Lomita Municipal Code Ch. 2 Uniform Transient Occupancy Tax

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

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

(a) Person means any firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, state, trust, business trust, receiver, trustee, syndicate or any other group or combination acting as a unit.

(b) 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 any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof.

(c) Occupancy means the temporary use or possession, or the right to use or possession, of any room or rooms or portions thereof in any hotel for dwelling, lodging or sleeping purposes.

(d) Transient means:

(1) Any person as defined in subsection (a) who exercises, for any period of time, occupancy or is entitled to occupancy by reason of concession, permit, right of access, license or other agreement; or

(2) Any individual other than individuals residing in residency hotels who personally 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; or

(3) Any individual who personally exercises, for any period of time occupancy or is entitled to occupancy in a residency hotel by reason of concession permit, right of access, license or other agreement.

(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.

(f) Operator means the person who is a 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.

(g) Tax administrator means the city clerk.

(h) Residency hotel means any structure or portion of any structure occupied or intended or designed for occupancy by transients which typically rents rooms for periods of one (1) week or more and provides no hotel services. Hotel services include but are not limited to daily maid service, room service, laundry service, pool, restaurant, valet parking and cocktail lounge.

(i) Tax means a transient occupancy tax levied pursuant to the provisions of this chapter.

(Ord. No. 450, §§ I—III, 9-5-89; Ord. No. 577, §§ 1, 2, 3-3-97)

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of ten (10) percent of the rent charged by the operator. Said 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 space in the hotel. If for any reason the tax due is not paid to the operator of the hotel, the tax administrator may require that such tax shall be paid directly to the tax administrator.

(Ord. No. 376, § 1, 11-19-84; Ord. No. 491, § I, 12-2-91)

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 made at the time rent is collected and under penalty of perjury upon a form prescribed by the tax administrator.

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 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 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.

Within thirty (30) days after the effective date of this chapter, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register said hotel with the tax 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) "This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax of the City of Lomita by registering with the Tax administrator for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the Tax administrator. This certificate does not authorize any person to conduct any lawful 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."

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 tax administrator, make a return to the tax administrator, on forms provided by him, of the total rents charged and received and the amount of tax collected for transient occupancies. At the time the return was filed, the full amount of the tax collected shall be remitted to the tax administrator. The tax administrator may establish shorter reporting periods for any certificate holder if he deems it necessary in order to ensure collection of the tax and he may require further information in the return. 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 administrator.

(a) Hotel register required. Every person owning or operating any hotel in the city shall at all times keep and maintain on the premises a register, in which shall be inscribed with ink or indelible pencil, the name and home street address of each and every guest or person renting or occupying a room therein. The register shall be signed by the person renting or occupying a room, and the proprietor of hotel or his or her agents shall thereupon write opposite such name or names so registered the number of each room assigned to or occupied by each such guest, together with the time when such room is rented; and until all of such entries have been made in the register, no such agent shall be suffered or permitted to occupy privately any room in such hotel. When the occupants of each room so rented quit and surrender the room, it shall be the further duty of the proprietor or his or her agent to enter the time thereof in the register opposite the name of such occupants.

(b) Alterations—Inspection of register. Erasures or alterations on the register required by section 7-2.08(a) shall not be permitted or made for any purpose, and it shall be unlawful to erase a name or names or address or addresses or to permit such an erasure. The register shall be maintained on the premises of the hotel and shall be at all times open to the inspection of the code enforcement officer and/or sheriff's license deputy.

(c) Registering under fictitious name prohibited. No person shall write or cause to be written, or knowingly permit to be written in any register in any hotel any other or different name or designation than the true name of the person registering therein, or the name by which the person is generally known.

(d) Repeated use of room prohibited. No person shall let any room for sleeping or lodging purposes in any hotel in the city more than once between 6:00 a.m. and 5:59 p.m. and no more than once between 6:00 p.m. and 5:59 a.m. on the following morning.

(e) Hourly rate prohibited. No person conducting any hotel or other public lodging or agent thereof shall let any room for hourly or other short-time rates or in any way advertise that any room is available at hourly or other short-time rates.

(f) Violation of section 7-2.08. Any violation of section 7-2.08(a)—(e) shall be a misdemeanor unless in the discretion of the city manager or his or her designee determines that the severity of the offense warrants only being charged with a lesser offense of infraction.

Infraction violations of this section shall be punishable by a fine not exceeding one hundred dollars ($100.00) for a first violation, a fine not exceeding two hundred dollars ($200.00) for a second violation within one year and a fine not exceeding five hundred dollars ($500.00) for each additional violation occurring within one year from the second violation. The city manager or his or her designee shall be empowered to issue citations for infraction violation of this section.

(Ord. No. 561, § 1, 3-18-96; Ord. No. 699, § 1, 4-2-07)

Editor's note— Section 7-2.08, relating to allowance for collection costs, was repealed by § II of Ord. No. 491, adopted Dec. 2, 1991. Subsequently, Ord. No. 561, adopted March 18, 1996, added a new section 7-2.08.

(a) Complimentary occupancies. Except as provided in subdivision (b) below, a tax shall be imposed for the occupancy of a room in a hotel or motel, where such occupancy is permitted by an operator on a "complimentary" basis, i.e., without charge, to any person. The amount of the tax imposed upon such complimentary occupancies shall be based upon rent, which shall be deemed to be an amount equal to the rent which would otherwise have been charged for the room on the date or dates of such complimentary occupancy, according to the then effective schedule of rents for such room or rooms.

(b) Complimentary services. The value of complimentary services shall not be deducted from the rent for a room and the tax imposed shall be on the full amount of the rent, notwithstanding the value of the complimentary service such as a complimentary meal and/or beverage.

(c) Exemptions for certain occupancies. A tax shall not be levied upon either of the following occupancies of a room in a hotel:

(1) If the occupancy is of one (1) permitted living unit for the owner/manager; or

(2) If the occupancy of a room in a hotel or motel is by an employee of the operator and/or owner which room is utilized by such employee while visiting the premises for business purposes; this exemption shall not apply to an employee of the owner or operator of the hotel or motel who resides permanently in the hotel or motel.

(Ord. No. 577, § 3, 3-3-97)

Editor's note— Section 3 of Ord. No. 577, adopted Mar. 3, 1997, instructed the inclusion of a new § 7-2.08; however, provisions of section 3 were added as a new § 7-2.08.1 as there already existed a § 7-2.08.

(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 (10) percent 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 delinquency penalty of ten (10) percent of the amount of the tax in addition to the amount of the tax and the ten (10) percent penalty first imposed.

(c) Fraud. If the tax administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of twenty-five (25) percent of the amount of the tax shall be added thereto in addition to the penalties stated in subparagraphs (a) and (b) of this section.

(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 (½) of one (1) 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.

(e) Penalties merged with tax. Every penalty imposed and such interest as accrues under the provisions of this chapter shall become a part of the tax herein required to be paid.

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 tax 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 tax 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 tax administrator shall give a notice of 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 tax 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 tax administrator shall become final and conclusive and immediately due and payable. If such application is made, the tax administrator 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 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 tax 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 (15) days unless an appeal is taken as provided in section 7-2.11.

Any operator aggrieved by any decision of the tax 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 (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 service of notice.

(a) Registration cards. The operator of each hotel shall, as each room in a hotel is rented to a transient, fill out and maintain on file registration cards which are printed with consecutive numbers, and which contain, 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 rent for the room.

(b) Daily summary sheets. The operator of each hotel shall maintain a dated 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;

(2) The room number;

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

(4) The number of the registration card applicable to the rental of the room.

(c) Maid reports. Each operator shall maintain dated maid reports which shall contain a list of all rooms cleaned on each day during the calendar year;

(d) Receipt book. Each operator shall maintain receipt book with a carbon copy for each receipt issued, or if the operation is computerized, a printout of all charges made on a daily basis;

(e) Bank accounts. The operator shall maintain in a banking institution one or more accounts ("accounts") which shall be used exclusively for the deposit of the receipts of the hotel operation, including rentals, 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 for a period of not less than five (5) years.

(f) Telephone charges. Each operator shall maintain records which show all telephone, facsimile and related charges for each call made for which a charge is made by the operator.

(g) Other records. Each operator shall maintain other records as the tax administrator may require.

All of the above records and any other records relevant to the subject matter of the operation of the hotel shall be made available for inspection by the city upon demand. All such records shall be made available for inspection and copying by the city.

All of the records pertaining to the operation of the hotel, including, but not limited to, those records above referred to and described above, shall be maintained by each operator for a period not less than five (5) years.

(Ord. No. 577, § 4, 3-3-97)

(a) 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 subsections (b) and (c) of this section provided a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the tax administrator within three (3) years of the date of payment. The claim shall be on forms furnished by the tax administrator.

(b) 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 tax administrator 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 administrator, or when the transient having paid the tax to the operator, establishes to the satisfaction of the tax administrator 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 his right thereto by written records showing entitlement thereto.

(a) Tax as civil debt. Any tax required to be paid pursuant to this chapter:

(1) By any transient, shall be deemed to be a civil debt owed by such transient to the city; and

(2) Which is collected by an operator and has not been paid to the city in the time prescribed by this chapter, shall be deemed to be a civil debt owed by the operator to the city; and

(3) By a transient, which tax is not collected, for any reason, by the operator although rent is collected by such operator from such transient, the amount of such tax shall be deemed to be a civil debt owed by the operator to the city.

(b) Civil actions. If a civil action is required to enforce the collection of a tax from any person, partnership and/or corporation, and a recovery of such tax is granted in such a civil judicial proceeding, the city shall be entitled to recover from aforesaid person, partnership and/or corporation, its reasonable attorneys' fees, court costs, and its costs of the administrative process under this chapter including, but not limited to other direct and indirect costs incurred by the city with reference to said litigation.

(Ord. No. 577, § 5, 3-3-97)

The tax administrator may require any operator, upon reasonable written notice, to provide the tax administrator with access to all of the operator's books and records relating to the operator's business, including rents charged by such operator which are subject to a tax pursuant to this chapter. If as a result of any such audit, it is determined that a return required to be filed by such operator pursuant to section 7-2.07, hereof, is inaccurate and did not include and report the correct amount of tax due pursuant to this chapter, the operator shall forthwith pay to the city all taxes which are shown to be due as a result of such audit, regardless of whether the operator collected such taxes.

If as a result of an audit conducted pursuant to the provisions of this section, 7-2.15 reflects that in any calendar month there was under reporting of taxes due by ten (10) percent or more, the total cost of the audit shall be borne by the operator and the cost thereof shall be subject to collection as a civil debt by the city. All other costs of the audit shall be borne by the city.

(Ord. No. 577, § 6, 3-3-97)

Where an operator determines that a transient is exempt from the payment of the tax pursuant to the provisions of this chapter, the operator shall file with the director of finance not later than the date upon which the next return required by this chapter is required to be filed with the director of finance. Failure to file a claim of exemption timely shall result in the claim being disallowed.

Claims for exemptions shall be made on forms provided for that purpose by the director of finance. All categories included on such form shall be completed by the party who claims to be exempt from payment of the tax. Each operator is obligated to review each claim to insure that it is fully completed. When an operator submits to the director of finance a claim of exemption which is either not timely filed or is incomplete, the director of finance shall reject such claim of exemption and give the operator a brief statement of reasons therefor. Where the rejection is based upon the form not being properly completed, the operator may within ten (10) consecutive calendar days from the date of return of the rejected claim for exemption refile the same with all of the information required to be placed thereon included in the refiled claim.

Where a claim of exemption is either not timely filed or is defective and such defect is not cured within the time set forth above, the operator:

(1) Shall be responsible for all taxes due with respect to the purported exempt transient; and

(2) Shall pay to the city a service charge of five dollars ($5.00) ("service charge") for each claim of exemption which is properly rejected by the director of finance; and

(3) The director of finance shall give notice to the operator of all taxes due as a result of rejection of the exemption certificate(s) and the amount of service charges imposed. The operator shall pay forthwith on all sums due as and for taxes and service charges.

For the purpose of this chapter, service charges imposed shall be deemed for all purposes to have merged into the tax due, and shall be subject to collection in the time and manner as set forth in this chapter.

Where an operator consistently files claim forms which are either not timely filed or are incomplete the tax administrator may require the operator to place a cash deposit in an amount not to exceed two hundred fifty dollars ($250.00) with the director of finance for the purpose of insuring that taxes due and service charges imposed as a result of defective claims for exemption are timely paid. Where such a deposit is required, the operator shall maintain the deposit in an amount not less than that set by the city administration.

(Ord. No. 577, § 7, 3-3-97)

Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punishable therefor by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail for a period of not more than six (6) months or by both such fine and imprisonment.

(Ord. No. 577, § 8, 3-3-97)