A.
Revenue
and Taxation Code Section 7280 et seq. authorizes local government
to levy a tax on the privilege of occupying rooms in hotels, inns,
tourist homes, or other forms of lodging for periods of less than
30 days, subject to the provisions of the California Constitution.
B.
The
City Council has established such an occupancy tax as provided for
in this chapter and said tax shall be known as the "Hotel Visitors
Tax." Wherever this chapter refers to this tax levy as a transient
occupancy tax, or by any other name, the tax shall be and is hereby
designated as the City's "Hotel Visitors Tax."
(Prior code § 6400; 753, 1964; 2533 §
1(2), 2000; 2805 § 1, 2012)
Except where the context otherwise requires, the following definitions
govern the interpretation and construction of this chapter:
means an arrangement whereby a person reserves, whether on
an exclusive or non-exclusive basis, a room or block/group of rooms
for a defined period of time under a written or oral agreement with
an operator, intending for such room(s) to be occupied by that person's
employees or agents on an intermittent, periodic or "as needed" basis
during that defined period of time. A block reservation arrangement
shall not constitute a qualifying rental agreement.
means any structure, or any portion of any structure, that
is occupied or intended or designed for occupancy by transients for
dwelling, lodging, or sleeping purposes, and includes any hotel, inn,
tourist home or house, motel, studio hotel, bachelor hotel, lodging
house, rooming house, hostel, bed and breakfast, apartment house,
dormitory, time-share project, public or private club, mobile home,
or house trailer at a fixed location, or other similar structure or
portion thereof.
means the person who is proprietor of the hotel, whether
in the capacity of owner, lessee, sublessee, mortgagee in possession,
time-share project owners association, licensee, or any other capacity.
Where the operator performs his or her 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 chapter
and shall have the same duties and liabilities as his or her principal.
Compliance with the provisions of this chapter by either the principal
or the managing agent shall, however, be considered to be compliance
by both.
means 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.
means a written leasehold agreement signed by both the operator
and transient obligating the transient to pay rent for the use and
possession of a room or space in a hotel for a period of not less
than 31 consecutive days. The qualifying rental agreement shall be
legally enforceable by both the operator and the transient and it
shall include in the terms both the right to occupy and the obligation
to pay for a room or rooms for 31 days or more. The qualifying rental
agreement expressly excludes (1) any agreement, regardless of the
rental term, which is terminated for any reason, by either party,
or by mutual consent, prior to the 31st consecutive day of the occupancy;
or (2) any agreement that would be unlawful or constitute a violation
of law.
means any space set aside in a recreational vehicle park
that is intended or designed for the occupancy of a recreational vehicle,
including, but not limited to, a camper, van, trailer, motor home,
or similar vehicle, that is used for dwelling, lodging or sleeping
purposes by transients.
means the total consideration charged, whether or not received,
for the occupancy of space in a hotel or of a recreational vehicle
space, valued in money, whether to be received in money, goods, labor,
or otherwise, including all receipts, cash, credits, and property
and services of any kind or nature, without any deduction therefrom
whatsoever. Rent shall include the total consideration charged by
the operator for accommodations, including, but not limited to, any
separate charges levied for non-optional items or services that are
incidental to occupancy, including, but not limited to, furniture,
fixtures, appliances, linens, towels, non-coin-operated safes, utilities
(such as energy surcharges), maid service, Internet connection charges,
and parking fees.
means a structure or real property (including airspace) in
which either a timeshare estate or a time-share use (as those terms
are defined in Section 11212 of the Business and Professions Code)
and any similar form of ownership involving a right in perpetuity,
for life, or for a term of years, to occupy any room, place or area
has been sold.
means 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 or entitled to occupy space in a hotel shall be deemed
to be a transient until the period of 30 consecutive and uninterrupted
days of occupancy has expired, unless there is a qualifying rental
agreement in writing between the operator and the occupant providing
for a longer period of occupancy. Any break or interruption in occupancy
shall start a new 30-day period subject to the tax. In determining
whether a person is a transient, uninterrupted periods of time extending
both prior and subsequent to the effective date of the ordinance codified
herein may be considered.
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In the case of a block reservation, a person's employee or agent
shall be deemed a transient if that employee or agent exercises or
is entitled to occupancy of a room for a period of 30 consecutive
calendar days or less, regardless of the duration of any block reservation
agreement. By way of example, if a corporation enters into a one-year
block reservation agreement with an operator and one of the corporation's
employees occupies a room for 30 calendar days, the employee shall
be deemed a transient whose occupancy is subject to the tax, notwithstanding
the fact that the block reservation agreement has a duration longer
than 30 calendar days.
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(Prior code § 6401; 753, 1964; 821 §
1, 1965; 1299 § 1, 1972; 1896 § 1, 1985; 2805 § 1, 2012; ordinance
approved by voters November 2012)
A.
For
the privilege of occupancy in any hotel or other transient lodgings
as defined in this chapter, each transient is subject to and shall
pay a tax in the amount of 14.5% of the rent charged by the operator.
The tax constitutes a debt owed by the transient and/or owner to the
City that is extinguished only by payment to the operator or to the
City. The tax shall be paid to the operator of the hotel at the time
the rent is paid. If the rent is paid in installments, a proportionate
share of the tax shall be paid with each installment. The unpaid tax
shall be due upon the transient's ceasing occupancy. If for any reason
the tax due is not paid to the operator of the hotel, the Tax Administrator
may require that such tax be paid directly to the City.
B.
Except
as otherwise provided in this chapter, all provisions relating to
hotels shall be applicable to recreational vehicle spaces, and all
references to "hotel" or "a room," "rooms," or "space" in a hotel
shall be deemed to include recreational vehicle spaces.
(Prior code § 6402; 753, 1964; 1064 §
3, 1969; 1451 § 1, 1975; 1895 § 1, 1985; 1896 § 2, 1985; 2183 § 1, 1991; 2230 § 1,
1992; ordinance approved by voters November 2002; 2805 § 1, 2012; ordinance approved by voters November 2012)
[1]
Tax increased by General Election of November 2012.
A.
No tax
shall be imposed upon:
1.
Any
person as to whom, or any occupancy as to which, it is beyond the
power of the City to impose the tax herein provided. Employees of
the Federal Government and federal credit unions are exempt from hotel
visitors tax for dates they are on official business for their employer.
2.
Any
officer or employee of a foreign government who is exempt by reason
of express provision of federal law or international treaty.
3.
A
person occupying a hotel pursuant to a qualifying rental agreement
entered into prior to the first day of occupancy.
B.
No exemption shall be granted except upon a claim therefor made at the time rent is collected and under penalty of perjury upon a form prescribed by the Tax Administrator. It is the responsibility of the person claiming an exemption to provide necessary proof of exemption. All forms executed by persons claiming an exemption shall be retained by the operator for the period specified in Section 3.12.150.
(Prior code § 6403; 753, 1964; 838 §
1, 1965; 2805 § 1, 2012)
A.
Each
operator shall collect the tax imposed by this chapter 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 hereinafter provided.
B.
Notwithstanding the provisions of subsection A of this section, the operator shall not be required to separately state the amount of rent and the amount of the tax on receipts and books of record when room accommodations constitute a portion of a collective group of services, privileges, entitlement or benefits ("benefits") that include, at a minimum, room accommodations and food and beverage services, or room accommodations and at least one other benefit having an ascertainable fair market value ("special packages") offered for one fixed price ("special package rate") provided the operator complies with subsection C of this section.
C.
The
operator shall file with the Tax Administrator a statement of each
special package on a form special package application, provided by
the Tax Administrator. The special package application shall detail
the benefits of the special package and an itemization of each portion
of the special package that is rent and tax. The Tax Administrator
shall mark the date of receipt on the special package application
and review the submitted information to determine if sufficient information
is provided to verify the value of the benefits, rent, and tax. The
operator shall designate a specific name or number to the special
package application as part of the special package application. The
special package application shall not be accepted unless accompanied
by a fee for processing that has been established by City Council
resolution.
1.
The
name or number designated on the special package application shall
appear on all receipts and books of record whenever the special package
is sold.
2.
If the special package application is deemed incomplete, the Tax Administrator will advise the operator of any required changes within 14 business days. The operator must either make the required changes and resubmit the special package application or comply with subsection A.
3.
The
Tax Administrator shall approve, conditionally approve, or disapprove
the special package within 14 days of receipt of a complete special
package application. In the event of disapproval, the Tax Administrator
shall give the operator written notice of the reasons for disapproval.
The effective date of the special package rate shall be the date on
which the Tax Administrator receives a complete special package application
that is approved. A new special package application shall be submitted
whenever the operator changes the rent or benefits of any previously
approved special package.
D.
The
tax shall apply only to the amount of rent identified in the special
package that has been approved by the Tax Administrator.
E.
If the operator fails to either separately state the amount of the tax and the rent in accordance with subsection A or to obtain approval of a special package rate pursuant to subsection C, the rent to which the tax is deemed to apply (the "imputed rate") shall be the lesser of (1) the amount collected for the total special package, or (2) an amount equal to the median average double occupancy room rate for the accommodations as posted in the room pursuant to the requirements of Section 1863 of the Civil Code or any successor statute.
F.
Notwithstanding subsections C and D of this section, if any audit reveals that the gross income to the operator attributable to the rent portion of a special package (the "audited rate") is more than 10% greater than the rent specified in the special package, then the rent for purposes of calculating the tax shall be the audited rate. In the event subsection 3.12.050(E) applies and the audited rate is greater than the imputed rate, the rent for tax purposes shall be the audited rate. The audited rate shall be determined by an audit of a sample of the special packages sold by the operator within each special package category. The audited rate shall be the amount of the special package rate remaining after deducting the fair market value of each of the benefits included in the special package rate other than room accommodations and tax. Where more than one type of special package is offered within the audit period, each special package shall be audited separately for purposes of determining the applicable audited rate, credits, or offsets shall not be allowed between different special packages.
(Prior code § 6404; 753, 1964; 2805 §
1, 2012; ordinance approved by voters November 2012)
Within 30 days after the effective date of the ordinance codified
in this chapter, or within 30 days after commencing business, whichever
is later, each operator of any hotel renting occupancy to transients
shall register said hotel with the Tax Administrator and obtain from
him or her a "transient occupancy registration certificate" to be
at all times posted in a conspicuous place on the premises. Said certificate
shall, among other things, state the following:
A.
The
name of the operator;
B.
The
address of the hotel;
C.
The
date upon which the certificate was issued;
D.
"This
Transient Occupancy Registration Certificate signifies that the person
named on the face hereof has fulfilled the requirements of the Uniform
Transient Occupancy Tax Ordinance by registering with the Tax Administrator
for the purpose of collecting from transients the Transient Occupancy
Tax and remitting said tax to the Tax Administrator. This certificate
does not authorize any person to conduct any unlawful business or
to conduct any lawful business in an unlawful manner, nor to operate
a hotel without strictly complying with all local applicable laws,
including but not limited to those requiring a permit from any board,
commission, department, or office of this City. This certificate does
not constitute a permit."
(Prior code § 6405; 753, 1964; 2805 §
1, 2012)
A.
Each
operator shall, on or before the 15th day of the month, make a return
to the Tax Administrator, on forms provided by the Tax Administrator,
of the total rents charged and received and the amount of tax collected
for transient occupancies for the prior calendar month, except as
herein provided. At the time the return is filed, the full amount
of the tax collected shall be remitted to the Tax Administrator. Returns
and payments are due immediately upon cessation of business for any
reason. All taxes collected by operators pursuant to this chapter
shall be held in trust for the account of the City until payment thereof
is made to the Tax Administrator. Any operator who has not collected
a tax for transient occupancies for the prior 90 days shall be excused
from reporting and remitting until the operator has had transient
occupancies, and then the operator shall report as required herein.
B.
The
filing of a return shall not preclude the City from collecting by
appropriate action any tax actually due and payable pursuant to this
chapter or taking any other action to enforce the provisions of this
chapter. Each return shall be subject to audit and verification by
the Finance Director or authorized agents of the City, who are authorized
to examine, audit, and inspect such books and records of any operator
as may be necessary in their judgment to verify or ascertain the amount
of tax due.
(Prior code § 6406; 753, 1964; 826 §
1, 1965; 2805 § 1, 2012)
Any operator who fails to remit any tax imposed by this chapter
within the time required shall pay a penalty of 10% of the amount
of the tax in addition to the amount of the tax.
(Prior code § 6407(a); 753, 1964; 2805 §
1, 2012)
Any operator who fails 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 of
10% of the amount of the tax in addition to the amount of the tax
and the 10% penalty first imposed.
(Prior code § 6407(b); 753, 1964; 2805 §
1, 2012)
If the Tax Administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25% of the amount of the tax shall be added thereto in addition to the penalties stated in Sections 3.12.080 and 3.12.090.
(Prior code § 6407(c); 753, 1964; 2805 §
1, 2012)
In addition to the penalties imposed, any operator who fails
to remit any tax imposed by this chapter shall pay interest at the
rate of one-half of one percent 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.
(Prior code § 6407(d); 753, 1964; 2805 §
1, 2012)
Every penalty imposed and such interest as accrues under the provisions of Sections 3.12.080 through 3.12.110 shall become a part of the tax herein required to be paid.
(Prior code § 6407(e); 753, 1964; 2805 §
1, 2012)
If any operator fails or refuses to collect said tax and to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter, the Tax Administrator shall proceed in such manner as he or she may deem best to obtain facts and information on which to base an estimate of the tax due. As soon as the Tax Administrator procures such facts and information as he or she is able to obtain upon which to base the assessment of any tax imposed by this chapter and payable by any operator who has failed or refused to collect the same and to make such report and remittance, he or she shall proceed to determine and assess against such operator the tax, interest, and penalties provided for by this chapter. In case such determination is made, the Tax Administrator shall give a 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 or her last known place of address. Such operator may within 10 days after the serving or mailing of such notice make application in writing to the Tax Administrator for a hearing on the amount assessed. If application by the operator for a hearing is not made within the time prescribed, the tax, interest, and penalties, if any, determined by the Tax Administrator shall become final and conclusive and immediately due and payable. If such application is made, the Tax Administrator shall give not less than five days written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in said notice why said 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 should not be so fixed. After such hearing the Tax Administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed herein 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 taken as provided in Section 3.12.140.
(Prior code § 6408; 753, 1964; 2805 §
1, 2012)
Any operator aggrieved by any decision of the Tax Administrator
with respect to the amount of such tax, interest, and penalties, if
any, may appeal to the City Council by filing a notice of appeal with
the City Clerk within 15 days of the serving or mailing of the determination
of tax due. The City 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 or her last known place of address. The findings of
the City Council shall be final and conclusive and shall be served
upon the appellant in the manner prescribed above for service of notice
of hearing. Any amount found to be due, shall be immediately due and
payable upon the service of notice.
(Prior code § 6409; 753, 1964; 2805 §
1, 2012)
No injunction, or writ of mandate, or other legal or equitable
process shall issue in any suit, action, or proceeding in any court
against the City or an officer thereof, to prevent or enjoin the collection
of taxes sought to be collected pursuant to this chapter, and payment
of all tax, interest, and penalties shall be required as a condition
precedent to seeking judicial review of any tax liability.
(2756 § 1, 2009; 2805 § 1, 2012)
It shall be the duty of every operator liable for the collection
and payment to the City of any tax imposed by this chapter 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 or she may have been liable
for the collection of and payment to the City, which records the Tax
Administrator shall have the right to inspect at all reasonable times.
(Prior code § 6410; 753, 1964; 2805 §
1, 2012)
A.
Whenever the amount of any tax, interest, or penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the City under this chapter, it 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 Tax Administrator within three years of the date of payment. The claim shall be on forms furnished by the Tax Administrator.
B.
An 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 Tax Administrator that the person from whom the tax has been
collected was not a transient; provided, however, that 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, or paid more than once, or erroneously or illegally collected or received by the City 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 Tax Administrator, or when the transient having paid the tax to the operator establishes to the satisfaction of the Tax Administrator that the transient has been unable to obtain a refund from the operator who collected the tax.
D.
No refund
shall be paid under the provisions of this section unless the claimant
establishes his or her right thereto by written records showing entitlement
thereto.
(Prior code § 6411; 753, 1964; 2805 §
1, 2012)
Any tax required to be paid by any transient under the provisions
of this chapter shall be deemed a debt owed by the transient to the
City. Any such tax collected by an operator that 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 under the provisions of this chapter
shall be liable to an action brought in the name of the City for the
recovery of such amount.
(Prior code § 6412; 753, 1964; 2805 §
1, 2012)
A.
Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punishable as provided in Section 1.04.010.
B.
Any operator or other person who fails or refuses to register as required herein, 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 Tax Administrator, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor, and is punishable as provided in Section 1.04.010.
C.
Any person required to make, render, sign, or verify any report or claim, who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this chapter to be made, is guilty of a misdemeanor and is punishable as provided in Section 1.04.010.
(Prior code § 6413; 753, 1964; 2805 §
1, 2012)
