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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Dept: CITY ATTORNEY
C j' . . '- " ,.. L
Subject: An Ordinance of the City of San
Bernardino repealing Chapter 3.54 ofthe San
Bernardino Municipal Code and adding
Chapter 3.55 to the San Bernardino Municipal
Code relating to Transient Lodging Tax.
Date: June 28, 2002
Synopsis of Previous Council Action:
Council adopted Ordinance 2811 on April 1 0, 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-19l on July 19,
1982, Ordinance MC-288 on July 5,1983, Ordinance MC-296 on August 1,1983, 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 2], 1997. Chapter 3.52 repealed and Chapter 3.54 relating to Transient Lodging
Tax adopted by Ordinance MC-l 006 on November 17, 1997, effective February 3, 1998 upon voter approval
at City's General Municipal Election.
Recommended motion:
That said ordinance be laid over for final adoption.
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Signature
Contact person:
James F. Penman
Phone:
5255
Supporting data attached:
Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount:
Source:
Finance:
Council Notes:
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AgendaIterr 1/IS/tJ1'
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STAFF REPORT
Council Meeting Date: July 1, 2002
TO:
FROM:
DATE:
Mayor and Common Council
City Attorney's Office
June 28, 2002
SUBJECT: Revised Transient Lodging Tax
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.AppAth 483 (2002). The plaintiffs in that case
were represented by the same attorney used by the San Bernardino HotellMotel 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 differences between the current version of the ordinance (currently codified in Chapter 3.54 of
the Code) and the ordinance recommended by Richards, Watson & Gershon (to be codified in
Chapter 3.55) are briefly summarized below.
DISCUSSION
I. The definitions in the ordinance, which are set forth in Section 3.55.010 (pages 1-2), have been
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substantially redrafted in an attempt to eliminate any argument that they are circular, which is a
primary area of criticism by the Court of Appeal.
The term "hotel" has been redefined to be any "commercial establishment furnishing lodging space
in exchange for monetary compensation".
"Lodging space" means one or more rooms used or intended to be used for dwelling or sleeping
purposes. This broad definition can include apartments, in addition to more traditional hotels and
motels.
The term "transient" has been redefined as follows:
"Transient" means a person who, for a period of thirty consecutive calendar days or less,
exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access,
license or contract. Every such person shall constitute a "transient" for purposes of this Chapter until
expiration of the thirty-day period unless such person has executed a written contract with the
operator to provide for occupancy in excess of thirty consecutive calendar days and the contract
cannot be terminated without providing at least thirty days advance notice. In determining whether
a person is a transient, portions of calendar days shall be counted as full days and uninterrupted
periods of time extending both prior and subsequent to the effective date of this Chapter may be
considered. "
The time period that defines when a person is a transient and is subject to the payment of the tax has
been shortened from ninety days to thirty days. This should focus the ordinance upon persons who
truly are transients and eliminate collection of the tax from persons who will be residing at a location
for a longer period. The exemption for persons who have a long-term rental agreement exceeding
thirty days, provided that it cannot be terminated without at least thirty days notice, clarifies that the
hotel operator is not required to collect the tax from a long term occupant for the first thirty days of
his or her tenancy. The requirement that at least thirty days advance notice be provided before the
contract can be terminated is designed to address possible collusion between hotel operators and
transients to avoid payment of the tax to the City by allowing contracts to be terminated at an earlier
point, such as two weeks, for example.
2. Section 3.55.020 is the Section that actually establishes the amount ofthe tax and imposes the
tax on transients. Only minor stylistic changes were made to that Section.
3. Section 3.55.030 establishes the hotel operator's obligation to collect the tax on behalf of the
City. Those requirements previously were addressed in Sections 3.54.030 and 3.54.075. This
section also authorizes the transient to pay the tax directly to the City Clerk, who will provide written
proof of payment to the transient.
4. Section 3.55.035 establishes the transients who are exempt from payment of the tax. One new
ground has been added to the exemptions, which is set forth in paragraph 4, to address any future
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judicial determination that would create a new category of persons who are exempt from the tax.
5. Section 3.55.040, which addresses reports and remittances, is largely unchanged. The tax is
remitted to the City Clerk by the 25th day each month for taxes collected during the prior month.
Ifthe City Clerk agrees in writing, the taxes may be paid quarterly.
6. The chapter has been reordered so that the next topic that is addressed in Section 3.55.045 is
refunds. That topic is contained in Section 3.54.033 in the current chapter. That section has been
reorganized so that the grounds for obtaining a refund for an operator and a transient are stated in
separate paragraphs. The procedure that both groups are to follow is set forth in paragraph C.
7. Section 3.55.050 addresses the penalties that are imposed for late payment of the tax to the City.
The language has been revised so that each paragraph is identical, except for the additional time of
payment of the tax to the City, to eliminate a concern that was raised in the Court of Appeal's most
recent decision that the language was not consistent.
8. Section 3.55.060 specifies the City Clerk's duties if an operator does not remit the tax to the City.
That Section is largely unchanged.
9. Section 3.55.065 sets forth the appeal provision. It has been amended to clarifY that both hotel
operators and transients may appeal decisions of the City Clerk to the Common Council.
10. Section 3.55.070 specifies the records that are to be maintained by the hotel operator, and
Section 3.55.080 requires the operator to register the hotel with the City Clerk. Those Sections are
largely unchanged.
II. Section 3.55.090 continues the requirement that anyone who ceases providing lodging to
transients shall pay the tax to the City Clerk along with providing the required report. The revised
section specifies that the tax and the report will be due to the City Clerk within twenty-five days after
the cessation of business and applies regardless of whether the hotel use is discontinued or is sold
to someone else. Current Section 3.54.100, which provides a process for payment of taxes to the
City Clerk by a property owner who is selling his or her business, has been eliminated.
12. Section 3.55.100 makes any tax that was due but was not paid to the City by the former owner
of a hotel business the responsibility of the new owner.
13. Section 3.55.110, which allows the Common Council to impose a lien on property for any
unpaid tax, is substantially the same as former Section 3.54.120. However, that section has been
revised to add a requirement that ten days advance written notice of the hearing before the Common
Council will be provided to the operator( s) who are delinquent.
14. Current section 3.54.130 states that anyone who does not pay the tax to the City, along with any
interest and penalties, owes a debt to the City and shall be liable to the City in an action to collect
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the debt. That Section has been renumbered as Section 3.55.120 with only minor changes.
IS. Current Section 3.54.150, which specifies the operator's duty to maintain records for three years,
has been renumbered as Section 3.55.130. If the records are not voluntarily produced for inspection,
then the City shall cause a subpoena to be issued to enable the inspection.
16. Section 3.55.140, which states that violations of the provisions of this Chapter are a
misdemeanor, is largely unchanged.
17. Section 3.55.150 has been added to the Chapter. That Section states the City Clerk is
responsible for enforcing the Chapter and may issue citations to violators.
18. Paragraph A of Section 3.54.160 has been eliminated because it could be read as interfering with
the jurisdiction of the courts. Paragraph B has been retained; that Section requires a claim to be filed
with the City before someone can sue the City to recover any tax that is alleged to have been
improperly collected.
IS. Section 3.55.170 has been added to clarify that the voters are required to approve any increase
of the amount of the tax, but that the Common Council can approve other amendments to the
Chapter.
16. The severability provisions of Section 3.55.180 are essentially the same as the existing
provIsIOns.
CONCLUSION
It is recommended that the Common Council direct the City Clerk to place the revised ordinance
attached to this report on the November ballot for approval by the voters. Because the ordinance is
not increasing the tax above the amount that was last approved by the voters, ten percent (l 0%),
there is an excellent argument that neither Proposition 62 nor Proposition 218 require voter approval
of the ordinance. Rather than incur the expense of litigating this issue, however, it will be more cost
effective for the City to place the ordinance on the ballot. The last time this type of tax was on the
ballot, it was approved by 80% ofthose voting.
Assuming the ordinance is laid over on July I, 2002, at the July IS, 2002 meeting when the
ordinance is considered for final adoption, there will be appropriate resolutions to be approved which
will call for a special municipal election and submitting this item to the voters for their approval or
disapproval at the November 5, 2002 statewide general election.
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ORDINANCE NO.
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER
3.54 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO
3 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
TAX.
.
4
5
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO
ORDAIN AS FOLLOWS:
6
SECTION 1. Chapter 3.54 of the San Bernardino Muncipal Code is hercby repealed.
Chapter 3.55 is hereby added to the San Bernardino Muncipal Code to read
7
SECTION 2.
8
as follows:
9
10
Sections:
II 3.55.010
3.55.020
12 3.55.030
3.55.035
13 3.55.040
3.55.045
14 3.55.050
. 3.55.060
15 3.55.065
3.55.070
16 3.55.080
3.55.090
17 3.55.100
3.55.110
18 3.55.120
3.55.130
19 3.55.140
3.55.150
20 3.55.160
3.55.170
21 3.55.180
22 3.55.010
Chapter 3.55
TRANSIENT LODGING TAX
Definitions.
Tax imposed - Rate - Revenue measure.
Collcction of tax.
Exemptions.
Reports and remittances.
Refunds.
Penalties.
Determination of tax by City Clerk.
Appeal.
Records.
Hotel registration.
Immediate paymcnt of tax on cessation of business.
Sale or ownership transfcr of hotel.
Liens.
Action to collect.
Retention and inspection of records.
Violation-Penalty.
Enforcement-Citing authority.
Prerequisite for suit.
Amendments.
Sevcrability.
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 mcanings except where the context clearly
24 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,
mote!, rooming house, tourist home or similar cnterprise.
25 A.
26
.
27
28
B.
"Lodging space" means one or more rooms used or intended to be used for dwelling or
sleeping purposcs.
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June 27, 2002
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.
AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER
3.54 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO
2 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
TAX.
,
J
4 C.
5
D.
6
7
8 E.
9
10 F.
11 G.
12
13
14
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16 H.
17 3.55.020
18 A.
19
20
21
22
A.
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24
B.
25
26
C.
27
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"Occupancy" means the use or possession, or the right to the use or possession, of a lodging
space.
"'Operator" means the person who is the proprietor of a hotel. If an operator utilizes a
managing agent who is not an employee, then such agent shall also constitute an "'operator"
for purposes of this Chapter. Compliance with this Chapter by either the principal or the
managing agent shall constitute compliance by both.
"'Person" means any individual, firm, partnership, joint venture, association, social club,
fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver,
trustee, syndicate, or any other group or combination acting as a unit.
"'Room rental" means the total charge for lodging space.
"'Transient" means a person who, for a period of thirty consecutive calendar days or less,
exercises occupancy or is entitled to occupancy by reason of concession, permit, right of
access, license or contract. Every such person shall constitute a "'transient" for purposes of
this Chapter until expiration of the thirty-day period unless such person has executed a
written contract with the operator to provide for occupancy in excess of thirty consecutive
calendar days and the contract cannot be terminated without providing at least thirty days
advance notice. In determining whether a person is a transient, portions of calendar days
shall be counted as full days and uninterrupted periods of time extending both prior and
subsequent to the effective date of this Chapter may be considered.
"Transient lodging tax" means the tax levied pursuant to this Chapter.
Tax imposed - Ratc - Revenue measure.
For the privilege of occupancy in a hotel, each transient is subject to and shall pay a transient
lodging tax in the amount of ten percent of the room rental charged by the operator.
B.
The transient lodging tax is levied for revenue purposes and is necessary for the usual
financial operation of the City. When collected, the tax shall be made a part of the general
funds of the City.
3.55.030
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 provide a receipt for payment of the transient lodging tax to the transient.
If the monetary compensation received by an operator from a transient includes any charge
for services or accommodations 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.
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June 27, 2002
.
AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER
3.54 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO
2 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
TAX.
,
J
4 D.
5
6 E.
7
8 3.55.035
9 A.
10
II
12
13
14
. IS
16
17
B.
18
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.
In lieu of paying the transient lodging tax to an operator, a transient may remit the tax
directly to the City Clerk. Any transient who opts to remit the transient lodging tax directly
to the City Clerk shall provide written proof of such remittance to the operator.
Exemptions.
Grounds. No transient lodging tax shall be imposed upon:
I. Any officer or employee of the United States Government or the State of California for
lodging space utilized by that officer or employee in the discharge of official
government business.
2. Any officer or employee of a foreign government who is exempt by reason of express
provision of federal law or international treaty.
3. Room rental payment made to any hospital, medical clinic, convalescent home or home
for aged people.
4. Any person as to whom, 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 file a
tax exemption certificate with the hotel at the time room rental payment is made to the
operator. The tax exemption certificate shall indicate the basis for the exemption and shall
19 be signed under penalty of perjury. Tax exemption certificate forms shall be prescribed by,
and may be 0btained from, the City Clerk.
20
21
22
23
24
25
26
27 III
.
28 III
3.55.040
Reports and remittances.
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 information report for the
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 received for room
rental and the amount of transient lodging tax required to be collected, and shall be signed
under penalty of perjury. Lodging information report forms shall be prescribed by, and may
be obtained from, the City Clerk.
B.
Alternate Deadline. An operator of a hotel open year-round may, with the written consent
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.
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3
June 27. 2002
I I
.
AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER
3.54 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO
2 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
TAX.
3
4 3.55.045
Refunds.
3.55.050 Penalties.
20
A. Delinquency.
21
l.
22
23
24 2.
25
26
0
J.
27
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5 A.
6
7
8
9
10
B.
II
12
13
14
. IS
C.
16
17
18
19
Operator Grounds. An operator who has remitted a transient lodging tax to the City may
obtain a refund of all or a part of such remittance in the following circumstances:
l.
2.
The tax was collected trom a person who was not a transient.
The amount of tax collected trom a transient exceeds the amount due.
3.
Thc amount of tax remitted by the operator exceeds the amount due.
4.
The City lacked the authority to impose the tax.
Transient Grounds. A transient who has remitted a transient lodging tax directly to the City,
rather than indirectly by means of payment to an operator, may obtain a refund of all or a part
of such remittance in the following circumstances:
I. The tax was collected from a person who was not a transient.
2. The amount of tax remitted by the transient exceeds the amount due.
3. The City lacked the authority to impose the tax.
Procedure. Each person desiring a refund must tile a refund claim with the City Clerk within
three years of the date of remittance of the transient lodging tax. The refund claim shall
indicate the basis for the refund and shall be signed under penalty of perjury. Reti.md claim
fOl1ns 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 who receives a refund of tax improperly paid by another person shall forward
the refund to such person within five days ofreceipt.
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
day and the sixtieth day following thc deadline for such remittance
shall pay, in addition to the amount of the tax, a delinquency penalty
of fitiy percent of the amount 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
RI.Sied [TLT.ordl
4
June 27, 2002
.
AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER
3.54 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO
2 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
TAX.
,
J
4
5
6
7
8
B.
3.55.060
9
A.
10
11
12 B.
13
14
. 15 C.
16
the total of the tax and the delinquency penalty. Interest shall be at
thc 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.
Fraud. If the City Clerk determines that the nonpayment of a transient lodging tax is due to
fraud of the operator, then the operator shall pay, in addition to the amount of the tax, a fraud
penalty of twenty-five percent of the amount of the tax.
Determination of tax by City Clerk.
Determination. If an operator fails to collect and remit the transient lodging tax in
accordance with this Chapter, then the City Clerk shall determine the amount of tax owed
by such operator. The City Clerk may make such determination based on an estimate of the
amount due based on the information available.
Notice. 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
amount in writing within ten days of the date of issuance of the notice, then the amount shall
be conclusive and shall be remitted 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 writing of the date, time and place of a hearing on the amount oftransient lodging tax and
penalty owed to the City at least ten days prior to the date of the hearing. At such hearing,
the operator may otTer evidence to rebut the determination of the City Clcrk. After such
17 hearing, the City Clerk shall revisc the initial detemlination as deemed appropriate and shall
notify the operator in writing of the tinal determination of the transient lodging tax and
18 penalty that is due. Such amount shall be remitted to the City within fiftccn days from the
issuance of the notice, unless an appeal is tiled as provided in this Chapter.
19
20
3.55.065. Appeal.
Any operator who is aggrieved by a City Clerk decision regarding the amount of transient
21 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
22 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
23 Common Council determines is owed to the City shall be remitted to the City Clerk on or before the
deadline set by the Common Council.
24
25
A.
26
27
. 28 //1
3.55.070
Records.
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:
The namc ofa person who will occupy, or who is entitled to occupy, the lodging space.
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June 27. 2002
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5
6
7
8
9
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11 B.
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14
. 15
16
17
20
21
22
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25
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I I
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 BER.,"IARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
TAX.
1.
The total number of people who will occupy, or who are entitled to
occupy. the lodging space.
The identification of the lodging space by number.
2.
,
~.
The date the occupancy will commence and the expected date of
termination.
4.
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,j;une of a person who will occupy, or who is entitled to occupy, each lodging
space that is provided to a customer that day.
2. The identification by 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.
18
19
3.55.080
Hotel registration.
Within thirty days after the effective date of the ordinance codified in this Chapter, or within
thirty 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
shall issue the operator a "Transient Lodging Registration Certiticate" that at a minimum states the
following:
A. The name of the operator.
B. The address of the hotel.
C. The issuanc,~ date of the certificate.
D. 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 certiticate 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/cd [TLT_ordj
(,
June 27,2002
I I
.
AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER
3.54 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO
2 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
TAX.
3
4 limited to those requiring a permit from any board. commission. depal1ment or office of this
City. This certificate does not constitute a permit.
5
Each operator shall at all times conspicuously post its Transient Lodging Certificate on the
6 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 final lodging information report and shall remit to the City Clerk any transient lodging tax owed
9 the City. Such delivery and remittallCe shall be performed within twenty-five days of the operator's
cessation of such activity.
10
11
3.55.100
Sale or ownership transfer of hotel.
Ifan operator sells or otherwise trallsfers ownership of its hotel, then the operator's successor
12 shall be responsible for remittance of allY transient lodging tax and penalty owed by the operator to
the City.
13
14
. A.
15
16
17
18
B.
19
20
21
22
23
A.
24
25
26
27 B.
. 28
3.55.110
Liens.
The City Clerk shall periodically prepare for the Common Council a report showing: (i)
delinquent trallsient lodging taxes and penalties that have not been received by the City; and
(ii) the conesponding parcel number designations and addresses of the properties on which
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 report 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 Bernardino, State of Cali fomi a, 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
maimer, 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 thc imposition of these liens with the County Recorder.
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 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 transient
lodging taxes actually 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/t:d {TLT.ordl
7
June 27,2002
II A.
12 B.
13
C.
14
. 15
D.
16
17
~
.
.
r i
AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER
3.54 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO
2 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
TAX.
o
)
4 City all penalties and interest specified by law.
5 3.55.130
Retention and inspection of records.
6 A.
7
Retention. 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
deadline for remittance of the transient lodging tax to which the record pertains.
8 B.
9
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.
10 3.55.140
Violation-Penalty.
Any person who willfully violates this Chapter shall be guilty of a misdemeanor.
Any person who 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.
Any person who willfully aids another person to violate subsection B shall be guilty of a
misdemeanor.
A 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,
whichever is later.
3.55.150
Enforcement-Citing authority.
18
19
It shall be the duty ofthe City Clerk, or his or her authorized representatives, to enforce the
provisions 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
of this Chapter.
20
21 3.55.160
Prerequisite for suit.
22 No suit or proceeding shall be maintained in any court for the recovery of any amount alleged
to have been erroneously or illegally determined or collected unless a refund claim has been duly
23 filed.
24 3.55.170
Amendments.
25 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
26 with applicable provisions of state law. Any other amendments to the provisions of this Chapter
shall be adopted by the Common Council.
27
28 III
RLS/cd [TLT.ord]
K
June 27. 2002
.
.
.
AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER
3.54 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO
2 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
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 court
6 of competent jurisdiction, such part or provision shall be suspended and superseded by such
applicable law or regulations, and the remainder of this Chapter shall not be affected thereby.
7
8 SECTION 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/
II /1/
12 /1/
13 /1/
14 //1
15 1//
16 /1/
17 1//
18 1//
19 /1/
20 1//
21 1//
22 //1
23 1//
24 /1/
25 1//
26 1//
27 1//
28 /1/
RLS/ed [TLT.ord] 9 June 27, 2002
.
.
1 I
AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER
3.54 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.55 TO
2 THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING
TAX.
,
~
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 _ day
6 of
, 2002, by the following vote, to wit:
7 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
8 ESTRADA
9 LIEN
10 MCGINNIS
11 DERRY
12 SUAREZ
13 ANDERSON
14 MC CAMMACK
. 15
16
17
18
19
20
21
22
23
24
25
26
27
. 28
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
",It,!..", ;;
,
/'~(..r!~'''''''-_
RLS/ed [TLT,ordl
June 27. 2002
10
~
r..xn.l.Dl..C A.
it '.**.F()R OFFICE USE ONLY - NOTA PUBLlCDOCUMEHT**', .
.~~~~~~?-~ ~> -- ~?,;r;-,:"?-' _ :~'~:~~~f'" c '-~'~~~~~~~jt::.. .. '~-'~:-~~_:~~;,':~-,:_-:;\' -~':_~::-I?~~~_g~:'
. . . CITY OF SAN BERNARDINO:'CITv CLERK'SOFFICE~-;~'.--''''
",'- ".,
RECORDS & INFORMATION MANAGEMENT PROGRAM ."",(
.~Il' ,..;; .
"",.....'
,.";;...,'
Abstain'
AGENDA ITEM TRACKING FORM
7-1 s- 0 L-- Item No.
/l1C - /f,n
1I-,.:(J~
/2J-f /- ?
-.c:?--
/_1[,-02-
7 //i.P /02.--
. I
-; /0-02--
/0
Meeting DatefDate Adopted:
Nays:
Absent:
c
.C
Vote:
Date Sent to Mayor:
Date Returned from Mayor:
Date Summary Sent to Attorney:
Date Published:
Meeting Type: r ..&~~
Continued From 0 & Item No.
Date of Clerk's Signature:
Date Summary Returned from Attorne :
Date of Mayor's Signature:
Date Seal Impressed:
c)
~
Exhibits Complete & Attached to Resolutionflir'dinance:
Rem i nder Letter Sent:
Reminder Letter Sent:
Reminder Letter Sent:
Notes:
,~
No
Ready to File:
Date:
OQCUM(NT LOCA noN:
fOIMSIAplda 11m T.... fOrm. CC FomI No. 111. Lase Upd:;MN: l:zJ1W1M:6