complaint case no. 15cv000014 10-13-16
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8/17/2019 COMPLAINT Case No. 15CV000014 10-13-16
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DONALD FREEMAN SBN 47833
City
Attorney
City of
Carmel By-The-Sea
P. 0 Box 805
Carmel, CA 93921-0805
(831) 649-5339, Ext.
II
FILED
OCT 13
2 15
TERES A. RISI
C L E R K ~ F r i j i - I E . . S U f . £ R I O R COURT
.} . - Jl
• " U l . . t i U ~
DEPUTY
CASE
MANAGEMfiNT C ONF/=flENCE
Attorney for Petitioner CITY OF CARMEL BY-THE-SEitJATE:
1- -1\a,;c l-0 f b
TIME: 9:00AM l
PLACE: Courtroom
- - - - - • 2nd
Floor
1200 Aguajito
Rd
Monterey CA 93940
MONTEREY
COUNTY
SUPERIOR COURT
MONTEREY
DIVISION
CITY OF CARMEL-BY-THE-SEA,
CALIFORNIA, a municipal corporation
Plaintiff',
VS
PACIFIC HARVEST SEAFOODS, INC.,
And DOES I through 20
Defendants.
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Case No.
COMPLAINT FOR PRELIMINARY AND
PERMANENT INJUNCTION,
ABATEMENT OF NUISANCE;
COLLECTION OF DELINQUENT
BUSINESS LICENSE TAX
DEEMED VERIFIED PURSUANT TO
CODE
OF
CIVIL
PRO EDURE§
446
INTRODUCTION AND PRELIMINARY ALLEGATIONS
I. Plaintiff, City of Carmel-by-the-Sea (herein Carmel or City ) is a municipa
corporation and general law city located within the County
of
Monterey, California.
2. At all times relevant herein and since at least 2012, Defendant Pacific Harves
Seafoods, Inc. (herein PHS ) has exis ted as a business selling and distributing high quality
1
As used
herein
the
tenns Plaintiff
and
Petitioner as well as Defendant and Respondent are used
interchangeably
due to
the combined nature
of
he Complaint.
Carmel
v.
Pacific Harvest Seafoods
Inc.
Complaint/Petition
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8/17/2019 COMPLAINT Case No. 15CV000014 10-13-16
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seafood products to restaurants, grocery stores, and resorts, primarily within the central part of th
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State
of
California, including a dozen or more properties located in Carmel.
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3 The true names and capacities, whether individual, corporate, or otherwise,
of
named
4
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DOES I through 20 are at this time unknown to Plaintiff, who therefore sues Defendants
by
suc
6
fictitious names, and will amend this Complaint to reflect their true names and capacities when
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they have been ascertained.
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4 At all times relevant herein, PHS has possessed and maintained a certificate of for-hir
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carrier of property pursuant to CA Revenue and Taxation Code § 7232(b) which permits th
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transportation
of
property for compensation within the State.
12 5. At all times relevant herein Carmel has maintained, enforced, and published th
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Carmel-by-the-Sea Municipal Code (herein Municipal Code ), consisting of the regulatory an
penal ordinances and certain administrative ordinance of Carmel.
6 At all times relevant herein there has been in existence Municipal Code Chapters 5.04
GENERAL LICENSING PROVISIONS, and 5.08, DEFINITIONS AND INDEX OF GENERAL
BUSINESS CLASSIFICATIONS AND TAX RATE creating a Business License Permit and Ta
within the City
of
Carmel.
Specifically within those Chapters exist Sections 5.050.010
(Definitions), 5.04.020 (License Required), 5.04.030 (Evidence
of
Doing Business), 5.04.06
(Separate Offenses), 5.04.110 (Exhibiting License), 5.04.120 (License Fee Debt to City)
5.04.140 (Payment of Fees and Taxes), 5.04.180 (Licensed Business-Locations), 5.08.005 (Tax
Required), and 5.08.010 (Classifications), and at all times relevant herein those provisions hav
applied to and regulated persons or entities conducting business within the City, establishing
business license tax that is required of each person or entity conducting business within the City.
Carmel
v
Pacific Harvest Seafoods
Inc
Complaint Petition
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7.
Since at least and during each period of fiscal years 2012/2013, 2013/2014, 2014/2015
and 2015 to present Defendant PHS has failed to pay the required business license tax despit
demands from City that such tax be remitted.
8. PHS has admitted that it sells and has sold seafood products to business establishmen
within City.
9.
PHS alleges that it possesses a Motor Carrier Permit issued by the State of Californ
which permits PHS to carry products as a business to local establishments without payment o
local business licenses taxes. Carmel does not dispute that any business of delivering good o
products
as
a sole and separate business would be exempt from its Business License Tax
however, such tax would apply
to
anyone who, like
PHS
is delivering
the
products they r
selling to establishments within Carmel. If they were a true Motor Carrier delivering goods an
products as a business, the sellers of the goods and products themselves would be required t
possess a Carmel Business License Permit.
FIRST CAUSE OF ACTION
COLLECTION OF DELINQUENT BUSINESS LICENSE TAXES
I
0.
Plaintiff incorporates into this cause of action each and every allegation contained i
paragraphs I through 9 of this Complaint
as if
the same were set forth fully herein.
11. This cause of action is brought and prosecuted for the failure of Defendants to secure
Business License Permit and remit the requisite taxes required by that Permit to Carmel pursuan
to Municipal Code provisions set forth in Paragraph 6 above.
12. At all times mentioned herein Municipal Code§ 5.04.020 makes it unlawful for an
person, as that term is defined in § 5.04.0 I 0 to include natural persons, firms, co-partnership
corporations, or other association, to commence or carry on any kind of lawful business, trade
calling, profession or occupation without complying with ... this title.
Carmel
v
Pacific Harvest Seafoods
Inc
Complaint Petition
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13. Municipal Code § 5.040.030 establishes that any person who holds out or represent
that s/he is in business in the City and fails to deny that this fact is true by sworn affidavit shall b
considered in fact to be prim f cie conducting business in the City.
14. Defendant's counsel in a letter dated March
4
2015 addressed to the City Attorney,
copy of which is attached hereto, labeled EXHIBIT A and incorporated herein by this reference
admitted that PHS is in the business of selling seafood products to restaurants, grocery stores, an
resorts, including
a
dozen or more properties in Carmel-by-the Sea.
15. Each separate day that PHS conducted business by selling seafood products within th
City is deemed to
be
a separate violation
of
the City's requirement to first obtain a Busines
License Permit before conducting business pursuant to Municipal Code § 5.04.060.
16. Plaintiff is informed and believes that Defendant provided deliveries within the Cit
on a regular basis in excess
of
100 times per year since the beginning
of
the 2012/2013 fiscal yea
with the exact number subject to proof.
17. At each time during the times mentioned herein, Defendant's delivery person wa
required to possess a copy
of
the Business License issued by City at all times while delivering it
product within the City
of
Carmel pursuant to Municipal Code
§
5.04.110.
18. The amount
of
any Business License fee imposed by Chapter 5.04 and unpaid shal
deemed a debt to the City subject to collection
of
the amount
of
such fee in any court
of
competen
jurisdiction pursuant to Municipal Code § 5.04.120.
19.
The specific fee owed by Defendant annually before application
of
any late fees o
penalties is the sum of an administrative fee of $50 per year, together with an additional tax o
$1.00 per $1,000.00
of
revenue from gross sales
of
products; or an administrative fee
of
$50 X
Carmel
v
Pacific Harvest Seafoods
Inc
Complaint Petition
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or $200, together with estimated revenue from gross sales during this four year period o
$20,000.00 subject to proof pursuant to Municipal Code§§ 5.04.140 A and B. .
20. There is established in Municipal
Code§
5.04. 60A.l. a requirement that the Licens
Tax must be paid at all times during which business is carried on within the City, includin
periods when the business was carried on illegally due
to
a lack of a valid license.
2 .
There is established in Municipal
Code§
5.04.160A.2. a penalty
of 25
percent
of
th
tax due which shall be added to the tax liability, together with an additional penalty of 5%
to
b
added every 30 days thereafter not to exceed 50 percent of the total license tax due; applied herei
it is believed the penalty should be the sum
of
$10,000.00 for the four year period complained
o
herein.
22. The nature of Defendant's business of selling seafood products to various location
throughout the City falls within the category of "in-and-about" business as defined in Municipa
Code
5 04 0101
Pursuant to Municipal Code
§
5.04.180 each person engaged in any in-and
about business shall do so only after procuring a Business License therefore, shall have no right t
sell products or merchandise as is the case with Defendants herein without first obtaining such
License.
23. Plaintiff
is
not aware of any legitimate or legal exemption from each and ever
provision of the Municipal Code related to City's Business License Tax.
24. The City Attorney is authorized by the City Council to bring suit in the name of th
City for the recovery
of
a license tax against any person who engages in, conducts or carries o
any business .. . for which a license is required by the provisions of this title (Chapter 5.04), and
such litigation is brought to enforce collection of any license tax imposed, such persons ar
responsible to pay all costs of suit incurred by City including reasonable attorney's fee as well as
Carmel
v
Pacific Harvest Seafoods
Inc
Complaint Petition
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civil penalty
to
be imposed by the Court pursuant
to
Municipal Code § 5.04.230, with Cit
requesting a penalty in the sum of 1,000.00
as
both a penalty and deterrent for the 4 years
o
conducting business without a required Business License with knowledge of the existence of suc
a requirement.
25. Every person that carries on business within the City shall pay a license tax in a
amount determined by the nature of the business pursuant to Municipal Code§ 5.08.010.
26. Defendants were required to pay a license tax in the amount of 1.00 per 1,000.00
o
gross receipts per year pursuant to Municipal ode§ 5.08.010.
27. Despite the requirements
of
Municipal Code Chapter 5.08, Defendants, and each
o
them have failed and refused to pay the requisite Business License Tax after demand by the Cit
to do so.
28. Wherefore Plaintiff prays relief as set forth following.
SECOND CAUSE OF ACTION
INJUNCTIVE RELIEF TO REQUIRE COMPLIANCE WITH MUNICIPAL CODE
PROVISIONS REGARDING SECURAL OF A BUSINESS LICENSE PERMIT,
P YMENT
OF REQUIRED FEES, FURNISHING OF AN ACCOUNTING OF GROSS
RECEIPTS AND PAYMENT OF ALL DELINQUENCIES AND COSTS OF SUIT AND
ATTORNEY S FEES.
29. Plaintiff incorporates into this cause of action each and every allegation contained i
paragraphs I through 25 of this Complaint as if the same were set forth fully herein.
30. The purpose of this Cause of Action is to enjoin Defendants from conducting busines
in the City
of
Carmel without first obtaining an appropriate Business License, paying required fee
based on gross revenues, and payment of delinquent fees, costs, penalties, and attorney's fees.
Carmel
v
Pacific Harvest Seafoods
Inc
Complaint/Petition
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31. Defendants and each of them have conducted business in the City for more than fou
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years without benefit of a required Business License Permit and without paying required Busines
3
License ta Ces.
4
5
32. On numerous occasions since November 2014, numbering more than seven separat
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times Plaintiff has communicated with Defendants
and
their counsel the legal requirement tha
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prior to commencing or conducting business within the City each person including corporations
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must first obtain a Business License including Defendant PHS and that PHS alleged excuse o
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exemption was invalid and did not excuse compliance with the Business License Chapter of th
Municipal Code.
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33. Despite the demands of City Defendants and each of them has refused to comply wit
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the demands of City that they comply with the legal requirement to obtain a Business Licens
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before conducting business within the City and we believe and therefore allege that Defendan
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PHS continues to conduct business within the City unlawfully and will continue to do so until an
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unless enjoined and restrained by this Court and forced to comply with the law in this respect.
18 34. Plaintiff believes that Defendants will refuse to submit required declaration
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establishing actual gross receipts for the fiscal years since 2012/2013 to the present unless ordered
to do so and restrained by this Court.
35. Plaintiff believes that Defendants will refuse to pay delinquent sums owed by virtue
o
their failure to obtain valid Business Licenses and pay appropriate Business License Taxe
pursuant
to
Municipal Code Chapter 5.04 unless ordered
to
do
so
and enjoined from furthe
unlawful conduct in this regard by this
Court.
36. Plaintiff believes that Defendants will refuse to pay penalties for late payment of th
delinquent sums set forth in Paragraph 3 5 above and will further refuse to pay reasonabl
Carmel
v
Pacific Harvest Seafoods
Inc
Complaint Petition
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attorney s fees for collection
o
the debts, fees, late penalties, attorney s fees and requirin
Defendants to obtain a valid Business License and pay appropriate Business License Taxes befor
conducting business in the City unless enjoined and ordered to do so by this Court.
37. Plaintiff believes that unless enjoined and restrained by this Court Defendants wil
continue to conduct business unlawfully within the City o Carmel.
THIRD CAUSE OF ACTION
ABATEMENT OF NUISANCE PER SE
38. Plaintiff incorporates into this cause o action each and every allegation contained i
paragraphs 1 through 37 o this Complaint as i the same were set forth fully herein.
39. As set forth above, Plaintiff alleges that Defendants, and each o them, have violate
numerous provisions o Municipal Code Chapters 5.04 and 5.08 regarding a requirement whic
they refuse to obey that they obtain a Business License Permit after making application and payin
a Business License Tax, with such refusal to comply with such provisions voluntary an
intentional.
40. Violation
o
a municipal code provision constitutes a public nuisance per se, and
a
such is subject to abatement via injunctive relief.
41. Plaintiff believes that Defendants and each o them will continue to disregard an
disobey the provisions cited above regarding non-compliance with Municipal Code section
establishing a mandatory requirement that they obtain a Business License Permit after payment
o
a Business License Tax, thus constituting a continuing nuisance until and unless abated by orde
o this Court.
PRAYER
WHEREFORE, Plaintiff prays judgment for:
That this Court order, adjudge and decree
as
follows:
Carmel v Pacific Harvest Seafoods Inc
Complaint Petition
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8/17/2019 COMPLAINT Case No. 15CV000014 10-13-16
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ON THE FIRST CAUSE OF ACTION;
I. That Defendant be found to be indebted to Plaintiff in the sums
of:
a. Administrative fees for four years at 50 per year for a total
o
200.
b.
Business License taxes in the sum
o
20,000.00 or
as
demonstrated by evidenc
for the four year period
o
time at the hearing
o
this matter.
c. For delinquent penalties at the rate o 50% per year on the unpaid tax, for a sum
o
10,000 or as demonstrated by evidence for this four year period
o
time at the hearing.
d.
For a civil penalty of 1 000
or
as awarded by the Court.
ON THE SECOND CAUSE OF ACTION:
I. That a preliminary and permanent injunction
1ssue
enJommg and restraining th
Defendants and anyone acting on their behalf, from conducting, allowing, permitting, or engagin
in any business activity, including the sale
o
seafood products, within the City
o
Carmel by-the
Sea without first obtaining an appropriate Business License Permit after payment
o
a corre
Business License tax;
2.
That Defendants appear before this Court at a time and place to
be
set
by
this Court, an
then and there to show cause why a preliminary injunction should not
be
issued enjoining an
restraining Defendants the anyone acting on their behalf, from conducting, allowing, permitting, o
engaging in any business activity, including the sale of seafood products, within the City
o
Carmel by-the-Sea;
3.
That Defendants be ordered to comply with the provisions
o
the Carmel Municipa
Code Chapters 5.04 and 5.08 relating to secural
o
Business License permit after payment
o
a
appropriate Business License Tax including any and all delinquent taxes, fees, penalties, an
attorney's fees;
armel v Pacific Harvest Seafoods
Inc.
Complaint Petition
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1 4. That Defendants pay civil penalties in the sum of 1000.00 or as awarded by the Cour
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and
FREEMAN
ATTORNEYS AT LAW
CARLOS STREET
7th
AND
8th
93921
831)
624 5339
in accordance with Municipal Code §5 .04.160A2.
ON THE THIRD CAUSE OF ACTION
I. The Court find that Defendants have violated
the
provisions
of
Municipal Code Chapte
5.04 and 5.08 and as such their conduct has constituted a public nuisance per se.
2.
The Court order abatement of the public nuisance by issuance of a preliminary an
permanent injunction enjoining and restraining the Defendants and anyone acting on their behalf
from conducting, allowing, permitting, or engaging in any business activity, including the sale o
seafood products, within the City of Carmel by-the-Sea without first obtaining an appropriat
Business License Permit after payment of a correct Business License tax.
FOR ALL CAUSES OF ACTION:
I
The Court award costs of suit;
2. The Court require Defendant to pay appropriate attorney's fees
as
deemed fair an
reasonable by the Court;
3. And such other and further relief as the Court deems proper.
Dated:
October . ,__, 2015
Carmel v Pacific Harvest Seafoods Inc
Complaint Petition
City Attorney
City ofCarmel-by-the-Sea
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county, or city
nd
county, shall assess, levy, or collect
an
excise or license tax of any
kind, character , or description
wh tever
upon the transportation business
conducted ... by
ny
for-hire motor
c rrier
of property.
Carmel-by-the Sea has t ken
the
position th t Pacific Harvest
is
selling its products
in the City, not acting as a for-hire
motor
c rrier of property. Please advise why the
City feels this way, factually nd legally. In making this request, Pacific Harvest
seeks to underst nd the City's position in hopes of avoiding a formal enforcement
action requiring both parties to expend considerable time and expense.
Thank you for your anticipated
cooper tion
in responding.
Regards,
Charles
D
jenkins
Cc:
Pacific Harvest Seafoods, Inc.