Chapter 3.12 — UNIFORM TRANSIENT OCCUPANCY TAX

This chapter may be known as the uniform transient occupancy tax ordinance of the city of Orinda. (Prior code § 10-701)

Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter: "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, mobilehome or house trailer at a fixed location, all or part of a dwelling unit used as a short-term rental, or other similar structure or portion thereof. "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. "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 or her 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 or her 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. "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. "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 cash, credits and property and services of any kind or nature, without any deduction therefrom whatsoever. "Short-term rental" is defined in Section 17.2.3. "Tax Administrator" means the City Manager.

"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 twenty-nine (29) 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 twenty-nine (29) 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 this chapter may be considered. (Prior code § 10-702) (Ord. No. 17-04, § 2(Att. A), 9-5-17)

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of a percentage of the rent charged by the operator as fixed by resolution of the City Council. This 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 this 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. (Prior code § 10-703)

A. No tax shall be imposed upon: 1. 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; 2. Any federal or state of California officer or employee when on official business; 3. Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty. 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 Administrator.

(Prior code § 10-704)

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 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 § 10-705)

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 the 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. The 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 Ordinance by registering with the tax administrator for the purpose of collecting from transients the transient occupancy tax and remitting the tax to the Tax Administrator. This certificate does not authorize a person to conduct unlawful business or to conduct 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." (Prior code § 10-706)

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 or her, 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 Administrator. The Tax Administrator may establish shorter reporting periods for any certificate holder if he or she considers it necessary in order to insure collection of the tax and he or she 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. (Prior code § 10-707)

A. Original Delinquency. An 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. Continued Delinquency. An operator who fails to remit a delinquent remittance on or before a period of thirty (30) days following the date on which the remittance first becomes delinquent shall pay a second delinquency penalty of ten percent of the amount of the tax in addition to the amount of the tax and the ten 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 subsections 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 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. E. 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 required to be paid. (Prior code § 10-708)

A. If any operator fails or refuses to collect, report and remit the tax required within the time provided by this chapter, the Tax Administrator shall determine and assess against the operator the amount due. This

determination shall be based on the facts and information the Tax Administrator is able to obtain and the assessment may include applicable interest and penalties. B. Notice of the assessed amount will be given by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the operator at his last known address. Unless the operator makes a written application for a hearing to the Tax Administrator within ten days after the notice was served or mailed, this assessed amount is conclusive and is immediately due and payable. C. If the operator makes the written application for a hearing, the Tax Administrator shall give at least five days written notice as described in this chapter of the date, time and place of the hearing. The operator may appear and offer evidence why the assessed amount of the tax, interest and penalties should not be fixed. D. After the hearing, the Tax Administrator shall determine the proper tax to be remitted, including any interest and penalties, and shall give written notice of the determination as described in this chapter. The amount determined to be due is payable within fifteen (15) days after the notice is served or mailed, unless a written appeal is filed or provided in Section 3.12.100. (Prior code § 10-709)

An 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 the operator at his or her last known 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. (Prior code § 10-710)

Every operator liable for the collection and payment to the city of any tax imposed by this chapter shall 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 Tax Administrator shall have the right to inspect at all reasonable times. (Prior code § 10-711)

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 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 had 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. (Prior code § 10-712)

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. (Prior code § 10-713)

A person violating a provision of this chapter is guilty of a misdemeanor and shall be punished 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 both. Any operator or other person who fails or refuses to register as required in this chapter, or to furnish a return required to be made or who fails or refuses to furnish a supplemental return or other data required by the Tax Administrator, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor. A 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 guilty of a misdemeanor. (Ord. 98-1 § 13: prior code § 10-714)