Sec. 40-155. - Definitions.

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

Dealer. The word "dealer" shall mean every manufacturer, jobber, wholesale dealer or other person who supplies a seller with cigarettes.

Package. The word "package" shall mean and include every package, box, can or other container of any cigarettes, irrespective of the material from which such container is made, to which the internal revenue cigarette tax of the United States is applicable by and under federal statutes and regulations, and in which retail sales of such cigarettes are normally made or intended to be made.

Person. The word "person" shall mean and include any individual, partnership, society, association, joint stock company, corporation, estate, receiver, trustee, assignee, referee or any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, and any combination of individuals.

Purchaser. The word "purchaser" shall mean and include every person to whom title to any cigarettes is transferred by a seller within the corporate limits of the city.

Sale. The word "sale" shall mean and include every act or transaction, irrespective of the method or means employed, including the use of vending machines and other mechanical devices, whereby title to any cigarettes shall be transferred from the seller to any other person within the corporate limits of the city.

Seller. The word "seller" shall mean any person who transfers title to any cigarettes, or in whose place of business title to any cigarettes is transferred, within the corporate limits of the city, for any purpose other than resale.

Stamp. The word "stamp" shall mean a small gummed piece of paper or decalcomania to be sold by the city treasurer and to be affixed to every package of cigarettes sold at retail in the city, and also any insignia or symbols printed by a meter machine upon any such package under the authorization of the commissioner of the revenue.

(Ord. No. 658, § 1; Ord. No. 1259, § 1; Ord. No. 1364, § 1; Code 1961, § 16-80)

Sec. 40-156. - Levied; amount.

There is hereby levied and imposed by the city, upon each and every sale of cigarettes, a tax equivalent to seventy-five cents ($0.75) for each twenty (20) cigarettes, or fractional number of twenty (20) cigarettes, sold within the city, the amount of the tax to be paid by the seller, if not previously paid, in the manner and at the time provided for in this article.

(Ord. No. 658, § 2; Ord. No. 1259, § 2; Ord. No. 1364, § 2; Code 1961, § 16-81; Ord. No. 3586-87, § 1; Ord. No. 3889-89; Ord. No. 4196-91, § 1; Ord. No. 5145-98, § 1; Ord. No. 5787-02, § 1; Ord. No. 5924-03, § 1; Ord. No. 5996-03, § 1; Ord. No. 6783-11, § 1)

Editor's note—

Ord. No. 6783-11 shall be in effect on and after July 1, 2011.

Sec. 40-157. - Method of payment.

(a)

The tax imposed by this article shall be paid by affixing or causing to be affixed a stamp or stamps of the proper denominational or face value to each and every package of cigarettes sold within the city in the manner and at the time or times provided for in this article. Every dealer and every seller in the city shall have the right to buy such stamps from the city treasurer and to affix the same to packages of cigarettes as provided in this article.

(b)

The commissioner of the revenue is authorized to permit the payment in advance of the tax levied and imposed by this article by the method of placing imprints of the stamps upon original packages by the use of meter machines, in lieu of the method of paying such tax by the purchase and affixing of gummed stamps, and to prescribe and enforce the necessary regulations, setting forth the method to be employed and the conditions to be observed in the use of such meter machines.

(Ord. No. 658, §§ 3, 8; Ord. No. 1259, §§ 3, 8; Ord. No. 1364, §§ 3, 8; Code 1961, §§ 16-82, 16-86)

Sec. 40-158. - Preparation and sale of stamps generally.

For the purpose of making stamps available for use, the commissioner of the revenue shall prescribe, prepare and furnish to the city treasurer, and the city treasurer shall sell, stamps of such denominations and in such quantities as may be necessary for the payment of the taxes imposed by this article. In the sale of such stamps, the city treasurer shall allow a discount of four (4) percent of the denominational or face value thereof to cover the costs which will be incurred in affixing the stamps to packages of cigarettes. In the event the printing by an authorized meter machine is used in lieu of gummed stamps, there shall be allowed a discount of six (6) percent of the denominational or face value of the imprints of the stamps so printed by the meter machine to cover the costs incurred in printing such imprints.

(Ord. No. 658, § 6; Ord. No. 1259, § 6; Ord. No. 1262, § 1; Ord. No. 1364, § 6; Code 1961, § 16-83)

Sec. 40-159. - Duties of dealers and sellers with respect to stamps.

(a)

Every local dealer in cigarettes is hereby required, and it shall be such dealer's duty, to purchase such stamps at the office of the city treasurer as shall be necessary to pay the tax levied and imposed by this article, and to affix or cause to be affixed a stamp or stamps of the monetary value prescribed by this article to each package of cigarettes prior to delivery or furnishing of such cigarettes to any seller. Nothing herein contained shall preclude any dealer from using a stamp meter machine in lieu of gummed stamps to effectuate the provisions of this article.

(b)

Every seller is hereby required to examine each package of cigarettes prior to exposing the same for sale, for the purpose of ascertaining whether such package has the proper stamps affixed thereto or imprinted thereon, as provided by this article. If upon such examination, unstamped or improperly stamped packages of cigarettes are discovered, the seller, where such cigarettes were obtained from a local dealer, shall immediately notify such dealer, and upon such notification, such dealer shall forthwith either affix to or imprint upon such unstamped or improperly stamped packages the proper amount of stamps, or shall replace such packages with others to which stamps have been properly affixed or imprinted thereon.

(c)

Should a seller obtain or acquire possession, from any person other than a local dealer, of any unstamped or improperly stamped cigarettes, such seller shall, forthwith, before selling, offering or exposing such cigarettes for sale in the city, purchase and affix or cause to be affixed to such packages of cigarettes the proper stamps, or the marking of a meter machine covering the tax imposed by this article.

(d)

In the event any seller shall elect to purchase and affix such stamps or imprints of a meter machine before offering such cigarettes for sale, any local dealer delivering and furnishing cigarettes to any such seller shall not be required to purchase and affix the stamps or imprints to such cigarettes so sold or furnished; provided, that any such local dealer shall, on the day following the day of such delivery and furnishing, file with the commissioner of the revenue a copy of the delivery memorandum showing the name and address of such seller and the quantity and type of cigarettes so delivered and furnished.

(Ord. No. 658, §§ 4, 5; Ord. No. 1259, §§ 4, 5; Ord. No. 1364, §§ 4, 5; Code 1961, § 16-85)

Sec. 40-160. - Visibility of stamps or meter markings.

Stamps or the printed marking of a meter machine shall be placed upon each package of cigarettes in such manner as to be readily visible to the purchaser.

(Ord. No. 658, § 4; Ord. No. 1259, § 4; Ord. No. 1364, § 4; Code 1961, § 16-87)

Sec. 40-161. - Altering design of stamps.

The commissioner of the revenue may, from time to time, and as often as the commissioner may deem advisable, provide for the issuance and exclusive use of cigarette tax stamps of a new design and forbid the use of stamps of any other design.

(Ord. No. 658, § 7; Ord. No. 1259, § 7; Ord. No. 1364, § 7; Code 1961, § 16-88)

Sec. 40-162. - Refund for unused stamps or meter imprints.

(a)

Should any person, after acquiring from the city treasurer any stamps provided for in this article, cease to be engaged in a business necessitating the use thereof, or should any such stamps become mutilated and unfit for use, other than by cancellation, such person shall be entitled to a refund of the denominational or face amount of any such stamps so acquired and not used by such person, less four (4) percent of the denominational or face amount thereof, upon presenting the stamps to the commissioner of the revenue and furnishing the commissioner of the revenue with an affidavit showing, to the commissioner's satisfaction, that the stamps were acquired by such person and have not in any manner been used, and the reason for requesting the refund. In the case of any authorized meter machine, should any imprints of such machine theretofore paid for not be used, such person shall, upon furnishing the commissioner of the revenue with a similar affidavit, be entitled to a refund of the denominational or face amount thereof, less six (6) percent of the denominational or face amount of the imprints of the machine not so used.

(b)

Any and all refunds for unused and mutilated stamps and for nonuse of meter machine imprints provided for under this section are hereby authorized to be made on vouchers approved by the commissioner of the revenue, and when made, the same shall be charged against the sums collected for the sale of the stamps and for the use of such imprints.

(Ord. No. 658, § 9; Ord. No. 1259, § 9; Ord. No. 1262, § 1; Ord. No. 1364, § 9; Code 1961, § 16-89)

Sec. 40-163. - Seizure and sale of unstamped cigarettes.

Whenever the commissioner of the revenue shall discover any cigarettes which are subject to the tax imposed by this article and upon which the tax has not been paid or upon which stamps have not been affixed or evidence of such tax shown thereon by the printed markings of an authorized meter machine, as in this article required, the commissioner of the revenue is hereby authorized and empowered to forthwith seize and take possession of such cigarettes, which shall thereupon be deemed to be forfeited to the city, which may, within a reasonable time thereafter, after written notice posted at the front door of the courthouse of the city at least five (5) days before the date of sale, or published in some newspaper having general circulation in the city at least five (5) days before the date of sale, sell such forfeited cigarettes at the time and place designated in such notice. From the proceeds of such sale, the city shall collect the tax due thereon, together with a penalty of fifty (50) percentum thereof and the costs incurred in such proceedings, and pay the balance, if any, of such proceeds to the person in whose possession such forfeited cigarettes were found. Such seizure and sale shall not be deemed to relieve any person from any fine provided herein for the violation of the provisions of this article. All money collected under the provisions of this section shall be paid to the city treasurer and treated as other taxes collected under this article.

(Ord. No. 658, § 10; Ord. No. 1259, § 10; Ord. No. 1364, § 10; Code 1961, § 16-90)

Sec. 40-164. - Dealers' and sellers' records generally.

It shall be the duty of every local dealer and seller to maintain and keep, for a period of two (2) years, such record of cigarettes sold and delivered by the dealer or seller as may be required by the commissioner of the revenue and to make all such records available for examination by the commissioner of the revenue, upon demand, at any and all reasonable times.

(Ord. No. 658, § 13; Ord. No. 1259, § 13; Ord. No. 1364, § 13; Code 1961, § 16-91)

Sec. 40-165. - Rules and regulations for enforcement and administration of article; examination of books, records, etc.

The commissioner of the revenue is hereby authorized and empowered to prescribe, adopt, promulgate and enforce rules and regulations relating to the method and means to be used in the cancellation of the stamps provided for in this article and to any and all other matters pertaining to the administration and enforcement of the provisions of this article. Such commissioner is hereby further authorized and empowered to examine books, records, invoices, papers and any and all cigarettes in and upon any premises where the same are placed, stored, sold, offered for sale or displayed for sale by a seller.

(Ord. No. 658, § 14; Ord. No. 1259, § 14; Ord. No. 1364, § 14; Code 1961, § 16-92)

Sec. 40-166. - Tax in addition to other taxes.

The tax levied and imposed by this article shall be in addition to all other taxes of every kind levied and imposed by any other ordinance or law.

(Ord. No. 658, § 15; Ord. No. 1259, § 15; Ord. No. 1364, § 15; Code 1961, § 16-93)

Sec. 40-167. - Violations of article—Prohibited acts enumerated.

It shall be unlawful and a violation of this article for any person:

(1)

To perform any act or fail to perform any act for the purpose of evading the payment of any tax imposed by this article or of any part thereof; or for any dealer or seller, with intent to violate any provision of this article, to fail or refuse to perform any of the duties imposed upon such dealer or seller under the provisions of this article, or to fail or refuse to obey any lawful order which the commissioner of the revenue may issue under this article.

(2)

To falsely or fraudulently make, forge, alter or counterfeit any stamp or the printed marking of any meter machine or to procure or cause to be made, forged, altered or counterfeited any such stamp or printed markings of a 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.

(3)

To sell any cigarettes upon which the tax imposed by this article has not been paid and upon which evidence of payment thereof is not shown on each package of cigarettes.

(4)

To reuse or refill with cigarettes any package from which cigarettes for which the tax imposed has been theretofore paid have been removed.

(5)

To remove from any package any stamp or the printed marking of a meter machine with intent to use or cause the same to be used after the same has already been used or to buy, sell or offer for sale or give away any used, removed, altered or restored stamp or printed marking of a meter machine to any person or to reuse any stamp or printed marking of a meter machine which has theretofore been used for evidence of the payment of any tax prescribed by this article, or, except as to the city treasurer, to sell or offer to sell any stamps or printed markings of a meter machine provided for herein.

(Ord. No. 658, § 11; Ord. No. 1259, § 11; Ord. No. 1364, § 11; Code 1961, § 16-94)

Sec. 40-168. - Same—Possession by seller of unstamped cigarettes deemed evidence of violation.

In the event any package of cigarettes is found in the possession of a seller without the proper stamps being affixed thereto or without authorized printed markings of a meter machine thereon, and the seller shall be unable to submit evidence establishing that the seller received such package within the immediately preceding forty-eight (48) hours and that the seller has not offered the same for sale, the presumption shall be that such package is being kept by such seller in violation of the provisions of this article, and shall subject the seller to the penalties hereinafter provided.

(Ord. No. 658, § 12; Ord. No. 1259, § 12; Ord. No. 1364, § 12; Code 1961, § 16-95)

Sec. 40-169. - Same—Penalty.

(a)

Any person violating any of the provisions of this article shall, upon conviction thereof, be punished by a fine of not less than twenty-five dollars ($25.00) nor more than five hundred dollars ($500.00), and such conviction and payment of fine shall not relieve any such person from the payment of any tax imposed by this article.

(b)

Each violation of or noncompliance with any of the provisions of this article shall be and constitute a separate offense and shall subject every person convicted thereof to the penalties prescribed in this section.

(Ord. No. 658, §§ 16, 17; Ord. No. 1259, §§ 16, 17; Ord. No. 1364, §§ 16, 17; Code 1961, § 16-96)

Secs. 40-170—40-179. - Reserved.