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HomeMy WebLinkAboutOrdinance #1068 ORDINANCE NO. 1068 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH IMPOSING A TAX UPON THE PRIVILEGE OF TRANSIENT OCCUPANCY AND PROVIDING FOR THE COLLECTION THEREOF; ADDING ARTICLE 173 and SECTIONS OF SAID ARTICLE TO THE HUNTINGTON BEACH ORDINANCE CODE. The City Council of the City of Huntington Beach does ordain as follows: Section 1. That Article 173 is hereby added to the Huntington Beach Ordinance 'Code to read in words and figures as follows: ARTICLE 173 UNIFORM TRANSIENT OCCUPANCY TAX Section 2. That Sections 1731, 1732, 1733, 1733. 1,, 1733. 2, 1733. 3, 1733. 4, 1733. 5, 1734, 1734. 1, 1734. 2, 1734. 3, 1734. 4, 1735, and 1736 are hereby added to the Huntington Beach Ordinance Code, as part of Article 173, to read in words and figures as follows: Section 1731. Purpose. The'City Council of the City of Huntington Beach hereby declares that this ordinance, which shall be known as the Uniform Transient Occupancy Tax Ordinance, is adopted to provide a tax on the rent charged in a hotel by the operator of said hotel: Section 1732. Definitions. Except where the context other- wise requires, the definitions given in this section govern the construc- tion of this ordinance: (a) Person. "Person" means any individual, firm, partner- ship, joint venture, association, social club, fraternal organization, A 1. Ord. No. 1068 joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit. (b) "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, dormitory, public or private club, mobilehome 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 exer- cises 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 cal- endar days as full days. Any such person so occupying space in a hotel 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. In determining whether a person is a transient, uninterrupted periods of time extending bo,th 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. 2. Ord. No. 1068 (f) Operator. "Operator" means the person who is pro- prietor 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 pro- visions of this ordinance by either the principal of the managing agent shall, however, be considered to be compliance by both. (g) Tax Collector. "Tax Collector" means the Tax Collector. Section 1733. Tax Imposed. For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of four percent (470) of the rent charged by the operator. Said Tax con- stitutes 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 tran- sient'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 Collector may require that such -tax shall be paid directly to the Tax Collector. Section 1733. 1 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; (b) Any federal or State of California officer or employee when on official business; 3. Ord. No. 1068 (c) Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or internat- ional 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 Collector. Section 1733. 2 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 for payment 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 1733. 3 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 Collector and obtain from her 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. Ord. No. 1068 (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 Collector for the purpose of collecting from transients from the Transient Occupancy Tax and remitting said tax to the Tax Collector. 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 re- quiring a permit from any board, commission, department or office of this city. This certificate does not constitute a permit. " Section 1733. 4 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 Collector, on forms provided by her, 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 Collector. The Tax Coll- ector may establish shorter reporting periods for any certificate holder if she deems it necessary in order to insure collection of the tax and she may require further information 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 Collector. Section 1733. 5 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 107 of the amount of the tax in addition to the amount of the tax. 5. Ord. No. 1068 (b) Continued Delinquency. Any operator who fails to re- mit 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°/-0 of the amount of the tax in addition to the amount of the tax and the 1070 penalty first imposed. (c) Fraud. If the Tax Collector determines that the non- payment of any remittance due under this ordinance is due to fraud, a penalty of 257 of the amount of the tax shall be added thereto in addition to the penalties stated in subparagraphs (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 170 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 imposed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid. Section 1734. Failure to Collect and Report Tax. Determin- ation of Tax by Tax Collector. If any operator shall fail or refuse to collect said tax and to make, within the time provided in this ordinance, any report and remir�ance of said tax or any portion thereof required by this ordinance, the Tax Collector shall proceed in such manner as she may deem best to obtain facts and information on which to base her estimate of the tax due. As soon as the Tax Collector shall procure such facts and information as she is able to obtain upon which to base the assess- ment 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 6. Ord. No. 1068 and remittance, she shall proceed to determine and assess againt such operator the tax, interest and penalties provided for by this ordinance. In case such determination is made, the Tax Collector 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 with- in ten (10) days after the serving or mailing of such notice make applic- ation in writing to the Tax Collector 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 Collector shall become final and conclusive and immediately due and payable. If such application is made, the Tax Collector 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 Collector shall determine the proper tax to be remitted and shall thereafter give written notice to the person and 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 1734. 1. Section 1734. 1 Appeal. Any operator aggrieved by any de- cision of the Tax Collector with respect to the amount of such tax, interest and penalties, if any, may appeal to the City Council by filing 7. Ord. No. 1068 a notice of appeal with the City Clerk within fifteen (15) days of the serving or mailing of the determination of tax due. The Council shall fix a time and place for hearing such appeal, and the City 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 to be due shall be immediately due and payable upon the service of notice. Section 1734. 2 Records. It shall be the duty of every op- erator 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 liable for the collection of and payment to the city, which records the Tax Collector shall to ve the right to inspect of all reasonable times. Section 1734. 3 Refunds. (a) Whenever the amount of any tax, interest or penalty 8. Ord. No. 1068 has been overpaid or paid more than once or has been erron- eously or illegally collected or received by the City under this ordinance it may be refunded as provided in subparagraphs (b) and (c) of this section provided a claim in writing there- for, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the Tax Collect- or within three years of the date of payment. The claim shall be on forms furnished by the Tax Collector. (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 Collector that the person from whom the tax has been coll- ected 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 pro- vided in subparagraph (a) of this section, but only when the tax was paid by the transient directly to the Tax Collector, or when the transient having paid the tax to the operator, establishes to the satisfaction of the Tax Collector that the transient has been unable to obtain a refund from the operator who collected the tax. 9• Ord. No. 1068 (d) No refund shall be paid under the provisions of this section unless the .claimant establishes his right there- to by written records showing entitlement thereto. Section 1734.4. Actions to Collect. Any tax required to be paid by any transient under- the provisions of this or- dinance 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 owned by the operator to the city. Any person owing money to the City un- der the provisions of this ordinance shall be liable to an action brought in the name of the City of Huntington Beach for the recovery of such amount. Section 1735. 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 the city 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 register as required herein, or to furnish any return re- quired to be made, or who fails or refuses to furnish a sup- plemental return or other data required by the Tax Collector 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 misde- meanor and is punishable as aforesaid. 10. Ord. No. 1068 Section 1736. Severability. If any section, - subsect-ion, 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 valid- ity 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, paragraph, sen- tence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, para- graphs, sentences, clauses or phrases be declared unconstitu- tional. Section 3. That the City Clerk shall certify to the passage and, adoption of this ordinance and shall cause the same to be published by one insertion in the Huntington Beach News, a weekly newspaper, printed, published and circulated in the City of Huntington Beach, California, and thirty (30) days after the adoption thereof, the same shall take effect and be in full force. PASSED AND ADOPTED by the City Council of the City of Huntington Beach, California, this 1 th day of June , 1964. a , �- ATT • a, e City Clerk APPROVED AS TO FOBNI: JAMES D. PLUNKETT, City Attorney Ord. No. 1068 STATE OF CALIFORNIA. ) County of Orange ) ss City of Huntington Beach ) I, PAUL C, JONES, the duly elected, qualified and acting City Clerk of the City of Huntington Beach and ex-officio Clerk of the City Council of the said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is five; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on the 1st day of June , 1964, and was again read to said City Council at a regular meeting thereof held on the 15th day of June , 1964, and was passed and adopted by the affirmative vote of more than a majority of all the mem- bers of said City Council. AYES: Councilmen: Welch, Lambert, Gisler, Stewart, Shipley NOES: Councilmen: None ABSENT: Councilmen: None City Clerk and e -officio Clerk of tlae_ City Council of the City of Huntington ,Beach, California