a hearing within 15 days before the board of license and inspection review, in accordance with the provisions of the city charter. Such board shall consider all evidence produced and shall make written findings thereon, a copy of such findings to be served upon the applicant, in the manner prescribed above for the service of notice of assessment.

(d)

Such findings shall become final at the expiration of five days from the date of service within which time exceptions may be filed by the applicant. If filed, the board of license and inspection review shall consider same and make such modification as may be necessary in light of such exceptions. The decision of the board of license and inspection review thereafter shall become final.

(Code 1968, § 35-20)

Charter reference— Review by board of license and inspection review, § 5-705.

Sec. 5-43. - Same—Extension of time for filing.

The commissioner of licenses and inspections shall, in addition to all other powers conferred upon him under this article, have power to extend the time for filing any applications required by this article for a period not to exceed 30 days when requested to do so and for good cause shown; provided, that the request is made before the license fee becomes delinquent. In such case he and/or the director of finance may waive any penalty that would have otherwise accrued.

(Code 1968, § 35-21; Ord. No. 92-088, § 1, 12-17-92)

Sec. 5-44. - Acceptance of lesser amount for fee than required.

No person charged with the collection of license fees under this article or the enforcement of any of the provisions of this article shall knowingly accept or receive any sum for any license required hereunder which is less than the amount actually required to be paid under the provisions of this article, except as otherwise provided by this article.

(Code 1968, § 35-18)

Sec. 5-45. - Compromise of claims and refunds or credits.

With the approval of the city treasurer, the director of finance in conjunction with the commissioner of licenses and inspections shall have the power to compromise any claim for license fees, interest or penalties due under this article amounting to $300.00 or less. With the approval of the city treasurer, the director of finance in conjunction with the commissioner of licenses and inspections shall have the power to refund or grant credit for any license fees erroneously or improperly paid or collected. Any person requesting a compromise, refund or credit under this section shall make written application therefor to the finance director and shall fully set forth therein the legal basis for such request.

(Code 1968, § 35-22; Ord. No. 92-088, § 1, 12-17-92)

Sec. 5-46. - Term; proration.

(a)

Licenses required under this article shall be for the period of January 1 to December 31 in each year. All licenses shall be due and payable from the first date on which the same shall be applicable and effective; provided, however, that no license shall become delinquent, except as provided in section 5-55

(b)

In the case of any person making an initial application for a business or occupational license pursuant to this article, for which the annual fee is $120.00 or greater, the basic annual license fee for such initial year specified therein may be reduced pro rata by the portion attributable to the number of full calendar months of the license year that have expired prior to the date on which such person or business was required to obtain a license.

(Code 1968, § 35-8; Ord. No. 92-088, § 1, 12-17-92; Ord. No. 05-005(sub 1), § 1, 3-10-05)

Sec. 5-47. - License prerequisite to payment for goods, services, etc., by city.

No person selling goods, services, wares or merchandise of any kind or character to the city, including the performance of any contract awarded by any board, department, agency or office of the city, shall be paid by the city treasurer on any such purchase or the consideration due for the performance of any contract unless licensed as required by the terms of this chapter or unless such goods, wares, services or merchandise are essential to the city and cannot be obtained or purchased within the city, and no officer of the city shall approve any invoice or direct the payment of any money due under any contract unless it shall appear on the invoice or on the order for payment that a license has been issued as required and all license fees have been paid, except in cases wherein the goods, wares, services or merchandise are essential to the city and cannot be obtained or purchased within the city.

(Code 1968, § 35-10)

Sec. 5-48. - Unlawful business not authorized by issuance of license.

No license issued under the provisions of this article shall be construed as authorizing the conduct or continuance of any illegal or unlawful business.

(Code 1968, § 35-11)

Sec. 5-49. - Suit for recovery of unpaid license fees.

Any sum required to be paid as a license fee under this article shall be deemed and constitute a debt due and owing to the city and recoverable as such in any court of competent jurisdiction by court proceedings in the same manner as any other debt. Any person who engages in any business, profession, pursuit or calling without first obtaining a license to do so as required by this article shall, in addition to the penalties provided for such offense, be liable in an action by and in the name of the city for recovery of any unpaid license fees due under this article, and for the costs of collection.

(Code 1968, § 35-12)

Sec. 5-50. - Posting, etc.

Except as otherwise specifically provided under this article, all licenses issued under the provisions of this article shall be kept and posted as provided by this section:

(1)

Every licensee operating at and from a fixed place of business shall keep his license posted in a conspicuous place upon the premises where such business is conducted and where the license may be observed by the enforcement officers.

(2)

Every licensee operating from a vehicle shall keep his license posted in a conspicuous place upon the vehicle where the license may be observed by the enforcement officers. Every vehicle utilized by a licensee shall have a duplicate license issued by the director upon the payment of $25.00 therefor.

(3)

Every licensee engaged in business but not operating from a fixed place of business or from a vehicle shall keep the license issued upon the person engaging in such business and the same shall be exhibited upon the request of any enforcement officer.

(Code 1968, § 35-13)

Sec. 5-51. - Assignment and transfer prohibited.

Any license issued pursuant to this article shall be not assignable and not transferable including any purported assignment or transfer in connection with any otherwise bona fide sale or transfer of any licensed business. In all cases, including any bona fide sale or transfer of any licensed business, it shall be a misdemeanor for any person to whom any license has been issued pursuant to this article to assign, sell, transfer or give away such license to another or permit its use by another, and upon conviction any person violating the provisions of this section shall be punished by a fine of not less than $100.00 nor more than $1,000.00 or by imprisonment not to exceed 30 days.

(Code 1968, § 35-14)

Sec. 5-52. - License for branch establishments.

When any licensee under the provisions of this article conducts a business at branch establishments or locations, under the same name, conducting the same type of business or performing the same service, and using the same federal taxpayer identification number, each such branch establishment or location shall comply with the provisions of section 5-50. A duplicate license may be issued by the department of finance in conjunction with the department of licenses and inspections upon the payment of $27.50 for each branch establishment when it is shown to its satisfaction that a licensee conducts a business at branch establishments or locations.

(Code 1968, § 35-15; Ord. No. 92-088, § 1, 12-17-92)

Sec. 5-53. - Duplicate, amended, etc., licenses.

Duplicate licenses may be issued by the department of finance in conjunction with the department of licenses and inspections to replace any license previously issued which has been lost or destroyed upon the applicant therefor submitting a written request and paying to the department of finance through its employees in the department of licenses and inspections a fee of $27.50 therefor. Except as provided by section 5-51, no license issued pursuant to this article shall be transferable; provided, however, that where a license is issued authorizing a person to conduct a business at a particular place such licensee may upon application therefor and paying a fee of $27.50 have the license previously issued amended so as to authorize the conduct of such business from some other place or location.

(Code 1968, § 35-16; Ord. No. 92-088, § 1, 12-17-92)

Sec. 5-54. - Issuance of license to debtor licensee.

No license for any ensuing, current or unexpired license period shall be issued to any person who, at the time of making application for any license, is indebted to the city for any unpaid license fees required to be paid under the provisions of this article or any other ordinance of the city; provided, however, that the director of finance may, upon a showing acceptable to him, enter into an agreement with any person indebted to the city for the nonpayment of license fees due under this article or any other ordinance for any past license period; provided, that such person agrees with such commissioner to pay delinquent license fees in equal installments extending over a period not to exceed one year. In such agreement such delinquent licensee shall acknowledge his debt for such delinquent license fees and agree in case default is made in the payment of any installment that the whole amount shall become immediately due and payable and that in case suit is brought to enforce the collection of delinquent license fees the debtor will pay all costs of such suit. In case such agreement is executed, a license may be issued for any current or ensuing license period to such delinquent licensee upon such person paying the fee prescribed for the current or ensuing license period, together with penalties, if any.

(Code 1968, § 35-17; Ord. No. 92-088, § 1, 12-17-92)

Sec. 5-55. - Delinquencies; penalties.

(a)

All license fees required by this Code or other ordinance or resolution shall be deemed delinquent if not paid on or before the close of business on the last day of the first month when due.

(b)

Whenever any license fee required by this article is not paid on or before the delinquency date, a one-time penalty of five percent of the unpaid fee, but not less than $5.00, shall be imposed and shall become a part of the unpaid fee. In addition to the initial penalty herein provided, interest at the rate of 1.5 percent of the unpaid fee and penalty at the rate of 1.5 percent of the amount of the unpaid fee shall be added for each month or fraction thereof during which time the fee shall remain unpaid and shall be collected together with the fee.

(c)

The director of finance or his authorized agent shall be authorized to waive in whole or in part license fees, including additional fees payable pursuant to section 5-102 of this Code, or penalties and interest due on license fees or such additional fees based on number of employees pursuant to section 5-102 under the following circumstances:

(1)

When litigation over the amount of license fees due is pending or threatened and waiver of penalty or interest, or both, is proposed as part of the overall settlement of the litigation.

(2)

Where the assessment of penalty and interest is based on fees assessed in error by the department of finance.

(3)

When the waiver of penalty, or interest, or both, is proposed as part of an agreement by which the entire principal amount of license fees, or additional fees, or both shall be paid to the city whether litigation is pending or not.

The director of finance may promulgate rules and regulations deemed necessary to administer the provisions of this section, subject to approval by the administrative board.

(d)

In case of a newly established business, no penalty shall be imposed if the fee is paid within 30 days after the commencement of operation; otherwise, penalties for delinquencies shall be imposed and become payable as provided in the preceding paragraphs of this section.

(e)

No person shall operate, carry on or engage in any business, profession or calling coming within the provisions of this article without first obtaining a license, as required by this article. No person, having been licensed and being delinquent in the payment of the license fee or any of the payments required under section 5-101, shall continue to operate, carry on or engage in the business, profession or calling for which he may have been licensed without first removing such delinquency. Each day's operation, carrying on or engaging in any business, profession or calling, in violation of this article, shall constitute and be a separate offense and punishable as such. The individuals composing any firm, partnership or association and each of them, and the president, managing officer and the directors and each or any of them, of any corporation violating this article shall, for each offense, be deemed guilty of violating this article and shall be punishable as provided in this section. Every person violating any provision of this article shall be deemed guilty of a misdemeanor, and, upon conviction thereof before a court of proper jurisdiction, besides being liable for the payment of such license fee and the payments required under section 5-101, together with all penalties, shall be punished as provided in section 1-5.

(f)

If the commissioner of licenses and inspection, or the director of finance or his or her agent, after investigation, determines that any person operates, carries on or engages in any business, profession or calling, within the provisions of this article, without first obtaining a license as required by this article, the commissioner of licenses and inspection or his deputies, or the director of finance or his or her agent, shall have the authority to order the business, profession or calling not licensed to immediately cease and desist operation. The order shall be given in writing, by either mail or service or other form of delivery to the owner or his agent or any of the individuals composing any firm, partnership or association or to the president, managing officer or director of any corporation. If any such person cannot be found, a copy of the order shall be posted conspicuously on the place or vehicle from which the business is operated, and such a procedure shall be deemed the equivalent of personal service. Such order shall provide that the person so notified may appeal the cease and desist order to the board of licenses and inspection review. The appeal shall be in writing and filed within ten days after the receipt of the cease and desist order. Any appeal to the board of licenses and inspection review shall be accompanied with a nonrefundable fee of $10.00 at the time of filing. The board of licenses and inspection review shall hear and decide appeals in accordance with its duly prescribed and promulgated rules, regulations, and procedures.

(g)

If any check received in payment of a license fee is returned unpaid by the bank, there shall be added to the license fee the sum of $10.00.

(Code 1968, § 35-25; Ord. No. 92-088, § 1, 12-17-92; Ord. No. 94-003, § 1, 2-24-94; Ord. No. 97-060, § 1, 8-27-97; Ord. No. 03-074, § 1, 11-20-03)

Sec. 5-56. - Effect of conviction; remedies not exclusive.

(a)

The conviction and punishment of any person for engaging in any business without first obtaining a license to conduct such business as required by this article shall not relieve such person from paying the license fee due and unpaid at the time of such conviction, nor shall the payment of any license fee prevent a criminal prosecution for the violation of any of the provisions of this article.

(b)

The use of any of the remedies prescribed under this article shall not bar the use of any other remedy for the purpose of enforcing the provisions of this article.

(Code 1968, § 35-26)

Sec. 5-57. - Discrimination by licensees.

(a)

No person holding a license pursuant to the provisions of this article as or for a restaurant, cafe, soda fountain, hotel dining room, membership club that is not distinctly private, or other place where food is prepared for consumption on the premises, or any other place of public accommodation, resort or amusement shall discriminate against any person in the sale of food or drink for consumption on the premises and in the rendering of services ordinarily incident thereto, or, directly or indirectly, refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof or membership therein on the basis of his age, race, color, national origin, sex, sexual orientation, handicap or religion, and particularly, shall not refuse to serve any person because of his age, race, color, national origin, sex, sexual orientation, handicap or religion. Nothing provided in this section shall be construed as prohibiting any membership club that is not distinctly private from requiring that nonmembers be accompanied or sponsored by a member or from otherwise requiring a member's nondiscriminatory participation.

(b)

Each license issued by the department of licenses and inspection pursuant to the provisions of this article, and specifically as or for a restaurant, cafe, soda fountain, hotel dining room, membership club that is not distinctly private, or other place where food is prepared and sold for consumption on the premises, or any other place of public accommodation, resort or amusement shall contain the following language which shall be set forth on the back of each license issued, in addition to any other language required to be set forth on the back of a license by any other provision of this article:

The holder of this license covenants, warrants, and agrees by the acceptance of this license that in the conduct of his or her business he or she will strictly comply with all the provisions of the Code of the City of Wilmington, and all other ordinances of the City and specifically will strictly comply with the provisions of this section prohibiting discrimination against any person because of his or her age, race, color, national origin, religion, sex, sexual orientation or handicap.

(c)

Every person applying for a license pursuant to the provisions of this article and specifically as or for a restaurant, cafe, soda fountain, hotel dining room, membership club that is not distinctly private, or other place where food is prepared and sold for consumption on the premises or any other place of public accommodation, resort or amusement shall file an affidavit with the application for the license required by this article, which affidavit shall be a part of the application for such license, stating that such person will strictly comply with all the provisions of this Code and all other ordinances of the city and specifically with the provisions of this section prohibiting discrimination against any person on the basis of age, race, color, national origin, religion, sex, sexual orientation or handicap.

(d)

Every person violating any provision of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof before the municipal court for the city, shall be punished by a fine of not less than $100.00 nor more than $1,000.00 for each such offense, and in the event of default in the payment of the fine the defendant shall be punished by imprisonment for a term not exceeding 60 days.

(e)

In addition to and not in lieu of any other remedies provided by law or in equity, any person aggrieved by the actions of any person in alleged violation of the provisions of this section may file a complaint regarding such actions with the board of license and inspection review. The board shall conduct a hearing, take evidence, hear testimony and make findings of fact and render conclusions of law regarding any such complaint and issue such order as it deems appropriate to the enforcement of this section, in accordance with its rules and regulations and applicable law. Any such order may include a cease and desist order issued to the violator, authorization of suspension or revocation of a violator's license, or a recommendation of prosecution in the municipal court of such violator as provided in this section, or all of such actions; provided, however, that a recommendation of prosecution shall not be a precondition to any prosecution initiated by duly authorized law enforcement authorities.

(f)

In determining the applicability of this section to any membership organization or club as an alleged violator of this section, or to any person otherwise subject to this section, the board and the commissioner of licenses and inspections or his designee, respectively, shall consider and weigh in an appropriate manner the following criteria:

(1)

Whether or not the club is relatively large in size in terms of the number of members of the club as compared to other similar clubs in this state.

(2)

Whether or not the club has procedures established to carefully screen applicants for membership on any basis or no basis at all. That is, whether membership is determined by subjective, not objective factors.

(3)

Whether or not, and if so the extent to which, the club limits the use of the facilities and the services of the organization to members and bona fide guests of members.

(4)

Whether or not the club is controlled by its membership, is nonprofit and operated solely for the benefit and pleasure of its members, and it directs its publicity exclusively and only to its members for their information and guidance.

(5)

The extent to which the club receives revenues from providing regular meal service and regularly receives revenues from payments for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmember persons or business entities presumptively for the furtherance of trade or business; for purposes of this section such revenues shall include revenues received from activities off the premises of the club's facilities, such as off-site catering, if such revenues and activities are found to be central to the maintenance of the club, particularly if the activities are not related to the social activities which are the purpose of the club and notwithstanding that the off-site activities are conducted on a nondiscriminatory basis not otherwise violative of the provisions of this section.

(6)

Any other factors which the board deems relevant and pertinent in order to determine whether or not the club is distinctly private in nature or has become affected with a public interest such that it is subject to the provisions of this article applicable to places of public accommodation.

(g)

In accordance with the provisions of this section, the board shall determine whether a club is not distinctly private in nature and, therefore, subject to the provisions of this section. If the board so determines, it shall then determine whether or not, in its view, the club has violated the provisions of this section and, if so, issue such order as it deems appropriate.

(h)

The board may promulgate rules and regulations it deems necessary to the administration and enforcement of this section, subject to the approval of the administrative board.

(Code 1968, § 35-23; Ord. No. 00-121, § 1, 11-16-00)

Sec. 5-58. - Public nuisances.

(a)

Legislative findings. The council finds that public nuisances exist in the City of Wilmington in the operation of certain establishments and the use and occupation of property in flagrant and persistent violation of state and local laws and ordinances, which nuisances substantially and seriously interfere with the interest of the public in enhancing the quality of life and community environment in the city, and in fostering and facilitating commerce, maintaining and improving property values, and preserving and protecting the public health, safety and welfare. The council further finds that the persistence of such activities and violations is detrimental to the health, safety and welfare of the people of the City of Wilmington and of the businesses thereof and the visitors thereto. It is the purpose of the council to authorize and empower the commissioner of the department of license and inspections (hereinafter "the commissioner") to impose sanctions and penalties for such public nuisances, and such powers may be exercised either in conjunction with or apart from the powers contained in other laws without prejudice to the use of procedures and remedies available under such other laws. The council further finds that the sanctions and penalties that may be imposed by the commissioner pursuant to this article constitute an appropriate exercise of the city's police powers in response to the proliferation of the above-described public nuisances. The sanctions and penalties are reasonable and necessary in order to protect the health and safety of the people of the city and to promote the general welfare. It is also the purpose of the council to encourage owners and occupants of properties, landlords and business operators to take affirmative steps to prevent nuisance activity on their properties and in their business establishments.

(b)

Public nuisance defined. For purposes of this section, a public nuisance shall be deemed to exist whenever, through violation of any of the following provisions resulting from separate incidents at a building, erection, residence or place, 12 or more points are accumulated within a period of six consecutive months or 18 or more points are accumulated within a period of 12 consecutive months, in accordance with the following point system. Where more than one violation occurs during a single incident, the total points for the incident shall be the highest point value assigned to any single violation. For purposes of this section, an "incident" will be defined as the execution of an enforcement action in response to a violation of the law, with or without an arrest or conviction, and occurs on or outside the premises, but within the perimeter of the lot on which the building, erection, residence or place is located, or on any adjacent or accessory parking lot used in connection with said building, erection, residence or place, or occurs outside the premises, but was initiated inside the premises. Except that points for a violation of the Wilmington City Code shall only be assessed upon the issuance of a criminal summons or civil citation. The owners, occupants, lessors, lessees, licensees, and all those persons in possession or having charge of the property as agent or otherwise, or having any interest in the property, real or personal may be held liable under these provisions for conducting or maintaining a public nuisance.

(c)

Assessment of points.

(1)

The following violations shall be assigned a point value of eight points:

a.

A violation of the provisions of Title 11, Chapter 5, Subchapter II, Subpart B of the Delaware Code entitled "Acts Causing Death."

b.

A violation of the provisions of Title 11, Chapter 5, Subchapter VII, Subpart E of the Delaware Code entitled "Offenses Involving Deadly Weapons and Dangerous Instruments."

(2)

The following violations shall be assigned a point value of six points:

a.

A violation of the provisions of Title 11, Chapter 5, Subchapter II, Subpart A of the Delaware Code entitled "Assaults and Related Offenses."

b.

A violation of the provisions of Title 11, Chapter 5, Subchapter II, Subpart D of the Delaware Code entitled "Sexual Offenses."

c.

A violation of the provisions of Title 11, Chapter 5, Subchapter III, Subpart D of the Delaware Code entitled "Theft and Related Offenses."

d.

A violation of the provisions of Title 11, Chapter 5, Subchapter V, Subpart B of the Delaware Code entitled "Sale and Distribution of Tobacco Products," including a violation of any rules and regulations promulgated by the Division of Alcohol Beverage Control and Tobacco Enforcement.

e.

A violation of the provisions of Title 11, Chapter 5, Subchapter VII, Subpart A of the Delaware Code entitled "Riot, Disorderly Conduct and Related Offenses."

f.

A violation of the provisions of Title 11, Chapter 5, Subchapter VII, Subpart B of the Delaware Code entitled "Offenses Involving Public Indecency."

g.

A violation of the provisions of Title 11, Chapter 5, Subchapter VII, Subpart D of the Delaware Code entitled "Offenses Involving Gambling."

h.

A violation of Title 4 of the Delaware Code entitled Alcoholic Liquors, including a violation of any rules and regulations promulgated by the Division of Alcohol Beverage Control and Tobacco Enforcement.

i.

A violation of the provisions of Title 16, Part IV of the Delaware Code entitled "Uniformed Controlled Substance Act."

(3)

The following violations shall be assigned a point value of four points:

a.

A violation of any section of the International Building Code, including any amendments thereto as contained in Chapter 4 of the Wilmington City Code.

b.

A violation of any section of Chapter 5, Businesses, of the Wilmington City Code.

c.

A violation of Chapter 11, Article III of the Wilmington City Code entitled "Noise Control and Abatement."

d.

A violation of any section of Chapter 12, Fire Prevention and Protection, of the Wilmington City Code.

e.

A violation of any section of Chapter 34, Housing, of the Wilmington City Code.

f.

A violation of any section of Chapter 36, Miscellaneous Offenses and Provisions, of the Wilmington City Code.

g.

A violation of any section of Chapter 48, Zoning, of the Wilmington City Code.

h.

A violation of any section of the Delaware State Fire Prevention Regulations as adopted by the Wilmington City Code.

i.

A violation of the National Fire Protection Association, Life Safety Code, as adopted by the Wilmington City Code.

j.

A violation of the provisions of Title 16, Part II entitled "Regulatory Provisions Concerning Public Health."

(4)

The following violations shall be assigned a point value of three points:

a.

All sections of Chapter 3, Animals, of the Wilmington City Code.

(5)

The following shall be assigned a point value of one point:

a.

All sections of Chapter 13, Health and Sanitation, of the Wilmington City Code.

b.

A police call for service to a property as documented by a police computer aided dispatch system or a written police report (with or without an arrest or conviction).

(6)

Points will not be assessed, or may be removed by the commissioner if previously assessed, if the commissioner determines that the following circumstances exist:

a.

The owner, occupant, lessor, lessee, licensee or agent reported the violation of law to law enforcement, and it is determined by the commissioner that the owner, occupant, lessor, lessee, licensee or agent did not in any way contribute to the violation of law whether through his actions or inactions; or

b.

The owner, occupant, lessor, lessee, licensee or agent is the victim of the criminal act as documented in a crime report, and it is determined by the commissioner that the owner, occupant, lessor, lessee, licensee or agent did not in any way contribute to the violation of law whether through his actions or inactions.

(d)

Conviction not required. For purposes of this section, a conviction for an offense in a court of competent jurisdiction shall not be required to establish that a specified violation of law has occurred at a building, erection, residence or place. However, a conviction, including a plea of "guilty" or "no contest," in any court of competent jurisdiction, shall constitute conclusive proof of such a violation of law. Conviction of an attempt to commit a violation of any of the specified provisions shall be equivalent to a conviction for a violation of the specified provision.

(e)

Powers of the commissioner of licenses and inspection with respect to public nuisances. In addition to any other enforcement procedures established elsewhere, the commissioner of licenses and inspections shall be authorized:

(1)

To order the temporary closing of the building, erection, residence, or place, or unit in the case of a multi-unit building to the extent necessary to abate the nuisance; or

(2)

To suspend for a period not to exceed six months or revoke for a period of one year any license or permit issued by the city related to the conduct of a business or trade at the premises, including a residential rental business license, which suspension or revocation shall also apply to any other locations or dwelling units operated by the holder for which the license or permit is required if it is determined by the commissioner that a pattern of nuisance activity is also occurring in or upon other locations or dwelling units operated by the holder of the license or permit; or

(3)

To issue a criminal summons to the owners, occupants, lessors, lessees, licensees and all those persons in possession or having charge of the property as agent or otherwise, or having any interest in the property, real or personal for conducting or maintaining a public nuisance property; or

(4)

Any combination of the above.

(f)

Notice. Prior to exercising the powers enumerated in subsection (e) above, the commissioner shall give notice to the owner, lessor, or licensee of the existence or potential existence of a public nuisance at the subject property. Such notice shall be placed in writing, include a description of the property sufficient for identification, a statement of the nuisance activity occurring in or upon the property, and the potential penalties which may be imposed under this section if the activity continues. Such notice shall be deemed to be properly served upon the owner, lessor, or licensee by mailing the notice to his last known address, via certified mail, return receipt requested, or if the notice is returned by the postal service, by posting a copy of the notice in a conspicuous place on or about the dwelling affected by the notice. The commissioner may, at his discretion, serve the notice by hand delivering the notice to the owner, lessor, or licensee at his usual residence or place of business in the presence of someone in the residence or business 18 years of age or older.

(g)

Lack of knowledge not a defense. The lack of knowledge of or acquiescence to or participation in or responsibility for a public nuisance on the part of the owners, occupants, lessors, lessees, and all those persons in possession or having charge of the property as agent or otherwise, or having any interest in the property, real or personal, used in conducting or maintaining the public nuisance, shall not be a defense by such owners, lessors, lessees, and such other persons.

(h)

Orders of the commissioner of licenses and inspections.

(1)

Orders of the commissioner issued pursuant to this section shall be posted at the building, erection, or place where a public nuisance exists or is occurring in violation of law and shall be hand delivered, or mailed via certified mail, return receipt requested within one business day of the posting.

(2)

Ten business days after the posting of an order issued pursuant to this section and upon the written directive of the commissioner, the department of licenses and inspections and/or the Wilmington Police Department are authorized to act upon and enforce such orders.

(3)

Where the commissioner closes a building, erection, residence or place pursuant to this section, such closing shall be for such period as the commissioner may direct, but in no event shall the closing be for a period of more than one year from the posting of the order pursuant to this section.

(4)

A closing directed by the commissioner pursuant to this section shall not constitute an act of possession, ownership, or control by the city of the closed premises. The owner of the premises shall continue to be responsible for the property.

(5)

Right to appeal. The party to whom the order directing closure of the building, erection, residence or place is addressed, or whose business license has been suspended or revoked, may appeal said closure, suspension, or revocation to the licenses and inspections review board upon filing an application in writing, together with a mandatory $50.00 non-refundable filing fee, with the department of licenses and inspections, within ten business days of receiving the order. The application for appeal shall state with specificity the grounds for appeal. The board, following a hearing, may affirm, modify or reverse the commissioner's order in accordance with its rules and regulations; provided, however, that any such appeal regarding the requirements, applicability or enforcement of the provisions of this section shall not be filed or pursued for purposes of delay or avoidance, or in order to obtain the rehearing of any other order of the commissioner, the department, or the board, including any such order related to the enforcement of any other provisions of this Code regarding the same premises or any incidents, events, activities or conditions which gave rise to the issuance of any order pursuant to the provisions of this section. Any appeal to the board of an order directing closure of the building, erection, residence or place, or an order suspending or revoking a business license shall act as a stay of that order until a decision has been rendered by the board in that appeal proceeding.

(6)

Voluntary abatement action by the owner, occupant, licensee, lessor, or lessee. If the owner, occupant, licensee, lessor, or lessee submits proof satisfactory to the commissioner that the nuisance has been abated and will not again be created, maintained or permitted, the commissioner may, in his discretion, vacate the provisions of the order that direct the closing of the building, erection, or place, or suspension of the license or permit. However, such order may be re-issued if further incidents occur in or upon the property. With regard to residential rental properties, if the owner or lessor submits proof satisfactory to the commissioner that he has filed an eviction action against the lessee(s) of the premises, and that he is actively pursuing such action, the commissioner may stay the order directing the closing of the building, erection, or place, or suspension of the license to permit the owner or lessor to complete the eviction process. If at any time the commissioner determines that the owner or lessor is not actively pursuing the eviction action, the commissioner may re-instate the order.

(i)

Penalties for offenses.

(1)

It shall be a misdemeanor for any person to use or occupy any building, erection, residence or place, or portion thereof, ordered closed by the commissioner pursuant to this section.

(2)

Mutilation or removal of a posted order of the commissioner shall be punishable by a fine of not less than $250.00, provided that such order contains notice of such penalty.

(3)

Intentional disobedience or disregard of any provision of orders issued by the commissioner pursuant to this section, in addition to any other punishment prescribed by law, shall be punishable by a fine of not less than $250.00 and no more than $1,000.00 for the first offense; no less than $500.00 and no more than $2,500.00 for the second offense; and no less than $1,000.00 and no more than $5,000.00 for the third and subsequent offenses, of which the minimum fine, if imposed, shall be mandatory and not subject to suspension.

(4)

A summons issued for conducting or maintaining a public nuisance property issued by the commissioner pursuant to this section, in addition to any other punishment prescribed by law, shall be punishable by a fine of not less than $250.00 and no more than $1,000.00 for the first offense; no less than $500.00 and no more than $2,500.00 for the second offense; and no less than $1,000.00 and no more than $5,000.00 for the third and subsequent offenses, of which the minimum fine, if imposed, shall be mandatory and not subject to suspension.

(j)

Severability. If any provision of this section or the application thereof to any person or circumstances is held invalid, the remainder of this section and the application of such provisions to other persons and circumstances shall not be rendered invalid thereby.

(Ord. No. 09-007(sub 1), § 2, 7-9-09)

Editor's note—

Ord. No. 09-007(sub 1), § 2, adopted July 9, 2009, amended by deleting inits entirely and adding former § 5-58, and enacted a new § 5-58 as set out herein. The former § 5-58 pertained to disorderly establishments and derived from Code 1968, § 35-5.1(b)(3); Ord. No. 92-053(sub 1), § 1(g), adopted July 2, 1992; Ord. No. 94-030, §§ 1—3, adopted June 16, 1994; Ord. No. 03-005(sub 1), § 1, adopted Feb. 20, 2003; Ord. No. 05-050(sub 4), § 1, adopted July 13, 2006.

Sec. 5-59. - License suspension or revocation.

(a)

Convictions of Code violations. Every licensed business shall conduct its business and maintain its business premises in compliance with all applicable requirements of this Code, particularly for purposes of this subsection, all applicable provisions of the building, housing, health and sanitation, and fire prevention codes. Whenever the owner, property manager, or operator of any licensed business has been convicted of three or more violations (including offenses disposed of by way of plea agreements whether by plea of "no contest" or "guilty") of provisions of the city's building, housing, or health and sanitation codes that occurred within any period of one calendar year and that involved any one property in which the business that is licensed by the city is conducted or operated, including but not limited to building, housing, or health and sanitation code violations in or on the premises of a residential rental property of such owner or property manager, then such business license may be suspended by the commissioner of licenses and inspection or his duly authorized designee, for 30 days. During the pendency of the suspension, all rental income from all residential rental properties within the city owned and/or managed by the licensee whose rental dwelling unit license is suspended shall be paid by the licensee to the department of licenses and inspections, and placed into an escrow account, and a copy of all leases and rental receipts corresponding to the amount of rental income paid by the licensee shall also be provided to the department of licenses and inspections. If the conditions giving rise to the convictions for violations are corrected within the period of suspension, all monies paid by the licensee and held in escrow shall be returned to the licensee within two weeks of the re-instatement of the licensee's rental dwelling unit business license, except that an administrative fee shall be assessed to the licensee and deducted from the amount held in escrow. If the conditions giving rise to the convictions for violations are not corrected within the period of any such suspension, the license suspension may be extended for an additional 30 days or the license may be revoked for the balance of the license year, except that such license may be reinstated if the conditions are sooner corrected as required by the department of licenses and inspections. If the license suspension period is extended beyond the initial 30-day period, the holder of a rental dwelling unit business license must continue to pay to the department of licenses and inspections all rental income due to the licensee during the period of suspension. Further, if the license suspension extends beyond the initial 30-day period and the licensee has failed to correct the violations giving rise to the convictions, the department of licenses and inspections may use the monies held in escrow for the sole purpose of repairing the conditions giving rise to the convictions. Any monies remaining in escrow after the repairs are completed shall be returned to the licensee. The commissioner and the department may take such actions regarding convictions of violations of provisions of the city's zoning and noise control and abatement codes and, together with the fire marshal, take such actions regarding fire prevention code violations when, as, and if they occur in the same numbers and periods of time.

Whenever the owner, property manager, or operator of any licensed business has been convicted of one violation (including offenses disposed of by way of plea agreements whether by plea of "no contest" or "guilty") of any provision of title 11 or title 16 of the Delaware Code, the commissioner of licenses and inspections shall have the authority to revoke the business license of said owner, property manager or operator.

The suspension or revocation of any license pursuant to this subsection shall be in addition to any fines or other penalties imposed for the convictions of violations giving rise to such suspension or revocation.

Nothing contained in this section shall preclude the department from recommending to any business licensee remedial measures to be taken prior to the occurrence of such number of convictions, such as would, if taken, constitute substantial progress toward correction of the underlying conditions of the property before the number of convictions have accumulated to the point at which the business license provisions of this section become applicable.

(b)

Continuing pattern of cause for issuance of Code violation notices, orders or citations. Every licensed business shall conduct its business and maintain its business premises in compliance with all applicable requirements of this Code, particularly for purposes of this subsection, all applicable provisions of the building, housing, health and sanitation, and fire prevention codes. Whenever there has been a pattern of repeated and continuing violations by any business, as evidenced by the issuance of three or more official constable citations, or official notices or orders, each of which is of or concerning multiple (two or more) violations of this Code, per month within any three-month period, of any of the provisions of the building, housing, or health and sanitation codes, for which the commissioner or the department has issued such violation notices or orders, or any such constable citations have been issued, and the conditions constituting such violations have still not been corrected, nor substantial steps taken toward correction, the business license of the owner or operator of such business may be suspended for up to 30 days and thereafter may be revoked for the balance of the license year and no such license shall be reinstated or any new license issued to that owner or operator unless and until such conditions have been corrected, or substantial steps taken toward correction, in a manner satisfactory to the department of licenses and inspection as directed in such citations, notices or orders, or otherwise, in writing, by the department. The provisions contained in subsection (a) above regarding payment by the holder of a rental dwelling unit business license of all rental income from all residential rental properties owned by the licensee located in the city to the department of licenses and inspections shall also apply to rental dwelling unit business licenses suspended under subsection (b). The commissioner and the department may take such actions regarding violations of the city's zoning and noise control and abatement codes and, together with the fire marshal, take such actions regarding fire prevention code violations, when, as and if they occur in the same numbers and periods of time.

However, if the conditions for which such three or more notices of violations, orders, or citations have been issued are corrected, or substantial steps have been taken, to the satisfaction of the commissioner, as aforesaid, within any 30-day period, the violations arising out of those conditions so corrected shall no longer be included for purposes of determining the applicability of this subsection to such business.

The provisions of this subsection shall be applicable regardless of whether or not there has been a court conviction for any of the subject violations and shall be in addition to and not in lieu of any other penalties as provided by law. Nothing contained in this subsection shall preclude the department from recommending to any business licensee remedial measures to be taken prior to the occurrence of the number of violation notices, orders, or citations, such as would, if taken, constitute substantial progress toward correction of the underlying conditions of the property or properties involved before accumulation of the number of violations to the point at which the business license provisions of this section become applicable. The provisions of this subsection apply to instances of violations of the referenced codes but do not apply to instances of criminal offenses.

(c)

Terms. For purposes of this section, the terms "violation notices or orders" and "constable citations" shall mean the official written notices, orders and citations that are authorized by the provisions of this Code to be issued by the department of licenses and inspections and by the city's authorized constables for the administration and enforcement of the city's building, housing, and health and sanitation code provisions and other code provisions enforced by that department.

(d)

Appeals. Any business licensee aggrieved by an order of the commissioner of the department of licenses and inspections issued pursuant to the provisions of this section or section 5-58 may appeal to the board of license and inspection review within ten days of receipt of the order being appealed and in accordance with the rules and regulations of the board. The board, following a hearing, may affirm, modify or reverse any such order of the commissioner in accordance with its rules and regulations; provided, however, that any such appeal regarding the requirements, applicability, or enforcement of the provisions of this section shall not be filed or pursued for purposes of delay or avoidance, or in order to obtain the rehearing of any other order of the commissioner, the department, or the board, including any such order related to the enforcement of any other provisions of this Code regarding the same premises or any incidents, events, activities or conditions which gave rise to the issuance of any order pursuant to the provisions of this section or section 5-58. Any appeal to the board of an order suspending or revoking a license shall act as a stay of that order until a decision has been rendered by the board in that appeal proceeding, or until there has been a final decision in any appeal of such decision of the board. The board shall give due consideration to the recommendations, if any, of the persons listed in section 5-58(c).

(e)

Unlawful practices; penalties. It shall be an unlawful practice for any owner, operator, or authorized agent for the same, of any business that is subject to the provisions of this section to violate, fail to comply with, or attempt to avoid the application of any provision of this section or of any order issued pursuant to this article. A conviction of an unlawful practice shall be punishable by a fine of not less than $1,000.00. In such cases, the minimum fine of $1,000.00 shall not be subject to suspension or reduction for any reason and shall be in addition to and not in lieu of any suspension or revocation of the license of such business.

(Code 1968, § 35-5.1; Ord. No. 92-053(sub 1), § 22(a), 7-2-92; Ord. No. 94-030, § 3, 6-16-94; Ord. No. 01-104(sub 1), § 1, 11-8-01; Ord. No. 05-028, § 1, 6-2-05; Ord. No. 05-050(sub 4), § 2, 7-13-06)

Sec. 5-60. - Business license ineligibility.

(a)

The owner or co-owner(s) or agent for the owner or co-owner(s) of a business that had been licensed by the city, which license was suspended or revoked, as a result of legal action taken by law enforcement authorities of the city or of New Castle County or by those of the state or by those of Federal authorities, or by any combination of such law enforcement authorities, to enforce city, state or Federal code requirements or criminal laws as to activities at such business or its location, including nuisance abatement actions for illegal drug, prostitution, or similar prohibited activities, shall not be eligible for one year from the date of such license suspension or revocation to obtain a city business license to reopen the same business, or to open any other business at the same or any other location in the city.

(b)

There shall be no exceptions to the requirements of subsection (a) of this section.

(Ord. No. 97-110(sub 1), § 1, 1-8-98)

Secs. 5-61—5-75. - Reserved.