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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: City Clerk
Date: April 12, 2004
ORIG\NAL
Subject:
Appeal hearing regarding the results of
a transient lodging tax audit for Sahara
Motel.
From: Rachel Clark, City Clerk
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.
C{~I.I J.J,~_
Signature
Contact person: r.intly RII.."hhu
Business Reg. Supervisor
Supporting data attached: Yes
Phnn..'
~.,nn
Ward:
FUNDING REQUIREMENTS:
Amount:
Source: (Acct. No.)
(ACr.t njQo~,..riptinn)
Finance:
Council Notes:
l/llq ID~
No.lg
7( "'-II/J,. n AliIA 8.-:1 12 Q 4 A
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CITY OF SAN BERNARDINO - REOUEST FOR COUNCIL ACTION
STAFF REPORT
SUBJECT:
Appeal hearing regarding the results of a transient lodging tax audit for the Sahara Motel
located at 795 W. 5th Street.
BACKGROUND:
A transient lodging tax audit for the Sahara Motel was conducted by Progressive
Solutions on October 10, 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 July, August, and September 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 ofthe 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. Soecificallv. 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. "
1
The hotel's operating procedures that were found to be in violation ofthe San Bernardino
Municipal Code resulted in the assessment of additional Transient Lodging Tax as
follows:
Additional Transient Lodging Tax
Penalty
Interest
TOTAL AMOUNT DUE
$5,840.09
$5,840.09
1.804.19
$13,484.37
February 9. 2004
A hearing was held before the City Clerk regarding the Sahara Motel's request to
postpone payment until completion of an appeal of additional transient lodging taxes
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 Sahara Motel.
March 29. 2004
Appeal received from the Sahara Motel regarding the decision of the City Clerk to assess
$13,484.37 in additional transient lodging tax, penalty, and interest.
FINANCIAL IMPACT:
The hearing found an additional $13,484.37 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
ofthe 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.
2
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CITY OF SAN BERNARDINO
APPEAL FORM
Office Use Onlv RE.Cl: 'Oaterf.....h~ Sta;;'~P
~s Distributeffi:
City Attorney City Administrator '04 11_~R 29 P3 :51
Date: 2,' :>"1-0'1
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.
COMPliEtJjJAI..LJ'1:'EM:S..EtOW: -;-
. ...... :.. ...... ...
Appellant
,
Name: F~i SAN LlMiTEP INC J>&o\ SAHARA J..I07G '-
Address: '715 VJ 5-rH Sr , SAN BERrJARDIr-JO CA "i2C{./O
Contact Person
Name: AMY ko
Address: 7Q.s vJ S"rH &T , SAiJ ESER.rJAR. D IN (J CA 9z{f.lo
Day Phone: (909) E3B5 . 4tf.B I Fax:
Evening Phone: ('lor,) 885 - !f.if-8/ E-mail:
Affected Property Address: 7%- w snl &, SAAJ ISEfWARJ) /NO CA
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Assessor's Parcel Number (APN #):
Whose Decision Are You Appealing: Or, CLERK
Date of that Decision: MAR-crr Is / .:lO(J 1-
. . .. ;rY:PEOFAPPItAL- CHECKONE: ..
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DBoard of Building Commissioners - $75.00 DAnimal Control Commission - $75.00
~ayor and Common Council- $75.00* DPolice Commission - No Charge
Planning 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 Bernardino, CA 92418 - (909) 384-5002
A VAUD APPEAL MUST INCLUJ.)JJ;.'I'~:FOLLOWING
IN:FORMATION(SB.M:C2;64):
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Si nature of A ellant:
Date: MItKClI 2. 9 2{7(l .
Attachment to City of San Bernardino Appeal Form
Appeal to Common Council
.(ECU'J UU":' ::,,1'>
RE: Transient Lodging Tax and Penalty
Fu San Limited, Inc.
Sahara Motel
795 W. 5th ST, San Bernardino, CA 92410
'04 ttAR 29 P 3 :51
March 29, 2004
To assist you reading my handwriting, I have typed the text.
I. The action appealed:
Total assessment due to the City of San Bernardino is in the amount of$13,484.37. This amount
of$13,484.37 is now due within fifteen (15) Days.
2. The grounds for appeal:
Sahara Motel has reported all room rentals and paid all applicable taxes to City of San
Bernardino. The supposed additional Transient Lodging Tax, penalty and interest are excessive
and are causing extreme hardship.
3. The action( s) sought:
The appellant praise the Common Council to determine that there is no additional Transient
Lodging Tax, and to remove/reduce penalty and interest, and to grant more time for payment, if
there is any.
4. Any additional information:
Sahara Motel has been part of San Bernardino community for years. We have been working
very hard to make our small business to survive in the harsh downtown San Bernardino
environment. Over years, we have been reporting and paying Transient Lodging Tax in full to
San Bernardino City. All room rentals and all applicable taxes were reported and paid. The
procedure errors sited in the March IS letter do not mean appellant underreport Transient
Lodging Tax, because Sahara Motel has reported all room rentals and paid all applicable taxes.
The errors were procedure in nature, and they should not result.,.la payment of $ 13,484.37.
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CITY OF SA!\: BERNARDINO
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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.ci.san-bernardino.ca.us
SM
VIA CERTIFIED MAIL
March 15,2004
Fu San Limited, Inc.
Sahara Motel
Attn: Amy Ko, Operator
795 W. 5'h Street
San Bernardino, CA 92410
~
RE: NOTICE OF FINAL DETERMINATION m'TRANSIENT
LODGING TAX AND PENALTY
Dear Ms. Ko:
After due consideration of the testimony and evidence preso::nted at your appeal hearing on February
9,2004, it is the decision of the City Clerk that your appeal on behalf ofthe Sahara Motel is denied
and the total amount of$13,484.37 is now due and owing to the City of San Bernardino. The audit
period which is the subject ofthis appeal was January), 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 Sahara Motel failed to report the total amount shown on the
motel records as "room rental" (3.55.01O( F); 3.54.010(C)).
Further, the Sahara Motel failed to provide a receipt to each transient at the time the rental payments
were received and failed to reflect the amount of transient lodging tax on the receipt (3.55.030(A),
(D); 3.54.030(A); 3.54.075).
Additionally, the Sahara Motel 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 Sahara Motel 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
. __ __.___ .....__. ___ ".. ,~~_ T_~L_ __,.u _ ... ______._1..:1:... _ n~~_,,~. ~.". Un......n.. n:......:... a U"..~~...
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 $13,484.37. This amount contains
three components:
Additional Transient Lodging Tax
Penalty
Interest
$5,840.09
5,840.09
1,804.19
$13,484.37
This amount ofSI3,484.37 is now due within fifteen (15) days of the date of this 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$13,484.37 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,
C\~ /;).~
Rachel G. Clark, CMC
City Clerk
encl.
cc: Cindy Buechter, Business Registration Supervisor
Progressive Solutions
PROGRESSIVE SOLUTIONS-
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 Sahara Motel with respect to the transient lodging taxes owed to the City of San Bernardino
for the three year period beginning January 1,2000 and ending December 31, 2002. The procedures
performed are summarized as follows:
,.
I. We reviewed the City ordinance relating to the levy of transient Lodging tax.
2. We reviewed 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.
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 $5,840.09, and related penalties in the amount of $5,840.09 and interest in
the amount of$I,804.19, for a total amount of$13,484.37 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/oIIJ
Glenn R. V odhanel, Audit Review Manager
Audit Division-Oceanside; P.O. Box 4489; Oceonside. CA 92052-4489
Tel: (760) 533-7808 FAX: (760) 722-2123 Emaii: ACAPUCHlNO@aol.com
CITY OF SAN BERNARDINO
TRANSIENT LODGING TAX
SAHARA MOTEL
AUDIT REPORT
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OCTOBER 10, 2003
Performed by
PROGRESSIVE SOLUTIONS
Al Capuchino-Principal Auditor
Audit Division-Oceanside; P.O. Box 4489; Oceanside. CA 92052-4489
Tel: (760) 533-7808 FAX: (760) 722-2123 Emai/: ACAPUCH1NO@aol.com
PROGRESSIVE SOLUTIONS-
SAHARA MOTEL
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 managers, Mr. & Mrs. H. M. Ko.
A detailed review, as previously described, was performed of the transactions recorded for the months of
July, August and September 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 control oi:'transactions since this
practice allows for the possibility of unrecorded cash receipts and missing occupant registrations. It is
also the motel's practice to omit the display of the date of departure on the registration card, 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 return for the year 2002. In
addition, a comparison was made with an audit reconciliation of the company's bank deposits. A minor
difference was noted on the bank deposits but was not material in amount to assess additional taxable
revenue. 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.
Our review of the records revealed that the motel participates with the local social services as a lodging
facility for displaced, welfare and homeless families, and on occasion in a similar fashion for the City
Attorney's office of the City San Bernardino. We examined the respective Purchase Orders that were
initiated by the various agencies and determined that none of them included the tax as a part of the
Purchase Order. I have advised the motel that they would need to advise these agencies that taxes are due
for each and they should request an amendment to the various purchase orders. None of the Purchase
Orders stated that all necessary taxes were included in the amount of the Purchase Order.
Audit Division-Oceanside; P.o. Box 4489; Oceanside, CA 92052-4489
rei: (760) 533-7808 FAX: (760) 722-2123 Emai/: ACAPUCH1NO@aal.cam
PROGRESSIVE SOLUTIONS-
Sahara Motel
Page 2
In summary, the review process disclosed five sections of the city ordinance in which the motel
was not in compliance relative to the requirements of the 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".
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 (I) provide a receipt to each transient at the time 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.
Audit Division-Oc.eansidej P.O. Box 4489; Oceanside, CA 92052-4489
Tel: (760) 533-7808 FAX: (760) 722-2123 Emai/: ACAPUCHlNO@aol.com
,
PROGRESSIVE SOLUTIONS-
Sahara Motel
Page three
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.
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 sh,r1:ts shall contain the
following information:
1. 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 Divis;on-Oc~ans;dej P.D. Box 4489; Oceanside. CA 92052-4489
Tel: (760) 533-7808 FAX: (760) 722-2123 Emai/: ACAPUCH1NO@aol.com
'.
Audit Summary City of San Bernardino
Transient Lodging Tax Review
Hotel: Sahara Hotel
Tax rate: 10.0 %
Revenue Revenue Under Reported Transient
Reported per Audit Revenue Tax Duo (1) Pen.IU.. (2) Interest (3) Total Due
January 31. 7,988.83 8,785.51 798.88 78.87 79.87 47.92 207.88
February 28. 6,956.39 7,852.03 885.84 89.58 89.58 40.89 179.81
March 31, 8,403.48 9,243.81 840.33 84.03 84.03 47.80 215.96
April 30, 11.546.85 12.701.32 1,154.67 115.47 115.47 84.08 295.02
May 31. 13,679.55 15.047.51 1.367.96 138.80 136.80 73.67 347 A7
June 3D, 14,247.60 15,672.58 1,424.76 142.48 142.48 74.60 359.76
July31. 21,896.41 24,086.05 2,189.64 218.96 216.96 111.67 549.59
August 31, 12,681.25 13,949.38 1,288.13 126.81 126.81 62.77 316.39
September 30. 14,211.09 15,632.20 1.421.11 142.11 142.11 88.21 352.43
October 31, 16.427.36 16,070.10 1.842.74 184.27 184.27 76.39 404.93
November 30. 11 ,384.27 12.500.70 1,136.43 113.84 113.84 .' 51.14 276.42
.
December 31, 13,750.55 15.125.61 1.375.06 137.51 137.51 59.82 334.84
Total 2000 153.151.63 188,468.60 15.315.17 1,531.51 1.531.51 779.26 3,842.28
January 31, 9,969.38 10,966.30 996.94 99.69 99.69 41.87 241.25
February 28. 17,585.59 19,322.15 1,758.58 175.88 175.88 71.14 422.48
March 31, 12,033.38 13,238.90 1,203.54 120.35 120.35 48.94 287.84
April 30, 15,353.06 18,888.37 1,535.31 153.53 153.53 57.57 384.63
May31, 15.875.10 17,462.81 1,587.51 158.75 158.75 57.15 374.85
June 30. 20,885.91 22,765.50 2,089.59 206.96 208.96 71.40 485.32
July31, 16,321.09 17,953.20 1,832.11 163.21 163.21 53.66 380.26
August 31, 16,161.55 19,9n.71 1,818.16 181.62 181.62 57.21 420A5
September 30. 19,047.95 20.952.75 1,904.80 190.46 190.48 57.14 438.10
October 31, 17,815.09 19,598.60 1,761.51 178.15 178.15 50,77 407.07
November 30. 18,516.38 20,388.00 1,651.84 185.16 185.16 49.99 420.32
December 31, 21,211.39 23,332.53 2,121.14 212.11 212.11 54.09 478.31
Total 2001 202,565.81 222,822.62 20,256.61 2,025.67 2,025.87 669.14 4,720.48
January 31, 15,146.97 16,661.67 1,514.70 151.47 151.47 36.35 339.29
February 28. 19,910.41 21,901.45 1,991.04 199.10 199.10 44.60 443.00
March 31, 21,290.06 23,419.07 2.129.01 212.90 212.90 44.71 470.51
Aprtl30, 15,325.68 16,656.25 1,532.57 153.26 153.26 29.69 338.41
May 31, 19,584.27 21,542.70 1,958.43 195.84 195.84 35.25 426.93
June 30. 15,758.55 17.334.41 1,575.66 157.59 157.59 26.00 341.18
July 31. 21,349.03 23,483.93 2,134.90 213.49 213.49 32.02 459.00
August 31, 20,890.45 22.979.50 2,089.05 208.91 206.91 28.20 446.02
September 30, 23,240.13 25,584.14 2,324.01 232.40 232.40 27.89 492.69
October 31, 20,241.71 22,265.86 2,024.17 202.42 202.42 21.25 426.09
November 30, 18,420.70 20,262.77 1,842.07 184.21 184.21 16.58 365.00
December 31, 17,132.27 18,845.50 1,713.23 171.32 171.32 12.85 355.49
Total 2002 228,290.23 251,119.27 22,829.04 2,282.91 2,262.91 355.79 4,921.61
Combined Total 584,007.67 842,408.69 58,401.02 5,840.09 5,840.09 1,804.19 13,484.37
\
LAW OFFICES
FRANK A. WEISER
LEONARD NASATIR
DFCOUNSEL
3460 WILSHIRE BOULEVARD, SUITE 903
LOS ANGELES, CALIFORNIA 90010
TELEPnONE: (113) 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
April 190 2004 at 4:00 p.m.
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Rachel G. Clark
City Clerk
Office of the City Clerk
300 North "0" Street
San Bernardino, CA 92418-0001
Telefax - (909) 384-5158
Dear Ms. Clark:
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 People v. Chandrakant
Shakralal Amino 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 Jaqdishbhai
Patel and Hansaben Patel v. Del Taco 0 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 prev~ous
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
I
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 City of San Bernardino Hotel/Motel Association
v. City 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 City 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. City 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,
-:s.... - C) f\.. . CV0""""':--
Frank A. 'Weiser
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
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CITY OF SAN BERNARDINO
MISCELLANEOUS CASH RECEIPT
No.730963
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Total 15,
VOID AFTER 90 DAYS
BankofAmerica ....~
11-35/1210
2016814073
Cashier's Check
siiO!.l!!. at Beok of AQlXe, NoA.
I '_~oJ!Sulll ~as'
PURCHASER;
FRlNI WEISER
VOID OVER $15,0{I
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OFFICE OF THE CITY CLERK
RACHEL G. CLARK, C.M.C. . CITY CLERK
300 North "0" Street. San Bernardi;o. CA 92418-0001
909.384.5002. Fax: 909.384.5158
www.cLsan-bernardino.ca.us
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April 20, 2004
Ms. Amy Ko
Fu San Limited, Inc.
Sahara Motel
795 W. 5th Street
San Bernardino, CA 92410
Dear Ms. Ko:
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 Sahara Motel:
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 of further assistance, please do not hesitate to contact this office.
Sincerely,
~/;J.~
Racliel 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
Annn>rE'n fi;:UA Dun VU.Tm..,;;:~ Tntf".tJritv. Acc:mmtabilitv. Resoect for Human Di2nitv. Honesty