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HomeMy WebLinkAboutTC Ord 1965-09-27 ORDINANCE NO. 42 AN ORD INANCE OF -THE CITY OF TIBURON IMPOS ING A TAX UPON THE PRIVILEGE OF PROVIDING OCCUPANCY TO TRANS IENTS, PROVIDING FOR THE COLLECTION THEREOF, AND PROVIDING PENALTIES FOR VIOlATIONS The City Council of the City of Tiburon does ordain as follows: Section 1. Definitions. Except where the context otherwise requires, the def~n~t~ons g~ven 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, joint stock company, corporation, estate, trust, business trust, re- ceiver, trustee, syndicate, or any other group or combination acting as a unit. (b) Hotel. "Hotel" means any structure, or any portion of any structure:-wEich is occupied or intended or designed for occu- pancy by transients for dwelling, lodging or sleeping purposes, and includes any hotel, inn, hostelry, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, 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 roam or roams or portion thereof, in any hotel for dwelling, lodging or sleeping purposes. (d) Transient. "Transient" means any person who exercises occupancy or is ent~tled to occupancy by reason of concession, per- mit, 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 potel 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 occu- pancy. 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:-ro~ the occupancy of space in a hotel valued in mo- ney, whether to be received in money, goods, labor or otherwise, in- cluding 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 proprie- tor 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 ma- naging agent shall, however, be considered to be compliance by both. 1. Section 2. Imposition and Rate of Tax. For the privilege of providLng occupancy to trans Lents wLthLn the City, a tax is hereby imposed on the operator of any hotel at the rate of four per cent (4%) of the total amount of rent collected by said operator for the providing of such occupancy. Section 3. Reimbursement. The tax hereby imposed shall be col- lected by the operator tram the transient, insofar as it can be done. Section 4. Unlawful Advertising. It is unlawful for any opera- tor to advertise or hold out or state to the public or any transient, directly or indirectly, that the tax or any part thereof will be as- sumed or absorbed by the operator, or that it will not be added to the room rental, or that, if added, it or any part thereof will be refunded. Section 5. for Permit. Within thirty (30) days after the ettective ate 0 t LS or nance or within thirty (30) days after commencing business, whichever is later, each operator of a hotel shall file with the City Clerk an application for a permit for each hostelry from which rooms are to be rented, or lodgings fur- nished to transients. Every application shall be made upon a form to be prescribed by the City Clerk, and shall set forth the name under which the operator intends to operate his hotel, the location of the hotel or hotels, including all portions of lots and blocks in the City occupied by same, and such other information as the City Clerk may require. The operator shall sign the application; and, if the operator is a corporation, said application shall be signed by an executive officer or some person specifically authorized by the corpo- ration to sign the application, to which shall be attached the written evidence of his authority. Section 6. Issuance and Display of Permit. After compliance with Sect10n 5 of thLs ordLnance by the operator, the City Clerk shall grant and iSsue to each operator a separate permit for each separate hotel from which rooms or lodgings will be furnished. A permit is not assignable and is valid only for the operator in whose name it is issued, and for the operation of a hotel at the place de- signated therein. The permit shall at all times be conspicuously displayed at the place for which issued. Section 7. Due Date and Paynlent of Tax. The taxes imposed by this ordLnance are due and payable to the City Clerk on or before the last day of the month following the close of each calendar quarter. Payments are due ilIlllediately upon cessation of business for any rea- Son. Section 8. Returns. On or before the last day of the month followLng the close ot each calendar quarter, a return for the said calendar quarter period shall be filed with the City Clerk, in such form as he shall require, by each operator collecting rent during said period, said report to show the total amount of rent collected by said operator for said period. The City Clerk may require re- turns to show the total rents or other gross receipts of operator at the location of the hotel, and an explanation in detail of any dis- crepancy, if any. Returns are due immediately upon cessation of busi- ness for any reason. Section 9. Extension of TLme. Waiver of Compromise. The City Clerk shall have power, tor good cause, to extend tor a period of not to exceed thirty (30) days the time for making any return or paying any amount required to be paid under this ordinance, when requested so to do in writing, before the same becomes delinquent. The City 2. Clerk may, with the written approval of the City Attorney, waive or compromise any penalty or interest that would otherwise accrue under the provisions of this ordinance. The City Clerk shall make and transmit to the City Council quarterly a detailed report of any sums so waived or compromised with the reasons therefor. Section 10. Deficiency Determinations. a) Recrnuputation of Tax; Authority to Make; Basis of Recomputation. It the C~ty Clerk 1S not sat1st~ed w1th the return or returns ot the tax or the aluount of tax required to be paid to the City by any operator, he may compute and determine the amount re- quired to be paid upon the basis of the facts contained in the re- turn or returns or upon the basis of any information within his pos- session or that may come into his possession. One or more deficiency determinations may be made of the amount due for one or for more than one period. b) Interest on Deficiency. The amount of the determina- tion, exclusive ot penalt1es, shall bear interest at the rate of one-half of one per cent (t of 1%) per month, or fraction thereof, from the fifteenth day after the close of the quarterly period for which the amount or any portion thereof should have been returned until the date of payn~nt. c) Penalties. Every operator shall pay a delinquency penalty of ten per cent (10%) of the amount of the said def~ciency determination in addition to the amount of the determination. Every operator shall pay a second delinquency penalty of ten per cent (10%) of the amount of the said deficiency determination in addition to the amount of the determination and the ten per cent (10%) penalty first imposed, in the event that the said deficiency determination is not paid on or before a period of thirty (30) days following the service of notice, as provided by subsection (e) of this Section 10. d) penalt* for Fraud or Intent to Evade. If any part of the deficiency tor w ~ch a det1c1ency determ1nat10n is made is due to fraud or an intent to evade this ordinance or authorized rules and regulations, a penalty of twenty-five per cent (25%) of the amount of the detennination shall be added thereto. e) Notice of Cit Clerk's Determination; Service of. The City Clerk sha g1ve to t e operator wr~tten not1ce 0 ~s etermi- nation. The notice may be served personally or by mail; if by mail, service shall be made pursuant to Section 1013 of the Code of Civil Procedure and shall be addressed to the operator at his address as it appears in the records of the City Clerk. In case of service by mail of any notice required by this ordinance, the service is complete at the time of depoeit in the United States Post Office. f) Time Within Which Notice of Deficiency Determination to be Mailed. Except ln the case ot traud, lntent to evade thlS or- d1nance or authorized rules and regulations, or failure to make a return, every notice of a deficiency determination shall be mailed within three (3) years after the fifteenth day of the calendar month following the quarterly period for which the amount is proposed to be determined or within three (3) years after the return is filed, whichever period expires the later. The limitation specified in this section does not apply in case of a tax proposed to be determined with respect to occupancies of which notice of a deficiency deter.mination has been or is given. 3. Section 11. Determination if no Return Made. a) Estimate of Gross Receipts; Computation of Tax Penalty. If any operator ta~ls to maKe a return, the C~ty Clerk shall make an estimate of the amount of the gross receipts of the operation, or, as the case may be, of the amount of the total rentals in this City which are subject to the tax. Th8 estimate shall be made for the period or periods in respect to which the operator failed to make a return and shall be based upon any information which is in the City Clerk's possession or may cane into his possession. Upon the basis of this estimate, the Ci.ty Clerk shelll compute and determine the amount re- quired to be paid to the City, adding to the sum thus arrived at a penalty equal to ten per cent (10%) thereof. One or more determina- tions may be made for one or for more than one period. A second penalty of ten per cent (10%) of said amount is due and payable by the operator if said a~ount is not paid on or before a period of thirty (30) days following the service of notice, as provided by subsection (d) of this Section 11. b) Interest on Amount Found Due. The amount of the deter- minations, excws.ive ot penalt~es, shall bear interest at the rate of one-half of one per cent (~ of 1%) per month, or fraction there- of, from the 15th day of the month following the close of the quar- terly period for which the amount or any portion thereof should have been returned until the date of payment. c) Penalty for Fraud or Intent to Evade. If the failure of any operatoL~o:r~le a return ~s due to traud or an intent to evade this ordinance or rules and regulations, a penalty of twenty- five per cent (25%) of the amount required to be paid by the person, exclusive of penalties, shall be added thereto in addition to the ten per cent (10%) penalty provided in Section 11 a). d) Giving of Notice; Manner of Service. Promptly after making his determInation, the C~ty Clerk shall g1ve to the operator written notice of the estimate, determination and penalty, the no- tice to be served per30nally or by mail in the manner prescribed for service of notice of a deficiency determination. Section 12. Redeterminations. a) Right to Petition for; Time to File Petition. Any upern. tL>~- .qgRins t whom a determ1na t10n ~s made under th1S ordinance or any operator directly interested may file a written petition for a redetermination within thirty (30) days after service upon the operator of notice thereof. If a petition for redetermination is not filed within the 30-day period, the determination becomes final at the expiration of the period. b) Grant'of Oral Hearing; Notice, Continuances. If a petition for redeternl1nat1on 1S t11ed with~n tne JU-day period, the City Clerk shall reconsider the determination and, if the person has so requested in his petition, shall grant the operator an oral hear- ing and shall give him ten (lO) days' notice of the time and place of the hearing. The City Clerk n~y continue the hearing frcra time to time as may be necessary. c) Alteration of Determination; Limitation on Right to Increase Amount. The C1ty Clerk m~ay decrease or 1ncrease the amount ot the determ1nation before it becomes final, but the amount may be increased only if a claim for the increase is asserted by the City Clerk at or before the hearing. 4. d) Finality of Order on Petition. The order or decision of the City Clerk upon a pet1t10n tor redetermination becomes final upon service of notice of the order or decision upon the petitioner unless written appeal of such order or decision is filed with the City Council within fifteen (~5) days after service of such notice. e) Right of Appeal to Council. If appeal of such order is filed with the C1ty Counc1l w1th1n t1fteen (15) days of service of such notice, the City Council shall grant a hearing to such opera- tor so appealing and shall set the time of such hearing within thirty (30) days after receipt of the written appeal. The Council at such hearing shall have full power to review the determination of the City Clerk and may modify the deter~minatinn of tax due. The de- cision of the City Council after said hearing shall be a final deter- mination in the matter. f) Every penalty imposed and such iuterest as accrues under the provisions of Sections 11 and 12 shall becane a part of the tax herein required to be paid. g) Manner of Serving Notices. Any notice relating to redetermination proceed1ngs shall be served personally or by mail in the manner prescribed for service of notice of a deficiency de- termination. Section 13. Penalties and Interest for Failure to Pay Tax. Unless otherw1se provided here1n, every operator who ta1ls to pay any tax to the City, within the time required, shall pay a penalty of ten per cent (10%) of the tax or amount of the tax, in addition to the tax or amount of tax, plus interest at the rate of one-half of one per cent (~ of 1%) per month, or fraction thereof, from the date on which the tax or theanount of tax required to be collected became due and payable to the City until the date of payment. Section 14. Collection of Tax. All taxes hereby levied shall be payable to the C1ty Clerk, and any civil suit for the collection thereof may be filed in any court of competent jurisdiction in the State of California, and the City Attorney of said City shall pro- secute the action. Section 15. Successor Liability. a) Dut Tax From Purchase Money. any operator 1a e or any amount under this ord1nance sells out his business or quits the business, his Successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the City Clerk showing that he has been paid or a certificate stat- ing that no amount ~s due. b) Liabilit Notice of Amount ue; the purchaser ot a bus1ness ta1ls to w1thhold purchase pr1ce as required, he becomes personally liable for the payment of the amount required to be withheld by him to the extent of the purchase price, valued in money. Within thirty (30) days after receiving a written request from the purchaser for a certificate, the City Clerk shall either issue the certificate or mail notice to the purchaser at his address as it appears on the records of the City Clerk of the amount that must be paid as a condition of issuance of the certificate. Failure of the City Clerk to mail~ notice will release the purchaser from any further obligation to withhold purchase price as above provided. The time within which the obligation of a succesor may be enforced 5. shall start to run at the time the operator sells out his business or at the t~e that the determination against the operator becomes final, ~lhichever event occurs the later. Section 16. Administration. a) Records Required From Operators, Etc., Form. Every operator shall keep such records, rece~pts, invo~ces, and other per- tinent papers in such form as the City Clerk may require, for a period of three (3) years. b) Examination of Records; Investigations. The City Clerk or any person author~zed ~n wr~tLng by hLm may examine the books, papers, records and equipment of any person renting lodging space and any operator liable for the tax and may investigate the character of the business of the person in order to verify the accu- racy of any return made, or, if no return is made by the person, to ascertain and determine the amount required to be paid. Reports; Contents. In administra- tion of may requLre t e 1 ng of reports by any person or class of persons having in his or their possession or custody information relating to rentals which are subject to the tax. The reports shall be filed when the City Clerk requires and shall set forth the rental charged for each occupancy, the dat~ or dates of occupancy, and such other information as the City Clerk may require. d) Disclosure of Business of Operators, Etc.; Limitation on Rule. It is unlawtul tor the C1ty Clerk or any person havLng an aWD1n1strative duty under this ordinance to make known in any manner whatever the business affairs, operations, or information obtained by an investigation of records and equipment of any operator or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any return, or to permit any return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person. Suc- cessors, receivers, trustees, executors, administrators, assignees, guarantors, and city officials, if directly interested, may be given information as to the items included in the measure and amount of any unpaid tax or amounts of tax required to be collected, interest and penalties. Section 17. Saving Clause. This ordinance shall not apply to any operator as to whom, or to any occupancy as to which, it~ beyond the power of the City Council to impose the tax herein provided. 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, paragraph, sentence, clause or phrase there- of, irrespective of the fact that anyone or more sections, subsec- tions, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional. Section l8. Violations a Misdemeanor. Any person violating any of the prOV~SLons ot th~s ord~nance 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 uuprisonment in the County Jail for a period of not more than six months or by both such fine and impri- sonment. Each such person shall be guilty of a separate offense for 6. each and every day during any portion of which any violation of any provision of this ordinance is committed, continued or permittee by such person and shall be punishable accordingly. 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 City Clerk, or who renders a false or fraudulent return, is guilty of a misdemeanor and is punishable as aforesaid. Any operator required to make, render, sign or verify any report, who makes any false or fraudulent report with intent to de- feat or evade the determination of an amount due required by this ordinance to be made, is guilty of a misdemeanor and is punishable as aforesaid 0 Section 19. Enactment. This ordinance is to take effect and be in torce th~rty (3U) days after its passage, and before the ex- piration of fifteen (l5) days after its~ssage the same shall be published, with the names of the members voting for and against the same, at least once in a newspaper of general circulation published in the City of Tiburon. PASSED AND ADOPTED at a meeting of the City Council of the City of Tiburon on the 27th day of September , 1965, by the fol- lowing vote: AYES: NOES : ABSENT: Councilmen: Ell inwood, Hannahs, Hoffmire, Parnell, Strawbridge Councilmen: None Counci lmen: None ~/h~ IJ ~ GORDON W. STRAWBRID~ Mayor of the City of TO uron ATTEST: - '''---) ~b~c<>. D. SE, C1.ty '. Clerk 7 .