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HomeMy WebLinkAbout30-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN City Attorney i L,..... \,.< ." ... Subject: A. Resolution of the City of San Bernardino submitting to the qualified electors of said City for their approval a ballot measure relating to the City's transient lodging tax; transmission of the proposed ballot measure to the Office of the City Attorney for purposes of preparation of an impartial analysis. Dept: CITY ATTORNEY B. Resolution of the Mayor and Common Council of the City of San Bernardino calling a Special Municipal Election on a proposed new transient lodging tax and requesting that said City of San Bernardino's Special Municipal Election be consolidated with the November 5, 2002 Statewide General Election conducted by the County of San Bernardino. Date: July 12,2002 Synopsis of Previous Council action: Council adopted Ordinance 2811 on April 10, 1967 relative to Chapter 3.52 of the San Bernardino Municipal Code known as the Uniform Transient Occupancy Tax. Chapter 3.52 has been amended in previous years through the adoption of Ordinance 3433 in 1974, Ordinance 3846 in 1979, Ordinance MC-191 on July 19, 1982, Ordinance MC-288 on July 5, 1983, Ordinance MC-196 on August I, 1983, Ordinance MC-376 on June 4,1984, Ordinance MC-460 on May 13, 1985, Ordinance MC-702 on January 8, 1990, Ordinance MC-732 on June 18, 1990, Ordinance MC-740 on August 20, 1990, Ordinance MC-805 on September 16, 1991, and Ordinance MC-998 on July 21,1997. Chapter 3.52 repealed and Chapter 3.54 relating to Transient Lodging Tax adopted by Ordinance MC-1006 on November 17, 1997, effective February 3, 1998 upon voter approval at City's General Municipal Election. First reading of an Ordinance of the City of San Bernardino repealing Chapter 3.54 of the San Bernardino Municipal Code and adding Chapter 3.55 to the San Bernardino Municipal Code relating to Transient Lodging Tax on July 1,2002. Recommended motion: That said Resolutions A and B, be adopted. ~?-?~ (/ Signature Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Report Ward: All \2-0,0 ~"2oo 2. - -u, ;;) " " 2..002- ?-4:. Agenda Item No. 30 A & B 7/;5/0')- FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: Agenda Item No. 30A & B STAFF REPORT Council Meeting Date: July 15, 2002 TO: FROM: DATE: AGENDA: Mayor and Common Council City Attorney's Office July 12, 2002 Agenda Item #30 A & B SUBJECT: Resolutions placing the Revised Transient Lodging Tax on the November ballot. BACKGROUND As the Common Council is aware, the City's Transient Lodging Tax Ordinance has been the subject of on-going litigation brought by the San Bernardino Hotel and Motel Association. This litigation resulted in an adverse decision, by the Fourth District of the Court of Appeal, in Riverside, invalidating the ordinance in 1997. The City subsequently revised the ordinance and the Association is now challenging the amended version. Although our Fourth District Court of Appeal has not issued a formal decision on the new ordinance, it has rendered a tentative opinion indicating that it probably would find the new ordinance, if it were challenged, to be invalid as well. The City's Transient Lodging Tax Ordinance is based on a model that has been used by many California municipalities. Indeed, the City of Gilroy has a comparable transient occupancy tax ordinance that was upheld earlier this year by a different Court of Appeal, the Sixth District of the Court of Appeal. (Patel v. City of Gilroy, 97 Cal.App.4th 483 (2002). The plaintiffs in that case were represented by the same attorney used by the San Bernardino Hotel/Motel Association, but the Sixth District was not persuaded by his arguments. Unfortunately, the Fourth District is not obligated to follow the Gilroy decision and, given its prior opinions in the litigation against the City, most likely would reject the analysis used in that case. For this reason, the City Council voted to retain the law firm of Richards, Watson & Gershon, on the advice of the City Attorney, to revise the Transient Lodging Tax Ordinance to address the criticisms that have been made by the Court of Appeal. This firm represents approximately thirty California cities and has been practicing in the field of Municipal Law for more than forty years. The ordinance repealing Chapter 3.54 of the San Bernardino Municipal Code and adding Chapter 3.55 to said Code relating to Transient Lodging Tax was laid over for final adoption at the July I, 2002 meeting. It is agendized to be adopted at the July 15, 2002 meeting, agenda item # I O. Because the ordinance is not increasing the tax above the amount that was last approved by the voters, ten percent (10%), there is an excellent argument that neither Proposition 62 nor Proposition RLS/ed[tlt.srp2] 218 require voter approval of the ordinance. However, rather than incur the expense of litigating this issue, it will be more cost effective for the City to place the ordinance on the November ballot. The last time this type of tax was on the ballot, it was approved by 80% of those voting. The Resolutions set forth under Agenda Item 30 A & B will effectively place this measure on the November ballot. CONCLUSION It is recommended that both Resolutions 30 A & B be adopted. . 1 1. , ~ 4 5 6 7 8 9 10 II . . ,r;=;::, (F'. ~ '0// \~ \:=j ,J U RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO SUBMITTING TO THE QUALIFIED ELECTORS OF SAID CITY FOR THEIR APPROVAL A BALLOT MEASURE RELATING TO THE CITY'S TRANSIENT LODGING TAX; TRANSMISSION OF THE PROPOSED BALLOT MEASURE TO THE OFFICE OF THE CITY ATTORNEY FOR PURPOSES OF PREPARATION OF AN IMPARTIAL ANALYSIS. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. Recital. A. Califomia Constitution. Article XIII C, Section 2(b) requires that no local govemment may impose. extend. or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote. B. Pursuant to this authority, the Mayor and Common Council have adopted Ordinance 12 , subject to the approval of a majority of the voters. No. 13 SECTION 2. Submittal to Electors. The ordinance of the City of San Bernardino. attached 14 hereto as Exhibit "A," is submitted to the qualified electors of the City of San Bernardino for their approval or rejection at a special municipal election to be held on Tuesday, November 5. 2002. SECTION 3. Measure. The measure to be voted on at the consolidated special municipal 15 16 17 election as it is to appear on the ballot shall be as follows: 18 19 MEASURE . Slmll the ordinance repealing Chapter 3,54 and adding Chapter 3.55 to the San Bernardino Municipal Code be approved so as to permit the City of San Bernardino to continue to collect and use the transient lodging tax? YES [] NO [] 20 21 22 The measure shall be designated on the ballot by a letter printed on the left margin of the 7' -~ square containing the description of the measure as provided by law. 24 SECTION 4. Transmission of Proposed Ballot Measure Documents. Pursuant to the Elections Code of the State of California, the City Clerk is hereby directed to transmit a copy of the 25 26 ballot measure. and all other necessary documents. to the Office of the City Attorney for purposes 27 of preparation of an Impartial Analysis, :#"(lA j 28 IIlC[tltax] ,------ . 21 22 7' _J 24 25 26 . 27 28 RESOLUTION NO. 2 RESOLUTION OF THE CITY OF SAN BERNARDINO SUBMITTING TO THE QUALIFIED ELECTORS OF SAID CITY FOR THEIR APPROVAL A BALLOT MEASURE RELATING TO THE CITY'S TRANSIENT LODGING TAX; TRANSMISSION OF THE PROPOSED BALLOT MEASURE TO THE OFFICE OF THE CITY ATTORNEY FOR PURPOSES OF PREPARATION OF AN IMPARTIAL ANALYSIS. , J 4 5 6 SECTION 5. Filing of Resolution. The City Clerk of the City of San Bernardino is directed to file a certified copy ofthis Resolution with the Board of Supervisors ofthe County of San 7 Bernardino and to tile a copy of this Resolution with the Registrar of Voters. 8 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 9 meeting thereof, held on Common Council of the City of San Bernardino at a , 2002, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT CITY CLERK The foregoing resolution is hereby approved this day of ,2002. JUDITH V ALLES, Mayor City of San Bernardino Approved as to form and legal Content: JAMES F. PENMAN, City Attorney '1 ~ By: ;P,hV.' 7,;871"'........... // IITQt1taxj ,.' . r A. -) 26 . 27 B. 28 , ORDI;\1ANCE NO. A'i ORDI'iA'iCE OF THE CITY OF SAi'i BER'iARDli'iO REPEALING CHAPTER 3.5-1 OF THE SA'\ BER'i.-\RDli'iO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO THE SA'i BER'\.-\RDI:\O l\IUi\ICIPAL CODE RELATIi\G TO TR.\:\SIENT LODGI:\G TAX. .' -I 5 TI-IE \L-\ YOR A"D CO:\I\ ION COlfl'.:CIL OF THE CITY OF SA" BERNARDINO DO ORD.\I\ c\S FOLLO\VS Ch~lpkr 3.5-1 of the San Bernardino i\luncipaI Code is hereby repealed. Chapter 3.55 is hereby added to the San Bernardino \Iuncipal Code to read Chapter 3.55 TRAi\SIE:\T LODGI:\G TAX Definitions, Tax imposed - Rate - Revenue measure. Collection of tax. Exemptions. Reports and remittances. Refunds. Penalties. Determination of tax by City Clerk. Appeal. Records. Hotel registration. Immediate payment of tax on cessation of business. Sale or ownership transfer of hotel. Liens. Action to collect. Retention and inspection of records. Violation-Penalt". Enforcement-Ciiing authority. Prerequisite for suit. Amendments. Severability. n 3.55.010 Delinitions. .." _J The words and phrases set out in this section, when used in this Chapter. shall. for the purposes of this Chapter. have the following respective meanings except where the context clearly indicates a different meaning: ')1 -~ "Hotel" means a commercial establishment furnishing lodging space in exchange for monetary compensation. Every such establishment shall constitute a "hotel" for purposes of this Chapter notwithstanding any advertising describing the facility as a hostelry, mn, motel, rooming house, tourist home or similar enterprise. "Lodging space" means one or more rooms used or intended to be used for dwelling or sleeping purposes. RLSI,d ["I'l.l.ord] Junl: 27, 2002 I . . A:\ ORDli"Al'iCE OF THE CITY OF SAN BERc'iARDI:\'O REPEALING CHAPTER 3.54 OF THE S.-\N BERi'iARDI:\O i\IUNICIPAL CODE AND ADDIl'iG CHAPTER 3.55 TO THE SA:\ 13ERl'iARDINO MV:\ICIPAL CODE RELATI:\G TO TRA:\SIEl'iT LODGI:\G TAX. ") .' 4 C. 5 D 6 7 8 E. 9 10 F 11 G. 12 13 . 14 15 16 H 17 3.55.020 18 A 19 B 20 21 3.55.030 ")1 A l' ~-' 24 B. 'r -) 26 . C. 27 28 I r I III "Occupancy" means the use or possession. or the right to the use or possession. of a lodging space. ""O;'crat,'r"" means the person \yho is the proprietor of a hOkl. If an operator utilizes a l11J.:":Jging agent \\"ho is not an c:mployee. then such agent shall also constitute an "operator" lor PUljc"ses of this Chapter. Compliance with this Chapter by either the principal or the managing agent shall constitute compliance by both. "Pei'son"" means any indiyidual, tirm. partnership. joint \'enture, association. social club. fraternal organization. joint stock company, corporation. estate, trust, business trust. recei\"er, trustee. syndicate, or any other group or combination acting as a unit. "R00I11 rental" mc:ans the total charge for lodging space. 'oT:":;llsient" means a person \\-ho. for a perLod of thirty consccuti\'e czdendar clays or less. c'\c:"cises occupancy or is entitkd to occupancy by reaS("ln of concession. permit. right of ace"". license or contract. Every such person shall constitute a ""transient"" tor purposes of this Ck,pter until expiration of the thirty-day period unless such person has executed a \\riClell c,)ntract \lith the operator to provide for occupancy in excess of thirty consecuti"e ca!e..dni' clnvs and the contract cannot be terminated without pro\"iding at least thirty days ad'once notice, In determining \lhether a person is a transient. portions of calendar days sh~,!i be counted as full cla\s allduninterrupted periods of time extending both prior and sIJcsequent to the effecti\'e c1ate of this Chapter may be considered, ""Tr:,nsient lodging tax"" means the tax 1e\ied pursuant to this Chapter. Tax imposed - Rate - Rnenue measure. For the priyikge of occupancy in a hotel. each transient is subject to 2nd shall pay a transient k,c:ging tax in the amount of ten percent of the room rental charged by the operator. The transient lodging tax is levied tor re\"enue purposes and is necessar) for the usual tinJ!1cial operation of the City. When collected, the tax shall be made a part of the general funds of the City. Collection of tax. Each operator receiving a room rental payment that is subject to the transient lodging tax. at the time of receipt of the room rental payment. shall collect the amount of the tax imposed The operator shall pro\"icle a receipt for payment of the transient lodging tax to the transient 1 f the monetary compensation received by an operator from a transient includes any charge for ser\"ices or accommochtions besides lodging space, then the room rental portion of such compensation shall be billed to the transient as a separate item. Transient lodging taxes collected by an operator shall be held'in trust until remitted to the City. RLS,~d [TLT,NJ] , Jun~ '27. '200~ 1=iV'hih;+- tl7\11 . 9 A 10 II I ~ I 13 . 1-+ . " A:\ ORDI"iA'\"CE OF THE CITY OF SAN BER1'iARDIi\iO REPEALI:\G CHAPTER · 3.54 OF THE SAN BER:\ARDI:\O MUNICIPAL CODE AND ADDI"iG CHAPTER 3.55 TO THE SA:\ BER"iARDI:\O MUNICIPAL CODE RELATING TO TRA.:\SIENT LODGI:\G TAX. -' -+ 0 :\0 oper~tor shall represent to the public that the transient lodging tax will not b~ added tQ tho 1'00111 rental charge. will bc absorbed by the operator or will be refunded in a mann", co;:tr~r\' to this Chapter. 5 6 E. 7 !:~ ! leL: l..lf p<.1ying the transient lodging ta:~ to an opc:raror. iJ. transient may remit the tiJ.:-: ~ di,ectl\ tc) the City Clerk. An\' transient who opts to rcmit the transicnt lodging ta;: directl:- ' to the Cit\, Clerk shall pro\ide written proof of such remittance to the operator. 8 3.55.035 Exemptions. Grounds, No transient lodging tax shall be imposed upon: , .. ,.'..n\ offiCer or employee of the United States Governmenr or the State ofCalik'rnia tl);' : lod~ing six1ce utdizedby that officer or elnployee in the discha:-ge of oftici::;: ~\..")\.er1ll11e!1t business. , .-'\r~y officer or employee ofJ. foreign go\"erl1lnent \\"ho is exempt by reason of express; l'I',)\'ision of federal law or international treaty. 15 RC'D111 rent:!! paYlnent l11Z1.de to Clny hospital~ 111edical clinic. cOJ1\-:1ksc-::r:r lh,1!11e or home (',.'1:' aged pcopk, 16 , ,-\:1)" person as to \\"110111. or any occupancy as to \\'h1CI1. it is beyond the po\\-e;" at' the; City to impl'se the tax. 17 B. Procedure. Each transient desiring an exemption from the transient ll'dging tax must tile ~ . t2\ exemption certiticate \\'ith the hotel at the time room rental pa\'ment is milde to the ope;'atl"', The ta,\ exemption certificate shall indicate the basis for the exemption ac;d shal: be signed under penalty of perjurv, Tax exemption certificate forms shall be prescribed b;. ' Jnd may be obtained from. the City Clerk, : 1 S 19 20 11 3.55.0-10 Reports and remittances. i A. General Deadline. Except as provided in subsection B, on or before the twenty-fifth day of ! each month, each operator shall deliver to the City Clerk a lodging infonnation repol1for the I Dnor month and shall remIt to the CIty Clerk the tranSIent lodgIng tax collected dunnQ the , prior month. The lodging information report shall indicate the a7110unt recei\'ed for .room l rental and the amount of transient lodging tax required to be collected. and shall be SIgned i under penalty of perjury. Lodging intormation report forms shall be prescribd by. and may ! be obrained from. the City Clerk. : . i B. ..'..lternate Deadline. An operator of a hotel open year-round may, with the written consent I of the City Clerk, deliver lodging information reports an~ remit transient lodgin~ !axes on I a quarterly baSIS, ApphcatlOns to USe the quarterly deadlllle shall be made In wntll1g. I 11 " _0 " -, -,- -) 16 17 11/ 28 / / / RLSil::J [TL T tlrJ] J June 27.1002 'r.'-..\.-."; 'h"; +- "7\ II i I ! i A'i ORDI'iA'iCE OF THE CITY OF SAN BE Ri'iARDI'iO REPEALI'iG CHAP I 3.5-1 OF THE SA;o; BER~ARD!'iO MUNICIPAL CODE A~D ADDING ~HAPTER 3.5I.'i~ i THE SA:'. BE R:'..-\RDI:'.0 i\IUL\ICIP..\L CODE RELATI"iG TO TRA'iSIENT LODGI'iG 1 TAX. . ') J -I 3.55.0-15 5 A 6 7 8 9 10 B 11 ]2 ]3 . 1-1 15 C 16 17 18 19 20 21 Y) 7' -~ 2-1 7 - ..:..) 26 . 27 28 3.55.051J Refunds. Operator Grou:lds. An operator \I,"ho has remitted a transient lodging tax to the Cit\" mal," obt2in a ret'und ofa!l or a pan of such remitlancc in the follo\ving CirClll11stallc,::s: . I, Th~ D\; \\as collected from a person who \\as not a transient. " The amount of ta\; colkcted li'om a transient e\;ceeds the amount due. ~. The amount ofta\; remitted by the operator e:\ceeds the amount due, I ~, The City lacked the authority to impose the la\;, Tr2:1S1cnt Gn.1Uih.1S. .-\ transient \\"ho has rernittcd a transient 10d~inQ tax dir~cth to the Cit\-. n:i:cr th~ln indirectly by 11leans of pClyment to 211 operator. I1WY obtaIn a rcfur:d of all or a part o~' such rernittance in the fol!o\\"in~ circumstances: ] The tJ.:\ \vas collected from i.1 person \\"\10 \\"as not a transient. " The amount of tJ\; remitted by the transient e\;ceeds the amount due, The Cit\, lac!.;ed the amhorit:. to impose the ta\;, Prc,,:~jurc. Each person desiring a refund 11111st file a refund clain1 with the City Clerk \\"ithin three ycars of the dal~ of rcl11ittance of the transient lodQins:: toT\." The refund clain; shall indicate the basis for the refund and shall be signed under pen:,]ty of perjury, Refund claim tom" shall be prescribed by. and may be obtained from, the City Cler!.;. 0:0 refund shall be paid unless the clain1ant prodUCeS written records demonstrating entitlement to the refund. ,".n operator \\ho recei\'es a refund ofta:\ improperly paid by another persoll shall fo!'\\'ard the refund to such person \\ ithin live days ot' receipt. Penalties. A. Delinquency. 1. An operator \\;ho remits a transient lodging ta\; between the first day and the twenty-ninth day following the deadline for such remittance shall pay. in addition to the amount of the tax. a delinquency penalty of twenty-five percent of the amount of the ta\;. An operator who remits a transient lodging ta\; between the thirtieth dav and the sixtieth dav following the deadline for such rer11lttance shidl pay. in addition to"the amount of the tax. a delinquency penalty of fifty percent of the amount of the tax. An operator \\lho remits a transient lodging ta\; after the sixtieth day following the deadline for such remittance shall pay in addition to the amount of the tax the following penalties: (i) a delinquency penalty of one hundred percent of the amount of the ta\;: and (ii) interest on ') 3. RLS:,d [TL T,ord] ~ Exhibit "A" JUllto: '1.7,2002 i . . A. 10 II 12 B 13 . 14 15 C 16 17 18 21 22 ~' ~-.., 24 ,- ~) 26 . 27 28 ~ Al\ ORDINAl\CE OF THE CITY OF SAN BER1'iARDINO REPEALIl\G CHAPTER 3.54 OF THE SAN BERNARDINO i\IUMCIPAL CODE AND ADDING CHAPTER 3.55 TO THE SA:\' BER"iARDI:\'O MliNICIPAL CODE RELATIl\G TO TRANSIEi'iT LODGING TAX. , o 4 th~ total of the tax and the delinquency penalty: Interest shall be at the rate of eighteen percent per annum and shall be computed from the sixty-first day of delinquency until the date of remittance of the tax and delinquency penalty to the City Clerk. 5 6 7 B. Fraud. If the City Clerk determines that the nonpayment ora transient lodging tax is due to fraud orthe operator. then the operator shall pay. in addition to the amount of the tax. a fraud penalty of twenty-tive percent of the amount of the tax. 8 9 3.55.060 Determination of tax by City Clerk. Determination. I r an operator L1ils to collect and remit the transient lodging tax in accordance with this Chapter. then the City Clerk shall determine the amount of tax o\\'ed b:. such operator. The City Clerk may make such determination based on an estimate of the amount due based on the information available. :\otice. Upon determining the amount of transient lodging tax and penalty due. the City Clerk shall notify the operator in writing. If the operator does not request a hearing on such "mount in \\Titing \\'ithin ten davs of the date of issuance of the notice. then the amount shall be conclusive a11d shall be reniitted to the City on or before the deadline specified in the notice. f-Ie"ring. If" timely hearing request is made. then the City Clerk shall notify the operator in \Hiting of the date. time and place ofa hearing on the amount of transient lodging tax and penalty o\\'ed to th~ City at least ten days prior to the date of the hearing. .-'.t such hearing. the operator may offer e\'idence to rebut the determination of the City Clerk. Atier such hearing. the City Clerk shall revise the initial determination as deemed appropriate and shall notify the operator in \\Titing of the final determinatIon of the transient lodging ta:-; and penalty that is due. Such amount shall be remitted to the City within fifteen days ti'om the issuance of the notice. unless an appeal is filed as provided in this Chapter 19 3.55.065. Appeal. 20 Any operator who is aggrieved by a City Clerk decision regarding the amount of transient lodging tax or penalty owed by the operator may appeal to the Common Council in accordance with the pro\isions of Chapter 2.64 of this Code. Any transient who is aggrieved by a City Clerk decision regarding the amount of transient lodging tax owed by the transient may appeal to the Common Council in accordance with the provisions of Chapter 2.64 of this Code. Any amount that the Com11ll1n Council detemlines is owed to the City shall be remitted to the Citv Clerk on or before the deadline set by the Common Council.. . 3.55.0iO Records. A Registration Cards. Each operator shall complete and maintain a transient registration card for every transient that is provided lodging space in the operator's hotel. At a minimum. transient registration cards shall list the following information: I. The name of a person who will occupy, or who is entitled to occupy. the lodglllg space. RLS ~\I [lLT_l)rd] ; June 2. 7. ~U\)2 Exhibit "A" . ~ - -' -I ) 6 7 8 9 \0 II B \2 \3 . 1-1 \5 \6 17 \8 \9 20 21 77 " -~ 2-l 7- ~) 26 . 27 28 A:\ ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALI:\G CHAPTER 3.5-t OF THE SAN BERN'ARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO THE SA:\ BERNARDIi\'O MUNICIPAL CODE RELATI:\G TO TRANSIENT LODGI:\G TAX, ~ The total number of people who will occupy, or who are entitled to occupy, the lodging space, , 0, The identilication of the lodging space by number. -I, The date the occupancy will commence and the expected date of termination, 5. The room rental to be charged for the lodging space, Transient registration cards shall bear consecutive numbers that shall be preprinted on the cards by a print shop or manufacturer of the cards. Voided cards shall be kept for audit purposes. Daily Summary Sheets. Each operator shall maintain a daily summary sheet for each day its hotel is open for business. At a minimum, daily summary sheets shall contain the following information: 1. The name of a person who will occupy, or \\'ho is entitled to occupy, each lodging space that is provided to a customer that day. , The identification by number of each lodging space pro\'ided to a cust0mer. The dai Iy room rental charge and amount paid for each lodging space provided to a transient. I 'to The number of the transient registration card applicable to each lodging space pro\"ided to a transient. 3.55,080 Hotel registration. Within thiny days after the effective date of the ordinance codified in this Chapter. or within thiny days after commencing business, whiche\"er is later. each operator of a hotel providing lodging space to transients shall register such hotel with the City Clerk. Upon registration, the City Clerk shall issue the operator a "Transient Lodging Registration Cenificate" that at a minimum states the follo\\ing: A. The name of the operator. B. The address of the hotel. C. The issuance date of the certificate. D. This Transient Lodging Registration Certificate signifies that the person named on t~e f~ce thereof has fulfilled the requirements of the Transient Lodging Tax Ordinance by registering with the City Clerk for the purpose of collecting from transients the Transient Lodging Tax and remitting said tax to the City Clerk. This certificate does not authorize any person to conduct any unlawful business or to conduct any la\\ful business in an unla\vfulmanner, nor to operate a hotel without strictly complying with all local applicable laws, including but not RLS.d [TL Ton![ 6 Exhibit "A" June 27. ~002 . 8 9 10 11 12 13 . l-l 15 16 17 18 19 20 21 22 ~, _J 2-l ,- -) 26 . 27 B. 28 '1 _ A'i ORpI'iA'iCE OF THE CIT,Y. OF SAN BERNARDINO RE.PEALING CHAPTER 3.:>-+ OF THE SA'i BER.'\ARDI'i0 MlJMCIPAL CODE AND ADDING CHAPTER 3.55 TO THE S.-\:\ BER'iARDI'iO :\IlJNICIPAL CODE RELATING TO TR.-\i'lSIENT LODGI'iG TAX. . ) -+ limit~d to those r~quiring a p~rmit 11'om any board. commission. departm~nt or oftlc~ o.f this City. This certificate does not constitute a permit. ) Each operate'" shall at all times conspicuously post its Transient Lodging Certitlcate on the 6 premi)es of its hotel. 7 3.55.090 Immediate payment of tax on cessation of business. Any operator who ceases providing lodging space to transients shall deliver to the City Clerk a final lodging information report and shall remit to the City Clerk any transient lodging tax owed the Cit\. Such ddiwry and remittance shall be performed within twenty-fiw days of the operator's cessation of such activity. 3.55.100 Sale or onnership transfer of hotel. I f an operator sells or othernise transfers ownership of its hotel. then the operator's successor shall be responsible for remittance of any transient lodging tax and penalty owed bv the operator to the CllY. 3.55.110 Liens. A The Citv Clerk shall periodically prepare for the Common Council a report showing: (i) delinquent transiem lodging taxes and penalties that have not been received b\' the City: and (ii I tbe cOITesponding parcel number designations and addresses of the properties on n'hich Ihe hotels are operated. The Common Council shall consider such repon and hear any objections thereto at a hearing for \vhich no less than a ten-day advance written notice has been prov'ided to the subject operators and property owners. The Common Council may modify the report as deemed necessary and shall confirm the final report by resolution. B. The City Clerk shall file a certified copy of the confirmation resolution with the Auditor of the County of San Bernardino. State ofCalifomia. directing that the unpaid transient lodging taxes and penalties be entered as lien charges against the respective properties as they appear on the current assessment rolls. Liens will be collected at the same time and in the same manner. subject to the same penalties and interest upon delinquencies. as the general taxes for the City of San Bernardino are collected. The City Clerk shall present for recording appropriate notices of the imposition of these liens with the County Recorder. 3.55,120 Actions to collect. A Responsibility for Debt. Any transient lodging tax required to be paid by a transient under the provisions of this Chapter shall constitute a debt owed by the transient to the City. Any such tax that has been collected by an operator but has not been paid to the City shall constitute a debt owed by the operator to the City. Any person owing money to the CIty under the provisions of this Chapter shall be liable in an action brought in the name of the City for the recovery of such amount. Obligation of Operator. Each operator shall be obligated to pay to the City all trans,ient lodging taxes actuallv collected, as well as the amount of any such taxes that were lawtully imposed but not collected by the operator. This obligation'includes the duty to pay to the RLS;~d {TL T.orJ] 7 Exhibit "A" JUlle 27, :::002. . A'i ORDINANCE OF THE CITY OF SAN BER:'-jARDIi'iO REPEALING CHAPTER 3.5-1 OF THE SA'" BER:'-jARDI:'IiO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO -, THE SA'i BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGI'iG TAX. J -I City all penalties and interest specitied by law. 5 3.55.130 6 .-\ 7 8 B 9 Retention and inspection of records. Rdcntion. Each operator shall retain. for no less than three years. the records required to be maintained by this Chapter. The three year period shall commence on the dak of the ckadline for remittance of the transient lodging tax to which the record pertains. Inspection. City representatives may inspect, upon voluntary production by the operator or compelkd production pursuant to subpoena, the records required to be maintained by this Chapter. I I) 3.55.1-10 \'iolation-Penalty. I I II ."',il\ person \\ho \\illfully violates this Chapter shall be guilty of a misdemeanor. .-\ny person \\ho knowingly makes any fraudulent representation on a document required by this Chapter to be maintained or delivered to the City shall be guilty of a misdemeanor. I ."ny person \\Ill' willfully aids another person to violate subsection B shall be guilty of a I !:1 iscten1eanor. I ..\ prosecution for violation of this Chapter shall be instituted within five \'ears after the I ccOmmissions of the offense. or \vithin two years after the disco',-ery of the violation. I \':hiche\er is later. I 17 3.55.150 Enforcement-Citing authority. ]2 B I' -' . C 1-1 151 0 I, 16 18 I: shall be the duty of the City Clerk. or his or her authorized representatives. to enforce the 19 pro\'isions of this Chapter. The City Clerk and his or her authorized representatives are hereby authorized and empowered to issue citations and notices to appear for violations of the provisions 20 of this Chapter. 21 3.55.160 22 " ~~ Prerequisite for suit. :\0 suit or proceeding shall be maintained in any court for the recovery of any amount alleged to haw been erroneously or illegally determined or collected unless a refund claim has been duly filed. 2-1 3.55.1 iO Amcndmcnts. . 7- -) 26 27 28 III Any increase of the amount of the tax that is imposed by this Chapter, which is set forth in Section 3.55.020 A, shall be approved by a majority vote of the voters at an election, in accordance with applicable provisions of state law. Any other amendments to the provisions of this Chapter shall be adopted by the Common Council. RLSicd [TL TtmlJ 8 Exhibit "A" l11n~ 27. 200~ . ~ Al'i ORDINANCE OF THE CITY OF SAN BERJ"IARDINO REPEALI:\G CHAPTER 3.5.t OF THE SAl'i BERJ"IARDIl'iO MUNICIPAL CODE Al'iD ADDING CHAPTER 3.55 TO THE SAl'i BER'iARDI'\TO MUNICIPAL CODE RELATIl'iG TO TRANSIENT LODGIl'iG TAX. -' 4 3.55.180 Severability. 5 If any part or provision of this Chapter is in conflict or inconsistent with applicable provisions offederal or state statutes, or is otherwise held to be invalid or unenforceable by any coun 6 of competent jurisdiction. such part or provision shall be suspended and superseded by such applicable la\\ or regulations, and the remainder of this Chapter shall not be affected thereby. 7 S SECTIOl'i 3. This Ordinance shall only take effect if approved by a majority of the voters 9 voting in an election held on or before December 31, 2002. . 10 /// 1] 12 , . 13 ;i! ]4 'I ;' 15 16 17 /: 1 S , , , 19 20 i/ , . 21 I ' , II 22 II ' , I ~' / ,/ ,.: _0 24 /,1/ ~- III ~) 26 /11 27 III 28 III RLS/<d [TL T.ord1 9 Jlln~ 27, 2002 . Exhibit "A" 7 COl:'>CIL MEMBERS: 8 ESTRA.D.-\ 9 LIE!\' 10 \!CGI~"IS II DERRY 12 SUAREZ 13 A:\DERSO:\ . 1-1 ;-"IC CA\!\!ACK IS 16 . 17 18 19 20 2! 22 ~' ~J 2-1 r -) 26 . 27 28 A'" ORDINANCE OF THE CITY OF SAN BER1'iARDINO REPEAU"'G CHAPTER 3.5-1 OF THE SAN BER1'iARDI~O MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO ~ THE SA'" BERNARDINO MUNICIPAL CODE RELATING TO TR'-\NSIENT LODGIC'iG TAX. J -I I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof. held on the _ day 6 ot . 2002. by the following vote. to wit: AYES ABSTAI:\ ABSENT NAYS City Clerk The foregoing Ordinance is hereby approwd this _ day of .2002. JUDITH V ALLES, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN City Attorney ., , ./ .c/. .'f~~. i' )l \A/1~ . // ' RLS:<d [TL T.ordJ JlIn~ 27. 2002. 10 Exhibit "A" . . 19 20 21 22 23 24 25 26 . 27 28 )' ~~(Q)~W 2 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO CALLING A SPECIAL MUNICIPAL ELECTION ON A PROPOSED NEW TRANSIENT LODGING TAX AND REQUESTING THAT SAID CITY OF SAN BERNARDINO'S SPECIAL MUNICIPAL ELECTION BE CONSOLIDATED WITH THE NOVEMBER 5, 2002 STATEWIDE GENERAL ELECTION CONDUCTED BY THE COUNTY OF SAN BERNARDINO. , J 4 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. Recitals. A. California Constitution, Article XIII C, Section 2(b) requires that no local government 9 may impose, extend, or increase any general tax unless and until that tax is submitted to the 10 II 12 electorate and approved by a majority vote. The emergency in calling a special municipal election is that the City's current transient lodging tax is subject to litigation with an uncertain judicial outcome, and the next City primary election is not until November, 2003. 13 B. Pursuant to this authority, the Mayor and Common Council have adopted Ordinance 14 , which permits the continued collection and use of the City's Transient Lodging No. 15 16 Tax, subject to the approval of a majority of the voters. C. The Mayor and Common Council have adopted Resolution No. 17 submitting this general tax to the voters of the City. 18 SECTION 2. Special Municipal Election Called. A special municipal election is hereby called and will be held in the City of San Bernardino on Tuesday, November 5, 2002, for the purpose of submitting to the qualified electors of the City, for their approval or disapproval, the proposed ordinance as set forth in Exhibit "A" attached hereto. SECTION 3. Request for Consolidatiou of Elections. Pursuant to Section 10400 of the California Elections Code, the Mayor and Common Council of the City of San Bernardino request that the Board of Supervisors of the County of San Bernardino consolidate the City's special municipal election with the statewide general election to be held on Tuesday, November 5, 2002. The polls for said election shall be open at 7:00 a.m. of the day of said election and shall remain open continuously from said time until 8:00 p.m. ofthe same day when said polls shall be HTC[tltax. I} -# 31) !3 . . . 2 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO CALLING A SPECIAL MUNICIPAL ELECTION ON A PROPOSED NEW TRANSIENT LODGING TAX AND REQUESTING THAT SAID CITY OF SAN BERNARDINO'S SPECIAL MUNICIPAL ELECTION BE CONSOLIDATED WITH THE NOVEMBER 5, 2002 STATEWIDE GENERAL ELECTION CONDUCTED BY THE COUNTY OF SAN BERNARDINO. , J 4 5 6 closed, except as provided in Section 14401 of the California Elections Code. 7 SECTION 4. Measure. The measure to be voted on at the consolidated special municipal 8 election as it is to appear on the ballot shall be as follows: 9 10 II MEASURE . Shall the ordinance repealing Chapter 3.54 and adding Chapter 3.55 to the San Bernardino Municipal Code be approved so as to permit the City of San Bernardino to continue to collect and use the transient lodging tax? YES [] NO [] 12 13 The measure shall be designated on the ballot by a letter printed on the left margin of the 14 square containing the description of the measure as provided in the California Elections Code. IS SECTION 5. Canvass of Returns. The Registrar of Voters of the County of San 16 Bernardino is hereby authorized to canvass the returns of the special municipal election so called and 17 to conduct the special municipal election in all respects as if there were only one election with only 18 one form of ballot. Results of the special municipal election shall be certified to the Mayor and 19 Common Council of the City of San Bernardino. 20 SECTION 6. Notice of Election. The City Clerk is hereby directed to publish a notice of 21 the special municipal election which shall contain the following: 22 A. The time of the election; 23 B. C. The hours the polls will be open; 24 That the last day for receipt of primary arguments for or against the measure has been 25 established as 5:00 p.m. on August 16, 2002, in the City Clerk's Office, Second Floor, City Hall, 300 26 North "D" Street, San Bernardino, California; 27 D That the last day for receipt of rebuttal arguments is 5:00 p.m. on August 23,2002. 28 in the City Clerk's Office at the above location. HTCfthax.l] 2 . :2 3 4 5 6 7 8 9 . RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO CALLING A SPECIAL MUNICIPAL ELECTION ON A PROPOSED NEW TRANSIENT LODGING TAX AND REQUESTING THAT SAID CITY OF SAN BERNARDINO'S SPECIAL MUNICIPAL ELECTION BE CONSOLIDATED WITH THE NOVEMBER 5, 2002 STATEWIDE GENERAL ELECTION CONDUCTED BY THE COUNTY OF SAN BERNARDINO. The City Clerk is directed to make arrangements to accept arguments and to arrange for sample ballots, which shall include the text of the proposed ordinance permitting the collection and use of the City's transient lodging tax, in accordance with Section 306 and Section 9600 et seq., of the California Elections Code. This notice may be combined with a notice of any other municipal 10 election to be held on the same date. II SECTION 7. Conduct of Election. The special municipal election so called shall be held 12 in such precincts and at such polling places as shall be determined by the Registrar of Voters of the 13 County of San Bernardino. The Board of Supervisors of the County of San Bernardino is hereby 14 requested to issue instructions to the Registrar of Voters to take all steps necessary for the holding IS of the consolidated election. The Mayor is hereby authorized to execute a contract for the services 16 necessary for conducting the special municipal election. The City of San Bernardino recognizes that 17 additional costs will be incurred by the County by reasons of this consolidation and agrees to 18 reimburse the County for any such costs. 19 SECTION 8. Filing of Resolution. The City Clerk of the City of San Bernardino is 20 directed to file a certified copy ofthis Resolution with the Board of Supervisors ofthe County of San 21 Bernardino and to file a copy of this Resolution with the Registrar of Voters. 22 /II )" 1/1 _0 24 /II 25 /II 26 /II . 27 /II 28 /II met'ltax.l] 3 . 1 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO CALLING A SPECIAL MUNICIPAL ELECTION ON A PROPOSED NEW TRANSIENT LODGING TAX AND REQUESTING THAT SAID CITY OF SAN BERNARDINO'S SPECIAL MUNICIPAL ELECTION BE CONSOLIDATED WITH THE NOVEMBER 5, 2002 STATEWIDE GENERAL ELECTION CONDUCTED BY THE COUNTY OF SAN BERNARDINO. 2 3 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a meeting thereof, held on 8 day of 9 Council Members: 10 ESTRADA 11 LIEN 12 MCGINNIS 13 DERRY . 14 SUAREZ 15 ANDERSON 16 MCCAMMACK 17 18 19 , 2002, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT CITY CLERK 20 The foregoing resolution is hereby approved this day of ,2002. 2] 22 23 JUDITH V ALLES, Mayor City of San Bernardino 24 Approved as to form and 25 legal Content: . 26 JAMES F. PENMAN, City Attorney 27 /1 ! i 7 :; , ,'/ r..h~ 28 By: ~"'V_ 4:x1I 4 " . , - , .+ 5 6 7- A. _J 26 . 27 B. 28 1 ORDINANCE NO. AN ORDL"IiANCE OF THE CITY OF SAN BERi"liARDINO REPEALING CHAPTER 3.5'+ OF THE SA;\, BERNARDI:"IiO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO THE SA'\' BER:\ARDINO i\IUNICIPAL CODE RELATING TO TRANSIENT LODGI:\'G TAX. THE \IA YOR AND CO~I\ [00: COU0:CIL OF THE CITY OF SAN BERNARDINO DO ORD.-\I'\ .-\S FOLLOWS SECTIO:\' I. Chapter 3.5'+ of the San Bernardino Muncipal Code is hereby repealed. Chapter 3.55 is hereby added to the San Bernardino \Iuncipal Code to read Chapter 3.55 TRANSIENT LODGING TAX Definitions. Tax imposed - Rate - Revenue measure. Collection of tax. Exemptions. Reports and remittances. Refunds. Penalties. Determination of tax bv Citv Clerk. Appeal. " Records. Hotel registration. Immediate payment of tax on cessation of business. Sale or ownership transfer of hotel. Liens. Action to collect. Retention and inspection of records. Violation-Penalty. Enforeement-Ciiing authority. Prerequisite for suit. Amendments. Severability. 22 3.55.010 Definitions. 23 The words and phrases set out in this section, when used in this Chapter, shall, for the purposes of this Chapter. have the following respective meanings except where the context clearly 2.+ indicates a different meaning: "Hotel" means a commercial establishment furnishing lodging space in exchange for monetary compensation. Every such establishment shall constitute a "hotel" for purposes of this Chapter notwithstanding any advertising describing the facility as a hostelry, inn, motel. rooming house, tourist home or similar enterprise. "Lodging space" means one or more rooms used or intended to be used for dwelling or skeping purposes. RLS/cd [TLl,orJj June 27, 2002 Exhibit "A" . A:\ ORDINANCE OF THE CITY OF SAN BER1\iARDI:\O REPEALING CHAPTER 3.5-1 OF THE S.-\N BER:\ARDI:'\O MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO THE SA:\ BER:\ARDINO MUNICIPAL CODE RELATIi'iG TO TRA'\'SIENT LODGING TAX. ~ 3 -l C. 5 D 6 7 8 E. 9 10 F, 11 G, 12 I" . l-l l'i 16 H 17 3.55.020 18 A. 19 20 21 77 A 7' ~~ 2-l B, ;- -) 26 C. . 27 28 /!/ "Occupancy" means the use or possession. or the right to the use or possession. of a lodging space, "Operate,r" means th~ person who is the propri~tor of G hotel. If Gn operator utilizes G maaGging Ggent who is not an employee, then such agent shall also constitute an "opemtor" for purpc)ses of this Chapter, Compliance with this ChGpter by either the principal or the managing agent shall constitute compliance by both, "Person" means any individual, lirm, partnership. joint \'enture. association, social club, ti,aternal organization, joint stock company, corporation, estate, trust. business trust. receiver. trustee. syndicate. or any other group or combination acting as a unit. "RQom rental" means the total charge for lodging space, uTransiellt" means a person \\'IlO. for a period of thirty consecutive calendar days or less, exercises occupancy or is entitled to occupGncy by reGson of concession. permit. right of access. license or contract. Every such person shGII constitute a "transient"" for purposes of this Chapter until expiration of the thirty-day period unless such person has executed a \\ ritten contract with the opemtor to provide for occupancy in excess of thirty consecutive calenlbr days and the contract cannot be terminated \\'ithout providing Gt least thirty days Gd"ance notice, In determining \\'hether a person is a transient. portions of calendar days sldl be counted as full days and uninterrupted periods of time extending both prior Gnd subsequent to the effective date of this Chapter may be considered, "Tr:lllsient lodging tax" means the tax levied pursuant to this ChGpter. Tax imposed - Rate - Revenue meaSlll'e. For the pri\'ilege of occupGncy in a hotel. eGch transient is subject to and shall pay a transient lc,dging tax in the amOUI1l of ten percel1l of the room rental charged by the operator. B The trGnsient lodging tGX is levied for revenue purposes and is necessary for tbe usual linancial operation of the City, When collected, the tax shGlI be mGde a part of the generGI funds of the City, 3.55.030 Collection of tax. Each operator receiving a room rentGl payment that is subject to the transient lodging tax. at the time of receipt of the room rental pGymenl. shGlI collect the amount of the tGX imposed, The operator shGII provide a receipt for payment of the transient lodging tax to the transient If the monetm-y compensGtion received by an operator from a transient includes Gny charge for services or accommodmions besides lodging space, then the room rentGI portion of such compensation shall be billed to the transient as a separate item, Transient lodging taxes collected by an opemtor shall be held ,in trust until remitted to the City, RLS,c:d [TLT.l1rJ] 2 JUll~ 27, 2002 Exhibit "A" I I I . I 3.55.0-10 Reports and renllttances. I A. General Deadline. Except as provided in subsection B, on or before the twenty-fifth day of , each month, each operator shall deliver to the City Clerk a lodging infonnation report for the I prior month and shall remit to the City Clerk the transient lodging tax collected during the prior month. The lodging information report shall indicate the amount receiwd for room I rental and the amount of transi~nt lo~ging tax required to be collected. and shall be signed I under penalty of perJury. Lodgmg mlormatlOn report forms shall be prescnbed by. and may be obtained from. the City Clerk. I .-\lternate Deadline. An operator of a hotel open year-round may, with the written consent I of the City Clerk, deliver lodging information reports and remit transient lodging taxes on a quarterly basis. Applications to use the quarterly deadline shall be made in writing, . ~ -' -l 5 6 7 8 9 A. 10 Ii I~ 13 . i-l 15 16 17 B, 18 19 ~o 21 22 ~" _J ~-l .,- -) B. 26 . 27 1// 28 /1/ A:\ ORDI"<ANCE OF THE CITY OF SAN BERi'lARDINO REPEALING CHAPTER 3.5-1 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO THE SA:\ BERi\'ARDI:\O MUNICIPAL CODE RELATING TO TRA:\SIENT LODGI:\G TAX. I D, :\0 operator shall represent to the public that the transient lodging tax will not be added to the room rental charge, will be absorbed by the operator or will be refunded in a manner contrary to this Chapter. E. In lieu of paying the transient lodging tax to an operator. a transient may remit the tax I directly to the City Clerk. Any transient who opts to remit the transient lodging tax directl:- I 10 the City Clerk shall pro:-icle written proof of such remittance to the operator. I 3.55.035 Exemptions. I Grounds. No transient lodging tax shall be imposed upon: I I, Any ofticer or employee of the United States Government or the State of California for I lodging space utilized by that ofticer or employee in the discharge of ofticial I goyernment business. ! " ; Any oftlcer or employee of a foreign government who is exempt by reason of express i pre,,'ision of federal 1<1\\ or international treaty. i .' Room rental payment made to any hospital, medical clinic. con\alescent home or home for aged people, I ~ .-\n\ person as to \\'hom. or any occupancy as to which. it is beyond the power of the City to impose the tax, Procedure. Each transient desiring an exemption from the transient lodging tax must lile a tax exemption certificate with the hotel at the time room rental pa\'ment is made to the operator. The tax exemption certilicate shall indicate the basis for the exemption and shall be signed under penalty of pel jury. Tax exemption certilicate forms shall be prescribed by. and may be obtained from, the City Clerk. RLS;,J [TL T orJ] ) Jll/l~ 27, 200~ Exhibit "A" . A'i ORDI'iANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER 3.5~ OF THE SA'i BER'iARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO 2 THE SAN BERNARDI'iO MUNICIPAL CODE RELATING TO TRANSIENT LODGI'iG TAX. , .' 4 3.55.0~5 Refunds. ) A. 6 7 8 9 10 B. 11 12 13 . 14 15 C. 16 17 18 19 Operator Grounds. An operator who has remitted a transient lodging tax to the City mav obtain a refund of all or a part of such remittance in the following circumstances: 1. The tax was collected Irom a person who was not a transient. ~ The amount of tax collected Irom a transient exceeds the amount due. ~. The amount of tax remitted by the operator exceeds the amount due. 4 The City lacked the authority to impose the tax. Transient Grounds. ..\ transient who has remitted a transient lodl(inl( tax directh to the Citv. rather than indirectl\' by means of payment to an operator. may obtain a refund of all or a part of such remittance in the follo\\'ing circumstances: 1. The tax \\as collected from a person who was not a transient. ~ The amount of tax remitted by the transient exceeds the amount due. The Citv lacked the authority to impose the tax. Procedure. Each person desiring a refund must tile a refund claim \\'ith the City Clerk \\'ithin three wars of the date of remittance of the transient lodl(inl( tax. The refund claim shall indicate the basis for the refund and shall be signed under pen'itlty of peljury. Refund claim fon11S shall be prescribed by, and may be obtained from, the City Clerk. No refund shall be paid unless the claimant produces written records demonstrating entitlement to the refund. An operator \\'ho recei\'es a refund of tax improperly paid by another person shall forward the refund to such person within live days ot' receipt. 3.55.050 Penalties. 20 A. Delinquency. 21 1. 22 ')' _0 24 ') '). ",) 26 , ~. . 27 28 An operator who remits a transient lodging tax between the first day and the twenty.ninth day following the deadline for such remittance shall pay, in addition to the amount of the tax. a delinquency penalty of twenty.five percent of the amount of the tax. An operator who remits a transient lodging tax between the thirtieth da\' and the sixtieth dav following the deadline for sllch remittance shall pay. in addition to' the amount of the tax, a delinquency penalty of filiy percent of the amollnt of the tax. An operator who remits a transient lodging tax after the sixtieth day following the deadline for such remittance shall pay in addition to the amount of the tax the following penalties: (i) a delinquency penalty of one hundred percent of the amount of the tax: and (ii) interest on RLSJ,d ITL T.ord] ~ Exhibit "A" JUIlt: 27, 200: . AN ORDINANCE OF THE CITY OF SAN BER1"ARDINO REPEALI;\iG CHAPTER 3.5-t OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO 2 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING TAX. , -' -t 5 6 7 8 9 A. 10 11 12 B. 13 . 14 15 C. 16 17 18 19 20 21 22 ')' ~-' 24 ')- ~) 26 . n 28 the total of the tax and the delinquency penalty. Interest shall be at the rate of eighteen percent per annum and shall be computed from the sixty-first day of delinquency until the date of remittance of the tax and delinquency penalty to the City Clerk. B. Fraud. If the City Clerk determines that the nonpayment of a transient lodging tax is due to haud of the operator. then the operator shall pay, in addition to the amount of the tax. a fraud penalty oftwenty-tive percent of the amount of the tax. 3.55.060 Determination of tax by City Clerk. Determination. If an operator t~1ils to collect and remit the transient lodging tax in accordance with this Chapter. then the City Clerk shall determine the amount of tax o\ved by such operator. The City Clerk may make such determination based on an estimate of the amount due based on the information available. "lotice. Upon determining the amount of transient lodging tax and penalty due. the City Clerk shall noti fy the operator in writing. If the operator does not request a hearing on such amount in \\Titing within ten davs of the date of issuance of the notice. then the amount shall be conclusive at~d shall be ren~itted to the City on or before the deadline specified in the notice. Hearing. If a timely hearing request is made, then the City Clerk shall notify the operator in \\Titing of the date. time and place ofa hearing on the amount oftransiel1t lodging tax and penaliy owed to the City at least ten days prior to the date of the hearing. At such hearing. the operator may offer evidence to rebut the determination of the City Clerk. After such hearing. the City Clerk shall revise the initial determination as deemed appropriate and shall notify the operator in \\Titing of the final determination of the transient lodging tax and penalty that is due. Such amount shall be remitted to the City within fifteen days from the issuance of the notice. unless an appeal is tiled as provided in this Chapter. 3.55.065. Appeal. Any operator who is aggrieved by a City Clerk decision regarding the amount of transient lodging tax or penalty owed by the operator may appeal to the Common Council in accordance with the provisions of Chapter 2.64 of this Code. Any transient who is aggrieved by a City Clerk decision regarding the amount of transient lodging tax owed by the transient may appeal to the Common Council in accordance with the provisions of Chapter 2.64 of this Code. Any amount that the Common Council detemlines is o\ved to the City shall be remitted to the City Clerk on or before the deadline set by the Common Council. 3.55.070 Records. A Registration Cards. Each operator shall complete and maintain a transient registration card for every transient that is provided lodging space in the operator's hotel. At a minimum. transient registration cards shall list the following information: 1. The name of a person who will occupy, or who is entitled to occupy. the lodging space. RLS.:d [lLT_l)nl] ; June 27. ::\111,~ Exhibit "A" . -, 3 -I 5 6 7 8 9 10 . C. 25 D. 26 . 27 28 AN ORDINANCE OF THE CITY OF SAN BERl"ARDINO REPEALING CHAPTER 3.5-1 OF THE SAN BERl'iARDlNO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO THE SAN BERNARDINO MUNICIPAL CODE RELATI:'iG TO TRANSIENT LODGING TAX. -, The total number of people who will occupy, or who are entitled to occupy. the lodging space. , ~. The identitication of the lodging space by number. -I. The date the occupancy will commence and the expected date of termination. 5. The room rental to be charged for the lodging space. Transient registration cards shall bear consecutive numbers that shall be preprinted on the cards by a print shop or manufacturer of the cards. Voided cards shall be kept for audit purposes. II B Daily Summary Sheets. Each operator shall maintain a daily summary sheet for each day its hotel is open for business. At a minimum. daily summary sheets shall contain the following information: 12 13 1. The name of a person who \vill occupy. or who is entitled to occupy. each lodging space that is provided to a customer that day. 1-1 The ic'entitication by number of each lodging space provided to a customer. -, 15 3. The daily room rental charge and amount paid tor each lodging space provided to a 16 transient. 17 -I. The number of the transient registration card applicable to each lodging space provided to a transient. 18 19 3.55.080 Hotel registration. Within thili) days after the effective date of the ordinance coditied in this Chapter. or within 20 thiny days after commencing business. whichever is later. each operator of a hotel providing lodging space to transients shall register such hotel with the City Clerk. Upon registration. the City Clerk 21 shall issue the operator a ''Transient Lodging Registration Certiticate" that at a minimum states the following: on A. The name of the operator. r ~) B. The address of the hotel. 2-1 The issuance date of the certiticate. This Transient Lodging Registration Certiticate signifies that the person named on the face thereof has fulfilled the requirements of the Transient Lodging Tax Ordinance by registering with the City Clerk for the purpose of collecting from transients the Transient Lodging Tax and remitting said tax to the City Clerk. 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 RLS/cl\ [TLT.orJJ 6 Exhibit "A" Jlllll.: 27. :::002 . -, J 4 5 6 12 I' ., . 14 15 16 " _J A. 24 -,- -) 26 . 27 B. 28 A:\' ORDI:\'A:\'CE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER 3.54 OF THE SA.:\' BER"iARDI:\'O MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO THE SA\' BER\'ARDI\'O :\IUNICIPAL CODE RELATING TO TR~NSIENT LODGING TAX. limited to those requiring a permit from any board. commission, department or office of this City, This certifica-te does not constitute a permit. Each operator shall at all times conspicuously post its Transient Lodging Certiticak on the premises of its hotel. 7 3.55.090 Immediate payment of tax on cessation of business. 8 Any operator who ceases providing lodging space to transients shall deliver to the City Clerk a tinallodging information report and shall remit to the City Clerk any transient lodging tax owed 9 the City. Such ddiwry and remittance shall be performed within twenty-five days of the operator's cessation of such activity. 10 II 3.55.100 Sale or ownership transfer of hotel. If an operator sells or othelwise transfers ownership of its hotel. then the operator's successor shall be responsible for remittance of any transient lodging tax and penalty owed by the operator to the Citl, 3.55.J 10 Liens. A The City Clerk shall periodically prepare for the Common Council a report showing: (i) delinquent transient lodging taxes and penalties that have not been received by the City: and (ii) the COITesponding parcel number designations and addresses of the properties on \\'hich the hotels are operated, The Common Council shall consider such report and hear any objections thereto at a hearing for which no less than a ten-day advance written notice has been provided to the subject operators and property owners. The Common Council may modify the repol1 as deemed necessary and shall confirm the final report by resolution. The City Clerk shall file a certified copy of the confirmation resolution with the Auditor of the County of San Bemardino, State ofCalifomia. directing that the unpaid transient lodging taxes and penalties be entered as lien charges against the respective properties as they appear on the current assessment rolls, Liens will be collected at the same time and in the same manner. subject to the same penalties and interest upon delinquencies, as the general taxes for the City of San Bernardino are collected. The City Clerk shall present for recording appropriate notices of the imposition of these liens with the County Recorder. 17 18 19 B. 20 21 22 3.55.120 Actions to collect. Responsibility for Debt. Any transient lodging tax required to be paid by a transient under the provisions of this Chapter shall constitute a debt owed bv the transient to the City. Any such tax that has been collected by an operator but has 110t been paid to the City shall constitute a debt owed by the operator to the City. Any person owing money to the City under the provisions of this Chapter shall be liable in an action brought in the name of the City for the recovery of such amount. Obligation of Operator. Each operator shall be obligated to pay to the City all tran~ient lodging taxes actuallv collected, as well as the amount of any such taxes that were lawfully imposed but not collected by the operator. This obligation~includes the duty to pay to the RLS',d ITLT.orJ} 7 Exhibit "A" hlll~ 27, 200] . AN ORDINANCE OF THE CITY OF SAN BEfu'lARDINO REPEALING CHAPTER 3.5-t OF THE SAN BERc'iARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO 1 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING TAX. o -I City all penalties and interest specitied by law. II .-\. 11 B 13 C . 1-1 15 D 16 5 3.55. I31J 6 .-\ 7 8 B. 9 10 3.55.1-10 17 18 Retention and inspection of records. Retelltil)n. Each operator shall retain. for no less than three years. the records required to be maintained by this Chapter. The three year period shall commence on the date of the ckadline for remittance of the transient lodging tax to \\ihich the record pertains. Inspection. City representatives may inspect, upon voluntary production by the operator or compelled production pursuant to subpoena, the records required to be maintained by this Chapter. Violation-Penalty. .".11\ person who \villfully violates this Chapter shall be guilty of a misdemeanor. Any person who kno\\iingly makes any fraudulent represemation on a document required by this Chapter to be maintained or delivered to the City shall be guilty of a misdemeanor. .".ny person who \\iillfully aids another person to violate subsection B shall be guilty of a misdemeanor. .-\ prosecution for violation of this Chapter shall be instituted within five years after the commissions of the offense. or within two years after the discovery of the violation. whiche\'er is later. 3.55. I 50 Enforcement-Citing authority. It shall be the duty of the City Clerk, or his or her authorized representatives. to enforce the 19 pro\'isions of this Chapter. The City Clerk and his or her authorized representatives are hereby authorized and empowered to issue citations and notices to appear for violations of the provisions 10 of this Chapter. . 11 3.55.160 12 " ~O 1-1 3.55.170 ;- -) 16 27 28 III Prerequisite for suit. 1\0 suit or proceeding shall be maintained in any court for the recovery of any amount alleged to han been erroneously or illegally determined or collected unless a refund claim has been duly filed. Amendments, Any increase of the amount of the tax that is imposed by this Chapter, which is set forth in Section 3.55.020 A. shall be approved by a majority vote of the voters at an election, in accordance with applicable provisions of state law. Any other amendments to the provisions of this Chapter shall be adopted by the Common Council. RLS,o;:J [TLTl'rd] Juno;: 27. 2002 & Exhibit "A" . . . AN ORDINANCE OF THE CITY OF SAN BERN'ARDINO REPEALING CHAPTER 3S1 OF THE SAN BERL"IARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO -, THE SA" BERL'iARDINO MUNICIPAL CODE RELATING TO TR<\NSIENT LODGING TAX. , -' 4 3.55.180 Severability. 5 If any part or provision of this Chapter is in conflict or inconsistent with applicable provisions of f~d~ral or stat~ statutes, or is otherwise held to be invalid or unenforc~abl~ by any COUI1 6 of cOl11p~t~nt jurisdiction. sllch part or provision shall be suspended and sup~rsed~d by sllch applicabl~ law or r~gulations, and the remainder of this Chapter shall not be affected thereby, 7 8 SECTIOl\' 3. This Ordinance shall only take effect if approved by a majority of the voters 9 voting in an election held on or before December 31,2002. 10 /// 11 12 ' / , if 13 // 14 .' Ii 15 .I ' 16 17 Ii,' 18 / , ' 19 / , 20 If 21 /II 22 I r : , , r Ii / _0 , , 24 / / ! r /II -) 26 / / .I 27 1/1 28 1/1 RLSi,J [TL T.Qrd1 9 Jlln~ 27, 2002 Exhibit "A" 7 COU:\CIL MEMBERS: 8 ESTRADA 9 LIEN 10 :VICGI:..0:IS II DERRY 12 SUAREZ 13 A:\DERSO:\ . 14 :VIC CA\I:VIACK 15 16 . 17 18 19 20 21 n r -~ 24 ,- -) 26 . 27 28 AN ORDINANCE OF THE CITY OF SAN BERl'iARDINO REPEALING CHAPTER 3.5-1 OF THE SAN BERNARDINO i\lUNICIP AL CODE AND ADDING CHAPTER 3.55 TO ~ THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGI'iG TAX. 3 4 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof. held on the _ da! 6 of .2002, by the following vote. to wit: AYES ABST AIN ABSENT NAYS City Clerk The foregoing Ordinance is hereby approved this _ day of .2002. JUDITH V ALLES, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN City Attorney ., : ,7 (At/1~ -:;;. j~<"'--' // ' RLS/eJ [TL T.ord] 10 Exhibit "A" June 27, 2002 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Change to motion to amend original documents: '60A Resolution# 'J-(X:).d-;l4'> Abstain -e- Absent e- SeE z002-zL\~ Meeting Date (Date Adopted): '"")-1 S --0 d- Item # Vote: Ayes \- f") Nays if Reso. # On Attachments:..?' Contract term: Note on Resolution of Attachment stored separately: ~ Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY By: NullNoid After: - Date Sent to Mayor: '1-\ b -0 ~ Date of Mayor's Signature: ,,\-(,-o?- Date of Clerk/CDC Signature: f)--\ ,-<:) ?- Reso. Log Updated: Seal Impressed: /' ..-/ Date Memo/Letter Sent for Signature: 60 Day Reminder Letter Se;t on 30th day: 90 Day Reminder Letter Sent on 45th day: See Attached: Date Returned: S Q~ A tt::lched: See Attached: Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Persunnel Folders (6413, 6429, 6433,10584,10585,12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): YesL No By Yes No~ By Yes No L By Yes NOr By_ Yes No By Copies Distributed to: City Attorney / Parks & Rec. Code Compliance Dev. Services Police Public Services Water EDA Finance MIS Others: Notes: C:t:;!WftdJ ('cJ~1 \2.&, CuP'1 171 = (CX;"" RDlI. 130FW D OF <Sou ~e(tluo II J BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term, etc,) Ready to File: fh-r Date: f)-I \<'0 ::L Revised Oi/l2/01 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Vote: Ayes 1-'1 Nays 1d- 0,0 (1., Resolution # ~;) - d-4~ Abstaio ...e- Absent V S'tC "2002-242..- Meeting Date (Date Adopted): ,/-15-o?- Item # Change to motion to amend original documents: Reso. # On Attachments: -- Contract term: Note on Resolution of Attachment stored separately: ~ Direct City Clerk to (circle 1): PUBLISH, POST, RECORD W/COUNTY Date Sent to Mayor: ...- \~ -0 ~ Date of Mayor's Signature: n-n-<:>":} Date of ClerklCDC Signature: I') - n - ();r Date Memo/Letter Se See Attached: See Attached: See At ached: ature: 60 Day Reminder Letter Sent on 30th day: 90 Day Reminder Letter Sent on 45th day: Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): Copies Distributed to: City Attorney /' Parks & Rec. Code Compliance Dev. Services Police Public Services Water NullNoid After: - By: rfr.1/ty IdL (r0O'nU' (IF U,&-c1'tOtJ) Reso. Log Updated: V"' Seal Impressed: ,/' Date Returned: _ YesL No By Yes No~ By Yes No / By Yes No / By Yes No / By EDA Finance MIS Others: Notes: <2t;0Tl{=1tO COP 1 17) dJ,.tn'l {t:CJ/>R 0 ($ S,OPdl.uiJC (lJ . 12. eb CoP 1 7TJ \LOU BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.) Ready to File:01'l' Date: ')-(Y<J.;;> Revised 01/12/01