San Bernardino Municipal Code Ch. 3.55 Transient Lodging Tax

Section

Editor’s note:

This ordinance was approved by a majority of the voters of the city at the November 5, 2002 statewide general election.

Statutory reference:

For provisions authorizing cities to levy a transient occupancy tax, see Cal. Revenue and Taxation Code, §§ 7280 and 7281

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

HOTEL. A commercial establishment furnishing lodging space in exchange for monetary compensation. Every such establishment shall constitute a HOTEL for purposes of this chapter notwithstanding any advertising describing the facility as a hostelry, inn, motel, rooming house, tourist home or similar enterprise.

LODGING SPACE. One or more rooms used or intended to be used for dwelling or sleeping purposes.

OCCUPANCY. The use or possession, or the right to the use or possession, of a lodging space.

OPERATOR. The person who is the proprietor of a hotel. If an OPERATOR utilizes a managing agent who is not an employee, then such agent shall also constitute an OPERATOR for purposes of this chapter. Compliance with this chapter by either the principal or the managing agent shall constitute compliance by both.

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.

ROOM RENTAL. The total charge for lodging space.

TRANSIENT. A person who, for a period of 30 consecutive calendar days or less, exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license or contract. Every such person shall constitute a TRANSIENT for purposes of this chapter until expiration of the 30-day period, unless such person has executed a written contract with the operator to provide for occupancy in excess of 30 consecutive calendar days and the contract cannot be terminated without providing at least 30 days’ advance notice. In determining whether a person is a TRANSIENT, portions of calendar days shall be counted as full days and uninterrupted periods of time extending both prior and subsequent to the effective date of this chapter may be considered.

TRANSIENT LODGING TAX. The tax levied pursuant to this chapter.

(A) For the privilege of occupancy in a hotel, each transient is subject to and shall pay a transient lodging tax in the amount of 10% of the room rental charged by the operator.

(B) The transient lodging tax is levied for revenue purposes and is necessary for the usual financial operation of the city. When collected, the tax shall be made a part of the General Funds of the city.

(A) Each operator receiving a room rental payment that is subject to the transient lodging tax, at the time of receipt of the room rental payment, shall collect the amount of the tax imposed. The operator shall provide a receipt for payment of the transient lodging tax to the transient.

(B) If the monetary compensation received by an operator from a transient includes any charge for services or accommodations besides lodging space, then the room rental portion of such compensation shall be billed to the transient as a separate item.

(C) Transient lodging taxes collected by an operator shall be held in trust until remitted to the city.

(D) No operator shall represent to the public that the transient lodging tax will not be added to the room rental charge, will be absorbed by the operator or will be refunded in a manner contrary to this chapter.

(E) In lieu of paying the transient lodging tax to an operator, a transient may remit the tax directly to the Department of Finance and Management Services. Any transient who opts to remit the transient lodging tax directly to the Department of Finance and Management Services shall provide written proof of such remittance to the operator.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

(A) Grounds. No transient lodging tax shall be imposed upon:

(1) Any officer or employee of the United States government or the state for lodging space utilized 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 payment made to any hospital, medical clinic, convalescent home or home for aged people; and

(4) Any person as to whom, or any occupancy as to which, it is beyond the power of the city to impose the tax.

(B) Procedure. Each transient desiring an exemption from the transient lodging tax must file a tax exemption certificate with the hotel at the time room rental payment is made to the operator. The tax exemption certificate shall indicate the basis for the exemption and shall be signed under penalty of perjury. Tax exemption certificate forms shall be prescribed by, and may be obtained from, the Department of Finance and Management Services.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

(A) On or before the twenty-fifth day of each month, each operator shall deliver to the Department of Finance and Management Services a lodging information report for the prior month and shall remit to the Department of Finance and Management Services the transient lodging tax collected during the prior month.

(B) The lodging information report shall indicate the amount received for room rental and the amount of transient lodging tax required to be collected, and shall be signed under penalty of perjury.

(C) Lodging information report forms shall be prescribed by, and may be obtained from, the Department of Finance and Management Services.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

(A) Operator grounds. An operator who has remitted a transient lodging tax to the city may obtain a refund of all or a part of such remittance in the following circumstances:

(1) The tax was collected from a person who was not a transient;

(2) The amount of tax collected from a transient exceeds the amount due;

(3) The amount of tax remitted by the operator exceeds the amount due; and

(4) The city lacked the authority to impose the tax.

(B) Transient grounds. A transient who has remitted a transient lodging tax directly to the city, rather than indirectly by means of payment to an operator, may obtain a refund of all or a part of such remittance in the following circumstances:

(1) The tax was collected from a person who was not a transient;

(2) The amount of tax remitted by the transient exceeds the amount due; and

(3) The city lacked the authority to impose the tax.

(C) Procedure. Each person desiring a refund must file a refund claim with the Department of Finance and Management Services within three years of the date of remittance of the transient lodging tax. The refund claim shall indicate the basis for the refund and shall be signed under penalty of perjury. Refund claim forms shall be prescribed by, and may be obtained from, the Department of Finance and Management Services. No refund shall be paid unless the claimant produces written records demonstrating entitlement to the refund. The Department of Finance and Management Services shall refund any tax improperly paid by any person directly to such person.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

(A) Delinquency.

(1) An operator who remits a transient lodging tax between the first day and the twenty-ninth day following the deadline for such remittance shall pay, in addition to the amount of the tax, a delinquency penalty of 25% of the amount of the tax.

(2) An operator who remits a transient lodging tax between the thirtieth day and the sixtieth day following the deadline for such remittance shall pay, in addition to the amount of the tax, a delinquency penalty of 50% of the amount of the tax.

(3) An operator who remits a transient lodging tax after the sixtieth day following the deadline for such remittance shall pay in addition to the amount of the tax the following penalties:

(a) A delinquency penalty of 100% of the amount of the tax; and

(b) Interest on the total of the tax and the delinquency penalty. Interest shall be at the rate of 10% per annum and shall be computed from the sixty-first day of delinquency until the date of remittance of the tax and delinquency penalty to the Department of Finance and Management Services.

(B) Fraud. If the Department of Finance and Management Services determines that the non-payment of a transient lodging tax is due to fraud of the operator, then the operator shall pay, in addition to the amount of the tax, a fraud penalty of 25% of the amount of the tax.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

(A) Determination. If an operator fails to collect and remit the transient lodging tax in accordance with this chapter, then the Department of Finance and Management Services shall determine the amount of tax owed by such operator. The Department of Finance and Management Services may make such determination based on an estimate of the amount due based on the information available.

(B) Notice. Upon determining the amount of transient lodging tax and penalty due, the Department of Finance and Management Services shall notify the operator in writing. If the operator does not request a hearing on such amount in writing within ten days of the date of issuance of the notice, then the amount shall be conclusive and shall be remitted to the city on or before the deadline specified in the notice.

(C) Hearing. If a timely hearing request is made, then the Department of Finance and Management Services shall notify the operator in writing of the date, time and place of a hearing on the amount of transient lodging tax and penalty owed to the city at least ten days prior to the date of the hearing. At such hearing, the operator may offer evidence to rebut the determination of the Department of Finance and Management Services. After such hearing, the Department of Finance and Management Services shall revise the initial determination as deemed appropriate and shall notify the operator in writing of the final determination of the transient lodging tax and penalty that is due. Such amount shall be remitted to the city within 15 days from the issuance of the notice, unless an appeal is filed as provided in this chapter.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

Any operator who is aggrieved by a Department of Finance and Management Services decision regarding the amount of transient lodging tax or penalty owed by the operator may appeal to the Mayor and City Council in accordance with the provisions of Chapter 2.64. Any transient who is aggrieved by a Department of Finance and Management Services decision regarding the amount of transient lodging tax owed by the transient may appeal to the Mayor and City Council in accordance with the provisions of Chapter 2.64. Any amount that the Mayor and City Council determines is owed to the city shall be remitted to the Department of Finance and Management Services on or before the deadline set by the Mayor and City Council.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

(A) Registration cards.

(1) Each operator shall complete and maintain a transient registration card for every transient that is provided lodging space in the operator’s hotel. At a minimum, transient registration cards shall list the following information:

(a) The name of a person who will occupy, or who is entitled to occupy, the lodging space;

(b) The total number of people who will occupy, or who are entitled to occupy, the lodging space;

(c) The identification of the lodging space by number;

(d) The date the occupancy will commence and the expected date of termination; and

(e) The room rental to be charged for the lodging space.

(2) Transient registration cards shall bear consecutive numbers that shall be preprinted on the cards by a print shop or manufacturer of the cards. Voided cards shall be kept for audit purposes.

(B) Daily summary sheets.

(1) Each operator shall maintain a daily summary sheet for each day its hotel is open for business.

(2) At a minimum, daily summary sheets shall contain the following information:

(a) The name of a person who will occupy, or who is entitled to occupy, each lodging space that is provided to a customer that day;

(b) The identification by number of each lodging space provided to a customer;

(c) The daily room rental charge and amount paid for each lodging space provided to a transient; and

(d) The number of the transient registration card applicable to each lodging space provided to a transient.

(A) Within 30 days after the effective date of the ordinance codified in this chapter, or within 30 days after commencing business, whichever is later, each operator of a hotel providing lodging space to transients shall register such hotel with the Department of Finance and Management Services.

(B) Upon registration, the Department of Finance and Management Services shall issue the operator a “transient lodging registration certificate” that, at a minimum, states the following:

(1) The name of the operator;

(2) The address of the hotel;

(3) The issuance date of the certificate; and

(4) This transient lodging registration certificate signifies that the person named on the face thereof has fulfilled the requirements of this Transient Lodging Tax Ordinance by registering with the Department of Finance and Management Services for the purpose of collecting from transients the transient lodging tax and remitting said tax to the Department of Finance and Management Services. 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.

(C) Each operator shall, at all times, conspicuously post its transient lodging certificate on the premises of its hotel.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

Any operator who ceases providing lodging space to transients shall deliver to the Department of Finance and Management Services a final lodging information report and shall remit to the Department of Finance and Management Services any transient lodging tax owed the city. Such delivery and remittance shall be performed within 25 days of the operator’s cessation of such activity.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

If an operator sells or otherwise transfers ownership of its hotel, then the operator’s successor shall be responsible for remittance of any transient lodging tax and penalty owed by the operator to the city.

(A) The Department of Finance and Management Services shall periodically prepare for the Mayor and City Council a report showing:

(1) Delinquent transient lodging taxes and penalties that have not been received by the city; and

(2) The corresponding parcel number designations and addresses of the properties on which the hotels are operated. The Mayor and City Council shall consider such report and hear any objections thereto at a hearing for which no less than a ten-day advance written notice has been provided to the subject operators and property owners. The Mayor and City Council may modify the report as deemed necessary and shall confirm the final report by resolution.

(B) The Department of Finance and Management Services shall file a certified copy of the confirmation resolution with the County Auditor, directing that the unpaid transient lodging taxes and penalties be entered as lien charges against the respective properties as they appear on the current assessment rolls. Liens will be collected at the same time and in the same manner, subject to the same penalties and interest upon delinquencies, as the general taxes for the city are collected. The Department of Finance and Management Services shall present for recording appropriate notices of the imposition of these liens with the County Recorder.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

(A) Responsibility for debt. Any transient lodging tax required to be paid by a transient under the provisions of this chapter shall constitute a debt owed by the transient to the city. Any such tax that has been collected by an operator but has not been paid to the city shall constitute 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 in 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 transient lodging taxes actually collected, as well as the amount of any such taxes that were lawfully imposed but not collected by the operator. This obligation includes the duty to pay to the city all penalties and interest specified by law.

(A) Retention. Each operator shall retain, for no less than three years, the records required to be maintained by this chapter. The three-year period shall commence on the date of the deadline for remittance of the transient lodging tax to which the record pertains.

(B) Inspection. City representatives may inspect, upon voluntary production by the operator or compelled production pursuant to subpoena, the records required to be maintained by this chapter.

(A) Any person who willfully violates this chapter shall be guilty of a misdemeanor.

(B) Any person who knowingly makes any fraudulent representation on a document required by this chapter to be maintained or delivered to the city shall be guilty of a misdemeanor.

(C) Any person who willfully aids another person to violate division (B) above shall be guilty of a misdemeanor.

(D) A prosecution for violation of this chapter 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.

It shall be the duty of the Department of Finance and Management Services, or its authorized representatives, to enforce the provisions of this chapter. The Director of Finance and Management Services, and his or her authorized representatives, are authorized and empowered to issue citations and notices to appear for violations of the provisions of this chapter.

(Ord. MC-1484, passed 4-18-2018; Ord. MC-1625, passed 2-21-2024)

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 refund claim has been duly filed.

Any increase of the amount of the tax that is imposed by this chapter, which is set forth in § 3.55.020(A), shall be approved by a majority vote of the voters at an election, in accordance with applicable provisions of state law. Any other amendments to the provisions of this chapter shall be adopted by the City Council.

If any part or provision of this chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or 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 chapter shall not be affected thereby.

(Ord. 2811, passed 4-11-1967; Ord. 3433, passed 6-24-1974; Ord. 3846, passed 7-11-1979; Ord. MC-288, passed 7-7-1983; Ord. MC-296, passed 8-3-1983; Ord. MC-376, passed 6-5-1984; Ord. MC-702, passed 1-27-1990; Ord. MC-732, passed 6-18-1990; Ord. MC-805, passed 9-18-1991; Ord. MC-1006, passed 11-18-1997; Ord. MC-1026, passed 7-23-1998; Ord. MC-1127, passed 7-16-2002)