This chapter shall be known as the Uniform Transient Occupancy Tax Ordinance of the city.
(Ord. 1299 § 1, 1993)
Note: Prior history: Prior code Sections 29-10 through 29-23: Ordinance 1232.
For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:
means 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 includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, apartment house, dormitory, public or private club, mobilehome or house trailer at a fixed location, or other similar structure or portion thereof.
means the use or possession, or the right to the use or possession of any room or rooms, or portion thereof, in any hotel for dwelling, lodging or sleeping purposes.
means the person who is 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 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 and shall be limited to a written contract signed by both the landlord and tenant, legally enforceable by either party thereto, and for a rental period of not less than thirty consecutive days. Notwithstanding any other provision thereof, the term "qualifying rental agreement" as used in this chapter shall expressly exclude: (1) any agreement regardless of rental term which is terminated for any reason by either party thereto, or by mutual consent, prior to the thirtieth consecutive day of tenancy; or (2) any agreement regardless of length of rental term which would be unlawful or constitute a violation of any provision of law.
means the total consideration charged, whether or not received, for the occupancy of a 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 any deduction therefrom whatsoever. The costs of additional goods and services which are not "rent," but which may be sold as a package with the room (such as meals, excursions and recreational services), must be accounted for in accordance with the rules and regulations promulgated by the tax administrator.
means the director of finance of the city.
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 thirty 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 after the period of thirty consecutive days of occupancy has expired and the tax shall continue to be due upon all rent collected or accruing prior to the thirtieth day of occupancy, unless such occupancy is pursuant to a qualifying rental agreement as defined in this chapter. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of this chapter may be considered.
(Ord. 1299 § 1, 1993)
A.
For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of twelve percent of the rent charged by the operator. Such tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator or the city. The transient shall pay the tax 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 to occupy space in the hotel. If for any reason the tax due is not paid to the operator of the hotel, the tax administrator may require that such tax shall be paid directly to the tax administrator.
B.
In the event that a qualifying rental agreement exists between the hotel and any person for occupancy, as hereinabove defined, for a period in excess of thirty days and in the event that such person allows occupancy by another person as subtenant, guest, licensee or permittee, the person who has made the agreement with the hotel as aforesaid shall be subject to and shall pay the tax provided for in this chapter.
(Ord. 1299 § 1, 1993)
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 in this chapter;
B.
Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty;
C.
Any nonprofit organization which, as the result of a disaster, provides at its own expense hotel or motel shelter to any victim of a disaster;
D.
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.
(Ord. 1299 § 1, 1993)
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.
B.
The operator shall maintain its financial and accounting records in accordance with established accounting principles acceptable to the tax administrator. In the event the operator offers paid packages or complimentary services to guests, the charges shall be accounted for in accordance with the rules and regulations promulgated by the tax administrator.
C.
The tax required to be collected (any amount unreturned to the transient which is not tax but was collected under the representation that it was tax) constitutes a debt owed by the operator to the city and shall be paid to the city with the monthly remittance.
D.
Whenever an operator who has collected any sum under the representation that it was a tax which sum is not required to be collected as a tax remits the sum to the city and thereafter refunds such sum to said person in whole or part, such operator may take the amount of such refund as a credit against future taxes only upon submitting to the tax administrator a statement under penalty of perjury specifying the reasons for the credit and providing proof of payment of such refund.
E.
Nothing contained in this chapter shall be deemed to authorize as a credit against taxes owed any amount returned by the operator to any tour promoter, travel agent, or third party other than the transient. Travel agent commissions are an expense of the operator and may not be deducted from the rent.
F.
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.
(Ord. 1299 § 1, 1993)
A.
Within thirty days after the effective date of this chapter or within thirty days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register such 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. Such certificate shall, among other things, state the following:
1.
The name of the operator;
2.
The address of the hotel;
3.
The date upon which the certificate was issued;
4.
"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."
B.
No transient occupancy registration certificate issued pursuant to this chapter shall be transferable or assignable; provided, that where a person holding a certificate issued under the provisions of this chapter changes the name of the business, such person shall upon changing the name make a written application to the tax administrator to have the certificate amended to reflect the change in name; and provided further, that transfer, whether by sale or otherwise, to another person under such circumstances that the real or ultimate ownership after the transfer is substantially similar to the ownership existing before the transfer, shall not be prohibited by this section. For the purpose of this section stockholders, bondholders, partnerships, or other persons holding an interest in a corporation or other entity in this chapter defined to be a person are regarded as having the real or ultimate ownership of such corporation or other entity.
C.
Whenever, upon the sale or transfer of an existing hotel, a transient occupancy registration certificate is applied for, the tax administrator shall, require that the succeeding operator produce a certification of nonliability or other receipt issued by the tax administrator establishing that no unsatisfied liability for transient occupancy taxes exists.
(Ord. 1299 § 1, 1993)
A.
Each operator shall, on or before the last day of the month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the tax administrator, make a return to the tax administrator, on forms provided, of the total rents charged and received and the amount of tax collected for transient occupancies. Transient occupancy taxes shall be deemed to be collected at the time at which the rent is earned if the operator uses the accrual basis of accounting or the time at which rent is received if the operator uses the cash basis of accounting. The same basis of accounting used for keeping the books and records shall be used for reporting and remitting transient occupancy taxes.
B.
When the last day of the month in which the transient occupancy tax payment is due falls on a Saturday, Sunday or holiday, a payment thereof shall be made on the last business day of the month prior to the Saturday, Sunday or holiday. Postmarks shall not be accepted as the date of payment made. At the time the return is filed, the full amount of the tax collected shall be remitted to the tax administrator. The tax administrator may establish shorter reporting periods for any certificate holder if he or she deems it necessary in order to insure collection of the tax, and he or she may require further information in the return.
C.
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.
(Ord. 1299 § 1, 1993)
A.
Delinquency. Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of ten percent of the amount of the tax in addition to the amount of the tax. On the first day of each month thereafter that such tax remains unpaid, an additional penalty of ten percent of such unpaid tax shall be added to the original tax due.
B.
Audit Deficiency. If, upon audit by the city, and operator is found to be deficient in either its return or its remittance or both, the tax administrator shall immediately assess the operator the amount of the net deficiency plus an audit deficiency penalty of ten percent of the amount of the net deficiency. If the operator's remittance remains deficient for a period of greater than thirty days following the date of notification of deficiency, the operator shall pay an additional audit deficiency penalty of ten percent of the net deficiency and the ten percent penalty first imposed.
C.
Fraud. If the tax administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of twenty-five percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsection A of this section.
D.
Interest. 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.
E.
Penalties Merged With Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid.
(Ord. 1299 § 1, 1993)
A.
If any operator shall fail or refuse to collect such tax and to make, within the time provided in this chapter, any report and remittance of such 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 his or her estimate of the tax due. As soon as the tax administrator shall procure 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.
B.
Such operator may, within ten 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 such notice why such 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 fifteen days unless an appeal is taken as provided in Section 3.16.100.
(Ord. 1299 § 1, 1993)
A.
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 manager by filing a notice of appeal with the city clerk within fifteen days of the serving or mailing of the determination of tax administrator. The city clerk shall fix a time and place for hearing such appeal, and shall give notice in writing to such operator at his or her last known place of address. The findings of the city manager shall be final and conclusive (unless appealed as provided herein) and shall be served upon the appellant in the manner prescribed above for service of notice of tax due. Any amount found to be due shall be immediately due and payable upon the service of notice.
B.
Any operator aggrieved by any decision of the city manager with respect to the amount of such tax, interest and penalties, if any, may appeal to the city council within fifteen days by filing a notice of appeal with the city clerk. The city clerk shall fix a time and place for hearing such appeal, and 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 tax due. Any amount found to be due shall be immediately due and payable upon the service of notice.
C.
Notwithstanding any other provision contained in this chapter or any other provision contained in this code to the contrary, any operator tendering payment of any tax, interest or penalties to the city pursuant to any provision of this chapter shall for all purposes thereafter be precluded and barred from appealing, contesting or otherwise challenging the validity or amount of such tax, interest or penalties pursuant to any otherwise available procedure set forth in this chapter, or otherwise available by law, unless said payment is made under written protest to the city. The written protest shall be deemed made for the purposes of this chapter only by one of the following methods: (1) a written notation set forth on the check, draft, money order, or other negotiable instrument by which payment is tendered, indicating that such payment is made under protest; or (2) a written notice addressed and delivered to the tax administrator at the time of payment indicating that such payment is made under protest.
(Ord. 1299 § 1, 1993)
A.
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 the current calendar year and for the prior period of the three calendar years immediately proceeding, 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 or his or her designee shall have the right to inspect at all reasonable times. Such records shall be made available to the tax administrator or his or her designee at either the operator's hotel or the tax administrator's office.
B.
The information furnished or secured pursuant to this chapter shall be confidential to the extent allowed by law; provided, however, this section shall not apply to any disclosures made in connection with any appeal proceeding pursuant to this chapter, or any civil action relating to the recovery of such taxes, interest or penalties, or any prosecution of any person for violation of any provisions of this chapter.
(Ord. 1299 § 1, 1993)
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.
(Ord. 1299 § 1, 1993)
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 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 under the provisions of this chapter shall be liable to an action brought in the name of the city for the recovery of such tax, penalties, interest and administrative costs incurred in connection therewith. including attorney fees.
(Ord. 1299 § 1, 1993)
A.
To insure compliance with transient occupancy tax payment requirements, the tax administrator shall require each new operator subject to such requirements to deposit with the city within one year after the effective date of this chapter, or within thirty days after commencing business, whichever is later, such security in a form acceptable to the tax administrator in the amount not greater than the person's estimated average liability for the first period for which a return must be filed or the sum of ten thousand dollars, whichever is lesser. The tax administrator may apply the security deposit to recover transient occupancy taxes, including penalties and interest, remittable by the depositor.
B.
At least fifteen days prior to the application of a security deposit, the tax administrator shall serve upon the depositing operator notice of intent to apply the security deposit. Service of notice may be made by placing the notice in the United States mail, postage prepaid, addressed to the depositing operator at his or her hotel. Any portion of the security remaining after satisfaction of outstanding transient occupancy taxes, penalties, interest and costs of sale, may be retained by the tax administrator for security or may be paid over by him or her to the depositing operator.
C.
In the case of the transfer or cessation of business by the depositor, the tax administrator shall refund or release the security amount required pursuant to this section, upon depositor's presentation to the tax administrator of either a receipt from the tax administrator showing that all transient occupancy taxes, including any penalty, interest or other charges or costs outstanding, have been paid or a certification of nonliability stating the nonliability of the depositor for payment of transient occupancy tax as hereunder provided in Section 3.16.150.
(Ord. 1299 § 1, 1993)
A.
Operator's Duty to Notify. An operator who is transferring, selling or terminating his or her business shall notify the tax administrator in writing of such sale, transfer or termination and the name and address of the purchaser or transferee at least thirty days in advance of the date of the transfer, sale or termination, unless the decision to sell, transfer or terminate was made within less than a thirty-day period prior to the transfer, sale or termination, in which case the operator shall then immediately notify the purchaser or transferee of their responsibility for unpaid taxes as set forth in subsections C and D of this section, and further certify in writing to the tax administrator that the transferee or purchaser was notified of the requirements of this article regarding its responsibility for unpaid collected taxes.
B.
Remitting and Reporting Requirements. Each operator upon the transfer or cessation of business for any reason shall, on or before the last day of the next month following the transfer or cessation of business, make a return to the tax administrator on approved forms of the total taxable rents charged, the amount of tax collected for the reporting period, remittances made, if any, and the balance of the tax due, if any, shall be remitted to the tax administrator.
C.
Closeout Audit. After filing the final return and remitting the balance due, the operator shall make his or her records of account available for a closeout audit by the tax administrator or duly authorized employee or agent of the city. If, upon audit by the city, the operator transferring or quitting his or her business is found to have satisfied all transient occupancy liability, the tax administrator shall issue to such operator a certificate of nonliability stating the nonliability of the operator for payment of transient occupancy taxes. If, upon audit by the city, the operator transferring or quitting his or her business is deficient in either his or her return or his or her remittance or both, the tax administrator shall immediately assess such operator the amount of the net deficiency in accordance with Section 3.16.080 above. Upon such operator's remittance of the deficient amount plus any penalty and interest assessed, the tax administrator shall issue a certification of nonliability.
D.
Successor's Duty to Notify. If an operator who is liable for any transient occupancy taxes, penalties a interest under this chapter sells, or otherwise transfers hi business, his or her assignee or successor in interest shall notify the tax administrator of the date of the sale or transfer a least thirty days before the date of the sale or transfer. If the decision to sell or transfer was made within less than a thirty-day period prior to the sale or transfer, the as signee or successor in interest shall notify the tax administrator immediately and shall withhold an amount equal to the accrued or outstanding transient occupancy tax liability of the operator until the transferring operator produces either a receipt from the tax administrator showing that the tax, including any penalty, interest or the charge or cost outstanding, has been paid or a certification of nonliability stating the nonliability of the operator for payment of transient occupancy tax. If the transferor does not present a receipt or certification of nonliability, within thirty days after such sale or transfer after such assignee or successor commences to conduct business, the assignee or successor shall deposit the withheld amount with the tax administrator pending settlement of the account of the transferor.
E.
Successor's Liability. If the assignee or successor in interest fails to withhold the amount required to satisfy the tax liability, he or she shall become personally liable forth payment of the amount required to be withheld by him or her and shall be subject to penalty and interest charges as set forth in Section 3.16.080.
F.
Certification of Nonliability. Within thirty days from the receipt of the application of any operator for certification of nonliability for the payment of transient occupancy taxes, the tax administrator after conducting an audit therefor, shall issue the certification if the operator's tax liability has been satisfied to the date of the application. If tax has accrued to that date, the tax administrator shall give notice to the operator of the amount which must be paid as a condition of issuing the certification.
(Ord. 1299 § 1, 1993)
A.
The tax administrator shall have the power and duty to enforce this chapter and shall have the power to adopt rules and regulations not inconsistent with the provisions of this ordinance for the purpose of carrying out and enforcing the payment, collection, and remittance of the taxes herein imposed in this chapter. A copy of all such rules and regulations adopted by the tax administrator shall be maintained on file in the offices of the tax administrator. Where uncertainty exists regarding the interpretation of any provision of this chapter or its application to a specific hotel, operator or transient, the tax administrator shall determine the intent of the provision. Such determination shall take the form of a written memorandum of intent. A copy of all such memoranda issued by the tax administrator shall be maintained on file in the offices of the tax administrator.
B.
The tax administrator shall have the further power, for good cause shown, to extend the time for filing any required report and remitting any taxes collected for thirty days; and shall have the further power, for good cause shown, to waive or release any cash deposit, bond, bankshare, lien, or other security required and to compromise any claim as to any penalty imposed, or charge demanded.
C.
The tax administrator may with the consent and approval of the city attorney enter into written agreements with persons liable for the payment of delinquent taxes, penalties and interest, in monthly installments, or more often, extending over a period not exceeding one year. In any agreement so entered into, such person shall acknowledge the obligation owed the city and agree that, in the event of failure to make timely payment of any installment, the whole amount unpaid, principal together with interest, shall become immediately due and payable. In the event legal action is brought by the city to enforce collection of any amount included in the agreement, such person shall pay all costs of suit incurred by the city or its assignee, including attorney fees. The execution of such an agreement shall not prevent the prior accrual of penalties and interest on unpaid balances at the rate provided hereinabove, but no penalties or additional interest shall accrue as hereinafter provided on account of taxes included in the agreement after the execution of the agreement and the payment of the first installment and during such time as such operator shall not be in breach of the agreement. The execution of such an agreement shall render any subsequent appeal null and void and shall constitute a waiver against future action.
D.
In addition to all other authority conferred upon him or her, the tax administrator, upon the concurrence of the city attorney, shall have the authority to discontinue the collection of any claim if it appears that further proceedings would be without merit.
(Ord. 1299 § 1, 1993)
It is unlawful for any person, firm, partnership, or corporation to violate any provision or to fail to comply with any of the requirements of this chapter. Any person, firm, partnership or corporation violating any provisions of this chapter or failing to comply with any of its requirements shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding one thousand dollars, or by imprisonment not exceeding six months, or by both such fine and imprisonment. Each and every person, firm, partnership, or corporation shall be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of any of the provisions of this ordinance is committed, continued or permitted by such person, firm, partnership or corporation, and shall be deemed punishable therefor as provided in this chapter.
(Ord. 1299 § 3, 1993)
A.
The violation of any of the provisions of this chapter shall constitute a nuisance and may be abated by the city through civil process by means of restraining order, preliminary or permanent injunction or in any other manner provided by law for the abatement of such nuisances.
B.
The prevailing party in any action, administrative proceeding, or special proceeding to abate a nuisance pursuant to this section shall be entitled to its reasonable attorneys' fees if: (1) the city elected to seek recovery of its own attorneys' fees at the initiation of the action, administrative proceeding, or special proceeding; and (2) the award of attorneys' fees does not exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding.
(Ord. 1299 § 4, 1993; Ord. 1518 § 3, 2008)