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HomeMy WebLinkAboutORD 775 (1978) ORDINANCE NO. 775 AN ORDINANCE AMENDING THE TUSTIN CITY CODE BY ADDING CHAPTER 7 TO ARTICLE 2 ENTITLED "UNIFORM TRANSIENT OCCUPANCY TAX". The City Council of the City of Tustin, California, ordains that Article Two of the Tustin City Code be amended by adding Chapter Seven to read as hereinafter set forth: " CHAPTER 7 UNIFORM TRANSIENT OCCUPANCY TAX 2701 SHORT TITLE This Chapter shall be known as the Uniform Transient Occupancy Tax Law Chapter. 2702 DEFINITIONS Except where the context otherwise requires, the definitions given in this section shall govern the construction of this chapter. PERSON. The' term "person" shall mean 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. The term "hotel" shall mean 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, lodging house, rooming house, apartment house, rental unit, dormitory, public or private clu~, mobile home or house trailer at a fixed location, or other similar structure or portion thereof. OCCUPANCY. The term "occupancy" shall mean the use or possession, or the right to use or possession of any room or rooms or portion thereof, in any hotel fordwelling, lodging or sleeping purposes. TRANSIENT. The term "transient" shall mean 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 (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 thirty (30) d~ys has expired, unless there is an agreement in writing between the operatc~ and the 9ccupant providing for a longer period of occupancy. In determining whether a person is a transient, uninterrupted periods of time both prior and subsequent to the effective date of this ~hapter may be considered. RENT. The term "rent" shall mean 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 or nature, without any deduction therefrom whatsoever. OPERATOR. The term "operator" shall mean 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 functions through a managing agen~ 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 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. 2703 TAX IMPOSED For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of six percent (6%) of the rent charged by the operator. 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 ~he 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 City Treashrer may require that such tax shall be paid directly to the City Treasurer. 2704 EXEMPTIONS 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 shall be granted except upon a claim therefor m~e ~t the time rent is collected and under penalty of perjury -2- upon a form prescribed by the City Treasurer. 2705 RESPCNSIBILITY OF OPERATOR 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 each transient. The amount of tax shall be separately stated frcm the amount of the rent charged, and ead~ 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.. 2706 REGISTRATION OF HOTEL By June 1, 1978, or within thirty (30) days after cc~mencing business,. whichever is later, each operator of any hotel renting occupancy to transients shall register the hotel with the City Treasurer and obtain frc~ him a "Transient Occupancy Registration Certificate" to be at all times posted in a conspicious place on the premises. The 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) The following statement: This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Law Chapter by registering with the City Treasurer for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the City Treasurer. 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, cu~,~ssion, department or office of th~s City. This certificate does not ccnstitute a permit. 2707 REPORTING AND RF~TTING Each operator shall, on or before the last day of the month following the close of each calendar quarter or of such different reporting period a return as may be established by the City Treasurer, make a return to the City Treasurer, one forms provided by him, of the total rents charged and received, the amount of tax collected for transient occupancies, and such other information as he may reasonably require. At the time the return is filed, ~e full amount of the tax collected shall be remitted to the city Treasurer. The City Treasurer may establish either shorter or longer reporting -3- periods for any individual certificate holder or category of certificate holders if he deems it necessary or desirable in order to insure collection of the tax or to increase the efficiency of its administration. Returns and payments are due immediately upon cess- · ation of business for any reason. Ai~ taxes collected by operators pursu~l.~ to this chapter shall be held in trust for the account of the City until payment thereof is made to the City Treasurer. 2708 PENALTIES AND INTEREST A. ORIGINAL DELINQUENCY. Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of ten percent (I0%) 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 thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquent penalty of ten percent (10%) of the amount of the tax in additior~ to the amount of the 'tax and the ten percent (10%) penalty first imposed. C. -FRAUD. If the City Treasurer determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of twenty-five percent (25%) of the amount of the tax shall be added thereto in addition to the penalties stated in Subparagraph A and B of this sectf~ 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 (1/2%) per month for each month or portion of a month that the tax shall be delinquent on the amount of the tax, exclusive of penalties, from the date on which the tax first became delinquent until paid. The interest shall be computed on a monthly basis and shall not be subject to proration for any portion of a month. 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. 2709 PROCEEDINGS FOR REMEDY If any operator shall fail or refuse 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 City Treasurer shall proceed in such manner as he may deem best to obtain facts and information on whic~ to base his estimate of the tax due. As soon as the City Treasurer shall procure such facts and information as he able to obtain upon which to base the assessment of any tax imposed by th~js chapter and payable by any operator who has failed or refused to collect the same and to make such report and remittance, he shall proceed to determine and assess against such operator. the tax, interest and -4- penalties provided for by this chapter. In case such determination is made, the City Treasurer 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 address. Such operator may within ten (10) days after the serving or mailing of such notice make application in writing to the City Treasurer 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 City Treasurer shall become final and conclusive and immediately due and payable. If such application' is made, the Cit~ Treasurer shall give not less than five (5) 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 City Treasurer shall determine the proper tax to be remitted and shall there- after give written notice to the person in the. manner prescribed ~erein 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 City Treasurer 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 (15) days unless an appeal is taken as provided in Section 2710. 2710 APPEAL Any operator aggrieved by any decision of the City Treasurer 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 fifteen (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 last known place of address. The findings of the 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 ~ervice of notice. 2711 RECORDS It shall be the duty of every operator liable for the c~lection and payment to the City of any tax imposed by this chapter to ke~p and -5- preserve, for a period of three (3) years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection and payment of to the City, which records the City Treasurer shall have the right to inspect at all reasonable times. 2712 REFUNDS A. CLAIM REQUIRED. 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 Subparagraphs B and C of this section; provided, that a claim in writing'therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the City Treasurer within three (3) years of the date of payment. The claim shall be on forms furnished by the City Treasurer. B. CLAIM BY OPERATOR. 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 City Treasurer 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 operators. C. CLAIM BY TRANSIENT. 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 Subparagraph A but only when the tax was paid by the transient directly to the City Treasurer, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the City Treasurer that the transient has been unable to obtain a refund from the operator who collected the tax. D. EVIDENCE. No refund shall be paid under the provisions of this section unless the claimant establishes his right thereto by written records showing entitlement thereto. 2713 TAX DECLARED A DEBT - ACTION TO COLLECT 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 of Tustin for the recovery of s,-'h amount. 271~I ~ FENALTY FOR VIOLATIONS Any operator or other person who fails or refuses to register as -6- xol _1 required herein, or to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data recpm~red by the City Treasurer, or who renders a false\or  ~ fraudulent return or claim, is guilty of a misdemeanor, and is , 4 punishable as provided in Section 1121 of this Code. Any person 5 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 req~l~red by this 7 chapter to be made, is guilty of a misdemean6r and is punishable 8 as aforesaid." It is hereby .determined and declared by the City Council that the preser- 9 vation and protection of the public health and welfare require that this 10 ordinance be enacted and adopted as an urgency measure and it shall beccme ~1 effective iranediately upon its adoption. PASSED AND ADOPTED at a regular meeting of the City Council, City of 12Tustin, California, held on the 15th day of May, 1978. · ~ - , _ _~8 c~c c~ ~0 -~- STATE-OF C~.LIFOF~IA) COUNTY OF O.~:.]GE ')' SS CITY OF TUSTIN ) RUTH C. POE, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole n~-ber of members of the City Council of the City of Tustin is five; that the 'above and foregoing Ordinance ~o. 775 was duly-and regularly introduced and read ~t a regular meeting of the City Council held on the 15th day 'of May , 197 7- and was given. its second reading and duly passed and adopted at a regular meeting. held on the 15th day of 'May 197.7,-as. an urgency' measure by the following vote: AYES: COUNCIL~4EN: WELSH, SCHUSTER, SHARP, SALTARELLI, KENNEDY NOES: COUNCii~IE~]: NONE · ABSENT: 'COUN CIL~LEN: NONE ~ity Clerk, C~ty of Tustin,'~.lifornia Publish Tustin News May 25, 1978