This chapter shall be known as the uniform transient occupancy
tax regulations of the city.
(Ord. 1087 § 1)
Except where the context otherwise requires, the definitions
given in this section govern the construction of this chapter, as
follows:
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,
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. Hotel shall also include a private campground
where only a site and accompanying facilities are rented;
means the use or possession, or the right to use or possession
of any room or rooms or campsite or sites 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 purpose 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 the consideration charged, whether or not received,
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 and property and services of any kind of nature, without
any deduction therefrom whatsoever;
means the City Finance Director;
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 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 ordinance codified in this chapter may
be considered.
(Ord. 1087 § 2; Ord. 1269 §§ 1—3,
1984; Ord. 1275 § 1, 1985; Ord. 1287 §§ 1, 2, 1986)
For the privilege of occupancy in any hotel, each transient
is subject to and shall pay a tax in the amount of nine percent of
the rent charged by the operator. After January 1, 1990, the tax shall
be 10% for such rent. The tax constitutes a debt owed by the transient
to the city which is 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. 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.
(Ord. 1087 § 3; Ord. 1113 § 1, 1969; Ord. 1190 § 1, 1976; Ord. NS-8 § 1, 1988; Ord. NS-52 § 1, 1989)
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
federal or state 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.
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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.
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(Ord. 1087 § 4)
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. If the operator collects the rent but fails to collect the tax imposed by this chapter for any reason, the city shall require the operator to pay such tax. 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. A duplicate of this receipt shall be kept by the operator in accordance with Section 3.12.110. 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. Each operator shall account monthly, for taxable rents and for taxes collected. Each operator shall notify the Tax Administrator within 10 days upon the cessation of business for any reason and shall make his or her books and records available for audit.
(Ord. 1087 § 5; Ord. 1275 § 2, 1985)
Within 30 days after August 20, 1964, or within 30 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:
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 chapter by registering with the Tax Administrator
for the purpose of collecting from transients the transient occupancy
tax and remitting such 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 officer of this city. It is unlawful to
operate a hotel in the city without a currently valid certificate.
(Ord. 1087 § 6; Ord. 1285 § 1, 1985)
A.
All
operators shall remit monthly the full amount of taxes collected on
the appropriate return form provided by the Tax Administrator and
a return shall be filed quarterly.
B.
Returns filed quarterly and taxes remitted monthly and actually received by the Tax Administrator on or before the last day of the following month shall be deemed timely filed and remitted; otherwise, the taxes are delinquent and subject to the penalties imposed by Section 3.12.080.
C.
Each
operator reporting on a calendar quarter basis shall, on or before
the last day of the month following the close of each calendar quarter,
make a return to the Tax Administrator on forms provided, of the total
taxable rents charged and the amount of tax collected for the quarter,
remittances made for each of the first two months of the calendar
quarter, and the balance of the tax due. At the time the return is
filed, the full amount of the balance of the tax due shall be remitted
to the Tax Administrator.
D.
The
Tax Administrator may establish shorter reporting periods for any
certificate holder if the Tax Administrator deems it necessary in
order to insure collection of the tax and he or she may require further
information in the return.
E.
Any
operator required to report on other than a calendar quarter basis
shall, on or before the same day of the next month following the close
of such reporting period, or on the last day of the next month if
no corresponding day exists, make a return to the Tax Administrator
on forms provided, or the total taxable rents charged and the amount
of tax collected for the quarter, remittances made during the approved
reporting period, and the balance of the tax due. At the time the
return is filed, the full amount of the balance of the tax due shall
be remitted to the Tax Administrator.
F.
Each operator, upon cessation of business for any reason, shall, on or before the same day of the next month following the cessation of business or on the last day of the month if no corresponding day exists, make a return to the Tax Administrator on forms provided 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. At the time the return is filed the full amount of the balance of the tax due, if any, shall be remitted to the Tax Administrator. Returns filed and taxes remitted and actually received by the Tax Administrator on or before the same day of the next month following the cessation of business, or on the last day of the next month if no corresponding day exists, shall be deemed timely filed and remitted; otherwise, the taxes are delinquent and subject to the penalties imposed by Section 3.12.080.
G.
All
taxes collected by operator 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. 1087 § 7; Ord. 1275 § 3, 1985)
If an operator who is liable for any tax or penalties under
this chapter sells or otherwise disposes of his or her business, the
operator's successor shall notify the Tax Administrator of the date
of sale and withhold a sufficient portion of the purchase price to
equal the amount of such tax or penalty until the selling operator
produces a receipt from the Tax Administrator showing that the tax
or penalty has been paid or a tax clearance certificate from the Tax
Administrator stating that no tax or penalty is due. If the seller
does not present a receipt or tax clearance certificate within 30
days after such successor commences to conduct business, the successor
shall deposit the withheld amount with the Tax Administrator pending
settlement of the account of the seller.
(Ord. 1275 § 4, 1985)
If the successor to the business fails to withhold a portion
of the purchase price as required, he or she shall be liable for the
payment of the amount required to be withheld. Within 30 days after
receiving a written request from the successor for a tax clearance
certificate, stating that no tax or penalty is due, the Tax Administrator
shall either issue the certificate or mail notice to the successor
at his or her address as it appears on the records of the Tax Administrator
of the estimated amount of the tax and penalty that must be paid as
a condition of issuing the certificate.
(Ord. 1275 § 4, 1985)
A.
Original
Delinquency. 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.
B.
Continued
Delinquency. 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.
C.
Audit
Deficiency. If, upon audit by the city, an operator is found to be
deficient in his or her return or remittance, or both, the Tax Administrator
shall immediately invoice the operator for the amount of the net deficiency
plus a penalty of 10% of the net deficiency. If the operator fails
or refuses to pay the deficient amount and applicable penalties within
14 days of the date of the invoice, an additional penalty shall be
imposed at the rate of one percent per day of the net deficiency,
not to exceed 10%.
E.
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 and one-half 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.
F.
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
required to be paid by this chapter.
G.
Revocation.
In addition to the other penalties provided by this section, if an
operator is delinquent in any way more than one time in any 12-month
period the Tax Administrator may revoke the operator's transient occupancy
registration certificate.
(Ord. 1087 § 8; Ord. 1275 § 5, 1985; Ord. 1285 § 1, 1985)
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 or any portion thereof required by this chapter, the Tax Administrator shall proceed in such a 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, 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 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 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 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 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 3.12.100.
(Ord. 1087 § 9)
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 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 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 council
shall be final for service of notice of hearing. Any amount found
to be due shall be immediately due and payable upon the service of
notice.
(Ord. 1087 § 10)
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.
(Ord. 1087 § 11)
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 thereof, 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.
E.
It shall
be a condition that, prior to the filing of any lawsuit, of any kind
whatsoever, including a claim for refund of taxes, injunction or writ
of mandate or other equitable process, the payment of all taxes, interest
and penalties as determined by the City Council shall be required
to be paid as a condition to seeking such judicial review of any tax
liability. In addition, no such legal action shall be proper unless
all of the administrative remedies provided by this chapter shall
have first been exhausted.
(Ord. 1087 § 12; Ord. CS-081 § 1, 2010)
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 and payable through the operator. Any such tax, collected by
an operator, which has not been paid to the city, shall be deemed
funds held in trust for the account of the city which are due and
payable by the operator to the city pursuant to the provisions of
this chapter. Any person owing money to the city under the provisions
of the chapter shall be liable to an action brought in the name of
the city for the recovery of such amount plus attorney's fees and
costs.
(Ord. 1087 § 13; Ord. 1275 § 6, 1985)
Any operator who fails to remit any tax collected pursuant to this chapter shall be subject to prosecution under Section 424 of the Penal Code of the State of California. Any person violating any of the other provisions of this chapter shall be guilty of a misdemeanor and shall be punishable as provided in Section 1.08.010.
(Ord. 1087 § 14; Ord. 1275 § 6, 1985)
Whenever any operator fails to comply with any provision of
this chapter relating to occupancy tax or any rule or regulation of
the Tax Administrator relating to occupancy tax prescribed and adopted
under this chapter, the Tax Administrator upon hearing, after giving
the operator 10 days' notice in writing specifying the time and place
of hearing and requiring him or her to show cause why his or her certificate
should not be revoked, may suspend or revoke the certificate held
by the operator. The Tax Administrator shall give the operator written
notice of the suspension or revocation of his or her certificate.
The notice required in this section may be served personally or by
mail in the manner prescribed for service of notice of a deficiency
determination. The Tax Administrator shall not issue a new certificate
after a revocation unless he or she is satisfied that the former holder
of the certificate will comply with the provisions of this chapter
relating to the occupancy tax and regulations of the Tax Administrator.
(Ord. 1285 § 3, 1985)
During any period of time during which a certificate has not
been issued or is suspended, revoked or otherwise not validly in effect,
the Tax Administrator may require that the hotel be closed.
(Ord. 1285 § 3, 1985)
If any amount required to be remitted or paid to the city under
this chapter is not remitted or paid when due, the Tax Administrator
may, within three years after the amount is due, file for record in
the office of the County Recorder a notice of lien specifying the
amount of tax, penalties and interest due, the name and address as
it appears on the records of the Tax Administrator of the operator
liable for the same and the fact that the Tax Administrator has complied
with all provisions of this chapter in the determination of the amount
required to be remitted and paid. From the time of the filing for
record, the amount required to be remitted together with penalties
and interest constitutes a lien upon all real property in the county
owned by the operator or afterwards and before the lien expires acquired
by him or her. The lien has the force, effect and priority of a judgment
lien and shall continue for 10 years from the time of filing of the
notice of lien unless sooner released or otherwise discharged.
(Ord. 1285 § 3, 1985)
A.
The
amounts required to be paid by any operator under this chapter 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 or her 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 chapter are levied upon by process
law. This chapter 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 Sections
1204 and 1206 of the Code of Civil Procedure.
(Ord. 1285 § 3, 1985)
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 notice of lien under Section 3.12.180, the Tax Administrator 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 chapter. 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 Tax Administrator may pay or advance to the Sheriff, Marshal or constable the same fees, commissions and expenses for his or her services as are provided by law for similar services pursuant to a writ of execution. The Tax Administrator, and not the court, shall approve the fees for publication in a newspaper.
(Ord. 1285 § 3, 1985)
At any time within three years after any operator is delinquent
in the remittance or payment of any amount, the Tax Administrator
may forthwith collect the amount in the following manner. The Tax
Administrator 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 seizure made to collect occupancy taxes due shall be
only of property of the operator not exempt from execution under the
provision of the Code of Civil Procedure.
(Ord. 1285 § 3, 1985)
If any person or operator is delinquent in the remittance or
payment of the amount required to be remitted or paid by him or her
or in the event a determination has been made against him or her 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 or she shall be liable
to the city to the extent of the value of the release up to the amount
of the indebtedness owed by the taxpayer to the city.
(Ord. 1285 § 3, 1985)
