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Ordinance 1739ORDINANCE 1739 AMENDING THE ALAMEDA MUNICIPAL CODE BY ADDING CHAPTER 14, ARTICLES 1 THROUGH 5, TO TITLE III THEREOF, ESTABLISHING A TRANSIENT OC- CUPANCY TAX AND PROVIDING FOR THE ADMINISTRATION THEREOF BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ALAMEDA: Section 1. That Title III of the Alameda Municipal Code is hereby amended by adding Chapter 14, Ar- ticles 1 through 5, consisting of Sections 3 -1411 through 3 -1451, thereto, to read as follows: CHAPTER 14, TRANSIENT OC- CUPANCY TAX Article 1. Definitions Sec. 3 -1411_ Title. This Chapter shall be known as the Uniform Transient Occupancy Tax Or- dinance of the City of Alameda. Sec. 3 -1412. Definitions. Except where the context otherwise requires, the definitions given in this section govern the construc- tion of this Chapter. (a) Person. ''Person'' means any individual, firm, partnership, iomf venture, association, social club, fraternal organization, joint stock company, corporation, es- tate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit. (b) Hotel. ''Hotel" means any structure, or any portion of any structure, which is occupied or intended or designed for oc- cuponcv by transients for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobilehome or house trailer at a fixed location, or other similar structure or portion thereof. (c) Occupancy. ''Occupancy'' means the use or possession, or the right to the use or possession of any room or rooms or portion thereof, in any hotel for dwelling, lodging or sleeping purposes. (d) Transient. ''Transient'' means any person who exercises occupancy or is entitled to oc- cupancy by reason of concession, permit, right of access, license or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. Any such person so: occupying space in a hotel shall be deemed to be a transient until the period of thirty (30) days has expired unless there is an agreement in writing between the operator and the oc- cupant providing for a longer period of occupancy. In deter- mining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of this ordinance may be con- sidered. Ordinance No,; 7 j New Series (e) Rent. ''Rent' means the consideration charged, whether or not received, for the oc- cupancy of space in a hotel valued in money, whether to be received in money, goods, labor or'other- wise,includino all receipts, cash, credits and property and services of any kind or nature, without any deduction therefrom whatsoever. (f) Operator. ''Operator'' means the person who is proprie- tor of the hotel whether in the capacity of - owner, lessee, sublessee, mortgagee in posses - sion, licensee, or any other capacity. Where the operator performs his functions through a managing agent of any type of character other than an employee, the managing agent shall also be deemed an operator for the purposes of this Chapter and shall have the same duties and liabilities as his principal. Compliance with the provisions of this Chapter by either the prin- cipal or the managing agent shall, however, be considered to be compliance by both (g) Tax Administrator. ''Tax Administrator means the Treasurer of the City of Alameda. Article 2. Tax Sec. 3- 1421. Tax Imposed. For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of six percent (6%) of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the City which is ext- inguished only by payment to the operator or to the City. The tran- sient shall pay the tax to the operator of the hotel at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be paid with each installment. The unpaid tax shall be due upon the transient's ceasing to occupy space in the hotel. If for any reason the tax due is no[ paid to the operator of the hotel, the Tax Administrator may require that such tax shall be paid directly to the Tax Adminis- trator. Sec. 3 -1422. Exemptions. No tax shall be imposed upon: (a) Any person as to whom, or any occupancy as to which, it is beyond the power of the City to impose the tax herein provided. (b) Any federal, or State of California officer or employee when on official business. (c) Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or inter - national treaty. No exemption shall be granted except upon a claim therefor made at the time rent is collected and under penalty of perjury upon a form prescribed by the Tax Ad- ministrator. Article 3. Administration Sec. 3 -1431, Operator's Duties. Each operator shall collect the tax imposed by this Chapter to the some extent and at the same time as the rent is collected from every transient. The amount of tax shat I be separately stated from the amount of the rent charged, and each transient shall receive a Alameda City 1 s Ordinance No, i 7.3q New Series receipt for payment from the obtain facts and information on which to base his estimate of the operator. No operator of a hotel tax due. As soon as the Tax Ad- shall advertise or state in any ministratorshall procure such manner, whether directly or in- factsond information as he isable directly, that The tax or any part to obtain upon which to base the thereof will be assumed or ab- assessment of any tax imposed by sorbed by the operator, or that it this Chapter and payable by any will not be added to the rent, or operator who has failed or that, if added, any part will be refused To collect the same and to refunded except in the manner make such report and remit - hereinafter provided. tance, he shall proceed to deter - Sec. 3 -1432. Registration. mine and assess against such Within thirty (30) days after the operator the tax, interest and effective date of this ordinance, penalties provided for by this or within thirty (30) days after Chapter. In case such determina- commencing business, tion is made, the Tax Adminis- whichever is later, each operator trator shall give a notice of the of any hotel renting occupancy to amount so assessed by serving it transients shall register said ho- personally or by depositing it in tel with the Tax Administrator the United States mail, postage and obtain from him a "Transient prepaid, addressed to the opera - Occupancy Registration Cer- for so assessed at his last known tificate" to be at all times posted place of address. Such operator in a conspicuous place on the may within ten (10) days after the premises. Said certificate shall, serving or mailing of such notice among other things, state the makeapplication inwritingtothe following: Tax Administrator for a hearing (a) The name of the operator. on the amount assessed. If (b) The address of the hotel. application by the operator for a (c) The date upon which the hearing is not made within the certificate was issued, time prescribed, the tax, interest (d) ''This Transient Oc- and penalties, if any, determined cupancy Registration Certificate by the Tax Administrator shall signifies that the person named become final and conclusive and on the face hereof has fulfilled the immediately due and payable. If requirements of the Uniform such application is made, the Tax Transient Occupancy Tax Or- Administrator shall give not less dinance by registering with the than five (5) days written notice Tax Administrator for the pur- in the manner prescribed herein pose of collecting from transients to the operator to show cause at the Transient Occupancy Tax and a time and place fixed in said remitting said tax to the Tax Ad- notice why said arnount specified ministrator. This certificate does therein should not be fixed for not authorize any person to con- such tax, interest and penalties. duct any unlawful business or to At such hearing, the operator conduct any lawful business in an may appear and offer evidence unlawful manner, nor to operate why such specified tax, interest a hotel without strictly complying and penalties should not be so' with all local applicable laws, fixed. After such hearing the Tax '.. including but not limited to those Administrator shall determine requiring a permit from any the proper tax to be remitted and board, commission, department shall thereafter give written po- or office of this City. This cer- tice to the person in the manner tificate does not constitute a per- prescribed herein of such deter - mit." mination and the amount of such Sec. 3 -1433. Reporting and tax, interest and penalties. The Remitting. Each operator shall, amount determined to be due on or before the last day of the shall be payable after fifteen (15) month following the close of each days unless an appeal is taken as calendar quarter, or at the close provided in Section 3 -1435. of any shorter reporting period which may be established by the Tax Administrator, make a re- turn to the Tax Administrator, an forms provided by him, of the to- tal rents charged and received and the amount of tax collected for transient occupancies. At the time the return is filed, the full amount of the tax collected shall be remitted to the Tax Adminis- trator. The Tax Administrator may establish shorter reporting Periods for any certificate holder if he deems it necessary in order to insure collection of the tax and he may require further informa- tion in the return. Returns and Payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this Chapter shall be held in trust for the account of the City until Payment thereof is made to the T_ox Admini strntor. sec. 3 -1434. Failure to Collect and Report Tax. Determination of Tax by Tax Administrator. If any operator shall fail or refuse to collect said tax and to make, within the time provided in this Chapter, any report and remittance of said tax or any portion thereof required by this Chapter, the Tax Ad- ministrator shall proceed in such manner as he may deem best to Sec. 3 -1435, Appeal. Any opera- tor aggrieved by any decision of the Tax Administrator with res- pect to the amount of such tax, interestand penalties, if any, may appeal to the Council by filing a notice of appeal with the City Clerk within fifteen (15) days of the serving or mailing of the de- termination of tax due. The Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to such operator at his last known place of address. The findings of the Council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice. Sec. 3 -1436. Records. It shall be the duty of every operator liable for the collection and payment to the City of any tax imposed by this Chapter to keep and preserve, for a period of three years, all records as may be necessary to determine the amount of such tax as he may have been I iable for the collection of and payment to the City, which records the Tax Ad- ministrator shall have the right to inspect at al I reasonable times. Sec. 3-1437. Refunds. (a) Whenever the annoont of any tax, interest or PencAly has been overpaid or paid more than once or has been erroneously or illegally collected or received by the City under this Chapter it may be refunded as provided in sub- paragraphs (b) and (c) of this section provided a claim in writ- ing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the Tax Ad- ministrator within three Years of the date of payment. The claim shall be on forms furnished bvthe Tax Administrator. (b) An operator may claim a refund or take cis credit against taxes collected and remitted the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the Tax Adminis- trator that the person from whom the tax has been col lected was not a transient; provided, however, that neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the tran- s lent or credited to rent sub- sequently payable by the tron- %ient to the operator. (c) A transient may obtain a refund of taxes overpaid or paid more than once or erroneously or illegally collected or received by the City by filing a claim in the manner provided in sub- paragraph (a) of this section, but only when the tax was paid by the transient directly to the Tax Ad- ministrator, or when the transient having paid the tax to the opera- tor, establishes to the satisfaction of the Tax Administrator that the transient has been unable to ob- tain a refund from the operator who collected the tax, (it) No refund shall be pa under the Provisions of this sc�. tion unless the claimant es- tablishes his right thereto by written records showing en- fitlement thereto, Sec. 3-1438. Actions to Collect. Any tax required to be Paid by any transient under the provisions of this Chapter shall be deemed a debt owed by the transient to the City. Any such tax collected by an operator which has not been Pont to the City shall be deemed 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 to an ac- tion brought in the name of the City of Alameda for the recovery of such amount. Article 4. Penalties and Interest Sec. 3-1441, Penalties and (a) Original Delinquency. Any operator who fails to remit any tax imposed by this Chapter within thetime required shall bay a Penalty of 10% of the amount of the tax in addition to the amount of the fax. (b) Continued Delinquency. Any operator who fails to remit any delinquent remittance on or before a period of thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty 0 1 10% of the amount of the tax in addition to the amount of the tax an d the 10% penalty first imposed. (c) Fraud. I t t I he rox Adminis- trator determines that the non- 'Payment of any remittance due under this Chapter is due to fraud, a penalty of 25% of the amount of ^'-~~~~ the Tax Sholl be added thereto in subparagraphs (a) and Ib) of this (d) Interest. In addition to the penalties imposed, any operator who fails to remit any tax inn posed by this Chapter sholl pay interest at the rate of one-half of 1% per month or fraction thereof on the amount of the tax, exclusive of Penalties, from the date on which the remittance first became delinquent until paid, (e) Penalties Merged with Tax. Every penalty imposed r', such interest as accrues under the Provisions of this section slh,ii become a part of the tax herein required to be cold, Section. 3-1442. Violations; Misdemeanor. Any person victor ing any of the provisions of thi, Chapter shall be quilty of a rni� demeanor and shall beriunishable thereforbva fine of not more than five hundred dollars ($500.00) or by imprisonment for a period of not more than six months or by both such fine and imprisonment, Any operator or other person who fails or refuses to register as required herein, or to furnish any return required to be made, - who fails or refuses to furnish r supplemental return or other data required by the Tax Admunistra- for, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor, and is punishable as aforesaid. Any per- son required to make, render, sign or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the de- termination of any amount due required by this Chapter to be made, is guilty of a misdemeanor and is punishable as aforesaid. Article 5. Sciecial Provisions Sec. 3-1451. Severability. If any section, subsection, subdivision, Paragraph, sentence, clause n phrase of this Chapter or any part thereof is for any reason held *, be unconstitutional, sur h decision shall not affect the volidityofthe remaining Portions at this Chapter or any port thereof. The City Council hereby declares that it would have passed each section, sulbsection subdivision, Paragraph, set) fence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsec- tions, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional. be effecirve thirty (30) days from and oftertheclateof itsfinal passage except that the tax imposed by this ordinance shall become operative and be imposed on January 1, 1975, and shall not apply prior to said date. TERRY LA CROI X, J R. Presiding Officer of the Counci I ETHEL M. PITT City Clerk 1, the undersigned, hereby certify that the foregoing Ordinance wo s duly and regularly adopted and passed by the Council of the City of Alameda in regular me efing assembled on the 15th day of October, 1974, by the following vote, to wit AYES: Councilmen Beckam, Corica, Hurwitz, McCall and President Lo NOES: None. ABSENT: None. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of said City this 16th day of October, 1974. ETHEL M. PITT City Clerk of the City of Alameda No. 807—Published: Oct. 18, 1974