[Adopted 9-1-1972 as Ch. 31, Secs. 31-90 through 31-116, of the 1972 Code; amended in its entirety 1-7-1997 by Ord. No. 2823]
This article shall become and be effective on or after June 1, 1997, subject to the approval of the registered voters of the City of El Reno, Oklahoma, voting on the same in the manner prescribed by law;[1] provided that upon approval of the voters as required above, this article shall remain in effect and not be repealed unless repealed by a majority of the registered voters of the City of El Reno, Oklahoma, voting to repeal the same in the manner as required by its approval.
[1]
Editor's Note: This article was approved by the majority of registered voters at election on 4-1-1997.
This article shall be known and cited as the "City of El Reno Hotel/Motel Surcharge Ordinance."
As used in this article, the following terms shall have the meanings indicated:
OPERATOR
Any person operating a hotel, motel, bed-and-breakfast, or recreational vehicle park in this City, including, but not limited to, the owner, proprietor, lessee, sublessee, mortgagee in possession, licensee, or any other person otherwise operating such hotel, motel, bed-and-breakfast or recreational vehicle park.
RENT
The consideration received for occupancy valued in money, whether received in money, or otherwise, including all receipts, cash, credits, and property or services of any kind of nature, and also any amount for which credit is allowed by the operator to the occupant, without any deduction therefrom whatsoever.
RETURN
Any return filed or required to be filed as herein provided.
ROOM
Any room or rooms or space of any kind in any part or portion of a hotel, motel, bed-and-breakfast establishment, or recreational vehicle (RV) park space, which is available for or let out for use or possessed for any purpose other than a place of assembly. As used herein, "place of assembly" means a room or space which is not capable of being occupied for lodging purposes and which is used for educational, recreational, or amusement purposes and shall include dance halls; cabarets; nightclubs; restaurants; any room or space for private banquets, feasts, socials, card parties, or weddings; lodge and meeting halls or rooms; skating rinks; gymnasiums; swimming pools; billiards, bowling, and table tennis rooms; halls or rooms used for public or private catering purposes; funeral parlors; markets; recreational room; concert hall; broadcasting studios; and all other places of similar type of occupancy.
SURCHARGE
The surcharge levied pursuant to this article.
TREASURER
The Treasurer of the City of El Reno.
[Amended 11-6-2007 by Ord. No. 5024[1]]
Funds collected pursuant to the provisions of this article shall be set aside and used exclusively as follows:
A. 
Sixty percent for the purpose of economic development and tourism capital projects and the maintenance and marketing thereof; and
B. 
Forty percent for the purpose for tourism promotion, which shall be defined as:
(1) 
Encouraging, promoting and fostering visitor and tourism conventions, conferences and tourism development in the City.
(2) 
Solicitation of visitor attractions, events, tourism, conferences, conventions and meetings in the City.
[1]
Editor's Note: This ordinance stated that it shall become effective 2-1-2008, subject to the approval of the registered voters of the City of El Reno. Voters approved this ordinance at a special election held 1-8-2008.
[Amended 11-6-2007 by Ord. No. 5024[1]]
There is hereby levied an occupancy surcharge of 4 1/2% of the room rate charged per occupied room per night upon the service of furnishing rooms/space by hotels, motels, bed-and-breakfast establishments, and recreational vehicle (RV) parks within the City, except when the occupant rents the room/space for a period in excess of 30 days. This surcharge shall be in addition to any existing sales taxes imposed by the City or state.
[1]
Editor's Note: This ordinance stated that it shall become effective 2-1-2008, subject to the approval of the registered voters of the City of El Reno. Voters approved this ordinance at a special election held 1-8-2008.
Officers, agents, representatives, or employees of any government, corporation, organization, or association that is legally exempted from state sales taxation or City sales taxation and whose occupancy of the room/space is required in connection with the official business or affairs of such government, corporation, organization, or association shall be exempt from the surcharge levied by this article. Any persons or groups renting rooms/spaces directly related to an organized religious function shall also be exempt.
At the time of reserving or renting a hotel, motel, bed-and-breakfast establishment room(s), or recreational vehicle park space, any person claiming to be exempt from the surcharge pursuant to § 318-57 shall display proof of exemption and tax identification number certifying that the corporation, organization, or association with which he is affiliated is exempt from the surcharge.
In order to compensate an operator for keeping surcharge records, filing reports, and remitting the surcharge when due, a discount equal to that allowed by the State Tax Commission for the collection of sales tax shall be allowed upon all surcharges paid prior to the time they become delinquent.
It shall be the duty of every operator required to make a return and pay any surcharge under this article to keep and preserve suitable records of the gross daily rentals together with other pertinent records and documents which may be necessary to determine the amount of surcharge due hereunder, and such other records as will substantiate and prove the accuracy of such returns. All records shall remain in the City and be preserved for a period of three years, unless the Treasurer, in writing, has authorized their destruction or disposal at an earlier date, and shall be open to examination at any time by the Treasurer or by any of his duly authorized agents. The burden of proving that a sale was not a surchargeable sale shall be upon the operator who makes the sale.
A. 
The surcharge levied hereunder shall be due and payable to the Treasurer on the first day of each month, except as herein provided by any person liable for the payment of each month, to deliver to the Treasurer, upon forms prescribed and furnished by him, returns, under oath, showing the total number of rooms/spaces occupied per night during the preceding calendar month. Such returns shall show such further information as the Treasurer may require to correctly compute and collect the surcharge herein levied. In addition to the information required on returns, the Treasurer may request additional information, and such additional information shall accompany the returns herein required. If not paid on or before the 20th of each month, the surcharge shall be delinquent after such date; provided that no interest or penalty shall be charged on such return filed on or before the 20th day of such month.
B. 
The Treasurer may permit or require returns to be made by shorter or longer periods and upon such dates as he may specify. The form of return shall be prescribed by the Treasurer and shall contain such information as he may deem necessary for the proper administration of this article. The Treasurer may require amended returns to be filed within 20 days after notice, which amended return shall contain the information specified in the notice.
At the time of filing a return of occupancy and of rents, each operator shall pay to the Treasurer the surcharge imposed by this article upon the rents included in such return, as well as by all other moneys collected by the operator acting or purporting to act under the provisions of this article.
Where the Treasurer believes that any operator is about to cease business, leave the state, or remove or dissipate assets, or for any other similar reason he deems it necessary in order to protect revenues under this article, he may require such operator to file with the City a bond issued by a surety company authorized to transact business in this state in such amount as the Treasurer may fix to secure the payment of any surcharge or penalties and interest due, or which may become due, from such operator. In the event that the Treasurer determines that an operator is to file such bond, he shall give notice to such operator specifying the amount of bond required, which shall in no event exceed twice the amount of the sum in controversy. The operator shall file such bond within five days after receiving notice unless within such five days the operator shall request in writing a hearing before the City Council, at which time the necessity and amount of the bond shall be determined by the City Council. Such determination shall be final and shall be complied with within 15 days thereafter. In lieu of such bond, securities approved by the Treasurer or cash in such amount as he may prescribe may be deposited with the Treasurer, who may, at any time after five days' notice to the depositor, apply them to any surcharge and/or penalties due, and for the purpose, the securities may be sold at private or public sale.
If a return required by this article is not filed, or if a return when filed is incorrect or insufficient, the amount of surcharge due shall be assessed by the Treasurer from such information as may be obtainable and, if necessary, the surcharge may be estimated on the basis of external indices, such as number of rooms, spaces, location, scale of rents, comparable rents, types of accommodations and services, number of employees, or other factors. Written notice of such assessments shall be given to the person liable for the collection and payment of the surcharge. Such assessment shall finally and irrevocably fix and determine the surcharge unless the person against whom it is assessed, within 90 days after the giving of notice of such assessment, shall apply in writing to the Council for a hearing or unless the Treasurer, upon his own initiative, shall reassess the same. After such hearing, the City Council shall give written notice of its determination to the person against whom the surcharge is assessed and such determination shall be final.
A. 
Procedure. The Treasurer shall refund or credit any surcharge erroneously, illegally, or unconstitutionally collected if written application to the Treasurer for such refund shall be made within 90 days from the date of payment thereof. For like causes and in the same period, a refund may be made upon the initiative and the order of the Treasurer. Whenever a refund is made, the reasons therefor shall be stated in writing. Such application may be made by the person upon whom such surcharge was imposed and who has actually paid the surcharge. Such application may also be made by the person who has collected and paid such surcharge to the Treasurer; provided that the application is made within 90 days of the payment by the occupant to the operator, but no refund of money shall be made to the operator until he has repaid to the occupant the amount for which the application for refund is made. The Treasurer, in lieu of any refund required to be made, may allow credit therefor on payments due from the applicant.
B. 
Determination and hearing. Upon application for a refund, the Treasurer may receive evidence with respect thereto, and make such investigation as he deems necessary. After making a determination as to the refund, the Treasurer shall give notice of the determination to the applicant. Such determination shall be final unless the applicant, within 90 days after such notice, shall apply in writing to the City Council for a hearing. After such hearing, the City commission shall give written notice of its decision to the applicant.
Any notice provided for under this article shall be deemed to have been given when such notice has been delivered personally to the operator or deposited in the United States mail addressed to the last known address of the operator.
The remedies provided for under this article shall be exclusive remedies available to any person for the review of surcharge liability imposed by this article.
In addition to all other powers granted to the Treasurer, he is hereby authorized and empowered to:
A. 
Make, adopt, and amend rules and regulations appropriate to the collection of surcharges pursuant to this article.
B. 
Extend for cause shown the time for filing any return for a period not exceeding 60 days; for cause shown, to waive, remit, or reduce penalties or interest.
C. 
Delegate his functions hereunder to an assistant or other employee or employees of the City.
D. 
Assess, reassess, determine, revise, and readjust the surcharges imposed by this article.
E. 
Prescribe methods for determining the surchargeable and nonsurchargeable rents.
Every operator shall file with the Treasurer a registration certificate in a form prescribed by such Treasurer within 10 days after the effective date of this article or, in the case of operators commencing business or opening new hotels, motels, bed-and-breakfast establishments, or recreational vehicle (RV) parks after such effective date, within three days after such commencement or opening. The Treasurer shall, within five days after the filing of such certificate, issue without charge to each operator a certificate of authority empowering such operator to collect the surcharge from the occupant, and duplicates thereof for each additional hotel, motel, bed-and-breakfast establishment, and recreational vehicle (RV) park. Each certificate or duplicate shall state the hotel, motel, bed-and-breakfast establishment, or recreational vehicle (RV) park to which it is applicable. Such certificate of authority shall be permanently displayed by the operator in such manner that it may be seen and come to the notice of all occupants and persons seeking occupancy. Such certificates shall be nonassignable and nontransferable and shall be surrendered immediately to the Treasurer upon the cessation of business at the hotel, motel, bed-and-breakfast establishment, or recreational vehicle (RV) park, or upon its sale or transfer.
An amount equal to the discount allowed operators under § 318-61, Administrative discount, of this article shall be retained by the office of the Treasurer for the purpose of administering and collecting the surcharge.
If any surcharge levied by this article becomes delinquent, the person responsible and liable for such surcharge shall pay interest on such unpaid surcharge at the rate of 1 1/2% per month on the unpaid balance from the date of delinquency until such unpaid balance is paid in full.
The confidential and privileged nature of the records and files concerning the administration of the surcharge is legislatively recognized and declared; and to protect the same, the provisions of 68 O.S. § 205 of the state Sales Tax Code, and each subsection thereof, are hereby adopted by reference and made fully effective and applicable to the administration of this article as if herein set forth.
The willful failure or refusal of any operator to make reports and remittances herein required, or the making of any false or fraudulent report for the purpose of avoiding or escaping payment of any surcharge or a portion thereof rightfully due under this article, or willfully failing or refusing to pay any assessment as described in § 318-66 of this article, shall be an offense against the City; and each day of such offensive action shall constitute a separate offense.
The people of the City, by their approval of this article, Ordinance No. 2823, at the election herein provided, hereby authorize the City Council, by ordinance duly enacted, to make such administrative and technical changes or additions in the method and manner of administering and enforcing this article as may be necessary or proper for efficiency and fairness, except that the rate of the surcharge herein provided shall not be changed without approval of the qualified voters of the City, as provided by law.
In the event a suit in a court of competent jurisdiction is caused to be filed, either on behalf of or against the City, and such cause is the direct result of the conditions, stipulations, or requirements hereinbefore set forth, an amount necessary to pay all legal fees incurred by the City, as well as fines or penalties imposed against it, shall be set aside from the moneys authorized to be collected hereby in payment thereof, regardless of whether such cause was for the purpose of enforcing or defending the provisions of this article.