Indio Municipal Code Ch. 53 Utility User Fee

[1961 Code, § 23B.1; Ord. 939]

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

FEE ADMINISTRATOR

The City Manager or the City Manager's designee.

MONTH

A calendar month.

PERSON

Any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, business or common law trust, society or individual.

RESIDENTIAL SERVICES

Services provided to an individual residence for personal use by the occupants.

SERVICE SUPPLIER

A person required to collect and remit a fee imposed by this chapter.

SERVICE USER

A person required to pay a fee imposed by this chapter.

TELEPHONE CORPORATION, ELECTRICAL CORPORATION, GAS CORPORATION, WATER CORPORATION AND CABLE TELEVISION CORPORATION

These terms shall be as defined in Cal. Pub. Util. Code §§ 234, 218, 222, 215-5, respectively, as those sections existed on March 31, 1985.

(1)

"Electrical corporation" shall be construed to include any municipality, district or agency engaged in the selling or supplying of electrical power to a service user.

(2)

"Water corporation" shall be construed to include any municipality, district or agency engaged in the selling or supplying of water to a service user.

[1961 Code, § 23B.2; Ord. 920]

Nothing in this chapter shall be construed as imposing a fee upon any person when imposition of that fee upon that person would be in violation of the U.S. or state constitutions.

[1961 Code, § 23B.3; Ord. 920; Ord. 1113, 2-5-1992; Ord. 1478, 9-6-2006; Ord. 1479, 9-20-2006; Ord. 1541, 9-17-2008]

(A) There is imposed a fee on the amounts paid for any intrastate telephone services by every person in the city other than a telephone corporation using those services. The fee imposed by this section shall be 3% of the charges made for those services and shall be paid by the person paying for those services.

(B) As used in this section, the term "charges" shall not include charges for any type of service or equipment furnished by a service supplier subject to the public utility regulation during any period in which the same or similar services or equipment are also available for sale or lease from persons other than a service supplier subject to the public utility regulation. However, "charges" shall include charges for long-distance service, and bundled local and long-distance service, regardless of whether such services are based upon elapsed transmission time, distance, or upon elapsed transmission time and distance.

(C) The term "telephone communication services" refers to that service which provides access to a telephone system and the privilege of telephone quality communication with substantially all persons having telephone stations which are part of the telephone system. The telephone users fee is intended to, and does, apply to all charges billed to a telephone account having a situs in the city, regardless of whether a particular communication service originates and/or terminates in the city. The situs shall be the service address, if known, otherwise, the billing address. Furthermore, "telephone communication services" include, without limitation, long-distance service, and bundled local and long-distance service, provided under a single plan that does not separately state charges for local telephone service, where the charges for such services are based on either time or distance.

(D) The fee imposed by this section shall be collected from the service user by the person providing the intrastate telephone communication services or the person receiving payment for those services. The amount of the fee collected in one month shall be remitted to the Fee Administrator on or before the last day of the following month.

(E) Notwithstanding the provisions of division (A) of this section, the fee imposed under this section shall not be imposed upon any person for using intrastate telephone communication services to the extent that the amounts paid for those services are exempt from or not subject to the tax imposed under Cal. Rev. & Tax. Code div. 2, part 20. Furthermore, the following shall be exempt from payment of the fee imposed by this section:

(1) "Land mobile services" or "maritime mobile services" as defined in 47 CFR 2.1 as that section existed on January 1, 1970.

(2) Service paid for by inserting coins in coin-operated telephones; except that where the coin-operated telephone service is furnished for a guaranteed amount, the amount paid under such guarantee plus any fixed monthly or other periodic charges shall be included in the base for computing the amount of the fee due pursuant to this section.

(3) Except with respect to local telephone service, payment received from any person for services used in the collection of news for the public press, or a news ticker service furnishing a general news service similar to that of the public press, or radio broadcasting, or in the dissemination of news through the public press, if the charge for such service is billed in writing to such person.

(4) Payment received for services furnished to an international organization, or to the American National Red Cross.

(5) Payment received for any toll telephone services which originates within a combat zone from a member of the Armed Forces of the United States performing service in such combat zone, provided a certificate, setting forth such facts as the Secretary of the Treasury may be regulations prescribe, is furnished to the person receiving such payment.

(6) The amount paid for any toll telephone service to the extent that the amount so paid is for use by a common carrier, telephone or telegraph company, or radio broadcasting station or network in the conduct of its business as such.

(7) The amount paid for the installation of any instrument, wire, pole, switchboard, apparatus, or equipment as is properly attributable to such installation.

(8) The amount paid by a nonprofit hospital for services furnished to such organization. For purposes of this subsection, the term "nonprofit hospital" means a hospital that is exempt from state and federal income tax under § 501(a) of the Internal Revenue Code.

(9) Any payment received for services or facilities furnished to the government of any state, or any political subdivision thereof, or the District of Columbia.

(10) Any amount paid by a nonprofit educational organization for services or facilities furnished to such organization. For purposes of this subsection, the term "nonprofit educational organization" means an educational organization that is exempt from income tax under § 501(a) of the Internal Revenue Code. The term also includes a school operated as an activity of an organization that is exempt from income tax under § 501(a), if such school normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of pupils or students in attendance at the place where its educational activities are regularly carried on.

[1961 Code, § 23B.4; Ord. 920; Ord. 1113, 2-5-1992; Ord. 1541, 9-17-2008]

(A) There is imposed a fee upon every person in the city using electrical energy in the city. The fee imposed by this section shall be 3% of the charges made for that energy and shall be paid by the person paying for the energy. "Charges," as used in this section, shall include charges made for:

(1) Metered energy; and,

(2) Minimum charges for service, including customer charges, service charges, demand charges, standby charges and annual and monthly charges, fuel, cost adjustments and the like.

(B) As used in this section, "using electrical energy" shall not be construed to mean the storage of that energy by a person in a battery owned or possessed by him or her for use in an automobile or other machinery or device apart from the premises upon which the energy was received; provided, the term shall include the receiving of energy for the purpose of using it in the charge of batteries; nor shall the term include electricity used and consumed by an electric utility supplier in the conduct of its business as an electric public utility; nor shall the term include the mere receiving of the energy by an electric public utility or governmental agency at a point within the city for resale; or the use of the energy in the production or distribution of water by a public utility or a governmental agency.

(C) The fee imposed in this section shall be collected from the service user by the person supplying the energy. The amount of the fee collected in one month shall be remitted to the Fee Administrator on or before the last day of the following month.

[1961 Code, § 23B.5; Ord. 920; Ord. 1113, 2-5-1992; Ord. 1541, 9-17-2008]

(A) There is imposed a fee upon every person in the city, other than a gas corporation or electrical corporation, using gas in the city which is delivered through mains or pipes. The fee imposed by this section shall be 3% of the charges made for the gas and shall be paid by the person paying for the gas. "Charges," as used in this section, shall include:

(1) Gas which is delivered through mains or pipes;

(2) Minimum charges for those services, including customer charges, service charges and an annual and monthly charges.

(B) There shall be excluded from the base on which the fee imposed in this section is computed:

(1) Charges made for gas which is to be resold and delivered through mains or pipes;

(2) Charges made for gas sold for use in the generation of electrical energy or for the production or distribution of water by a public utility or governmental agency;

(3) Charges made by a gas public utility for gas used and consumed in the conduct of the business of gas public utilities;

(4) Charges made for gas used in the propulsion of a motor vehicle, as that phrase is defined in the Vehicle Code of the state, utilizing natural gas; and,

(5) Charges related to late payments and returned checks.

(C) The fee imposed in this section shall be collected from the service user by the person selling the gas. The person selling the gas shall, on or before the 20th of each calendar month, commencing on the 20th day of the calendar month after the effective date of this part, make a return to the Fee Administrator stating the amount billed during the preceding calendar month. At the time the returns are filed, the person selling the gas shall remit payments to the Fee Administrator in accordance with schedules established or approved by the Fee Administrator. The Fee Administrator is authorized to require the further information as he or she deems necessary to properly determine if the fee here imposed is being levied and collected in accordance with this chapter. Returns and remittances are due from the person selling the gas immediately upon cessation of business for any reason.

[1961 Code, § 23B.6; Ord. 920; Ord. 1113, 2-5-1992; Ord. 1541, 9-17-2008]

(A) There is imposed a fee upon every person in the city using water which is delivered through mains or pipes. The fee imposed by this section shall be 3% of the charges made for that water.

(B) There shall be excluded from the base on which the fee imposed in this section is computed charges made for water which is to be resold and delivered through mains or pipes; and charges made by a municipal water department, public utility or a city or municipal water district for water used and consumed by that department, utility or district.

(C) The fee imposed by this section shall be collected from the service user by the person supplying the water. The amount collected in one month shall be remitted to the Fee Administrator on or before the last day of the following month.

[1961 Code, § 23B.7; Ord. 920; Ord. 1113, 2-5-1992; Ord. 1541, 9-17-2008]

(A) There is imposed a fee upon every person in the city using cable television service. The fee imposed by this section shall be 3% of the charges made for that service and shall be paid by the person paying for the service. For purposes of this section, "cable television service" shall mean any television signal delivered by cable, microwave, or other method of telecommunication for a fee or charge.

(B) The fee imposed in this section shall be collected from the service user by the person furnishing the cable television service. The amount collected in one month shall be remitted to the Fee Administrator on or before the last day of the following month.

[1961 Code, § 23B.20; Ord. 920]

(A) The Fee Administrator may make an assessment for fees not remitted by a person required to remit.

(B) When the Fee Administrator determines that a service user has deliberately withheld the amount of the fee owed by the users from the amounts remitted to a person required to collect the fee or that a service user has refused to pay the amount of fee to that person or when the Fee Administrator deems it in the best interest of the city, he or she may relieve the person of the obligation to collect fees due under this chapter from certain named service users for specified billing periods.

(C) The service supplier shall provide the Fee Administrator with amounts refused along with the names, addresses and reasons of the service users refusing to pay the fee imposed under provisions of this chapter. When the service user has failed to pay the amount of fee for a period of two or more billing periods the service supplier may be relieved of the obligation to collect fees due.

(D) The Fee Administrator shall notify the service user that he or she has assumed responsibility to collect the fees due for the stated period and demand payment of those fees. The notice shall be served on the service user by handing it to him or her personally or by deposit of the notice in the United State mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the person required to collect the fees or, should the service user have changed his or her address, to his or her last known address. If a service user fails to remit the fees to the Fee Administrator within 15 days from the date of the service of the notice upon him or her, which shall be the date of mailing if service is not accomplished in person, a penalty of 25% of the amount of the fee set forth in the notice shall be imposed, but not less than $5. The penalty shall become part of the fees herein required to be paid.

(E) Nothing in this section shall relieve the service supplier of any duty to collect and remit any fee, penalty or interest due under the provisions of this chapter.

[1961 Code, § 23B.31; Ord. 920]

It shall be the duty of every person required to collect and remit to the city any fee imposed by this chapter to keep and preserve, for a period of three years, all records as may be necessary to determine the mount of the fee as he or she may have been liable for the collection of and remittance to the Fee Administrator, which records the Fee Administrator shall have the right to inspect at all reasonable times.

[1961 Code, § 23B.32; Ord. 920]

(A) Filing claims. When the amount of any fee, interest or penalty has been overpaid, paid more than once or has been erroneously or illegally collected or received by the city under this chapter, that amount may be refunded as provided in divisions (B), (C) and (D) below; provided, a claim, in writing therefor, stating under penalty of perjury the specific ground upon which the claim is founded is filed with the Fee Administrator within three years after the date of payment. The claims shall be on forms furnished by the Fee Administrator.

(B) Refunds to service suppliers. A service supplier may claim a refund or take as credit against fees collected and remitted an amount overpaid, paid more than once or erroneously or illegally collected or received when it is established that the person from whom the fee has been collected was not a service user.

(C) Refunds to service users. Any service user may obtain refund of fees overpaid, paid more than once or erroneously or illegally collected or received by the city by filing a claim in the manner provided in division (A) above, but only when the service user, having paid the fee to the service supplier, establishes to the satisfaction of the Fee Administrator that the service user has been unable to obtain a refund from the service supplier who collected the fees.

(D) Proof required. No refund shall be paid under the provisions of this section unless the claimant establishes his or her rights thereto by written records showing entitlement thereto.

(E) Notwithstanding any other provisions of this section, when a service supplier, pursuant to an order of the California Public Utilities Commission or a court of competent jurisdiction, makes a refund to service users of charges for past utility service, the fees paid pursuant to this chapter on the amount of the refunded charges also shall be refunded to the service user by the service supplier and the service supplier shall be entitled to claim a credit for the refunded fees against the amount of fees which is due upon the next monthly return. In the event this chapter is repealed, amounts of any refundable fees will be borne by the city.

[1961 Code, § 23B.25; Ord. 920]

All the proceeds of the fees levied under this chapter shall be placed in the city's General Fund and shall be utilized for general governmental purposes.

[1961 Code, § 23B.34; Ord. 920]

Nothing contained in this chapter is intended to conflict with the applicable rules, regulations and tariffs of any service supplier subject to the jurisdiction of the Public Service Commission of the state. In the event of any conflict, the provisions of those rules, regulations and tariffs shall control.

Subchapter 2. Administration and Enforcement

[1961 Code, § 23B.19; Ord. 920]

(A) The Fee Administrator shall have the power and duty and is directed to enforce each and all of the provisions of this chapter.

(B) The Fee Administrator shall have power to adopt rules and regulations not inconsistent with the provision of this chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of the rules and regulations shall be on file in the Fee Administrator's office.

(C) The Fee Administrator may make administrative agreements to carry the strict requirements of this chapter so that collection of any fee imposed here may be made in conformance with the billing procedures of a particular service supplier so long as the agreements result in collection of the fee in conformance with the general purpose and scope of this chapter. A copy of the agreement shall be on file in the Fee Administrator's office.

(D) The Fee Administrator shall determine the eligibility of any person who asserts a right to exemption from the fee imposed by this chapter. The Fee Administrator shall provide the service supplier with the name of any person who the Fee Administrator determines is exempt from the fee imposed hereby, together with the address and account number to which service is supplied to any such exempt person.

Subchapter 3. Collections; Delinquencies

[1961 Code, §§ 23B.8, 23B.9 and 23B.10; Ord. 920]

(A) The duty to collect and remit the fees imposed by this chapter shall be performed as follows:

(1) Notwithstanding any other provision of this chapter, the fee shall be collected insofar as practicable at the same time as and along with the charges made in accordance with regular billing practice of the service supplier.

(2) The duty to collect the fee from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the operative date of this chapter. Where a service user is billed for more than one billing period, the duty to collect shall arise separately for each separate billing period.

(B) Fees collected from a service user which are not remitted to the Fee Administrator on or before the due dates provided in this chapter are delinquent.

(C) In addition to remitting the amount of the fee, any services supplier who fails to remit any fee imposed by this chapter within the time required and upon five days notice to the service supplier of its failure to remit shall pay a penalty of 10% on the amount of fee which shall be added on the last day of each month following the date on which remittance was due until the fee and penalties are remitted.

[1961 Code, § 23B.11; Ord. 920]

If the Fee Administrator determines that the nonpayment by any service supplier of any remittance due under this chapter is due to fraud, a penalty of 25% of the amount of the fee shall be added to the penalty imposed by § 53.30(C).

[1961 Code, §§ 23B.12 and 23B.13; Ord. 920]

(A) In addition to the penalties imposed by § 53.30(C) and § 53.46, any service supplier who fails to remit any fee imposed by this chapter shall pay interest at the rate of 1% per month, or fraction thereof, on the amount of the fee, exclusive of penalties, from the date on which the remittance first became delinquent until paid.

(B) Every penalty imposed upon a service supplier and such interest as accrues under § 53.30(C), § 53.31 and § 53.32(A) shall become a part of the fee required to be remitted.

[1961 Code, § 23B.14; Ord. 920]

In addition to paying the amount of the fee, any service user who fails to pay any fee imposed by this chapter, within 60 days of the date of the notice of the amount of fee due from the service supplier, shall pay a penalty of 10% of the amount of the fee which shall be added on the last day of each month following the date on which payment was due until the fee and penalties are paid.

[1961 Code, §§ 23B.15, 23B.16 and 23B.17; Ord. 920]

(A) If the service supplier determines the nonpayment by any service user of any fee imposed by this chapter is due to fraud, a penalty of 25% of the amount of the fee shall be added thereto in addition the penalty imposed by § 53.33.

(B) In addition to the penalties imposed by §§ 53.33 and 53.34(A), any service user who fails to pay any fee imposed by this chapter shall pay interest at the rate of 1% per month or fraction thereof, exclusive of penalties, from the date on which the remittance first became delinquent, until paid, and a collection charge of $10 for each delinquent account.

(C) Every penalty imposed upon a service user and the interest as accrued under the provisions of §§ 53.33 and 53.34(A) and (B) shall become a part of the fee required to be paid and to be remitted by the service supplier.

[1961 Code, § 23B.18; Ord. 920]

Any fee required to be paid by a service user under the provisions of this chapter shall be deemed a debt owed by the service user to the city. Any such fee collected from a service user which has willfully been withheld from the Fee Administrator shall be deemed a debt owed to the city by the person required to collect and remit. 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 that amount. Nothing in this section shall relieve any service supplier of the duty to collect and remit any fee, penalty or interest required by this chapter.

Subchapter 4. Exemptions

[1961 Code, § 23B.21; Ord. 920]

Any service user who is 62 years of age or older and is head of the household shall be eligible for an exemption from the fees imposed by this chapter on service supplied the service user's residential living quarters. The provisions of this exemption shall also apply to any individual who meets the criterion or disability, as established by the Social Security Administration's Supplemental Security Income Program for the Aged, Blind and Disabled (Title XLII of the Social Security Act, as amended) without regard to the age of the disabled individual.

[1961 Code, § 23B.22; Ord. 920]

(A) Applications for exemption shall be filed with the Fee Administrator on forms as he or she may provide.

(B) Applications may be filed at any time.

[1961 Code, § 23B.23; Ord. 920]

Applications shall be verified by declaration under penalty of perjury and shall contain information as may be required by the Fee Administrator.

[1961 Code, § 23b.24; Ord. 920]

The Fee Administrator shall review each application and shall certify the service user as exempt if the eligibility requirements of § 53.45 are met. If a service user is exempt under the eligibility requirements of § 53.45 and the service user is receiving service from a service supplier through a master meter, upon application and approval, the Fee Administrator shall refund the eligible service user as provided in § 53.10. However, no exemption shall be granted with respect to any fee imposed by this chapter which is or has been paid by a public agency or where the service user received funds from a public agency specifically for the payment of the fee.

[1961 Code, § 23B.25; Ord. 920]

If a service user is certified as exempt, the Fee Administrator shall promptly notify the service user's service suppliers, stating the name of the service user, the address to which exempt service is being supplied, the account number, if any, and such other information as may be necessary for the service supplier to remove the exempt service user from its fee billing procedure.

[1961 Code, § 23B.26; Ord. 920]

Upon receipt of the notice referred to in § 53.49, the service supplier shall, within 60 days, discontinue billing the service user for fees imposed by this chapter, except as otherwise provided in § 53.51.

[1961 Code, § 23B.27; Ord. 920]

Fees billed by the service supplier to the service user from its fee billing procedure shall be collected from the service user and the service user shall pay these fees to the service supplier. Fees billed to and paid by the service user between the time the application for redemption is filed and the service supplier removes the service user from its billing procedure will not be refunded to the service user.

[1961 Code, § 23B.28; Ord. 920]

Exemptions certified by the Fee Administrator shall continue as long as the facts supporting the qualification for exemption shall exist; provided, the exemption shall automatically terminate with any change in the service address or residence of the exempt individual and provided, further, that the individual may nevertheless apply for a new exemption with each change of address of residence.

[1961 Code, § 23B.29; Ord. 920]

(A) Any service user who has been exempted under this chapter shall notify the collector within ten days of any change in fact or circumstance which might disqualify the individual from receiving the exemption. It shall be a misdemeanor for any person to knowingly receive the benefits of the exemption provided by this chapter when the basis for that exemption does not exist or ceases to exist.

(B) Any service supplier who determines, by any means, that a new or nonexempt service user is receiving service through a meter or connection exempt by virtue of an exemption issued to a previous user or exempt user of the same meter or connection shall immediately notify the Fee Administrator of that fact and the Fee Administrator shall conduct an investigation to ascertain whether or not the provisions of this chapter have been complied with and, where appropriate, order the service supplier to commence collecting the fee from the nonexempt service user.

[1961 Code, § 23B.30; Ord. 920]

The Fee Administrator shall have the power and right to demand evidence of continued eligibility of a service user for exemption under the provisions of this section.

(A) The evidence may include, but need not be limited to, copies of business records, letters or statements from the Social Security Administration and state, county, city and private pension administrators or unemployment and welfare agencies and other evidence concerning the service user or other members of his or her household as may tend to prove or disprove that eligibility.

(B) Failure to provide that evidence as is within the control of a service user to so provide, either directly by him or by his or her consent or the consent of a member of his or her household when the evidence is requested of the service user, in writing by the Fee Administrator, shall be grounds for the immediate discontinuance of the service user's eligibility for exemption under the provisions of this chapter.

(C) Evidence provided to the Fee Administrator, at his or her request or voluntarily provided by the service user without the Fee Administrator's request, may not be used against the service user as evidence of violation of the provisions of this chapter. The evidence may only be used as grounds for termination of the exemption herein provided.

Subchapter 5. Penalty

[1961 Code, § 23B.33; Ord. 920; Ord. 1080]

Any person violating any provision of this chapter, or any person willfully refusing to pay any fee required by this chapter shall be guilty of a misdemeanor. Each day the violation exists shall be deemed a separate offense.