This Chapter shall be known as the "Dana Point Uniform Transient
Occupancy Tax."
Except where the context otherwise requires, the definitions
given in this Section govern the construction of this Chapter.
"Person"
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.
"Hotel"
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, but is not
limited to, 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, duplex, triplex, single-family
dwelling units except any private dwelling house or other individually-owned
single-family dwelling rented only infrequently and incidental to
normal occupancy or any timeshare as set out in California Revenue
and Taxation Code Section 7280; provided that the burden of establishing
that the facility is not a hotel shall be on the owner or operator
thereof.
"Occupancy"
means the use or possession or the right to the use or possession
of any room or rooms, or portion thereof, offered for rent for dwelling,
lodging, or sleeping purposes.
"Transient"
means any person who occupies or is entitled to occupy 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 is 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, an uninterrupted period of time extending
both prior and subsequent to the effective date of this Chapter may
be considered.
"Rent"
means the consideration charged, whether or not received,
for the occupancy of space in a hotel valued in money, whether 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.
"Operator"
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 also is an operator for the purposes
of this Chapter and has 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 is, however, considered to be
compliance by both.
For the privilege of occupancy in any hotel, each transient
is subject to and shall pay a tax in the amount of 10% of the rent
charged by the operator. This tax constitutes a debt owed by the transient
to the City which is extinguished only by payment to the operator
of the hotel at the time the rent is paid. The unpaid tax is 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 be paid directly to the
Tax Administrator.
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 herein provided;
(b) Any
federal or State of California officer or employee when on official
business;
(c) Any
officer or employee of a foreign government who is exempt by reason
of express provision of federal law or international treaty.
No exemption is 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.
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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.
Within 30 days after commencing business, each operator of any
hotel renting to transients must register the hotel with the Tax Administrator
and obtain from him or her a "Transient Occupancy Registration Certificate"
to be posted at all times in a conspicuous place on the premises.
This Certificate shall state, among other things, the following:
(a) The
name of the operator;
(b) The
address of the hotel;
(c) The
date upon which the Certificate was issued; and,
(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 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 applicable laws, including,
but not limited to, those requiring a permit from any board, commission,
department, or office of this City."
(a) Each operator shall, not later than 20 days after the last day of each month, file a return with 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 during the preceding month. At the time the return is filed, the full amount of the tax collected shall be remitted to the Tax Administrator. Any return and/or tax not received by the Tax Administrator by the twentieth day after the last day of the month to which such return relates, or during which such tax was collected, shall be deemed delinquent pursuant to Section
3.25.080 hereof. The Tax Administrator may establish shorter reporting periods for any certificate holder if it is deemed necessary to ensure collection of the tax, and may require further information in the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this Chapter are held in trust for the account of the City until payment thereof is made to the Tax Administrator.
(b) Notwithstanding Subsection
(a), operators of short-term rentals must file a return and remit the full amount of tax collected from the short-term rental(s) to the Tax Administrator on a quarterly basis, not later than 20 days after the last day of the quarter with the first quarter beginning on January 1st of each calendar year and ending on March 31st of that same calendar year, unless otherwise determined by the Tax Administrator. Aside from the quarterly reporting and remitting requirements, all the other provisions and requirements in Section
3.25.070(a) remains applicable to short-term rentals.
(Amended by Ord. 89-24, 10/30/89; Ord. 13-02, 6/4/13)
If any operator fails or refuses to collect the tax and to make,
within the time provided in this Chapter, any report and remittance
of the tax or any portion thereof required by this Chapter, the Tax
Administrator shall proceed in such manner as he or she deems 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, the Tax Administrator 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 last known place of business. 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 the 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 should not be so fixed.
After such hearing, the Tax Administrator shall determine the proper tax to be remitted and 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
3.25.100.
Should the Tax Administrator be required to perform an audit of the records of any operator pursuant to Section
3.25.090 to determine the proper amount of any tax owed pursuant to this Chapter, the entire cost of said audit shall be assessed against the operator. In the event that the books and/or records required to perform an audit are not made available within the City of Dana Point, the assessment shall include the cost of transportation, lodging, meals, and portal-to-portal travel time. Said assessment shall be due and payable not more than 30 days after written notice of said assessment is sent, by certified mail, return receipt requested, to the operator. Should the operator fail to pay said assessment within the 30 day time limit, said assessment shall constitute a lien against the property for which the audit was performed. After confirmation of said assessment lien by the City Council, the City Assessor and Tax Collector shall be notified, and shall add the amount of the assessment lien to the next regular tax bill levied against said property for municipal purposes.
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 last known place of business. The findings of the
City Council are 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 is immediately due and payable
upon the service of notice.
It is 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 for which said operator may be
or may have been liable. The Tax Administrator shall have the right
to inspect all such records at all reasonable times.
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
is liable to an action brought in the name of the City for the recovery
of such amount.
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. 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
is guilty of a misdemeanor.