Mendota Municipal Code Ch. 3.28 Transient Occupancy Tax

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

(Ord. 98-03, passed May 26th, 1998).

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires 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 any hotel, inn, tourist home or house, motel, hostelry, rooming house, or other lodging place within the city offering lodging, wherein the owner and operator thereof, for compensation, furnishes lodging to any transient as defined in subsection D of this section.

B. "Permanent resident" means any person who, as of a given date, has occupied or has had the right to occupy a room or rooms in a particular hotel, as defined in subsection A of this section, for the ninety consecutive days next proceeding such date.

C. "Room rental" means the total charge made by any such hotel for lodging and/or lodging space furnished any such transient. If the charge made by such hotel to such transient includes any charge for services or accommodations in addition to that of lodging, and/or the use of lodging space, then such portion of the total charge as represents only room and/or lodging space rental shall be distinctly set out and billed to the transient by such hotel as a separate item.

D. "Transient" means any person who, for any period of not more than ninety consecutive days, either at his own expense or at the expense of another, obtains lodging or the use of any lodging space in any hotel as defined in subsection A of this section, for which lodging or use of lodging space a charge is made.

E. "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 agents shall, however, be considered to be compliance by both.

F. "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.

A. There is imposed and levied on each and every transient a tax equivalent to ten percent (10%) of the total amount paid for room rental by and for any such transient to any hotel; which tax shall be collected from the transient at the time and in the manner provided in Section 3.28.050.

B. The tax is levied for revenue purposes and is necessary for the usual financial operation of the city and when collected shall be made a part of the general funds of the city.

A. No tax shall be imposed upon:

1. Any officer or employee of the United States Government or the State of California for lodging obtained by that officer or employee in the discharge of official government business;

2. Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.

3. Room rental paid to any hospital, medical clinic, convalescent home or home for aged people.

A. On and after the effective date of the ordinance codified in the chapter, every person receiving any payment for room rental with respect to which a tax is levied under this chapter shall collect the amount of tax imposed from the transient on whom the same is levied or from the person paying for the room rental, at the time payment for the room rental is made.

B. The taxes required to be collected under this chapter shall be deemed to be held in trust by the person required to collect the same until remitted as required in Section 3.28.070.

A. The person collecting any such tax shall prepare a report upon such forms and setting forth such information as the city finance director may prescribe and require, showing the amount of room rental charges collected, and the tax required to be collected, and shall sign and deliver the same to the city finance director with a remittance of the tax.

B. The reports and remittances shall be due the twenty-fifth day of each month covering the amount of tax collected during the preceding month.

C. Any person operating a hotel regularly throughout the year may, upon written application to, and with the written consent of, the city finance director, make reports and remittances on a quarterly basis in lieu of the monthly basis provided in subsection B of this section.

D. If the remittance is by check or money order, the same shall be payable to the city.

A. Delinquency.

1. Any operator who fails to remit any tax imposed by this chapter within the time required and up to a period of thirty days thereafter shall pay a penalty of twenty-five percent of the amount of tax in addition to the amount of the tax.

2. Any operator who remits any delinquent remittance between the thirtieth day or on or before the sixtieth day following the date on which the remittance first became delinquent shall pay a delinquency penalty of fifty percent of the amount of the tax in addition to the amount of the tax.

3. Any operator who remits any delinquent remittance after the sixtieth day following the date on which the remittance first became delinquent shall pay a delinquency penalty of one hundred percent of the amount of the tax in addition to the amount of the tax, together with interest on the total tax and delinquency penalty at the rate of eighteen percent per annum computed from the sixty-first day of such delinquency until paid.

B. Fraud.

If the city finance director determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of twenty-five percent of the amount of the tax shall be added thereto in addition to the penalties stated in Subsection A of this section.

C. Penalties Merged with Tax.

Every penalty imposed under this provisions of this section shall become a part of the tax herein required to be paid.

A. If any operator fails or refuses to collect the tax and to make, within the time provided in this chapter, any report and remittance of the tax or any portion thereof required by this chapter, the city finance director shall proceed in such manner as he may deem best to obtain facts and information on which to base the estimate of the tax due. As soon as the city finance director procures 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 and penalties provided for by this chapter.

B. In case such determination is made, the city Finance Director shall give a notice of the amount so assessed by serving it personally or by depositing it in the United State mail, postage prepaid, addressed to the operator so assessed at his last known place of address.

C. Such operator may within ten days after the serving or mailing of such notice make application in writing to the city finance director for a hearing on the amount assessed. If application by the operator for a hearing is not made within the time prescribed, the tax and penalties, if any, determined by the city finance director shall become final. The city finance director shall give not less than five days' notice in the manner prescribed in this section to the operator to show cause at a time and place fixed in said notice why the hearing, the operator may appear and offer evidence why such specified tax and penalties should not be so fixed.

D. After such hearing, the city finance director shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed in this section of such determination and the amount of such tax and penalties. The amount determined to be due shall be payable after fifteen days unless an appeal is taken as provided in Section 3.28.090.

Any operator aggrieved by any decision of the city finance director with respect to the amount of such tax and penalties, if any, may appeal to the city council. Any amount found to be due by the city council shall immediately become due and payable upon the service of notice.

A. Registration cards.

The operator shall, as each room is a hotel is rented to a transient, fill out and maintain on file a registration card 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.

6. Registration cards shall bear consecutive numbers which shall be pre-printed on the registration cards by a print shop or manufacturer of the cards.

7. Voided cards shall also be kept for audit purposes.

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;

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. Bank Accounts.

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

Each operator shall collect the tax imposed by this chapter to the same extent and at the same time as the rent is collected from 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 assumed or absorbed by the operator, or that is will not be added to the rent, or that if added, any part will be refunded except in the manner provided in Section 3.28.120.

A. Whenever the amount of tax 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 subsection B and C of this section provided claim in writing therefore, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the city finance director within three years of the date of payment. The claim shall be on forms furnished by the city finance director.

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 city finance director 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 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 to the operator, establishes to the satisfaction of the city finance director 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 to the refund by written records showing entitlement to the refund.

Within thirty days after effective dates of the ordinance codified in this chapter, or within thirty days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register such hotel with the city finance director and obtain a "Transient Occupancy Registration Certificate" to be at all times posted in a conspicuous place on the premises. Said certificate shall, amongst 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 facer thereof has fulfilled the requirements of the Transient Occupancy Tax Ordinance by registering with the city finance director for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the city finance director. 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.

Whenever any person required to collect and pay to the city a tax under this chapter ceases to operate or otherwise dispose of his business, any tax payable under this chapter to the city shall become immediately due and payable and such person shall immediately make a report and pay the tax due.

If any person liable for any amount under this chapter sells out his business or quits the business, his successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the city finance director showing that all taxes due from the person quitting, selling or assigning his business have been paid or a certificate stating that no amount is due.

A. If the purchaser of a business fails to withhold purchase price as required in Section 3.28.150, he shall be personally liable for the payment of the amount requested to be withheld by him to the extent of the purchase price, valued in money.

B. Within sixty days after receiving a written request from the purchaser for a certificate, or within sixty days from the date the former owner's records were made available for audit, whichever period expires the later, but in any event not later than ninety days after receiving the request, the city finance director shall either issue the certificate or mail notice to the purchaser at this address as it appears in the records of the auditor-controller of the amount that must be paid as a condition of issuing the certificate.

A. Whenever delinquent transient occupancy tax fees and appropriate penalties cannot be collected after proper notification to the property/business owner, the total uncollected amount including penalties and administrative fees shall become assessments, and the city finance director or his or her duly authorized representative shall compile a list of such assessments together with parcel number designations and address upon which the assessments are being fixed.

B. After notice and hearing, and upon confirmation of the imposition of the liens by resolution of the city council, the city clerk shall file a certified copy of the approved resolution with the Auditor of the County of Fresno, State of California, directing that all unpaid transient occupancy tax fees, and penalties be entered as lien charges against said property at the same time and in the same general manner, subject to the same penalties and interest upon delinquencies, as the general taxes for the city of Mendota are collected. The city clerk shall present for recording appropriate notices of the imposition of these liens with the County Recorder.

A. 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 of 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.

B. 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 section, 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 section.

A. Any person required to make, render, sign or verify any report who makes any fraudulent return, with intent to defeat or evade the determination of an amount required by law is guilty of a misdemeanor punishable as provided in section 3.28.190(C).

B. Any person who willfully aids or assists in, or procures, counsels, or advises in, the preparation or preservation, in connection with any matter arising under this chapter, or a return, affidavit, claim, or document that is fraudulent or false as to any material matter, whether or not the falsity or fraud is with the knowledge or consent of the person authorized or required to present the return, affidavit, claim or document, is guilty of a misdemeanor as provided in section 3.28.190(C).

C. A violation of Section 3.28.190(A) or (B) is a misdemeanor. Each offense shall be punished by a fine of less than one thousand dollars ($1,000.00) and not more than five thousand ($5,000.00), or imprisonment in the discretion of the court.

D. Any prosecution for violation of any of the penal provisions of this section shall be instituted within five years after the commissions of the offense, or within two years after the discovery of the violation, whichever is later.

A. Every operator shall keep such records, receipts, invoices, registration cards and other pertinent papers in such form as the city finance director may require.

B. The city finance director or any person authorized in writing by the city finance director may examine the books, papers, records, registrations cards or other pertinent papers of any operator and may investigate the character of the business of the operator in order to verify the accuracy of the return made, or, if no return has been made by the operator, to ascertain and determine the amount required to be paid.

Section 1.

A. No injunction or writ of mandamus or other legal or equitable process shall issue in any suit, action or proceeding in any court against the city or officer thereof, to prevent or enjoin the collection of taxes sought to be collected pursuant to this chapter.

B. No suit or proceeding shall be maintained in any court for the recovery of any amount alleged to have been erroneously or illegally determined or collected unless a claim for refund or credit has been duly filed pursuant to Section 3.28.120.

Section 2. If any part or provision of this Ordinance is in conflict or inconsistent with applicable provisions of federal or state statutes, or it is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part or provision shall be suspended and superseded by such applicable law or regulations, and the remainder of this Ordinance shall not be affected thereby.

Section 3. This Ordinance shall take effect if approved by a majority of the voters voting in an election held on or before November 3, 1998.