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HomeMy WebLinkAbout05ORDINANCE NO.5 AN ORDINANCE OF THE CITY OF DANVILLE IMPOSING A TAX UPON THE PRIVILEGE OF TRANSIENT OCCUPANCY AND PROVIDING FOR THE COLLECTION THEREOF The City Council of the City of Danville does ordain as follows: Section 1. Title. The ordinance shall be known as the Uniform Transient Occupancy Tax Ordinance of the City of Danville. Section 2. Definitions. Except where the context otherwise requires, the defini- tions given in this section govern the construction of this ordinance: (a) Person: "Person" means any individual, firm, partner- ship, joint venture, association, social club, fraternal organ- ization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group of combination acting as a unit. (b) Hotel; "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,rdormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof. (C) Occupancy: "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. (d) Transient: "Transient" means any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, righi of access, license or other agreement for a period of thirty (30) 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 -1- until the period of thirty (30) 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 ordinance may be considered. (e) Rent. "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 money, goods, labor or otherwise, including all receipts, cash, credits and property and services of any kind or nature, without any deduction there- from whatsoever. (f) Operator: "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 ordinance and shall have the same duties and liabilities as his principal. Compliance with the provisions of this ordinance by either the principal or the managing agent shall, however, be considered to be compliance by both. I(g) Tax Administrator. "Tax Administrator" means the City Clerk of the City of Danville or such 'other official as may be appointed by the City Council of the City of Danville. Section 3. TaxImposed. Pursuant to the authority of Section 7280 and 7281 of the Revenue and Taxation Code, for the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of six and one-half percent (6 1/2%)-of the rent charged by the operator. Said tax consitutes a debt owed by the tran- sient to the city which is extinguished only by payment to the operator or to the city. The transient shall pay the 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. Section 4. ExemptiOns. No tax shall be imposed upon: (a) 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- (b) Any federal or State of California officer or employee when on official business; (c) Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty. No exemption shall be granted except upon a claim there- for made at the time rent is collected and under penalty of perjury upon a form prescribed by the Tax Administrator. Section 5. Operator's Duties. Each operator shall collect the tax imposed by this ordinance 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 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 herein- after provided. Section 6. Registration. Within thirty (30) days after the effective date of this ordinance, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register said hotel with the Tax Administrator and obtain from him a "Transient Occupancy Registration Certi- ficate" to be at all times posted in a conspicuous place on the premises. Said certificate shall, among other things, state the following: (1) The name of the operator; (2) The address of the hotel; (3) The date upon which the certificate was issued; (4) "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 said tax to the Tax Administrator. 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." -3- Section 7. Reporting and Remitting. 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, 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 deems it necessary in order to insure collection of the tax and he may require further infor- mation in the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this ordinance shall be held in trust for the account of the City until payment thereof is made to the Tax Administrator. Section 8. Penalties and Interest. (a) Original Delinquency. Any operator who fails to remit any tax imposed by this ordinance within the time required shall pay a penalty of 10% of the amount of the tax in addition to the amount of the tax. (b) Continued Delinquency. Any operator who fails to remit any delinquent remittance on or before a period of thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 10% of the amount of the tax in addition to the amount of the tax and the 10% penalty first imposed. (c) Fraud. If the Tax Administrator determines that the non-payment of any remittance due under this ordinance is due to fraud, a penalty of 25% of the amount of the tax shall be added thereto in addition to the penalties stated in sub-para- graphs (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 ordinance 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) Penalti~es Merged with Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid. -¸4- Section 9. Failure to Collect and Report Tax. Determina- tion of TaX byTax Admi'nistr!ator. If any operator shall fail or refuse to collect said tax and to make, within the time provided in this ordinance, any report and remittance of said tax or any portion thereof required by this ordinance, the Tax Administrator shall proceed in such manner as he may deem best to obtain facts and informa- tion on which to base his estimate of the tax due. As soon as the Tax Administrator shall procure such facts and information as he is able to obtain upon which to base the assessment of any tax imposed by this ordinance 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, interest and penalties provided for by this ordinance. In case such determination is made, the Tax Administrator shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at his last known place of address. Such operator may within ten (10) days after the serving or mailing of such notice make appli- cation in writing to the Tax Administrator for a hearing on the amount assessed. If application by the operator for a hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the Tax Administrator shall be- come final and conclusive and immediately due and payable. If such application is made, the Tax Administrator shall give not less than five (5) days written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in said notice why said amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing the Tax Administrator shall determine the proper tax to be remitted and shallthereafter give written notice to the person in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after fifteen (15) days unless an appeal is taken as provided in Section 10. Section 10. Appeal. Any operator aggrieved by any decision of the Tax Adminis- trator with respect to the amount of such tax, interest and penalties, if any, may appeal to the City 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 City Council shall fix a time and place for hearingsuch appeal, and the City Clerk shall give notice in writing to such operator -5- at his last known place of 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. Section 11. Records. It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by this ordinance to keep and preserve, for a period of three years, all records as may be necessary to determine the amount of such tax as he may have been laible for the collection of and payment to the city, which records the Tax Administrator shall have the right to inspect at all reasonable times. All tax returns and information furnished by any operator pursuant to this article shall be confidential and shall not be open to public inspection nor the specific contents thereof disclosed by any officer or employee except as necessary in the performance of official duty pursuant to this article, or in the course of any proceedings, hearing or litigation involving the existence or amount of the tax liability of such operator, or with the written consent of the operator or his authorized representa- tive. Section 12. Refunds. (a) Whenever the amount of any tax, interest or penalty has been overpaid or paid more~lthan once or has been erroneously or illegally collected or received by the city under this ordinance, it may be refunded as provided in sub-paragraphs (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 subse- qently 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 -6- in subparagraph (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, estab- lishes to the satisfaction of the Tax Administrator 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 thereto by written records showing entitlement thereto. Section 13. ~ctions to'Collect. Any tax required to be paid by any transient under the provisions of this ordinance 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 ordinance shall be liable to an action brought in the name of the City of Danville for the recovery of such amount. Section 14. Violations; Mi~s~d~emeanor. Any person Violating any of the provisions of this ordinance shall be guilty of a misdemeanor and shall be punishable therefor by a fine of not more than five hundred dollars ($500.00) or by imprisonment in jail for a period of not more than six months or by both such fine and imprisonment. Any operator or other person who fails or refuses to regis- ter as required herein, or to furnish any return required to be made, or who fails or refuses to furnsih 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, and is punishable as aforesaid. Any 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 ordinance to be made, is guilty of a misdemeanor and is punishable as afore- said. Section 15. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance or any part thereof is for any reason held to be unconstitutional, such decision shall not affect the Validity of the remaining portions of this ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, para- graph, sentence, clause, or phrase thereof, irrespective o~ the fact that any one or more sections, subsections, subdivisions, -7- paragraphs, sentences, clauseS, or phrases ~be declared uncon- s titutional. Section 16. E'flf!ect~iVe tDate- This ordinance relates to taxes for the usual and current expenses of the City of Danville and shall take effect immedi- ately. Section 17. Supersession of C'oUnt'yO'rdinance. It is the intention of the City Council of the City of Danville that as of the effective date of this ordinance, it shall supersede the effectiveness of the Uniform Transient Occupancy Tax Article of the County of Contra Costa Ordinance Code regarding such taxes in the City of Danville as implemented and adopted by Ordinance No. 1 of the City of Danville. PASSED AND ADOPTED by the City Council"of the City of Danville, on this 8th day of July, 1982, by the following vote: AYES: LANE, MAY, MC NEELY, OFFENHARTZ, SCHLENDORF NOES: NONE ABSENT: NONE Attest: City Clerk -8-