Article II — TRANSIENT OCCUPANCY TAX

SEC. 13-15. DEFINITIONS.

For the purpose of this article, the following words shall have the following meanings:

(A) CAMPING SITE - A space designed and promoted for the purpose of locating a trailer, tent, tent trailer, pickup camper, or other similar device used for camping.

(B) EXEMPT HOTEL - A hotel that charges room rents not exceeding maximum rentals of $10 per day for single and $15 per day for double occupancy on the effective date of this section.

(C) HOTEL - Any commercial establishment or any portion of any commercial establishment that provides for the occupancy of transients for dwelling, lodging or sleeping purposes, whether by the day, week or month, and includes any hotel, inn, motel or commercial establishment of similar nature.

(D) OCCUPANCY - The use or possession or the right to the use or possession of a room or rooms or other living space, thereof in any hotel, timeshare estate rental or other lodgings for dwelling, lodging or sleeping purposes.

(E) OPERATOR - The proprietor or managing agent of a hotel, timeshare estate rental or other lodgings whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee or any other capacity.

(F) OTHER LODGINGS - A camping site or a space at a campground or recreational vehicle park not including any facilities operated by a local government entity or any campsite owned and operated by the State.

(G) PERSON - 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.

(H) RECREATIONAL VEHICLE PARK - A property that is designed and promoted for the purpose of locating a recreational vehicle whether for a day, week or month.

(I) RENT - The consideration charged, whether or not received, for the occupancy of space in a hotel, timeshare rental or other lodgings 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 deductions therefrom whatsoever.

(J) TAX COLLECTOR - The finance director of the city or designee.

(K) TIMESHARE ESTATE - A right of occupancy in a timeshare project which is coupled with an estate in the real property.

(L) TIMESHARE ESTATE RENTAL - The renting of any timeshare estate to transients, unaccompanied by the timeshare estate owner, for dwelling, lodging or sleeping purposes, whether by day, week or month.

(M) TRANSIENT - A 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 30 consecutive days or less, counting portions of calendar days as full days unless there is an agreement in writing between the operator and the occupant providing for a period of occupancy longer than 30 days.

(`64 Code, Sec. 29-5) (Ord. No. 2469)

SEC. 13-16. AMOUNT OF TAX.

For the privilege of occupancy in any hotel, timeshare estate rental or other lodgings in the city, each transient is subject to and shall pay a tax in the amount of 10 % of the rent charged by the operator. This tax constitutes a debt owed by the transient to the city that is extinguished by payment to the operator.

(`64 Code, Sec. 29-6) (Ord. No. 2469)

SEC. 13-17. PAYMENT TO OPERATOR OR TAX COLLECTOR.

The transient shall pay the tax to the operator 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, timeshare estate rental or other lodgings. If for any reason the tax due is not paid to the operator, the tax collector may require the transient to pay such tax directly to the tax collector.

(`64 Code, Sec. 29-7) (Ord. No. 2469)

SEC. 13-18. EXEMPTION FROM TAX.

(A) The tax shall not apply to any transient occupying space in an exempt hotel if the exempt hotel has a current certificate of eligibility on file with the tax collector.

(B) The tax shall not apply to any person who is required to obtain a shelter in a hotel by reason of circumstances such as fire, flood, or other disaster which makes that person's usual residence uninhabitable. Such person shall prove that his/her residence is in an area that has been officially declared a disaster area by local, State or federal authorities.

(C) An employee or officer of the United States government or an employee or officer of the State government may be exempt from paying the tax. To be exempt from paying the tax, the federal or State officer or employee shall execute, under penalty of perjury, a standard form, as approved by the city attorney and maintained in the city clerk's office, claiming such exemption.

(`64 Code, Sec. 29-8) (Ord. No. 2469, 2736)

SEC. 13-19. COLLECTION OF TAX.

The operator shall collect the tax at the same time as the rent is collected from the transient. The amount of the tax shall be separately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator. Operators shall not 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 the tax will not be added to the rent or that, if added, any part will be refunded except in the manner provided herein.

(`64 Code, Sec. 29-9) (Ord. No. 2469)

SEC. 13-20. RETENTION OF RECORDS.

Every operator liable for the collection and payment to the city of the tax shall keep and preserve for not less than four years all records that may be necessary to determine the reasonable request by the tax collector.

(`64 Code, Sec. 29-10) (Ord. No. 2469, 2736)

SEC. 13-21. TRANSIENT OCCUPANCY REGISTRATION CERTIFICATE.

Within 30 days of commencing business each operator renting occupancy to transients shall register with the tax collector. Upon such registration the tax collector shall issue to such operator a transient occupancy registration certificate (“certificate”).

(`64 Code, Sec. 29-11) (Ord. No. 2469)

SEC. 13-22. POSTING OF CERTIFICATE.

The operator shall post and at all times keep posted in a conspicuous place on the premises of the hotel, timeshare estate rental or other lodgings the certificate.

(`64 Code, Sec. 29-12) (Ord. No. 2469)

SEC. 13-23. REPORTING REQUIREMENTS.

(A) Each operator, on or before the last day of the month following the last day of the previous month, or at the close of any other reporting period established by the tax collector, shall provide a written report to the tax collector, on forms approved by the tax collector, of the total rents charged and received and the amount of the tax collected by the operator. The tax collector may require additional information from the operator.

(B) Information in such reports about total rents charged and received and the amount of tax collected by the operator is received in confidence and shall not be disclosed to the public, except as required by law.

(`64 Code, Sec. 29-13) (Ord. No. 2469, 2517)

SEC. 13-24. REMITTANCE OF TAX.

(A) At the time the written report is filed, the operator shall remit the full amount of the tax collected to the tax collector.

(B) A written report accompanied with payment of the full amount of tax shall be provided to the tax collector within 15 days of cessation of business by an operator.

(`64 Code, Sec. 29-14) (Ord. No. 2469)

SEC. 13-25. TAXES IN TRUST FOR CITY.

The operator shall hold all taxes collected in trust for the city until payment is made to the tax collector.

(`64 Code, Sec. 29-15) (Ord. No. 2469)

SEC. 13-26. FAILURE TO REMIT TAX.

Any operator who fails to remit the tax within the time required shall pay a penalty of 10% of the amount of the tax in addition to the amount of the tax.

(`64 Code, Sec. 29-16) (Ord. No. 2469)

SEC. 13-27. CONTINUED FAILURE TO REMIT TAX.

Any operator who fails to remit the tax on or before a period of 30 days following the date on which the tax first became delinquent shall pay a second delinquency penalty of 10% of the amount of the tax.

(`64 Code, Sec. 29-17) (Ord. No. 2469)

SEC. 13-28. FRAUDULENT NONPAYMENT OF TAX.

If the tax collector determines that the nonpayment of the tax is due to fraud, a penalty of 25% of the amount of the tax shall be added to the amount in addition to any penalties.

(`64 Code, Sec. 29-18) (Ord. No. 2469)

SEC. 13-29. INTEREST ON TAX.

In addition to the penalties imposed, any operator failing to timely remit the tax shall pay interest at the rate of .05% per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the tax first became delinquent until the tax is paid.

(`64 Code, Sec. 29-19) (Ord. No. 2469)

SEC. 13-30. MERGING WITH TAX.

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

(`64 Code, Sec. 29-20) (Ord. No. 2469)

SEC. 13-31. OPERATOR'S FAILURE TO COLLECT, REPORT AND REMIT TAX.

If an operator fails or refuses to collect the tax or to timely make any report or timely remit the tax or any portion thereof, the tax collector shall proceed to prepare an estimate of the tax due. The tax collector shall assess such estimated tax, interest and penalties against the operator.

(`64 Code, Sec. 29-21) (Ord. No. 2469)

SEC. 13-32. NOTICE TO OPERATOR.

The tax collector shall notify the operator of the amount of tax assessed by serving a written notice personally or by depositing the notice in the United States mail, postage prepaid, addressed to the operator at the operator's last-known place of business.

(`64 Code, Sec. 29-22) (Ord. No. 2469)

SEC. 13-33. APPEAL BY OPERATOR.

Any operator objecting to the amount of tax assessed in the notice may file with the city clerk a written request for an appeal hearing, accompanied by the hearing fee, within 14 days of receiving the notice from the tax collector.

(`64 Code, Sec. 29-23) (Ord. No. 2469)

SEC. 13-34. APPEAL HEARING.

Upon receiving a request for an appeal hearing, the city clerk shall send the request to a hearing officer. The hearing officer shall promptly schedule the matter for hearing. At least ten days before the hearing, the hearing officer shall mail written notice of the date, time and location of the hearing to the operator and tax collector.

(`64 Code, Sec. 29-24) (Ord. No. 2469)

SEC. 13-35. CONDUCT OF HEARING.

(A) All hearings shall be open to the public.

(B) A representative of the tax collector shall first present evidence to justify the amount assessed. Thereafter, the operator may present evidence, the burden of proof to justify the assessment is on the tax collector.

(C) The hearing officer shall conduct the hearing in an informal fashion and shall not be bound by the technical rules of evidence.

(`64 Code, Sec. 29-25) (Ord. No. 2469)

SEC. 13-36. DECISION.

Within 14 days of the conclusion of the hearing, the hearing officer shall issue and mail to the operator and the tax collector a written decision containing a statement of the reasons for the decision.

(`64 Code, Sec. 29-26) (Ord. No. 2469)

SEC. 13-37. JUDICIAL ACTION.

The operator may seek judicial review of the hearing officer's decision within the time and in the manner provided by Cal. Code of Civil Procedure, Sections 1094.5 and 1094.6.

(`64 Code, Sec. 29-27) (Ord. No. 2469)

SEC. 13-38. FILING CLAIM FOR REFUND.

Whenever the amount of any tax, interest or penalty may have been overpaid, paid more than once or erroneously or illegally collected or received by the tax collector, the operator may be eligible for a refund of the tax paid, if, within three years after the date of payment, the operator files with the tax collector a written claim therefor. The operator shall set forth, under penalty of perjury, the specific grounds and facts upon which the claim is founded. The claim shall be made on a form provided by the tax collector.

(`64 Code, Sec. 29-28) (Ord. No. 2469)

SEC. 13-39. DECISION OF TAX COLLECTOR.

The tax collector shall issue and mail to the operator a written decision denying or approving the claim and a statement of the reasons for the decision within 14 days of receipt of the claim for a refund.

(`64 Code, Sec. 29-29) (Ord. No. 2469)

SEC. 13-40. APPEAL BY OPERATOR.

Any operator objecting to the decision of the tax collector may appeal the decision in accordance with the procedure set forth in sections13-37 through 13-45.

(`64 Code, Sec. 29-30) (Ord. No. 2469)

SEC. 13-41. CREDIT AGAINST SUBSEQUENT TAXES.

The operator shall apply any amount determined to be owed to operator by the city as a credit for subsequent taxes.

(`64 Code, Sec. 29-31) (Ord. No. 2469)

SEC. 13-42. REFUND TO OPERATOR.

The operator may receive any amount determined to be owed to operator by the city by direct payment to the operator if the operator provides evidence to the tax collector that the operator is no longer operating in the city or that the operator will cease such operation before the credit may be applied to subsequent taxes.

(`64 Code, Sec. 29-32) (Ord. No. 2469)

SEC. 13-43. TRANSIENT'S CLAIM FOR REFUND.

If the tax was paid directly by the transient to the tax collector or if the transient has paid the tax to the operator and established to the tax collector's satisfaction that the transient has been unable to obtain a refund from the operator, the transient may apply for a refund from the tax collector by filing a claim in accordance with the procedure set forth in section 13-38.

(`64 Code, Sec. 29-33) (Ord. No. 2469)

SEC. 13-44. WRITTEN RECORDS OF REFUND.

The tax collector shall not pay any refund unless the claimant establishes a right thereto by written records showing that he/she is entitled thereto.

(`64 Code, Sec. 29-34) (Ord. No. 2469)

SEC. 13-45. TAX DEEMED DEBT TO CITY.

(A) Any tax required to be paid by any transient shall be deemed a debt owed by the transient to the city.

(B) 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.

(`64 Code, Sec. 29-35) (Ord. No. 2469)

SEC. 13-46. DUTY OF SUCCESSOR OF OPERATOR.

(A) If an operator is liable for any tax, penalties or interest and sells or otherwise disposes of the business, the successor operator shall notify the tax collector of the date of purchase of the hotel, timeshare rental or other lodging, at least 30 days before the date of purchase or if the decision to sell was made less than 30 days prior to actual purchase, then immediately, and shall withhold a sufficient portion of the purchase price to equal the amount of any tax, penalties or interest due until the operator produces a tax clearance certificate from the tax collector stating that no tax, penalties or interest is due. The standard form of the tax clearance certificate shall be as approved by the city attorney and maintained in the city clerk's office.

(B) If the operator does not present a receipt or tax clearance certificate within 90 days after the successor operator commences to conduct business, the successor operator shall deposit the withheld amount with the tax collector.

(C) If the successor operator fails to withhold a portion of the purchase price as required, the successor operator shall be liable to the city for the payment of the tax

required to be withheld.

(`64 Code, Sec. 29-36) (Ord. No. 2469, 2736)

SEC. 13-47. ISSUANCE OF TAX CLEARANCE CERTIFICATE.

(A) A successor operator attempting to obtain ownership of a hotel, timeshare rental or other lodging, the operator of which is required to collect the tax, may request the tax collector to issue a tax clearance certificate.

(B) (1) Within 90 days after receiving a written request from the successor operator for a tax clearance certificate stating that no tax, penalties or interest is due, the tax collector shall either issue the tax clearance certificate; or (2) request the current operator of the hotel, timeshare rental or other lodging to make available that operator's transient occupancy tax records for the purpose of conducting an audit regarding transient occupancy taxes that may be due and owing from the operator and complete the audit on or before 90 days after the date that the current or former operator's records are made available to the tax collector and issue a tax clearance certificate within 30 days of completing the audit.

(`64 Code, Sec. 29-37) (Ord. No. 2469, 2736)

SEC. 13-48. APPEAL BY SUCCESSOR OPERATOR.

Any successor operator objecting to the amount of the tax, penalties and interest set forth in the written notice may appeal the decision in accordance with the procedure set forth in sections 13-37 through 13-41.

(`64 Code, Sec. 29-38) (Ord. No. 2469)

SEC. 13-49. ACTION BY CITY TO COLLECT TAX.

Any person owing taxes, penalties or interest to the city pursuant to this article shall be liable to an action brought in the name of the city for the recovery of such amounts.

(`64 Code, Sec. 29-39) (Ord. No. 2469)

SEC. 13-50. VIOLATIONS.

A person is guilty of a misdemeanor if that person:

(A) Fails or refuses to register as required by this article;

(B) Fails or refuses to furnish any report required to be made or fails or refuses to furnish a supplemental report or other data required by the tax collector;

(C) Renders a false or fraudulent report;

(D) Makes any false or fraudulent report or claim with intent to defeat or evade the determination of any tax due;

(E) Collects the tax from any transient and fails to pay the same to the city; and

(F) Violates in any way other provisions of this article.

(`64 Code, Sec. 29-40) (Ord. No. 2469)