Chapter 3.20 — TRANSIENT OCCUPANCY TAX

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

A.

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, lodginghouse, roominghouse, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location or other similar structure or portion thereof.

B.

Occupancy means the use or possession or the right to the use or possession of any room or portion thereof in any hotel for dwelling, lodging or sleeping purposes.

C.

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 their 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 their 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.

D.

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.

E.

Rent 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 or nature, without any deduction therefrom whatsoever; provided, however, that the term "rent" does not include lodging to an employee by an employer solely for the convenience of the employer.

F.

Tax collector means the city administrator or such other official of the city as may, by resolution of the city council, be charged with administration of the tax or to whom such administration is delegated.

G.

Transient 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 from which this chapter is derived may be considered.

(Prior Code, § 18-22; Code 1985, § 3.20.020)

A.

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of 12 percent 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 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 the space in the hotel. If for any reason the tax due is not paid to the operator of the hotel, the tax collector may require that such tax shall be paid directly to the tax collector.

B.

The tax imposed under this section shall be imposed to the full extent allowed under state law. The tax imposed on the privilege of occupancy in any hotel shall be imposed on the full amount of the rent charged by the operator. In determining the amount of rent charged by the operator for the privilege of occupancy, the amount of rent shall not be reduced by any amount the operator charges for or attributes to operator-

provided services or benefits other than occupancy when such services and benefits are provided to the transient guests concurrently with payment of the rent charged.

(Prior Code, § 18-23; Code 1985, § 3.20.030; Ord. No. 437, § 1, 1985; Ord. No. 498, § 2, 2002; Ord. No. 513, § 3, 2004)

A.

No tax shall be imposed upon 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.

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 collector.

(Prior Code, § 18-24; Code 1985, § 3.20.040)

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 may 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.

(Prior Code, § 18-25; Code 1985, § 3.20.050)

Within 30 days after the effective date of the ordinance from which this chapter is derived 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 collector and obtain from them 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 regulations of the city by registering with the tax collector for the purpose of collecting from transients the transient occupancy tax and remitting the tax to the tax collector. 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."

Notwithstanding the foregoing, no operator may operate a hotel in the city unless said operator holds concurrently a transient occupancy required certificate and a business license.

(Prior Code, § 18-26; Code 1985, § 3.20.060; Ord. No. 437, § 5, 1985)

A.

Registration cards. The operator shall, as each room in a hotel is rented to a transient, fill out and maintain on file a registration card (or similar document or computer record) which contains, at a minimum, the following information:

1.

The name of at least one person who will occupy, or who is entitled to occupy, the room;

2.

The total number of people who will occupy, or who are entitled to occupy, the room;

3.

The identification of room by number;

4.

The date the occupancy commences and the expected date of the departure of the transients; and

5.

The daily rate charged and amount collected as and for rental of the room.

B.

Daily summary sheets. The operator of each hotel within the city shall maintain a daily summary sheet for each day the hotel is open for business containing, at a minimum, the following information:

1.

The name of at least one person entitled to occupancy of each room which is rented or occupied that day;

The room number;

3.

The daily rate and amount paid for the rental of the room; and

4.

The number of the registration card (or similar document or computer record) applicable to the rental of the room.

C.

Bank accounts. The operator shall maintain in a banking institution one or more accounts which shall be used for the deposit of all rental receipts and expenditures relating to the hotel. All receipts from the operation of the hotel shall be deposited in such accounts. Bank statements, deposit slips, cancelled checks and other withdrawal forms shall be maintained on file by the operator.

D.

Availability of registration, other documents, etc., for inspection and copying. The required registration cards (or similar document or computer record) filled out on the day of inspection shall be made available for inspection and copying by the city immediately upon demand. All other required registration cards (or similar document or computer record), daily summary sheets, business bank statements, cancelled checks and deposit and withdrawal slips shall be made available for inspection and copying by the city upon ten days' notice from the city to the operator.

(Code 1985, § 3.20.065; Ord. No. 498, § 2, 2002)

A.

Each operator shall, on or before the last day of the month following the close of each calendar quarter, make a return to the tax collector on forms provided by the tax collector of the total rents charged and received and the amount of tax collected for transient occupancies. At the time the return is filed, the full amount of the tax collected shall be remitted to the tax collector. Returns and payments are due immediately upon cessation of business for any reason. 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 collector.

B.

The tax collector shall establish a shorter reporting period for an operator if the tax collector deems it necessary in order to ensure collection of the tax and the tax collector may require further information in the return. The tax collector may, in their discretion, require that a separate trust account be established at a financial institution of their choice, the balance of which shall be payable to the city, if the tax collector deems it necessary in order to insure remittance of the tax.

(Prior Code, § 18-27; Code 1985, § 3.20.070; Ord. No. 498, § 2, 2002)

A.

The failure of any operator to make the return and remit the amount of tax collected as required by section 3.20.070 shall ipso facto result in the immediate and automatic suspension by the city of the transient occupancy registration certificate previously issued to and held by such operator under section 3.20.060. On the first business day following the last day on which the return and remittances are due, the tax collector shall prepare a list of the names and addresses of the operators who have failed to comply with section 3.20.070 and transmit such list to the chief of police of the city who shall thereupon collect and remove the transient occupancy registration certificate theretofore issued to each such operator and deliver the same to the tax collector of the city. Such certificate may not be reissued until all the taxes, penalties and interest provided in section 3.20.090 have been paid in full.

B.

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 collector or the collector's designee may require that the hotel/motel be closed.

(Prior Code, § 18-27(A); Code 1985, § 3.20.080; Ord. No. 498, § 2, 2002)

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 of the amount of the tax in addition to the amount of the tax.

B.

Fraud. If the tax collector determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25 percent of the amount of the tax shall be added thereto in addition to the penalty stated in subsection A of this section.

C.

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.

D.

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.

E.

Imposition of lien for delinquent taxes, penalties and interest.

1.

If any tax imposed by this chapter is not paid within the time required by section 3.20.070, then the same shall be delinquent. The amount of such delinquent tax, together with all penalties as imposed, and together with all interest as accrued, shall be a lien on all real property owned by the operator of the hotel for which the tax, penalties and interest have been imposed located in the city. Such lien shall have the effect and may be enforced as if it were a judgment lien.

2.

The lien imposed by this section shall be imposed for all taxes, penalties and interest which are delinquent.

3.

The lien imposed by this section shall be effective only on and after the date and time that a notice of such lien is recorded in the office of the county recorder. The lien shall be valid for a period of ten years from the date of such recording. The lien imposed by this section may only be discharged upon payment in full of all delinquent taxes, penalties and interest. Upon such payment in full, the city clerk shall deliver to the operator or cause to be recorded in the office of the county recorder, a notice of release of lien and the lien so imposed shall be released and no further effect from and after the date and time that such notice of release of lien is recorded in the office of the county recorder.

4.

An action seeking to enforce or foreclose such lien may be brought at any time during the effective period of such lien, and, notwithstanding any other provision hereof, once an action is brought, the lien shall continue in full force and effect until such action is terminated by judgment or dismissal.

(Prior Code, § 18-28; Code 1985, § 3.20.090; Ord. No. 437, § 2, 1985)

A.

If any person is delinquent in the payment of the amount required to be paid or in the event a determination has been made that an amount due remains unpaid, the tax collector may, no later than three years after the payment became delinquent, give notice thereof by certified mail to all persons in the county having in their possession or under their control any credits or other personal property belonging to the delinquent, or owing any debts to the delinquent. After receiving the notice, the persons so notified shall neither

transfer nor make any other disposition of the credits, other personal property or debts in their possession or under their control at the time they receive the notice until the tax collector consents to a transfer or disposition or until 20 days elapse after the receipt of the notice. All persons so notified shall within five days after the receipt of the notice to advise the tax collector of all such credits, other personal property or debts in their possession, under their control or owing by them.

B.

At any time within three years after any tax or any amount of tax required to be collected becomes due and payable or at any time within three years after any determination becomes final, the tax collector may bring an action in the courts of this state or any other state or of the United States in the name of the city to collect the amount delinquent together with penalties and interest.

C.

If any operator liable for any amount under this chapter sells such business or quits the business, the successors or assigns of such person shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the tax collector showing that payment has been made or a certificate stating that no amount is due. If the purchaser of a business fails to withhold the tax from the purchase price as required, such person becomes personally liable for the payment of the amount required to be withheld to the extent of the purchase price, valued in money. Within 30 days after receiving a written request from the purchaser for a certificate, the tax collector shall either issue the certificate or mail notice to the purchaser at the address as it appears on the records of the tax collector of the amount that must be paid as a condition of issuing the certificate. Failure of the tax collector to mail the notice will release the purchaser from any further obligation to withhold the purchase price as above provided. The time within which the obligation of a successor may be enforced shall start to run at the time the operator sells out a business or at the time that the determination against the operator becomes final, whichever event occurs later.

(Prior Code, § 18-28(A); Code 1985, § 3.20.100)

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 such tax or portion thereof required by this chapter, the tax collector shall proceed in such manner as the tax collector may deem best to obtain facts and information on which to base the tax collector estimate of the tax due. As soon as the tax collector shall procure such facts and information as the tax collector is able to procure 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 make such report and remittance, the tax collector 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 collector shall give notice of the amount so assessed by serving it personally or by depositing in the United States mail, postage prepaid, addressed to the operator so assessed at their last-known place of address. Such operator may, within ten days after the serving or mailing of such notice, make application in writing to the tax collector 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 collector shall become final and conclusive and immediately due and payable. If such application is made, the tax collector 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 collector 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 15 days unless an appeal is taken as provided in section 3.20.120.

(Prior Code, § 18-29; Code 1985, § 3.20.110)

Any operator aggrieved by any decision of the tax collector 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 administrator within 15 days of the serving or mailing of determination of tax due. The city council shall fix a time and place for hearing such appeal, and the city administrator shall give notice in writing to such operator at their 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 hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

(Prior Code, § 18-30; Code 1985, § 3.20.120)

A.

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 as the operator may have been liable for the collection of and payment to the city, which records the tax collector shall have the right to inspect at all reasonable times.

B.

All records required by this section to be retained for purposes of potential inspection shall be kept within the city or shall be produced at the business location within the city upon ten calendar days' written notice. If the records are not produced upon request, or such records are not reasonably sufficient to allow the city to audit such records, then tax, interest, and penalties shall be levied based upon the average room rate and occupancies for similar properties during the audit period. Further, and without limitation, any operator and/or owner who does not produce records upon notice as set forth herein, shall pay, in addition to any tax, interest, or penalties due, the sum of $100.00 per day for each day the records are not produced for audit.

(Prior Code, § 18-31; Code 1985, § 3.20.130; Ord. No. 498, § 2, 2002)

A.

When 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 that a claim in writing thereof, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the tax collector within three years of the date of payment. The claim shall be on forms furnished by the tax collector.

B.

Any 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 collector 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 collector or when the transient, having paid the tax to the operator, established to the satisfaction of the tax collector 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 their right thereto by written records showing entitlement thereto.

(Prior Code, § 18-32; Code 1985, § 3.20.140)

A.

Tax as civil debt.

1.

Tax due from transient. Any tax imposed on a transient pursuant to the provisions of this chapter shall be deemed to be a civil debt owed by such transient to the city;

2.

Tax due from operator. Any tax collected from a transient by an operator which has not been paid to the city, for any reason, shall be deemed to be a civil debt owed to the city by the operator;

3.

Failure to collect. Where an operator fails, for any reason, to collect a tax from a transient where such tax is lawfully imposed upon such transient, the amount of such tax shall be deemed to be a civil debt owed by the operator, whether or not the same is collected from such transient; and

4.

Obligation of operator. Each operator shall be obligated to pay to the city all taxes actually collected, as well as the amount of taxes which were lawfully imposed pursuant to this chapter but which, for any

reason, were not collected from the transients by the operator. The operator's obligation to pay such taxes to the city shall include the obligation to pay the city all penalties and interest due with respect to such taxes as provided by applicable law, including this chapter.

B.

Litigation. The tax collector shall be empowered to file and prosecute such civil actions as may be necessary to enforce the provisions of this chapter. In any such civil action, if the city incurs attorneys' fees, such attorneys' fees as well as other litigation costs, shall be recovered by the city if it prevails in such litigation. In any action to enforce such debt, nothing herein shall prevent the city from seeking concurrently to enforce or foreclose any lien imposed pursuant to this chapter.

C.

Audits. The tax collector may require any operator, upon reasonable written notice, to provide the tax collector with access to the books and records of such operator relating to rent charged by such operator which is subject to a tax pursuant to this Code, for the purpose of conducting an audit thereof. If, as of a result of any such audit, it is determined that any return required to be filed by such operator is inaccurate and/or fails to include and report the correct amount of taxes due pursuant to this chapter, by an

understatement of two percent or more, in addition to all other penalties and/or sanctions imposed pursuant to this chapter, including, but not limited to, penalties and interest, the operator shall pay for the reasonable cost of such audit and shall, in addition, forthwith, pay the city any and all taxes and penalties which are shown to be due as a result of such audit, regardless of whether the operator collected such taxes.

(Code 1985, § 3.20.150; Ord. No. 498, § 2, 2002)

The tax collector shall transmit to the city treasurer all moneys, including penalties and interest, collected by the tax collector pursuant to this chapter, which shall be deposited in the general fund.

(Prior Code, § 18-34(A); Code 1985, § 3.20.160)