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Ordinance Number 483ORDINANCE NO. 483 TRANSIENT OCCUPANCY TAX 194 AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, ADDING ARTICLE 6 TO CHAPTER 3, TITLE 3 OF THE MUNICIPAL CODE - TRANSIENT OCCUPANCY TAX THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Text. Article 6 is added to Chapter 3, Title 3 of the Municipal Code to read as follows: "Article 6. Transient Occupancy Tax "Section 3-3.601. Definitions. "For the purposes of this Article, the following words and phrases shall have the meanings respectively ascribed to them by this Section: "Hotel. 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, including any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, rooming house, apartment house, dormitory, public or private club, mobilehome or house trailer at a fixed location or other similar structure or portion thereof. "Occupancy. The use or possession, or the right to the use or possession, of any room or portion thereof in any hotel for dwelling, lodging or sleeping purposes. "Operator. 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 Article and shall have the same duties and liabilities as his principal. Compliance with the provisions of this Article by either the principal or the managing agent shall be considered to be compliance by both. "Rent. 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. -1- 195 "Transient. 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 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. "Section 3-3.602. Delegation of Authority. "The City Manager or his designee shall administer the Transient Occupancy Tax Ordinance. "Section 3-3.603. Levy and Collection of Tax. "For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of six (6%) 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 to the operator. 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 transients ceasing to occupy space in the hotel. "Section 3-3.604. Duties of Operator. "Each operator shall collect the tax imposed by this Article 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 provided in this Article. "Section 3-3.605. Registration; Issuance of Certificate. "Within thirty (30) days after the effective date. of this Ordinance or the commencement of business, whichever date shall first occur, each operator of any hotel renting occupancy to transients shall register such hotel with the City and obtain a 'Transient Occupancy Registration Certificate' to be at all times posted in a conspicuous place on the premises. Such certificate shall, among other things, state the following: "(a) The name of the operator. -2- "(b) The address of the hotel. "(c) The date upon which the certificate was issued. "(d) 'This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Transient Occupancy Tax Ordinance by registering with the City for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the City. 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.' "Section 3-3.606. Reports; Remittance of Collections. "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 City Manager or his designee, make a return to the City, on forms provided by the City, 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 City. The City Manager 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 collected by operators pursuant to this Article shall be held in trust for the account of the City until payment thereof is made to the Cjty. "Section 3-3.607. Penalties and Interest for Delinquencies. "(a) Original delinquency. Any operator who fails to remit any tax imposed by this Article within the time required shall pay a penalty of ten (10) percent of the amount of the tax in addition to the amount of the tax. -3- "(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 ten (10) percent of the amount of the tax in addition to the amount of the tax and the ten (10) percent penalty first imposed. "(c) Fraud. I£ the City Manager determines that the nonpayment of any remittance due under this Article is due to fraud, a penalty of twenty-five (25) percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsections (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 Article shall pay interest at the rate of one (1) 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 merLith ith tax. Every penalty imposed and such interest as accrues under the provisions of this Section shall become a part of the tax required to be paid. "Section 3-3.608. Determination of Tax by City Upon Failure of Operator to Collect and Remit Tax. "If any operator shall fail or refuse to collect the tax imposed by this Article and to make, within the time provided in this Article, any report and remittance of such tax, or any portion thereof, the City shall proceed in such manner as deemed best to obtain facts and information on which to base the estimate of the tax due. As soon as the City shall procure such facts and information as it is able to obtain upon which to base the assessment of any tax imposed by this Article and payable by any operator who has failed or refused to collect the same and to make such report and remittance, the City shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this Article. In case such determination is made, the City Manager 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 days after the serving or mailing of such notice make application in ly8 writing to the City Manager 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 City shall become final and conclusive and immediately due and payable. If such application is made, the City Manager 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 such notice why such 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 City Manager 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 3-3.609. "Section 3-3.609. Appeals. "Any operator aggrieved by any decision of the City Manager with respect to the amount of tax, interest and penalties under this Article, 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 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 City Council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in this Article for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice. "Section 3-3.610. Records to be Ke "It shall be the duty of every operator liable for the collection and payment to the City of any tax imposed by this Article to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the a1ount of such tax as he may have been liable for the collection of and payment to the City, which records the City Manager shall have the right to inspect at all reasonable times. "Section 3-3.611. Credits. "A credit against the amount of tax due will be allowed for credit card company charges. A schedule will be attached to the quarterly reporting form to substantiate the amount claimed for credit. -5- 199 "Section 3-3.612. 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 Article it may be refunded as provided in subsections (b) and (c) of this Section; provided, that a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the City Manager within one (1) year of the date of payment. "(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 City Manager that the person from whom the tax has been collected was not a transient; provided, 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 subsection (a) of this Section, when the transient having paid the tax to the operator, establishes to the satisfaction of the City Manager 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 3-3.613. Use of Funds. "Funds derived through the levying of the transient occupancy tax shall be deposited in the General Fund of the City to be used for general governmental purposes, including the maintenance, improvement or acquisition of public facilities which the City Council may determine are of a direct benefit to the City. T� ;� UU "Section 3-3.614. Collection by Court Action. "Any tax required to be paid by any transient under the provisions of this Article 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 Article shall be liable to an action brought in the name of the City for the recovery of such amount. "Section 3-3.615. Certain Acts Prohibited. "No person shall fail or refuse to register as required in this Article, or furnish any return required to be made, or fail or refuse to furnish a supplemental return or other data required by the City, or render a false or fraudulent return or claim. No person required to make, render, sign or verify any report or claim shall make any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this Article to be made." SECTION 2. Effective Date. This Ordinance shall take effect and be in force on June 1, 1983. PASSED, APPROVED AND ADOPTED this 15th day of February , 1983 , by the following vote, to wit: ATTEST,• CITY CLE AYES: Councilmen Hausdorfer, Bland, Schwartze, and Mayor Buchheim NOES: None ABSENT: Councilmen Friess ENCE F. BUCHHEIM, MAYOR -7-