San Clemente Municipal Code Art. I General

For the purposes of this chapter, the following words and phrases have the meanings respectively ascribed to them by this section:

"Agent" means a duly authorized individual, company, or legal entity engaged by the owner of a lodging unit to represent, manage, or oversee the operations of the lodging unit on behalf of the owner.

"City Manager" means the City Manager of the City of San Clemente or his or her respective assignees.

"Finance and Administrative Services Director" means the Finance and Administrative Services Director of the City of San Clemente, or his or her duly authorized designee.

"Guest" means any person (including an invitee) visiting a renter of a lodging unit. A guest is not authorized by the lease to sleep or stay overnight in the unit.

"Hotel" means any structure, or any portion of any structure, that is occupied or intended or designed for occupancy by transients for lodging or sleeping purposes. By way of example, "hotel" here includes, among other things, any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, vacation rental, boarding house, rooming house, apartment house, dormitory, public or private club, bed-and- breakfast, private single-family residence, private multi-family residence, condominium, townhouse, guest house, mobile home or house trailer at a fixed location, or other similar structure or portion thereof, that is described by the first sentence of this paragraph, Any reference in this chapter to "hotel" includes "STLU" (defined in this section), unless otherwise indicated.

"Lodging unit" means a structure or any portion of a structure that is occupied or that is intended or designed for occupancy for lodging or sleeping purposes.

"Occupancy" means the use or possession, or the right to the use or possession, of any lodging unit for lodging or sleeping purposes.

"Operator" means the person who is the proprietor of the hotel or STLU (defined in this section), 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 that of an employee, the managing agent is also deemed an operator for the purposes of this chapter and has the same duties and liabilities as the principal. Compliance with the provisions of this chapter by either the principal or the managing agent is considered to be compliance by both.

"Owner" means a person that holds legal or equitable title to a lodging unit.

"Person" means an 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 lodging unit, 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, without any deduction therefrom.

"Renter" means a person, that rents or occupies a lodging unit and who is authorized to sleep and stay there overnight.

"Short term" means occupancy for a period 29 or fewer consecutive calendar days.

"Short term lodging unit" or "STLU" means a hotel with fewer than six lodging units including a STAR as defined in Chapter 17.88 of this code.

"STLU zoning permit" means a permit issued pursuant to Section 17.16.145 or 17.16.146 of this code.

"Short term lodging unit operating license" or "STLU operating license" means a special operating license issued to a short-term lodging unit pursuant to this chapter.

"Single housekeeping unit" means that the residents of a dwelling unit satisfy each of the following criteria:

1. They have established ties and familiarity and interact with each other.

2. Membership in the single housekeeping unit is fairly stable as opposed to transient or temporary.

3. They share meals household activities, expenses and responsibilities.

4. All adult residents have chosen to jointly occupy the entire premises of the dwelling unit and they each have access to all common areas.

5. If the dwelling unit is rented, each adult resident is named on and is a party to a single written lease that gives each resident joint use and responsibility for the premises.

6. Membership of the household is determined by the residents not by a landlord property manager or other third party.

7. The residential activities of the household are conducted on a nonprofit basis.

8. Residents do not have separate entrances or separate food-storage facilities such as separate refrigerators food-prep areas, or equipment.

"Transient" means a person who exercises occupancy or is entitled to residential occupancy by reason of concession permit right of access, license, or other agreement for a period of 29 or fewer consecutive calendar days counting portions of calendar days as full days. Any such person is deemed to be a transient until the 29-day period expires unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. For purposes of this chapter the changing of rooms in a structure or property does not by itself cause a break in an otherwise consecutive period of occupancy. "Transient" does not apply to any of the following:

1. A person who by lease or other enforceable written agreement obtains an exclusive legal right to occupy a residential property or portion thereof for more than 29 consecutive calendar days,

2. A person who by lease or other enforceable written agreement obtains an exclusive legal right to occupy a residential property or portion thereof for an indeterminate period but who is required to give at least 30 days advanced notice of termination of his or her exclusive right of occupancy, or

3. A person who makes an non-reimbursable payment for the right to occupy any residential property for more than 29 days.

"Transient Occupancy Tax" or TOT means that tax levied by the City and collected by the operator under this chapter.

(Ord. 1264 § 1(part), 2002)

(Ord. No. 1508, § 1, 7-20-2010; Ord. No. 1617, § 3, 2-16-2016; Ord. No. 1622, § 3, 5-17-2016; Ord. No. 1656, § 4, 5-15-2018)

A. .....For the privilege of occupancy in any hotel or STLU permitted under Title 27 of this code, each transient is subject to and must pay a tax in the amount of 10 percent of the rent charged by the operator. Such tax constitutes a debt owed by the transient to the City which is extinguished only by payment. The transient must pay the tax to the operator of the hotel or STLU when the rent is paid.

B. .....All unpaid tax is due when the transient ceases to occupy space in the hotel regardless of whether the operator collects, or is able to collect, the full amount of the rent owed.

C. .....If a room at the hotel or STLU is cancelled prior to occupancy and the person canceling is charged the full room rate (e.g., the person is charged for occupancy even though the person might not occupy the room) the amount charged is the rent, and the operator shall collect the transient occupancy tax on that amount and pay it to the City.

D. .....If the rent for use of a hotel or STLU is reduced or waived in consideration for a service provided to the hotel or STLU, its operator, or owner, or for promotional or marketing purposes then the deemed rent is the higher of (i) the value of the services received or (ii) the advertised rate of the hotel or STLU for the period of time that the hotel or STLU was so occupied; in addition, if the rent for use of a hotel or STLU is reduced or waived for any other reason then the deemed rent is the advertised rate of the hotel or STLU for the period of time that it was so occupied unless the operator executes under penalty of perjury and submits to the Finance and Administrative Services Director a completed form that identifies the name, permanent address, telephone number, and contact information for each transient who occupied the hotel or STLU the period or periods of time during which the transient so occupied the hotel or STLU and a brief explanation of the reasons for the reduction or waiver of rent (e.g. discount to facilitate a rental in the ordinary course of business, rental to a family member, etc.). The forms for reduced or waived rents shall be available at the office of the City Finance and Administrative Services Director.

(Ord. 1264 § 1(part), 2002)

(Ord. No. 1508, § 1, 7-20-2010; Ord. No. 1617, § 3, 2-16-2016; Ord. No. 1622, 5-17-2016)

A. .....The following persons are exempt from paying the transient occupancy tax imposed by this chapter:

1. Any person as to whom, or any occupancy as to which it is beyond the power of the City to impose the tax.

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

3. The owner of the STLU while occupying the property.

B. .....Exemptions may only be granted if the operator completes an exemption claim form under penalty of perjury when rent is collected. The exemption claim form shall be available at the office of the Finance and Administrative Services Director. After the Director reviews and verifies the documents offered in support of the exemption, the Director will determine whether or not the exemption is granted.

(Ord. 1264 § 1(part), 2002)

(Ord. No. 1508, § 1, 7-20-2010; Ord. No. 1617, § 3, 2-16-2016; Ord. No. 1622, § 3, 5-17-2016)

If an operator fails or refuses to collect the tax imposed by this chapter or to make within the time provided in this chapter any report and remittance of such tax or any portion thereof, the Finance and Administrative Services Director may proceed in such manner as he or she deems best to obtain facts and information on which to base his or her estimate of the tax due, including, but not limited to, an audit of the operator's records. If an audit is deemed necessary by the Finance and Administrative Services Director, the operator is liable for such costs. When the Finance and Administrative Services Director procures such facts and information as he or she can with reasonable effort, the Director shall proceed to determine and assess against the operator the tax, interest, and penalties provided for by this chapter. If such determination is made, the Finance and Administrative Services Director shall give a notice of the amount so assessed in the manner described in Section 3.24.050.

(Ord. 1264 § 1(part), 2002)

(Ord. No. 1508, § 1, 7-20-2010; Ord. No. 1617, § 3, 2-16-2016; Ord. No. 1622, § 3, 5-17-2016)

A. Non-administrative Fine Violations. .....The hotel or STLU owner shares responsibility for compliance with this chapter and with Title 17 of this code. If there is reason to believe that an operator or owner has violated any of the provisions of this chapter, or of Title 17 of this code, or has been assessed estimated taxes described in Section 3.24.040, the City shall provide written notice to the operator and owner. Notice to the operator shall be sent to the operator's address and at the hotel or STLU and notice to the owner shall be sent to the owner's residence or business address as those property addresses are listed in the City's operating license or other records. The notices shall inform the operator and owner of the following:

1. The nature of the alleged violation,

2. The penalties for such violation, and

3. The owner's and operator's right to request a hearing on the alleged violation, which request shall be in writing and received by the City within 10 days after the date of the violation notice.

B. .....If the operator or owner timely requests a hearing, the City Manager shall select a Hearing Officer to preside over the hearing. The City shall provide written notice to both the operator and owner of the date, time, and location of the hearing. The hearing notice shall further state that the owner and operator may present evidence, call witnesses, cross-examine the City's witnesses and be represented by an attorney at the hearing. The above notwithstanding, the City shall be permitted to present evidence in the form of affidavits in accordance with Government Code § 11514. At the conclusion of the hearing, or as soon thereafter as is practical, the Hearing Officer shall determine, in writing whether there has been a violation of any ordinance resolution, or law regulating the operation of the hotel or STLU. The written determination shall be provided to the operator at the operator's address and at the hotel or STLU address as listed in the City's operating license or other records, and it shall be provided to the owner at the owner's residence or business address of record. The operator or owner may appeal the decision of the Hearing Officer to the City Council in the manner provided in Section 3.24.060 of this chapter. If a hearing is not timely requested the existence of the violation is conclusively presumed and the City Manager or his or her designee shall send to the owner and operator written notice of the penalty imposed.

C. Administrative-Fine Violations. .....The City shall follow the notice and hearing procedures established in Chapter 1.20 for any violation subject to the imposition of an administrative fine.

(Ord. 1264 § 1(part), 2002)

(Ord. No. 1508, § 1, 7-20-2010; Ord. No. 1617, § 3, 2-16-2016; Ord. No. 1622, § 3, 5-17-2016; Ord. No. 1656, § 5, 5-15-2018)

An owner or operator aggrieved by any decision of the Hearing Officer under Subsection 3.24.050(B) or Section 3.24.067 of this chapter may appeal to the City Council by filing a notice of appeal with the City Clerk within 10 days of service or mailing of the Hearing Officer's decision. The City Council shall fix a time and place for hearing such appeal and the City Clerk shall give notice in writing to such operator and owner at their last known places of address. The appeal hearing shall be a de novo review, governed by Section 17.12.140, subsection E of this code. The findings of the City Council are final and conclusive and shall be served on the appellant in the manner prescribed in this chapter for service of notice of hearing, Any amount found to be due is immediately due and payable upon the service of notice. All penalties assessments, and taxes must be paid prior to filing an appeal.

(Ord. 1264 § 1(part), 2002)

(Ord. No. 1508, § 1, 7-20-2010; Ord. No. 1617, § 3, 2-16-2016; Ord. No. 1622, § 3, 5-17-2016; Ord. No. 1656, § 6, 5-15-2018)

Penalties may be imposed, and STLU operating licenses and STLU zoning permits may be revoked as provided in Sections 3.24.050, 3.24.060, 3.24.067, 17.16.145 and 17.16.146.

(Ord. No. 1617, § 3, 2-16-2016; Ord. No. 1622, § 3, 5-17-2016)

A. .....If an STLU owner or operator is conclusively found to have committed either (1) three violations of this code, including any violation of the STLU zoning permit conditions, for a particular STLU within any 12-month period, or (2) a single violation of this code that results in a serious threat to the public health, safety, or welfare, then a hearing will be held in accordance with Sections 3.24.050 and 3.24.060. At the hearing, the hearing officer may revoke the STLU operating license or impose additional conditions on the STLU operating license to mitigate the impact of the STLU on the community. For purposes of this Subsection 3.24.067.A, "conclusively found to have committed" a violation means to be issued a citation that the owner or operator fails to appeal or, if the operator or operator appeals a citation, a final City determination that is adverse to the owner or operator.

B. .....If the STLU is also the subject of an STLU zoning permit modification or revocation under Section 17.16.145, subsection H, then the operating license matter shall be consolidated with the zoning-permit matter and they shall be heard together under the procedures governing the latter (i.e., under Sections 17.16.145 and 17.12.175 of this code).

(Ord. No. 1617, § 3, 2-16-2016; Ord. No. 1622, § 3, 5-17-2016; Ord. No. 1656, § 7, 5-15-2018)

Editor's note— Ord. No. 1622, § 3, adopted May 17, 2016, amended § 3.24.067 and in so doing changed the title of said section from "Violations; Revocation of STLU Permit" to "Violations Revocation of Operating License or STLU Zoning Permit," as set out herein.

At the time the return is filed, the full amount of the transient occupancy tax collected during that month shall be remitted to the Finance and Administrative Services Director. All transient occupancy taxes collected by operators under this chapter shall be held in trust for the City by the operator until payment thereof is made to the Finance and Administrative Services Director. The reporting and remittance of collections must comply with the following:

A. Hotel.

1. Monthly Remittance. Each operator shall, on or before the last day of each month prepare and submit to the Finance and Administrative Services Director a return on forms provided by the Finance and Administrative Services Director, stating the total rents charged and received and the amount of transient occupancy tax collected the previous month. By way of example, on November 30th each operator shall submit to the Finance and Administrative Services Director their return for the period of October 1st through 31st.

2. Returns and payments are due immediately upon any succession of business.

B. Short Term Lodging Unit.

1. Quarterly Remittance. Each operator must prepare and submit to the Finance and Administrative Services Director a return on forms provided by the Finance and Administrative Services Director stating the total rents charged and received and the amount of the transient occupancy tax collected the previous quarter. Taxes are due within 30 calendar days of the end of each quarterly period listed below:

January—March, due by April 30

April—June, due by July 31

July—September, due by October 31

October—December, due by January 31

2. Returns and payments are due immediately upon any succession of business.

(Ord. No. 1508, § 1, 7-20-2010; Ord. No. 1617, § 3, 2-16-2016; Ord. No. 1622, § 3, 5-17-2016)