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HomeMy WebLinkAbout17-City Clerk CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Rachel Clark, City Clerk. Dept: City Clerk 0 R \ G \ N l\ l Date: April 12, 2004 Subject: Appeal hearing regarding the results of a transient lodging tax audit for the EI Patio Hotel. MICC Meeting Date: April 19, 2004 Synopsis of Previous Council Action: Resolution No. 2003-204 authorizing Progressive Solutions to perform Transient Lodging Tax audits. Recommended Motion: That the hearing be closed; and that the Mayor and Common Council uphold the decision of the City Clerk and adopt her letter of March 15, 2004, as its findings and conclusions, based upon the back-up information submitted and any additional evidence presented at the hearing; or That the hearing be closed; and that the Mayor and Common Council uphold the appeal of the applicant and reverse the decision of the City Clerk; or That the hearing be closed; and that the Mayor and Common Council uphold the appeal of the applicant in part and direct the City Attorney's Office to prepare findings and conclusions consistent with its decision. ~~h.~ Signature Contact person: C':intly RIIAr.htAr Business Reg. Supervisor Supporting data attached: Ye!'; phnnA' ~?nn Ward: FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (A,...,...t n~c::,...rirtinn) Finance: Council Notes: 1f!"1 q!()Lf- Wo. /1 ReJ'lftnnoVVloAllf faaoc CITY OF SAN BERNARDINO - REOUEST FOR COUNCIL ACTION STAFF REPORT SUBJECT: Appeal hearing regarding the results of a transient lodging tax audit for the EI Patio Hotel located at 472 N. Mt. Vernon BACKGROUND: A transient lodging tax audit for the EI Patio Hotel was conducted by Progressive Solutions on October 6,2003. The audit was performed in accordance with GAAP (Generally Accepted Accounting Principles) which utilize a statistical sampling to arrive at an Audit Opinion. The review of the hotel's records covered the time period of January 1, 2000 to December 31, 2002. A detailed review was performed of the transactions recorded for the months of January, April, July, and October 2002. The review included the following: · Testing, by random selection, the daily sununaries which include the date, room number, registration number, and the name of each guest in-house, for completeness and accuracy. · Testing, by random selection, the monthly sununary, which includes daily room revenue, tax and exempt revenue, for completeness and accuracy. . Review of the operating records for the purpose of determining the existence of the practice of allowing complimentary rooms to be occupied without TL T being collected and remitted. . Testing the exemptions claimed in the compilation of the taxable room revenues reported to determine that the exemptions were allowable under the City of San Bernardino Municipal Code Section 3.55.035 A and B. The review found discrepancies in the motel's operating procedures that resulted in errors in assessment, collection, and payment of the transient lodging taxes in accordance with the requirements set forth in the San Bernardino Municipal Code Chapter 3.55 and 3.54. Review notes specifically identifying the errors are included in the audit narrative provided as backup to this appeal. SDecificallv. the hotel was assessed additional taxable room revenue for the following: "It is the motel's practice to report the amounts collected from transients as taxable room rents and transient lodging taxes by compiling the amount of the taxes from within the amount collected. This assumption was not supported by the records reviewed, which did not reflect the room rents and the tax separately... The assessment was in the amount of the taxes previously reported to the city that should have been reported as taxable room revenue. " The hotel's operating procedures that were found to be in violation of the San Bernardino Municipal Code resulted in the assessment of additional Transient Lodging Tax as follows: Additional Transient Lodging Tax Penalty Interest TOTAL AMOUNT DUE $1,194.89 $1,194.89 381.74 $2,771.52 February 9. 2004 A hearing was held before the City Clerk regarding EI Patio's request to waive penalties and interest assessed as a result of an audit of the motel's transient lodging tax. March 15.2004 Notice of Final Determination of Transient Lodging Tax and Penalty sent via certified mail to the E1 Patio Hotel. March 29. 2004 Appeal received from the EI Patio Motel regarding the decision of the City Clerk to assess $2,771.52 in additional transient lodging tax, penalty, and interest. FINANCIAL IMPACT: The hearing found an additional $2,771.52 was owed to the City for transient lodging taxes. Other motels that have been audited and found to owe additional transient lodging tax have paid accordingly, including the assessed penalties and interest. RECOMMENDATION: That the hearing be closed; and that the Mayor and Common Council uphold the decision of the City Clerk and adopt her letter of March 15, 2004, as its fmdings and conclusions, based upon the back-up information submitted and any additional evidence presented at the hearing; or That the hearing be closed; and that the Mayor and Common Council uphold the appeal of the applicant and reverse the decision of the City Clerk; or That the hearing be closed; and that the Mayor and Common Council uphold the appeal of the applicant in part and direct the City Attorney's Office to prepare findings and conclusions consistent with its decision. 2 . CITY OF SAN BERNARDINO APPEAL FORM Office Use Only R I" ,. " \I.' Date(lfipJe ,~lI1lll\: ~s Distributeffi' Ll._. "',., City Attorney City Administrator Date: -3 'd"j -0'-1 '04 MAR 29 P3 :40 IMPORTANT INFORMATION: All appeals to the Mayor and Common Council, Board of Building Commissioners (BBC) and Animal Control Commission must be filed III the City Clerk's Office. ......C()MPLETE1\LU...l:'tEM$..IlELOW: . ." ,'..j'" . .... Appellant . Name: ~ ~\\.'C~ ~ ,<=-", \-^..~{/_ ~. ~$\,<', Address: Y-L \I "',' () \l. cl.-!>\ - l\ -rz. \0. ~~. '\..)ev,.> 00-> . s: 0--'-> ~e.__.J~"l~., C \-" J Contact Person ~L\.t\\ Name: ~'-f~\L ~. 'v2><!.,<;,e.~- ~\ ,t ~- ,.:>e.u. "'''' \ \'..1.0 Address: -S "\G v \,),\.S.\ _ ,>G-e... I\?"-"- D*-- ""-C:>J L't.... C.;." "'-0 r.-,\ <:> , l - Day Phone: (,"2.,<,\ ". &1. Fax: ( ~\3\ 3: i: s-iUf;. s ' -C"Ccl Evening Phone: (, L\Co' ~'\'\.-/~D6 C~ll E-mail: - Affected Property Address: I.\-n_ \0 \J\. \:- _ \ '" '\le v- ....."-~l ''''" (1'\ , \J~ ~0-:),J ~ ('-~J , , Assessor's Parcel Number (APN #): '^-'-'{I\ Whose Decision Are You Appealing: \:,-,\"'" ~\<v \i- '\'.0.--,- ~ 0'\- ~"-~\ \<; 2C';:~.4 Ire' ""V~ ,,~', ~ ~~ \..O\)G--~ '"' G ',r>--,-/-- u.......J(...\.. ,"," < rJ,cl,lJ Date of that Decision: ~A C\2.. C.\... \'. ~(J0'~ ~ , .<. ....mEOF APPEAIJ..:'CIlECKoNE: ... ,. .. <. " . " ~ard of Building Commissioners - $75.00 DAnimal Control Commission - $75.00 ayor and Common Council - $75.00* DPolice Commission - No Charge DPlanning Commission - Fee Adjusted Annually DOther: - No Charge 'Note: Appeals to the Mayor and Common Council can only be from the Planning Commission and Police Commission. City of San Bernardino - City Clerk's Office - 300 N. "D" Street - San Bemardino, CA 92418 - (909) 384-5002 \ A VALID APPEAL MUSTINCLUDETBEFOLLOWING . INFORMA'fION(SlJMC.2:64): I. The action appealed: l...::("e...cc'_~.> \- ",\- ,~ ~ -'/' ,- -- ,,\ ,. \- \ ,\ \~i_,j , ~ -':\':', - '-' ','f':'>, - I \ '-0 . ,. :.'. . r- \A., V'_'., " X. \(c b.) - 2. The grounds for appeal: '\f' \~ \ . ,kv, , v-\ .,.J, -, .',~\ '" C\ \ ~cs; C...'r~ '--I v.....c'_ .... '''-,5:<'\ \--t" 'v rl..c.~-V'" , - ,-- \ ,. ,..j~. "'-.lc. D t. ~'-"I't-( ~<.-c- C'\,t '-J<;-e (" r \ .. ~"<:. , 1:0" . \ ~\.J- .. ;:-'\cvr~ ---"; y. ~\r A........,..).; r\ u~ 1::. >.- \\.0 ~..\.. c-__, -'.-- --:::.: i-I,,', " y'. -, \ eJ C\ .LV:'C (,C: \\L, ~'. .,l.".,';.i '. ~ '-' '-' '.~ ~, " ~ ,-v...j ""-... ._.:~ c\ .\\ , \' ( ,.. o "..)'.~ .:\--v\--' .:.! 1".:' '\'.,/ e_...... ,..: .... \ CL ..-,,\-,,~ ..,- '?:..S""'-i '.)...:., '-' ~ \ .""~'-\: -\c'. \"\'<-~';"~'-' \,\ , ,\--) .'+ c- , '.f,-! >\.-.\ . \ h,~0,\.Q (,.,\.. \VV S \..(.c-<\.- '- '.' ... .~ n..,-...? \~l_ r(:'.>..A., ,) \,~ t, ~,~",*=" '-' ;J ("J \- , ~..J ~ . ~" \ ~\ ~e \ 'J. ... ,..,...." -, ',r.o... '- v,- V "},,...........,ll...' ,)':' '"'t- ~\. t.\ <,'.,^-- ~ _, '., -.I<.f-\;v 'k<. ~. The ctiOn(s) s ugh. "'G~e L\ 0- v-~). ,,--. .~ \-vi- ,...J \" " ,) . .C >/,' ~ ...-... -, --' ". ' , ' . I.~ \, :.::+t'..\_~ C ~<\v~. .'J ~, \\ ,,\ t. "v< c \"-, .,~ r, " \\"2 f r Y'-r"..,..;:.,,-' ~ \ , '\.~', J --,\ <...t- '- I . '- f ~.r - , c- , - " -- , \?, .. , -\ " , r\.,~ _i.-(,_\"J- ~ ..",Ij ...I..: r\ ,. ,.l-~...r ...., \r' \- -\ \ .\. , , <- ,. " , ,--v'''' , ' .' . .....- ") . . ^ , S " \.c \ ~(',/~,,~l \- I ..\.-" ~.. ~ .~. ..L .':",-..\ ~"-\\ :,1\ I ,v_ f "-'~... \,..; i.', _ ,,-', c. ,~ .....,. , :;: , \-()..,',c . . 4. Any additional information: ~3;;-- . ~i - C'- , Date: ~ ,', Signature of Appellant: " -' i k,.' ,.- l..c--... ::I - ~ .\ ~'~,';' ( .. ----- CITY OF SAN BERNARDINO MISCELLANEOUS CASH RECEIPT WDfr: ~B~kR ' Dat.: 3130/04 0~ R'o,: Cf Dra..r: 1 Ofr...ns1i.,~jC~};"R5/'R<H'C'iot n.: gf~: u"" 'J" C 2l6!:l':<71 "",I CL_. . "6,"" x. l~ Lfl~i'/ - 1100,00 Date 3-'29 - () if frans de';:-: .3/:--~.J'j,.. ,. -. LI., ll!e: Ij:43:23 ~~ blE:-SA-1 .~ The Sum of S.~/tE..JJ ry F u'F;;. Received From: M 13 H ~ <J.j kiLtlJ/JR. ftNo .AI~~= ACCOUNT NO. For /Jf'P.&AL 711 Jn1:f//)1!... 'fI.-~ ~7Y1/J1'JU t?fiIlAi~ /Jt'j-t<<J- AMOUNT . ~-. t)() c.L f1lfrl~ iHTrj Total .~ t)() ... !N3WA!Jd HflOA UO~ flOA lINtJH.! ... r~:E~:SI :aln W/6<1/E :a~ep sue.! t10'S~t t10'W 00 '0011 011'0011 aauel{) ~ual^ed le~.! pa.apuo~ le~a! HS!13 ijJ I!e~ap ."PUO! ~una'ij 'lS60!:L lllIr1J Am 00'1 IoIUO~ !UOHS JSIW :IS ^~HUenD uaqat.~sao 0ll'SH 09~11 :au ~dlaJ"H L0 ~0/~/E :o,eo I :.o.e.o :n :od^! H~ijll\j :.oaO ... !dI3J3U U3NO!SOJ ... 8N1~31HS!13 C~IQijtlN~3a NijS jQ A!lJ OFFICE OF THE CITY CLERK RACHEL G. CLARK, C.M.C. - CITY CLERK 300 North "D" Street. San Bernardino' CA 92418-0001 909.384.5002' Fax: 909.384.5158 www.cLsan-bernardino.ca.us $I.' VIA CERTIFIED MAIL March 15,2004 Maheshkumar V. Desai EI Patio Hotel 472 N. Mt. Vernon San Bernardino, CA 92411 .' RE: NOTICE OF FINAL DETERMINATION OF TRANSIENT LODGING TAX AND PENALTY Dear Mr. Desai: After due consideration of the testimony and evidence presented at your appeal hearing on February 9,2004, it is the decision of the City Clerk that your appeal on behalf of the EI Patio Hotel is denied and the total amount of $2,771.52 is now due and owing to the City of San Bernardino. The audit period which is the subject of this appeal \\-'lIS January I, 2000 through December 31, 2002. The San Bernardino Municipal Code Sections referenced in this letter are Chapter 3.54, which was in effect from January 1,2000 through November 5, 2002, and Chapter 3.55, was has been in effect since November 6, 2002. Specifically, it is determined that the EI Patio Hotel failed to report the total amount shown on the motel records as "room rental" (3.55.01O( F); 3.54.010(C)). Further, the EI Patio Hotel failed to provide a receipt to each transient at the time the rental payments were received and failed to reflect the amount oftransient lodging tax on the receipt (3.55.030(A), (D); 3.54.030(A); 3.54.075). Additionally, the EI Patio Hotel failed to use preprinted registration cards and failed to reflect the expected date of termination and failed to designate the room rental separately (3.55.070(A); 3.54.070(A)). Finally, the EI Patio Hotel failed to contain the required information on the Daily Summary Sheets, with the only exception being the amount of payment received (3.55.070(B); 3.54.070(B)). CITY OF SAN BERNARDINO A. .........W1o.....,.~..... en.... nnn "..... ,rue>. Tnt""..;,... A"''''''l1nt'lhilit" . Upl:nprt fnr J.fllm::ln OiO'nltv. Hnnf".l;.tv - I The afore-mentioned violations on page one of this decision were detailed and sent to you as part of the audit performed by Progressive Solutions, Inc., via letter dated November 20,2003. This audit was made part of the appeal hearing record at the February 9,2004 hearing. As indicated previously herein, the violations set forth on page one of this decision result in a total assessment due to the City of San Bernardino in the amount of $2,771.52. This amount contains three components: Additional Transient Lodging Tax Penalty Interest $1,194.89 1,194.89 381.74 $2,771.52 This amount of$2,771.52 is now due within fifteen (15) days of the date ofthil; decision unless this decision is appealed to the Common Council in accordance with the provisions of Chapter 2.64 of the San Bernardino Municipal Code (a copy of said Chapter 2.64 is enclosed with this letter for your information). However, the City Clerk determines that this amount of $2,771.52 may be paid over a four month period in four equal one-quarter payments of the lump sum in order to avoid any undue hardship. If you choose this method of payment instead of one lump sum payment, you must contact Ms. Cindy Buechter, Business Registration Supervisor, immediately at (909) 384-5035 in order to make payment arrangements. Sincerely, ~.'~'~ Rachel G. Clark, CMC City Clerk encl. cc: Cindy Buechter, Business Registration Supervisor Progressive Solutions PROGRESSIVE SOLUTION~ October 14, 2003 Rachel G. Clark, City Clerk City of San Bernardino 300 North D Street San Bernardino, CA 92418 Dear Ms. Clark, Progressive Solutions, Inc. has applied the procedures enumerated below to the accounting records of the EI Patio Hotel with respect to the transient lodging taxes owed to the City of San Bernardino for the three year period beginning January I, 2000 and ending December 31, 2002. The procedures performed are summarized as follows: 1. We reviewed the City ordinance relating to the levy of transient Lodging tax. 2. We reviewed the operating records for the purpose of deterrniniig the existence of the practice of allowing complimentary rooms to be occupied without TL T being collected and remitted. 3. We tested, by random selection, the daily summaries which include the date, room number, registration number, and name of each guest in-house, for completeness and accuracy. 4. We tested by random selection, the monthly summary, which includes daily room revenue, tax and exempt revenue, for completeness and accuracy. 5. We tested the exemptions claimed in the compilation of the taxable room revenues reported to determine that the exemptions were allowable under the City of San Bernardino code section 3.55.035, under the exemption sub-sections (A) and (B). 6. We performed additional procedures, as we deemed necessary. Our review determined that the hotel had discrepancies in their operating procedures that resulted in errors of assessment, collecting, and paying the transient lodging taxes in accordance with the requirements set for in the City of San Bernardino ordinance. Review notes specifically identifying the errors have been included in the contents of the Audit Narrative. The motel's operating procedures that were found to be in violation of the city ordinance resulted in the assessment of additional transient lodging taxes in the amount of$I,194.89, and related penalties in the amount of$I,194.89 and interest in the amount of $381.74, for a total amount of$2,771.52 due to the City of San Bernardino. This report is intended for the information of City management and the taxpayer. This restriction is not intended to limit the distribution of this report, which is a matter of public record. Sincerely, ft, /( t/~ Glenn R. V odhanel, Audit Review Manager Audit Division-Oceanside; P.O. Box 4489; Oceanside. CA 92052-4489ÿrei: (760) 533-7808 FAX; (760) 722-2123 Emai/: ACAPUCHINO@aol.com CITY OF SAN BERNARDINO TRANSIENT LODGING TAX ~ . EL PATIO HOTEL AUDIT REPORT OCTOBER 6, 2003 Performed by PROGRESSIVE SOLUTIONS- Al Capuchino-Principal Auditor Audit Division-Oceanslde; P.O. Box 4489; Oceanside, CA 92052-4489 rei: (760) 533-7808 FAX: (760) 722-2123 Emaii: ACAPUCHINO@OI)I.com PROGRESSIVE SOLUTIONS- EL PATIO HOTEL TRANSIENT LODGING TAX AUDIT NARRATIVE Progressive Solutions, Inc. completed the assigned review of the motel's records for the period beginning January 1,2000 and ending December 31, 2002 in the presence of the proprietor, Mr. Maheshkumar V. Desai. A detailed review, as previously described, was performed of the transactions recorded for the months of January, April, July and October 2002. Our review included the examination of the motel's registration cards, copies of receipts prepared for occupants' payments and the daily revenue summaries. It is the motel's practice to record revenue on a "cash basis" on days in when monies are received. This practice does not properly reflect daily revenue for rooms occupied as required by the city ordinance. Registration cards are not pre-numbered and receipts for payments are not prepared for every transaction. This practice is also in violation of the city ordinance and does not allow for an audit ~ontrol of transactions since this practice allows for the possibility of unrecorded cash receipts -lind missing occupant registrations. It is also the motel's practice to omit the display of the date of departure on the registration card for every occupant, which does not allow an audit trail for the length of occupancy and the total room rental charges for each occupant. None of the records that were examined displayed the room rent and the transient lodging tax separately, which is in violation of the city ordinance. It is the motel's practice to show a flat rate, which the motel stipulates that the tax is included. We have informed the motel that this practice is in violation of the city ordinance and does not provide for an audit trail that displays that the tax was assessed and collected from each occupant. The monthly reports submitted to the city were examined and tested for clerical accuracy. It is the motel's practice to report the amounts collected from transients as taxable room rents and transient lodging taxes by compiling the amount of the taxes from within the amount collected. This assumption was not supported by the records reviewed, which did not reflect the room rents and the tax separately. We have therefore assessed the motel for additional taxable room revenue. The assessment was in the amount of the taxes previously reported to the city that should have been reported as taxable room revenue. The records presented for our review were tested for completeness by comparing the audit compilation of the motel's revenue with the revenue reported on the company's Federal tax retum for the year 2002. Our test was subject to the motel's limitations resulting from the lack of proper internal control of the daily transactions, and accordingly we withhold an opinion of the completeness of the records reviewed. In summary, the review process disclosed five sections of the city ordinance in which the motel was not in compliance relative to the requirements ofthe transient lodging tax section. Section 3.55.010 (F) Definitions - Room Rental F. Room rental means the total charge for lodging space. Violation: Failure to report the total amount shown on the motel records as "room rental". Audit Division-Oceanside; P.D. Box 4489,' Oceanside. CA 92052-4489 Tel: (760) 533-7808 FAX (760) 722-2123 Emai/: ACAPUCHlNO@aal.cam PROGRESSIVE SOLUTIONS- El Patio Hotel Page two Section 3.33.030 (A) Collection of tax A. 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 tax imposed. The operator shall provide a receipt for payment of the transient lodging tax to the transient. D. No 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. ,. Violation: Failure to (1) provide a receipt to each transient at the tim~ the rental payments are received, and (2) failure to reflect the amount of transient lodging tax on the receipt. Section 3055.070 (A) Records - Registration Cards 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 the person who will occupy, or who is entitled to occupy the lodging space. 2. The total number of people who will occupy, or who are entitled to occupy the lodging space. 3. The identification of the lodging space. 4. 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. Violation: Failure to use preprinted registration cards. Failure to reflect expected date of termination. Failure to designate the room rental separately. Audit Division-Oceanside; P.D. Box 4489; Oceanside, CA 92052-4489 Tel: (760) 533-7808 FAX: (760) 722-2123 Email: ACAPUCH/NO@aal.cam PROGRESSIVE SOLUTIONS- EI Patio Hotel Page three Section 3055.070 (B) Records - Daily Summary Sheets B. Daily Summary Sheets. Each operator shall maintain a daily summary sheet for each day it's hotel is open for business. At a minimum, daily summary sheets shall contain the following information: I. The name of the person who will occupy, or who is entitled to occupy each lodging space that is provided to a customer that day. 2. The identification number of each lodging space provided to a customer. .' 3. The daily room rental charge and amount paid for each lodging space provided to a transient. 4. The number of the transient registration card applicable to each lodging space provided to a transient. Violation: Failure to contain the required information, with the only exception being the amount of payment received. Audit Division-Oceunside; P.O. Box 4489; Oceanside, CA 92052-4489 Te/; (760) 533.7808 FAX: (760) 722.2123 Emai/; ACAPUCHINO@ao/.com .f Audit Summary City of San Bernardino Transient Lodging Tax Review Hotel: EI Patio Tax rate: 10% Penalty: 100% Interest: 18% Revenue Revenue nderReported Transient Total Month ..po..... perAudtt Revenue Tax Due(1) Penalties (2) Int....st(3) Duo January 31, 2,374.83 2,638.70 263.87 26.39 26.39 15.83 68.61 February 28, 1,743.57 1,937.30 193.73 19.37 19.37 11.33 50.08 Marcl131, 2,277.90 2,531.00 253.10 25.31 25.31 14.43 65.05 April 30, 2,488.05 2,764.50 276.45 27.65 27.65 15.34 70.63 May31, 2,547.00 2,830.00 283.00 28.30 28.30 15.28 71.88 June 30, 2.841.57 3,157.30 315.73 31.57 31.57 16.58 79.72 July31, 2,673.81 2,970.90 297.09 29.71 29.71 15.15 74.57 AU9ust 31, 2,668.14 2,964.60 296.46 29.65 29.65 14.67 73.97 September 30, 2,636.19 2,929.10 292.91 29.29 29.29 14.06 72.64 October 31, 2,793.24 3,103.60 310.36 31.04 31.04 14.43 76.50 November 30, 2,821.86 3,135.40 313.54 31.35 31.35 14.11 76.82 December 31, 3,293.10 3,659.00 365.90 36.59 36.59 15.92 89.10 Total 2000 31,159.26 34,621.40 3,462.14 346.21 346.21 177.14 869.56 January 31, 3,149.10 3,499.00 349.90 34.99 34.99 14.70 84.68 February 28, 2,472.48 2,747.20 274.72 27.47 27.47 11.13 66.07 Marcl131, 3,038.76 3,376.40 337.64 33.76 33.76 13.17 80.70 April 30, 2,671.29 2,968.10 296.81 29.68 29.68 11.13 70.49 May31, 2,990.43 3,322.70 332.27 33.23 33.23 11.96 78.42 June 30, 2,740.05 3,044.50 304.45 30.45 30.45 10.50 71.39 July 31, 3,349.62 3,721.80 372.18 37.22 37.22 12.28 86.72 August 31, 3,343.05 3,714.50 371.45 37.15 37.15 11.70 85.99 September 30, 3,247.29 3,608.10 360.81 36.08 36.08 10.82 82.99 October 31, 2,767.05 3,074.50 307.45 30.75 30.75 8.76 70.25 November 30, 2,582.10 2,869.00 286.90 28.69 28.69 7.75 65.13 December 31, 2,887.29 3,208.10 320.81 32.08 32.08 8.18 72.34 Total 2001 35,238.51 39,153.90 3,915.39 391.54 391.54 132.06 915.16 Janu.ary 31, 3,401.10 3,779.00 377.90 37.79 37.79 9.07 84.65 February 28, 3,417.48 3,797.20 379.72 37.97 37.97 8.54 84.49 March 31, 3,780.90 4,201.00 420.10 42.01 42.01 8.82 92.84 April 30, 3,285.00 3,650.00 365.00 36.50 36.50 7.12 80.12 May 31, 3,495.24 3,883.60 388.36 38.84 38.84 6.99 84.66 June 30, 3,190.86 3,545.40 354.54 35.45 35.45 5.85 76.76 July 31, 3,639.24 4,043.60 404.36 40.44 40.44 6.07 86.94 August 31, 3,613.05 4,014.50 401.45 40.15 40.15 5.42 85.71 September 30, 3,522.24 3,913.60 391.36 39.14 39.14 4.70 82.97 October 31, 3,858.48 4,287.20 428.72 42.87 42.87 4.50 90.25 November 30, 2,946.24 3.273.60 327.36 32.74 32.74 2.95 68.42 December 31, 2,992.86 3.325.40 332.54 33.25 33.25 2.49 69.00 Totol2002 41,142.69 45,714.10 4,571.41 ~ 457.14 72.52 986.80 Combined Totol 107,540.46 119,489.40 11,!l48.ll4 l, . r;r~ 381.74 r,171.52 ,. LAW OFFICES FRANK A. WEISER LEONARD NASATIR OF COUNSEL 3460 WILSHIRE BOULEVARD. SUITE 903 LOS ANGELES, CALIFORNIA 90010 TELEPUONE: (213) 384-6964 FACSIMILE: (213) 383-7368 REFER TO FILE NO. April 15, 2004 BY FEDERAL EXPRESS AND TELEFAX Re: Transient Lodging audit appeal hearings for EI Patio Motel and Sahara Motel set for Mayor and Common Council on Aoril 19. 2004 at 4:00 O.m. Dear Ms. Clark: ~ "" rn (") rT1 ==- <: -0 ,.." :0 cfl/ - . 0- ~ --'I :a -:: <:> ~ N ~ U1 ;s Rachel G. Clark City Clerk Office of the City Clerk 300 North "D" Street San Bernardino, CA 92418-0001 Telefax - (909) 384-5158 I spoke today with Huston T. Carlyle, Jr, Sr. Assistant City Attorney, who graciously agreed and informed me that both he and you would join in my request for a continuance in the above referenced appeals due to previously scheduled court conflicts. In particular, a probation revocation hearing was previously set for Monday, April 19, 2004 in the Los Angeles Superior Court in Department 56 before the Honorable patricia M. Schnegg. The case is entitled peoole v. Chandrakant Shakralal Amin. et al.; LASC Case No. 3CR02469. The next council hearing that I am available for is Monday, May 17, 2004. On Monday, May 3, 2004, at 1:30 p.m., I must appear in the United States District Court for the Eastern District of California on a previously set motion hearing before the Honorable Robert E. Coyne. The case is entitled Jaadishbhai Patel and Hansaben Patel v. Del Taco. Inc.; USDC Case No. CIV-F-04-5385-REC-SMS. The case was previously continued by Judge Coyne, sua sponte, to accomodate his calendar. I am enclosing two (2) $75.00 continuance fees made out to the City of San Bernardino for each motel. In addition, I would like to supplement the legal grounds for appeal for both motels on the same previous objections that I have indicated for the other motels I have been representing in the TOT audit appeals that a collection of the tax for the period prior to the adoption of the amended ordinance on November 15, 2002 is illegal and unconstitutional as the Fourth District Court of Appeal Rachel G. Clark City Clerk Office of the City Clerk Re: Transient Lodging audit appeal hearings for El Patio Motel and Sahara Motel set for Mayor and Common Council on April 19, 2004 at 4:00 p.m. April 15, 2004 Page 2 (By Telefax and Federal Express) declared the previous TOT ordinance constitutionally suspect in the case of Citv of San Bernardino Hotel/Motel Association v. Citv of San Bernardino; San Bernardino Case No. SCV 46722 and the City and City Attorney's Analysis to the voters on the November 2002 ballot indicated the same and informed the voters that the Mayor and Common Council amended the ordinance because of the constitutionality issues. As the voters adopted the City's position, the previous tax ordinance is now a nullity and cannot be collected. The previous tax is also unconstitutional on the same grounds found in the Fourth District Court of Appeal's unpublished decision and on the due process grounds found in the reported decision of the case of Citv of San Bernardino Hotel/Motel Association v. Citv of San Bernardino (1997) 59 Cal.App.4th 237. Additionally, as the previous tax is now a nullity and has also been declared so by the voters, it cannot be collected post facto. See Patel v. Citv of San Bernardino (9th Cir. 2002) 310 F.3d 1138. The transient occupancy tax is also unconstitutional, ab initio, on due process and equal protection grounds, as it taxes transient residency in violation of the 14th Amendment of the United States Constituion. See Miller Bros. Co. v. State of Marvland (1954) 347 U.S. 340, 345, 74 S.Ct. 535, 539 ("Thus, the Court has frequently held that domicile or residence, more substantial then mere presence in transit or sojourn, is an adequate for taxation. . ."). III Rachel G. Clark City Clerk Office of the City Clerk Re: Transient Lodging audit appeal hearings for El Patio Motel and Sahara Motel set for Mayor and Common Council on April 19, 2004 at 4:00 p.m. April 15, 2004 Page 3 (By' Telefax and Federal Express) I would appreciate it if this letter be made a part of the official administrative record. Finally, continuing courtesy need to speak to me, your convenience. I appreciate you and and cooperation in the please contact me at the Mr. Carlyle's matter. If you above number at Sincerely, -~-\) ~.~ Frank A. Vleiser Attorney at Law Enclosure cc: Cindy Buechter, Business Registration Supervisor Huston T. Carlyle, Jr., Sr. Assistant City Attorney (By Telefax and Federal Express) FAW:aw ~ CITY OF SAN BERNARDINO MISCELLANEOUS CASH RECEIPT No.730962 The Sum of ./ ) Date: Total - -_"">'_'""'-~"':''''',,,.-,.. VOID AFTER 90 DAYS Bank of America ..~ 11-351J21O 2016814072 ...CITY OF SAN BERNARDINO... Cashier's Check I_:Lt~~Am:1Rr' PURCI4lSER: FRANK WEISER VOID OVER $75. (1(1 :.;.--,::.'- :.::,: .:--,'......::.,,-'-' ,:.:::' ..... -.-' - -:_," ..--....,;...... :. .. -,,- ........" .. ...... .. .,_,", ,.._......'_.0" ;.,.-;:::._~~:~~:~~~:;.~:~:~~,l1i.;:;,:~ II' 2D ~1;8 ~1,0 7211' I: ~ 2 ~OOO 3 581: ~ 3q 70"'8 50 71;11' I!mliiOllll:llN&ii~ilN~'W~rllllNl"'lllUlli!mliillACJ(').i,iYJf!!11;1l'dll:()lmllllllwliO.P.......",II"ift_ll.lIIllll..:lIlIlIIIX.O\ll_~ OFFICE OF THE CITY CLERK RAcHEL G. CLARK, C.M.C. - CITY CLEllK 300 North "0"' Street. San Bernardino. CA92418-0001 909.384.5002. Fax: 909.384.5158 www.ci.san-bernardino.ca.us ~ April 20, 2004 Maheshkumar V. Desai El Patio Hotel 472 N. Mt. Vernon San Bernardino, CA 92411 Dear Mr. Desai: At the meeting of the Mayor and Common Council held on April 19, 2004, the following action was taken relative to the appeal hearing regarding the results of a transient lodging tax audit for the El Patio Hotel: That the hearing be closed; and that the Mayor and Common Council uphold the decision of the City Clerk and adopt her letter of March 15, 2004, as its findings and conclusions, based upon the backup information submitted and any additional evidence presented at the hearing. If we can be offurtherassistance, please do not hesitate to contact this office. Sincerely, ~0.~ Rachel G. Clark, CMC City Clerk RGC:lls cc: Frank A. Weiser, Attorney at Law, 3460 Wilshire Blvd., Suite 903, Los Angeles, CA 90010 Cindy Buechter, Business Registration Supervisor CITY OF SAN BERNARDINO ADOPTED SHARED VALUES: Inte~rity . Accountability. Respect for Human Dignity. Honesty