[§ 1, Ord. 474]
This article shall be known as the Uniform Transient Occupancy
Tax Law of the City.
[§ 2, Ord. 474; §§ 1-3, Ord. 891-93, eff. February 18, 1993]
For the purposes of this article, certain words and phrases
used herein are defined as follows:
(a) HOTEL – Shall mean any structure, or any portion of any structure,
which is occupied, or intended or designed for occupancy, by transients
for dwelling, lodging, or sleeping purposes and shall include any
hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel,
lodging house, rooming house, apartment house, dormitory, public or
private club, mobile home or house trailer at a fixed location, or
other similar structure, or portion thereof.
(b) OCCUPANCY – Shall mean the use or possession, or the right
to the use or possession of any room, or portion thereof, for dwelling,
sleeping or lodging purposes. The Director of Finance may from time
to time adopt administrative regulations specifying those services,
goods, or other benefits related to the use or possession of the room,
which are included within the meaning of "occupancy."
(c) OPERATOR – Shall mean the person who is the proprietor of the
hotel, whether in the capacity of owner, lessee, sublessee, mortgagee
in possession, licensee, or any other capacity. Where the operator
performs his functions through a managing agent of any type or character
other than an employee, the managing agent shall also be deemed an
operator for the purposes of this article and shall have the same
duties and liabilities as his principal. Compliance with the provisions
of this article by either the principal or the managing agent shall,
however, be considered to be compliance by both.
(d) PERSON – Shall mean any individual, firm, partnership, joint
venture, association, social club, fraternal organization, joint stock
company, corporation, estate, trust, business trust, receiver, trustee
syndicate, or any other group or combination acting as a unit.
(e) RENT – Shall mean the consideration charged for the occupancy
of space in a hotel valued in money, whether to be received in money,
goods, labor, or otherwise, including all receipts, cash, credits,
property, and services of any kind or nature without deduction therefrom
whatsoever. "Rent" includes the consideration charged for occupancy,
as defined, regardless of whether named a fee, assessment, service
charge, management fee, cleaning fee, or other expense.
(f) TAX – Shall mean transient occupancy tax.
(g) TRANSIENT – Shall mean any person who exercises occupancy or
is entitled to occupancy by reason of concession, permit, right of
access, license, or other agreement for a period of 30 consecutive
calendar days or less, counting portions of calendar days as full
days. Any such person so occupying space in a hotel shall be deemed
to be a transient until the period of 30 days has expired unless there
is an agreement in writing between the operator and the occupant providing
for a longer period of occupancy. In determining whether a person
is a transient, uninterrupted periods of time extending both prior
and subsequent to the effective date of the provisions of this article
may be considered.
[§ 3, Ord. 474, as amended by § 1, Ord. 508, eff. June 1, 1968; and § 1, Ord. 544, eff. January 1, 1972; § 1, Ord.
666, eff. August 15, 1979; § 4, Ord. 891-93, eff. February 18, 1993; § 1, Ord. 904-94, eff. April 14, 1994; § 1, Ord. 1022-04, eff. July 1, 2004]
For the privilege of occupancy in any hotel, each transient
shall be subject to and shall pay a tax in the amount of 12% of the
rent charged for such occupancy. Such tax shall constitute a debt
owed by the transient to the City, which debt shall be extinguished
only by payment to the operator or to the City. The transient shall
pay the tax to the operator of the hotel at the time the rent is paid;
however, where the operator blocks a room or rooms at a discounted
or wholesale rate to a third party who collects the rent from the
transient, then the third party shall pay to the operator the tax
on the actual rent paid by the transient to the third party. The third
party shall pay the tax based on the rate which the operator would
charge a transient if the operator rented the same room or rooms directly
to a transient.
[§ 4, Ord. 474]
No tax shall be imposed upon:
(a) Any person as to whom, or any occupancy as to which, it is beyond
the power of the City to impose the tax provided for in this article;
(b) Any Federal or State officer or employee when on official business;
or
(c) Any officer or employee of a foreign government, which officer or
employee is exempt by reason of express provisions of Federal laws
or international treaties.
No exemption shall be granted except upon a claim therefor made
at the time the rent is collected and under penalty of perjury upon
a form prescribed by the Director of Finance.
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[§ 5, Ord. 474]
Each operator shall collect the tax imposed by the provisions
of this article to the same extent and at the same time as the rent
is collected from every transient. The amount of tax shall be separately
stated from the amount of the rent charged, and each transient shall
receive a receipt for payment from the operator. No operator of a
hotel shall advertise or state in any manner, whether directly or
indirectly, that the tax, or any part thereof, will be assumed or
absorbed by the operator, or that it will not be added to the rent,
or that, if added, any part will be refunded except in the manner
provided in this article.
[§ 6, Ord. 474; § 5, Ord. 891-93, eff.
February 18, 1993]
Every person desiring to engage in or conduct business as operator
of a hotel renting to transients within the City shall file with the
Director of Finance an application for a transient occupancy registration
permit. Every application for such permit shall be made upon a form
prescribed by the Director of Finance and shall set forth the name
under which the applicant transacts or intends to transact business,
the location of his place of business, the name and address of the
property owner if the hotel and/or land is subject to a lease, and
such other information as the Director of Finance may require. The
application shall be signed by a natural person; by a member or partner
if an association or partnership; by an executive officer if a corporation,
and state the address where notices to such person or entity shall
be sent. In addition, any corporation registered under the provisions
of this chapter shall provide to the Director of Finance a current
certified document each year from the Secretary of State listing the
officers and agent for service of process of the corporation. Within
10 days after change of ownership of the business, the new operator
shall file said application. The transient occupancy registration
permit must be in effect at all times while a business subject to
the chapter is in operation, and shall be at all times posted in a
conspicuous place on the premises. The permit shall state the following:
(a) Name and address of the hotel;
(c) Date on which the permit was issued;
(d) A statement as follows: "This Transient Occupancy Registration Permit
signifies that the person named on the face hereof has fulfilled the
requirements of the Transient Occupancy Tax Chapter by registering
with the Director of Finance for the purpose of collecting from transients
the Transient Occupancy Tax and remitting said tax to the Director
of Finance. The permit does not authorize any person to conduct any
unlawful business or in an unlawful manner, nor operate a hotel without
strictly complying with all applicable laws, including but not limited
to those requiring a permit from any board, commission, department
or office of the City or any other agency."
[§ 7, Ord. 474; § 6, as amended by Ord. 891-93, eff. February 18, 1993; § 2, Ord. 928-96, eff. August 1, 1996]
The operator collecting the transient occupancy tax shall make
a report upon such forms and setting forth such information as the
Finance Director may prescribe and require, including, but not limited
to, the total amount of rents charged and collected, the amount of
transient occupancy tax collected for the prior month and occupancy
data. He shall sign the report under penalty of perjury and deliver
the report and tax remittance monthly to the Finance Director on or
before the last business day of the month following the reported month.
Remittance by check or money order shall be made payable to the City.
The Director of Finance may establish shorter reporting periods for
any permit holder if he deems it necessary in order to assure collection
and remittance of the tax. Reports and remittances shall be due immediately
upon cessation of business for any reason. Remittance by check or
money order shall be made payable to the City. All taxes collected
by operators pursuant to this article shall be held in trust for the
account of the City until payment thereof is made.
[§ 8, Ord. 474; as amended by § 7, Ord. 891-93, eff. February 18, 1993; § 3, Ord. 928-96, eff. August 1, 1996]
(a) Original Delinquency. Any operator who shall fail to remit any tax
imposed by the provisions of this article within the time required
shall pay a penalty in the amount of 10% of the tax in addition to
the amount of the tax. No penalty shall accrue where the regulations
in effect at the time the transient's payment was received by
the operator did not provide for the application of the tax to such
payment or where the operator has obtained a written ruling from the
Director of Finance regarding the application of the tax to a particular
charge. The Director of Finance shall provide a written ruling within
five days of his receipt of a written request for a ruling. The Director
of Finance's rulings shall be kept on file by the City's
Finance Department in a separate book and shall be made available
upon request. The Director of Finance may waive any or all of a penalty
imposed where, in his sole discretion, he deems it to be appropriate.
(b) Continued Delinquency. Any operator who shall fail to remit any delinquent
remittance on or before a period of 30 days following the date on
which the remittance first became delinquent shall pay a second delinquency
penalty in the amount of 10% of the tax in addition to the amount
of the tax and the 10% penalty first imposed.
(c) Fraud. If the Director of Finance shall determine that the nonpayment of any remittance due pursuant to the provisions of this article is due to fraud, a penalty in the amount of 25% of the amount of the tax shall be added thereto in addition to the penalties set forth in subsections
(a) and
(b) of this section.
(d) Interest. In addition to the penalties imposed, any operator who
shall fail to remit any tax imposed by the provisions of this article
shall pay interest at the rate of 1/2 of 1% per month, or fraction
thereof, on the amount of the tax, exclusive of penalties, from the
date on which the remittance first became delinquent until paid.
(e) Penalties for Failure to Timely File Complete Report. If any person shall fail or refuse to timely file a complete monthly report as required by §
3-3.407, there shall be a penalty assessed until a complete report is filed, in the amount of $30 per month or a prorated portion of the month, in addition to other penalties.
(f) Penalties Merged with Tax. Every penalty imposed, and such interest
as accrues, pursuant to the provisions of this section shall become
a part of the tax required to be paid by the provisions of this article.
[§ 9, Ord. 474]
If any operator shall fail or refuse to collect such tax and to make, within the time provided in this article, any report and remittance of such tax, or any portion thereof, required by the provisions of this article, the Director of Finance shall proceed in such manner as he may deem best to obtain the facts and information on which to base his estimate of the tax due. As soon as the Director of Finance shall procure such facts and information as he is able to obtain upon which to base the assessment of any such tax imposed and payable by any operator who has failed or refused to collect the same and to make such report and remittance, the Director of Finance shall proceed to determine and assess against such operator the tax, interest, and penalties provided for by the provisions of this article. In the event such determination is made, the Director of Finance shall give notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at his last known place of address. Such operator may, within 10 days after the service or mailing of such notice, make an application in writing to the Director of Finance for a hearing on the amount assessed. If an application by the operator for a hearing is not made within the time prescribed, the tax, interest, and penalties, if any, determined by the Director of Finance shall become final and conclusive and immediately due and payable. If such an application is made, the Director of Finance shall give not less than five days' written notice in the manner prescribed in this section to the operator to show cause at a time and place fixed in such notice why the amount specified therein should not be fixed for such tax, interest, and penalties. At such hearing the operator may appear and offer evidence why such specified tax, interest, and penalties shall not be so fixed. After such hearing the Director of Finance shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed in this section of such determination and the amount of such tax, interest, and penalties. The amount determined to be due shall be payable after 15 days unless an appeal is filed as provided in §
3-3.410 of this article.
[§ 10, Ord. 474]
Any operator aggrieved by any decision of the Director of Finance
with respect to the amount of such tax, interest, and penalties, if
any, may appeal to the Council by filing a notice of appeal with the
City Clerk within 15 days after the service or mailing of the determination
of the tax due. The Council shall fix a time and place for hearing
such appeal, and the City Clerk shall give notice in writing to such
operator at his last known place of address. The findings of the Council
shall be final and conclusive and shall be served upon the appellant
in the manner prescribed in this article for the service of a notice
of hearing. Any amount found to be due shall be immediately due and
payable upon the service of notice.
[§ 11, Ord. 474]
It shall be the duty of every operator liable for the collection
and payment to the City of any tax imposed by the provisions of this
article to keep and preserve, for a period of three years, all records
as may be necessary to determine the amount of such tax as he may
have been liable for the collection of any payment to the City, which
records the Director of Finance shall have the right to inspect at
all reasonable times.
[§ 12, Ord. 474]
(a) Whenever the amount of any tax, interest, or penalty has been overpaid, or paid more than once, or erroneously or illegally collected or received by the City, such amount may be refunded as provided in subsections
(b) and
(c) of this section provided a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the Director of Finance within three years after the date of payment. The claim shall be on forms furnished by the Director of Finance.
(b) Any operator may claim a refund or take as credit against taxes collected
and remitted the amount overpaid, paid more than once, or erroneously
or illegally collected or received when it is established in a manner
prescribed by the Director of Finance that the person from whom the
tax has been collected was not a transient; provided, however, neither
a refund nor a credit shall be allowed unless the amount of the tax
so collected has either been refunded to the transient or credited
to rent subsequently payable by the transient to the operator.
(c) A transient may obtain a refund of taxes overpaid, paid more than once, or erroneously or illegally collected or received by filing a claim in the manner provided in subsection
(a) of this section but only when the tax was paid by the transient directly to the Director of Finance, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the Director of Finance that the transient has been unable to obtain a refund from the operator who collected the tax.
(d) No refund shall be paid pursuant to the provisions of this section
unless the claimant establishes his right thereto by written records
showing entitlement thereto.
[§ 13, Ord. 474]
Any tax required to be paid by any transient pursuant to the
provisions of this article shall be deemed a debt owed by the transient
to the City. Any such tax collected by an operator which has not been
paid to the City shall be deemed a debt owed by the operator to the
City. Any person owing money to the City pursuant to the provisions
of this article shall be liable to an action brought in the name of
the City for the recovery of such amount.
[§ 14, Ord. 474]
Any operator or other person who fails or refuses to register
as required, or to furnish any return required to be made, or who
fails or refuses to furnish a supplemental return or other data required
by the Director of Finance, or who renders a false or fraudulent return
or claim shall be guilty of a misdemeanor. Any person required to
make, render, sign, or verify any report or claim and who makes any
false or fraudulent report or claim with intent to defeat or evade
the determination of any amount due required by the provisions of
this article to be made shall be guilty of a misdemeanor.
[§ 8, Ord. 891-93, eff. February 18, 1993]
Whenever an operator fails to comply with any provision of this
article relating to transient occupancy taxes or any rule or regulation
prescribed by the Director of Finance relating to such tax or registration
permit, the Director of Finance shall hold a hearing, after giving
the lessor, if applicable and the operator 10 days' written notice
sent by certified mail specifying the time and place of hearing and
requiring the operator to show cause why his permit or permits should
not be revoked. After such hearing, the Director of Finance may suspend
or revoke any one or more of the permits held by the operator. Within
five days after the hearing, the Director of Finance shall give the
operator written notice by certified mail of the suspension or revocation
of the permit or permits.
The aggrieved operator may appeal the suspension or revocation
of the permit or permits to the City Council by filing a notice of
appeal in writing with the City Clerk within 15 days after the service
or mailing of the notice of suspension or revocation. The findings
of the Council shall be final and conclusive.
The Director of Finance shall not issue a new permit after revocation
or lift a suspension of a permit until the operator has satisfied
any outstanding debt to the City under this article, including penalties
and interest. Where an operator has failed to timely remit the return
or taxes more than two times in any calendar year, whether or not
such failure has resulted in a suspended or revoked permit, the Director
of Finance may send written notice to the operator requiring that
such operator post a bond within 15 days of such notice, in a form
approved by the City Attorney and in an amount equal to the preceding
six months taxes collected. The bond shall remain in force until the
operator has timely remitted returns and taxes for a continuous period
of six months. Thereafter, the bond shall be released. The failure
to post the bond within 15 days after such notice shall constitute
a violation of this article.
[§ 9, Ord. 891-93, eff. February 18, 1993]
During any period of time during which a permit has not been
issued or is suspended, revoked or otherwise not valid, the Director
of Finance may require that the hotel be closed. Notice of the closure
shall be sent to the lessor, if applicable, and the operator by certified
mail and shall be posted at the hotel. Any person who operates a hotel
in violation of a notice of closure shall be guilty of a misdemeanor.
[§ 10, Ord. 891-93, eff. February 18, 1993]
If any amount required to be remitted or paid to the City under
this article is not remitted or paid when due, the Director of Finance
may, within three years after the amount is due file for recording
with the Los Angeles County Recorder's Office a certificate specifying
the amount of the tax, penalties and interest due, the name and address
as it appears on the registration permit of the operator liable for
the amount and the fact that the Director of Finance has complied
with all provisions of this article in determining such amount. From
the time of the filing for recording the amount shall constitute a
lien upon all real property in the County, except a proprietary lease,
owned by the operator. The lien shall have the force, effect and priority
of a judgment lien and shall continue for 10 years from the time of
filing of the certificate unless sooner released or discharged.
[§ 10, Ord. 891-93, eff. February 18, 1993]
(a) The amounts required to be remitted and/or paid by any operator under
this article with penalties and interest shall be satisfied first
in any of the following cases:
(1)
Whenever the person is insolvent;
(2)
Whenever the person makes a voluntary assignment of his assets;
(3)
Whenever the estate of the person in the hands of executors,
administrators, or heirs is insufficient to pay all the debts due
from the deceased;
(4)
Whenever the estate and effects of an absconding, concealed
or absent person required to pay any amount under this article are
levied upon by process law. This article does not give the City a
preference over any recorded lien which attached prior to the date
when the amounts required to be paid became a lien.
(b) The preference given to the City by this section shall be subordinate
to the preferences given to claims for personal services by §§ 1204
and 1206 of the
Code of Civil Procedure.
[§ 10, Ord. 891-93, eff. February 18, 1993]
At any time within three years after any operator is delinquent in the remittance or payment of any amount herein required to be remitted or paid or within three years after the last recording of a certificate under §
3-3.417, the Director of Finance may issue a warrant for the enforcement of any liens and for the collection of any amount required to be paid to the City under this article. The warrant shall be directed to any sheriff, marshal, or constable and shall have the same effect as a writ of execution. The warrant shall be levied and sale made pursuant to it in the same manner with the same effect as a levy of and a sale pursuant to a writ of execution. The Director of Finance may pay or advance to the sheriff, marshal, or constable the same fees, commissions and expenses for his services as are provided by law for similar services pursuant to a writ of execution. The Director of Finance, and not the court, shall approve the fees for publication in a newspaper.
[§ 10, Ord. 891-93, eff. February 18, 1993]
At any time within three years after any operator is delinquent
in the remittance or payment of any amount, the Director of Finance
may forthwith collect the amount in the following manner. The Director
of Finance shall seize any property, real or personal, of the operator
and sell the property, or a sufficient part of it, at public auction
to pay the amount due together with any penalties and interest imposed
for the delinquency and any costs incurred on account of the seizure
and sale. Any seizures made to collect occupancy taxes due shall be
only of property of the operator not exempt from execution under the
provisions of the
Code of Civil Procedure.
[§ 10, Ord. 891-93, eff. February 18, 1993]
(a) Registration. Within 10 days after change of ownership of the business,
the new operator shall file said application.
(b) Successor's Liability — Withholding by Purchaser. If any
operator liable for any amount under this article sells out his business,
his successor or assigns shall withhold sufficient monies from the
purchase price to cover such amount until the former operator produces
a receipt from the Director of Finance showing that it has been paid
or a certificate stating that no amount is due.
(c) Liability of Purchaser — Release. If the purchaser of a hotel
operator's business fails to withhold part of the purchase price
as required, he shall become personally liable for the payment of
the amount required to be withheld by him to the extent of the purchase
price, valued in money. Within 60 days after receiving a written request
from the purchaser for a certificate, or within 60 days from the date
the former hotel operator's records are made available for audit,
whichever period expires later, but in any event not later than 90
days after receiving the request, the Director of Finance shall either
issue the certificate or mail notice to the purchaser at his address
as it appears on the records of the Director of Finance of the amount
that must be paid as a condition of issuing the certificate. Failure
of the Director of Finance to mail the notice will release the purchaser
from any further obligation to withhold the purchase price as above
provided. The time within which the obligation of the successor may
be enforced shall start to run at the time the operator sells his
business or at the time that the determination against the operator
becomes final, whichever event occurs the later.
[§ 10, Ord. 891-93, eff. February 18, 1993]
If any person or operator is delinquent in the remittance or
payment of the amount required to be remitted or paid by him or in
the event a determination has been made against him for the remittance
of tax and payment of the penalty, the City may, within three years
after the tax obligation became due, give notice thereof personally
or by registered mail to all persons, including the state or any political
subdivision thereof, having in their possession or under their control
any credits or other personal property belonging to the taxpayer.
After receiving the withholding notice, the person so notified shall
make no disposition of the taxpayer's credits, other personal
property or debts until the City consents to a transfer or disposition
or until 60 days elapse after the receipt of the notice, whichever
expires earlier. All persons, upon receipt of said notice, shall advise
the City immediately of all such credits, other personal property
or debts in their possession, under their control or owing by them.
If such notice seeks to prevent the transfer or other disposition
of a deposit in a bank or other credits or personal property in the
possession or under the control of the bank, to be effective the notice
shall be delivered or mailed to the branch or office of such bank
at which such deposit is carried or at which such credits or personal
property is held. If any person so notified makes transfer or disposition
of the property or debts required to be held hereunder during the
effective period of the notice to withhold, he shall be liable to
the City to the extent of the value of the release up to the amount
of the indebtedness owned by the taxpayer to the City.
[§ 1, Ord. 1026-04, eff. September 2, 2004]
It is a violation of this chapter for any person to knowingly
aid or engage in the practice commonly known in the lodging industry
as "stacking." As used herein, "stacking" occurs when a transient
occupant who is the registered occupant of a transient occupancy unit
allows other persons to share occupancy of that unit for overnight
sleeping on any night for which such other person or persons are not
registered. Any transient who allows stacking to take place in the
unit for which that person is registered, and any transient who occupies
a unit knowing that his or her occupancy has not been reported to
the owner or operator or has not been paid for, shall be in violation
of this section. Any such violation shall be prosecuted as a misdemeanor,
or, in the discretion of the prosecuting attorney, may be prosecuted
as an infraction.
(a) Notice. In order to apprise transient occupants of potential violations
of this section, all hotel and other transient occupancy facility
operators are encouraged to incorporate language similar to the following
in their registration documents:
"Your room/unit is to be occupied by not more than _____ persons.
The Avalon Municipal Code prohibits housing additional unregistered
guests in a unit."