El Cerrito Municipal Code Ch. 4.28 Transient Occupancy Tax

This chapter shall be known as the Uniform Transient Occupancy Tax chapter of the city.

(Ord. 88-5 (part) 1988.)

Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter:

A. "Hotel" means any structure, or any portion of any structure, which is occupied or intended or designed for occupancy by transients for rent. "Hotel" shall include without limitation any hotel, inn, tourist home, house, motel, apartment house, dormitory, public or private club, mobile home or housetrailer at a fixed location, or other similar structure or portion thereof used for dwelling, lodging or sleeping purposes.

B. "Occupancy" means the use or possession or the right to the use or possession of any room or rooms 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 his 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 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.

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 and regardless of whether such consideration is 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.

F. "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 thirty 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 days has expired unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy.

(Ord. 88-5 (part), 1988.)

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of ten percent of the rent charged by the operator. Said tax constitutes 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 and shall be paid to the city by the operator. The tax is due to the city by the operator whether or not it is paid to the operator by the transient.

(Ord. 89-6 § 1, 1989: Ord. 88-5 (part), 1988.)

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.

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 license administrator.

(Ord. 88-5 (part), 1988.)

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 not be added to the rent, or that, if added, any part will be refunded except in the manner provided in this chapter.

(Ord. 88-5 (part), 1988.)

Within thirty days after commencing business, each operator of any hotel renting occupancy to transients shall register said hotel with the license administrator and obtain from him a transient occupancy registration certificate to be at all times posted in a conspicuous place on the premises. Said 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. And the following:

"This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Ordinance by registering with the License Administrator for the purpose of collecting from transient Occupancy Tax and remitting said tax to the License 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 office of this City. This certificate does not constitute a permit."

(Ord. 88-5 (part), 1988.)

Each operator shall on or before the last day of the month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the council, make a return to the license administrator, on forms provided by him, of the total rents charged and received and the amount of tax due for transient occupancies. At the time the return is filed, the full amount of the tax due shall be remitted to the license administrator. 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 license administrator.

(Ord. 88-5 (part), 1988.)

Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of fifty dollars plus ten percent of the amount of the tax in addition to the amount of the tax.

(Ord. 88-5 (part), 1988.)

Any operator who fails to remit any delinquent remittance on or before a period of thirty days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of two hundred dollars plus one percent per month, on any part thereof of nonremittance of the amount of the tax in addition to the amount of the tax and the penalty first imposed. (Ord 88-5 (part) 1988.)

If the license administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of five hundred dollars plus twenty-five percent of the amount of the tax shall be added thereto in addition to the penalties stated in Sections 4.28.080 and 4.28.090.

(Ord. 88-5 (part), 1988.)

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 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.

(Ord. 88-5 (part), 1988.)

Every penalty imposed and such interest as accrues under the provisions of this chapter shall become a part of the tax required to be paid.

(Ord. 88-5 (part), 1988.)

If any operator shall fail or refuse to collect said tax and to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter, the license administrator shall proceed in such manner as he may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the license administrator shall procure such facts and information as he 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, he 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 license administrator shall give a notice of the amount so assessed. Such operator may within ten days after the serving or mailing of such notice make application in writing to the license 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 license administrator shall become final and conclusive and immediately due and payable. If such application is made, the license administrator shall give not less than five days' written notice to the operator to show cause at a time and place fixed in said notice why said 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 license 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 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 4.28.140.

(Ord. 88-5 (part), 1988.)

Any operator aggrieved by any decision of the license 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 fifteen 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. 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 service of notice.

(Ord. 88-5 (part), 1988.)

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 license administrator shall have the right to inspect at all reasonable times.

(Ord. 88-5 (part), 1988.)

A. No transient occupancy tax collected under the provisions of this chapter shall be refunded except if the person or entity who paid the tax establishes to the satisfaction of the city manager that he/she/it has paid the tax more than once, the tax was erroneously or illegally collected or the tax paid was in excess of the correct amount and a claim has been filed as provided in subsection B of this section.

B. No order for a refund under this chapter shall be made except on a claim: (1) verified by the person who paid the tax, his/her/its guardian, executor or administrator; and (2) filed within one year after making the payment sought to be refunded. No claim may be filed on behalf of a class of persons unless the claim is verified by every member of that class.

C. Only the person or entity who has paid the tax, his/her/its guardian, conservator, executor or administrator may bring an action against the city to recover a tax which the city has refused to refund. No other person may bring such an action; but if another should do so, judgment shall not be rendered for the plaintiff. Class claims shall not be permitted unless the claim required by subsection B of this section was verified by every member of that class.

(Ord. 2001-5 Div. 3, 2001: Ord. 88-5 (part), 1988.)

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 for the recovery of such amount.

(Ord. 88-5 (part), 1988.)

Any operator or other person who fails or refuses to register as required in this chapter, 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 license 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 to be made, is also guilty of a misdemeanor.

(Ord. 88-5 (part), 1988.)