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HomeMy WebLinkAbout12BEFORE THE CITY COUNCIL OF THE CITY OF DANVILLE In the Matter of: ) ) Amending and Compiling Ordinances ) Nos. 2, 4, 82-05, 82-06 and 7 As ) A Part of the Danvi!le Municipal ) Code ) ) ORDINANCE NO. 12 THE CITY COUNCIL OF THE CITY OF DANVILLE DOES ORDAIN as follows: Section 1. Section 1 of Ordinance No. 2 is amended to read as follows: "Section 1. The City Council shall hold regular meetings at the Education Center, 699 Old Orchard Drive, Danville, California. Section 2. Sections 1 and 2 of Ordinance No. 2, adopted July 1, 1982, are renumbered and included in Chapter 1 of Title 2 of the Danville Municipal Code to read as follows: "Chapter 1 CITY COUNCIL "Section 2-101. Time and Place of Regular Meetings. The City Council shall hold regular meetings at the Education Center, 699 Old Orchard Drive, Danville, California. Section 2-102. Change of Meeting Place. If the regular meeting place is unable to accomodate the number of persons in attendance~ the Council may recess the meeting to another place. If the Council anticipates the regular meeting place will be inadequate, the Council, or the Mayor in the event of an emergency, may order that the meeting be held in another place." Section 3. Sections 1 through 3 of Ordinance No. 4, adopted July 1, 1982, are renumbered and included in Chapter 1 of Title 1t to read as follows: "Chapter 1 SPECIAL FUNDS Article 1. Gas Tax Improvement Fund. Section 11-101. To comply with the provisions of Section 2113 of the Streets and Highways Code (as amended by Chapter 1621), Statutes of 1967), there is hereby created in the city treasury a special fund to be known as the "Special Gas Tax Street Improvement Fund". Section 11-102. All monies received by the city from the State of California under the provisions of the Streets and Highways Code for the acquisition of real property or interest therein for, or for engineering, or for the constructions maintenance or improvement of streets or highways by the city shall be paid into said fund. Section 11-103. All monies in said fund shall be expended exclusively for the purposes authorized by, and subject to the provisions -2- of Sections 2106-2116 of the Streets and Highways Code (as amended by Chapter 1621, Statutes of 1967)." Section 4. Section 1 of Ordinance No. 82-05 is amended to read as follows: "Section 1. Title. This Chapter may be known as the Uniform Transient Occupancy Tax Ordinance of the City of Danville." Section 5. Sections 1 through 14 of Ordinance No. 82-05, adopted July 1, 1982, are renumbered and included in Chapter 3 of Title 11 of the Danville Municipal Code to read as follows: "Chapter 3 UNIFO~4 TRANSIENT OCCUPANCY TAX SectiOn 11-101. Title. This C~hapter may be known as the Uniform Transient Occupancy Tax Ordinance of the City of Danville. Section 11-302. Definitions. Except where the context otherwise requires, the definitions given in this section govern the construction of this ordinance: (a) Person: "Person" means any individuals firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, ~rus~ business trust, receiver, trustee, syndicate, or any other group of combination acting as a -3- 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 swelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lo~ging house, rooming house; apartment house, dormitory, public or private club, mobile home or house trailer at a fixe~ 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, right 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 hctel shall be deemed to be a transient 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. Zn determining whether a person is a transients 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 therefrom 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. (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 11-303. Tax Imposed° 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 oercent (6-1/2%) of the rent charged by the operator. Said 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 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. Sec~ien 11-304. Exemptions. No tax shall be imposed upon: (a) Any person as to whom, or any occupancy -6- as to which, it is beyond the power of the city to impose the tax herein provided; (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 la~ or international treaty. 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. Section !!-305. Olperator'~s~'Du~ies. 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 ~he 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. -7- Section 11-306o RegiStrationo 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 Certificate" 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 any lawful business in an unlawful manners nor to operate a hotel without strictly complying with all local applicable laws, including but not limited to those requiring a permit from any boards commission, department or office of this city. This certificate does not constitute a permit." Section 11-307. Reporting an~mitting. 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 Administrators 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 A~ministrator. 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 information in the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes -9- 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 11-308. 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 frauds a penalty of 25% of the amount of the tax shall be added thereto in addition to the penalties stated in sub-paragraphs (a) and (b) of this section. (d) Interest. In additon to the penalties imposedr any operator who fails to remit any -10' 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) Penalties Merged With Tax. Every penalty impesed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid. Section 11-309o Failure to Collect and Report Tax; Determination of Tax by Tax Administrator. 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 information 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 -11- 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 application 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 prescribedr the tax, interest and penalties~ if any~ determined by the Tax Administrator shall become 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 pena!~ieso A~ such hearings ~h~ 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 shall thereafter 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 11-310. Section 11-310. Appeal. Any 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 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 the tax due. The City Council shall fix a time and place for hearing such appeals and the Cit~y Clerk shall give notice in writing to such operator 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 ~o be due shall be immedia~e!y due and payable upon the service of notice. -13 - Section 11-311. Records. It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by thi~ 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 liable for the collection of and payment to the city~ ~vhich records the Tax Administrator shall have the right to ins~Dect 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 bSI 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 course of any proceedings, hearing or litigation involving the existence or amount of the tax liability of such oDerat.ors or with the written consent of the operator or his authorized representative. Section 11-312. Refunds. (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 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 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 subparagraph (a) of this section, but only when -15- the tax was paid by the transient directly to the Tax Administrator, or when the transient~ having paid the tax to the operators establishes 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 11-313. Actions 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 11-314. Violations~ Misdemeanor. 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 -16- than six months or by both such fine and imprisonment. Any operator or other person who fails or refuses to register as required herein, or to furnish any 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, and is punishable as aforesaid. Any person required to make, render, sign or verify any report or claim who makes any false ~r~fraudulent~.eport or claim withintent 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 aforesaid." Section 6. Section 1 of Ordinance No. 82-06, adopted July 1, 1982, is amended to read as follows: "Section 1. Short Title. This chapter may be known as the ~'Real Property Transfer Tax Ordinance of the City of Danville." Section 7. Sections 1 through 7 of Ordinance No. 82-06, adopted July 1, 1982, are renumbered and included in Chapter 2 of Title 11 of the Danville Municipal Code to read as follows: -17- "Chapter 2 REAL PROPERTY TRANSFER TAX Section 11-201. Short Title. This chapter may be known as the "Real Property Transfer Tax Ordinance of the City of Danville. Section 11-202. Declaration. Pursuant to the authority of Section 11901 et seq. of the Revenue and Taxation Codef there is hereby imposed on each deed~ instrument or writing by which any lands, tenements, or other realty sold within the City of Danville shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or their direction, when the consideration or value of any lien or encumbrance remaining thereon at the time of sale) exceeds One Hundred Dollars ($100.00), a tax at the rate of Twenty-Seven and One-Half Cents (27-1/2 cents) for each Five Hundred Dollars ($500.00) or fractional part thereof. Section 11-203. Mobile Homes. A. The transfer of any mobile home installed on a foundation system pursuant to Section 18551 of the Health and Safety Code and subject to local property taxation shallbe subject to the -18- tax imposed pursuant to Section 2 hereof. B. The purchaser of a new mobile home which is sold and installed for occupancy as a residence in accordance with Section 18613 of the Health and Safety Code, shall be subject to the tax imposed pursuant to Section 2 hereof. Mobile homes held in the mobile home dealer's inventory shall be exempt from the provisions of this Ordinance. Section 11-204. Payment. The tax imposed shall be paid by any person who makes, signs or issues any document or instrument subject to the tax, or for whose use or benefit the same is made, signed or issued. Section 11-205. Exemptions. Any tax imposed pursuant to Section 2 hereof shall not apply to: A. Any instrument in writing given to secure a debt; B. The United States or any agency or instrumentality thereof, any state or territory, or political subdivision thereof, or the District of Columbia, with respect to any deed, instrument, or writing to which it is a party, but the tax may be collected by assessment from any other party liable therefor; -19- C. The making, delivering or filing of conveyances to make effective any plan or reorganization or adjustment: (1) Confirmed under the Federal Bankruptcy Act, as amended; (2) Approved in an equity receivership proceeding in a court involving a railroad corporation, as defined in subdivision (m) of S205 of Title 11 of the United States Code, as amended; (3) Approved in an equity receivership proceeding in a court involving a corporation, as defined in subdivision (3) of S506 of Title 11 of the United States Code, as amended~ or (4) Whereby a mere change in identity, form or place of organization is effectedo Subdivisions 1 to 4, inclusive, of this section shall only apply if the making, delivery or filing of instruments of transfer of conveyances occurs within five years from the date of such confirmation, approval or changel D. The making or delivery of conveyances to make effective any order of the Securities and Exchange Commission, as defined in subdivision (a) of S1083 of the Internal Revenue Code of 1954; but only if: (1) The order of the Securities and Exchange Commission in obedience to which such conveyance is made recites that such conveyance is necessary or appropriate to effectuate the provisions of ~79K of Title 15 of the United States Code, relating to the Public Utility Holding Company Act of 1935; (2) Such order specifies the property which is ordered to be conveyed~ (3) Such conveyance is made in obedience to such order. E. Any realty held by a partnership by reason of any transfer of an interest in a partnership or otherwise, if: (1) Such partnership (or another partnership) is considered a continuing partnership within the meaning of S708 of the Internal Revenue Code of 1954~ and (2) Such continuing partnership continues to hold the realty concerned. -21- If there is a termination of any partnership within the meaning of S708 of the Internal Revenue Code of 1954, for purposes of this ordinance, such partnership shall be treated as having executed an instrument whereby there was conveyed, for fair market value (exclusive of the value of any lien or encumbrance remaining thereon), all realty held by such partnership at the time of such termination. No more than one tax shall be imposed pursuant to this ordinance by reason of a termination described in the preceding paragraph, and any transfer pursuant thereto, with respect to the realty held by such partnership at the time of such termination. F. Any deed, instrument, or writing to a beneficiary or mortgagee, which is taken from the mortgagor or trustor as a result of or in lieu of foreclosure; provided, that such tax shall apply to the extent that the consideration exceeds the unpaid debt, including accrued interest and cost of foreclosure. Consideration, unpaid debt amount and identification of grantee as beneficiary or mortgagee shall be noted on said deed, instrument or writing or stated in an affidavit or declaration under penalty of perjury for tax purposes. Section 11-206. Administration. Pursuant to the provisions of Part 6.7 of Division 2 of the Revenue and Taxation Code~ this Ordinance shall be administered by the County Recorder of the County of Contra Costa. Section 11-207. Refunds. Claims for refund of taxes imposed pursuant to this ordinance shall be governed by the provisions of Chapter 5 (commencing with Section 5096) of Part 9 of Division 1 of the Revenue and Taxation Code of the State." Section 8. Section 1 of Ordinance No. 7 is renumbered and included in the Danville Municipal Code to read as follows: "Section 1-307. Place of Imprisonment. Under Section 36903 of the Government Code, imprisonment in the County Jail is prescribed as the place for imprisonment for each violation of a City Ordinance." Section 9. Posting. Within 15 days after the passage of this ordinance, the City Clerk shall have it posted in three (3) public places designated by resolution of the City Council. The foregoing ordinance was introduced at a meeting of ~he Danville City Council on adopted at a meeting held on by the following vote: Auqustl6 , 1982, and September7 , 1982, -23- AYES: NOES: ABSENT: Attest: Lane , May, Mc Neely, Offenhartz, Schlendorf None None CITY ~RK -24-