Ordinance 3256CITY OF ALAMEDA ORDINANCE NO. 3256
New Series
AMENDING THE ALAMEDA MUNICIPAL CODE BY AMENDING
VARIOUS PROVISIONS OF SECTION 3-61 (TRANSIENT
OCCUPANCY TAX) OF DIVISION IX (TAXES) OF ARTICLE II
(T A A TION) OF CHAPTER III (FINANCE AND T TION),
CLARIFYING AND RESTATING HOSTING PLATFORMS'
RESPONSIBILITY TO COLLECT AND REMIT TRANSIENT
OCCUPANCY TAXES.
WHEREAS, judicial decisions have consistently affirmed local governments'
authority to regulate or prohibit vocational rental uses; and
WHEREAS, existing law authorizes the City to collect transient occupancy taxes
("TOTs") for vacation rental and home-sharing activities; and
WHERAS, existing law obligations both hosts, rental agencies and hosting
platforms to collect and remit TOTs to the City; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ALAMEDA DOES
ORDAIN AS FOLLOWS:
Section 1: Section 3-61 (TRANSIENT OCCUPANCY TAX) of Division IX (TAXES) of
Article II (T TION) of Chapter II (FINANCE AND T TION) of the Alameda
Municipal Code is amended, as follows (in redline; otherwise no change):
3-61 - TRANSIENT OCCUPANCY TAX. 3-61.1 - Title.
This section shall be known as the Uniform Transient Occupancy Tax Regulations
of the City of Alameda.
3-61.2 - Definitions.
As used in this section:
Booking transaction shall mean any reservation or payment service provided by a
person, who facilitates a home-sharing or vacation rental transaction between a
prospective transient user and a host.
Home-Sharing. An activity, whereby the residents host visitors in their homes, for
compensation, for periods of thirty consecutive days or less, while at least one of the
dwelling unit's primary residents lives on-site, in the dwelling unit, throughout the
visitors' stay.
Host. Any person who is an owner, lessee, or sub-lessee of a residential property or
unit offered for use as a vacation rental or home-share. Host also includes any person
who offers, facilitates, or provides services to facilitate, a vacation rental or home-share,
including, but not limited to, insurance, concierge services, catering, restaurant
bookings, tours, guide services, entertainment, cleaning, property management, or
maintenance of the residential property or unit regardless of whether the person is an
owner, lessee, or sub - lessee of a residential property or unit offered for use as a
vacation rental or home- share. Any person, other than an owner, lessee, or sub - lessee,
who operates home - sharing or vacation rental activities exclusively on the Internet shall
not be considered a host.
Hosting Platform shall mean a person who participates in the home - sharing or
vacation rental business by collecting or receiving a fee, directly or indirectly through an
agent or intermediary, for conducting a booking transaction using any medium of
facilitation.
Hotel shall mean any structure, or any portion of any structure, which is occupied or
intended or designed for occupancy 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.
Occupancy shall mean 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.
Operator shall mean the person who is proprietor of the hotel, whether in the
capacity of owner, lessee, sublessee, mortgagee in possession, licensee, or any other
capacity. Where the operator performs his /her functions through a managing agent of
any type or character other than an employee, the managing agent shall also be
deemed an operator for the purposes of this section and shall have the same duties and
liabilities as his /her principal. Compliance with the provisions of this section by either the
principal or the managing agent shall, however, be considered to be compliance by
both.
Person shall mean 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.
Rent shall mean the consideration charged, whether or not received, for the
occupancy of space in a hotel valued in money, whether to be received in money,
goods, labor or otherwise, including all receipts, cash, credits and property and services
of any kind or nature, without any deduction therefrom whatsoever.
Tax Administrator shall mean the Treasurer of the City of Alameda.
Transient shall mean any person who exercises occupancy or is entitled to
occupancy by reason of concession, permit, right of access, license or other agreement
for a period of thirty -one (31) 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 -one (31) days has expired unless
there is an agreement in writing between the operator and the occupant providing for a
longer period of occupancy. In determining whether a person is a transient,
uninterrupted periods of time extending both prior and subsequent to the effective date
of this section may be considered.
3-61.3 - Tax Imposed.
For the privilege of occupancy in any hotel, each transient is subject to and shall
pay a tax in the amount of ten (10%) percent of the rent charged by the operator. Said
tax constitutes a debt owed by the transient to the City which is extinguished only by
payment to the operator or to the City the Transient 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 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 not paid to the operator of the hotel,
the Tax Administrator may require that such tax shall be paid directly to the Tax
Administrator. In the event that the Transient Occupancy Tax is not paid, prior to
becoming delinquent, a penalty of ten (10%) percent on the unpaid tax or any a portion
thereof, shall be assessed. In the event a portion of the tax is unpaid prior to becoming
delinquent, the penalty shall only accrue as to the portion remaining unpaid. An
additional penalty of fifteen (15%) percent shall accrue if the tax remains unpaid on the
90th day following the date of the original delinquency. Interest shall accrue at the rate
of one and one-half of one (1 1/2%) percent a month, or fraction thereof, on the amount
of tax, exclusive of penalties, from the date the tax becomes delinquent to the date of
payment. Interest and penalty shall become part of the tax.
3-61.4 - 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 international treaty.
d. Active military personnel and their immediate and dependent family.
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
Administrator.
3-61.5 — Hosting Platform's and Operator's Duties.
Each operator shall collect the tax imposed by this section to the same extent and
at the same time as the rent is collected from every transient. The amount of tax shall
be separately stated from the amount of the rent charged, and each transient shall
receive a receipt for payment from the operator. No operator of a hotel shall advertise or
state in any manner, whether directly or indirectly, that the tax or any part thereof will be
assumed or absorbed by the operator, or that it will not be added to the rent, or that, if
added, any part will be refunded except in the manner hereinafter provided.
Hosting platforms shall be responsible for collecting all applicable taxes imposed by
this Section. The hosting platform shall be considered an agent of the host for purposes
of tax collections and remittance responsibilities, and shall have the same
responsibilities as an operator as set forth in this Section.
3 -61.6 - Registration.
Within thirty (30) days after commencing business, each operator of any hotel
renting occupancy to transients shall register the hotel with the Tax Administrator and
obtain from him /her a transient occupancy registration certificate to be at all times
posted in a conspicuous place on the premises. The certificate shall, among other
things, state the following:
a. The name of the operator.
b. The address of the hotel.
c. The date upon which the certificate was issued.
d. This transient occupancy registration certificate signifies that the person named
on the face hereof has fulfilled the requirements of the Uniform Transient
Occupancy Tax Regulations by registering with the Tax Administrator for the
purpose of collecting from transients the transient occupancy tax and remitting
the tax to the Tax Administrator. This certificate does not authorize any person
to conduct any unlawful business or to conduct any lawful business in an
unlawful manner, nor to operate a hotel without strictly complying with all local
applicable laws, including but not limited to those requiring a permit from any
board, commission, department or office of this City. This certificate does not
constitute a permit.
3 -61.7 - Reporting and Remitting.
Each operator shall, on or before the last day of the month following the close of
each calendar quarter, or at the close of any shorter reporting period which may be
established by the Tax Administrator, make a return to the Tax Administrator, on forms
provided by him /her, of the total 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 Administrator. The Tax Administrator may
establish shorter reporting periods for any certificate holder if he /she deems it
necessary in order to insure collection of the tax and he /she may require further
information in the return. Returns and payments are due immediately upon cessation of
business for any reason. All taxes collected by operators pursuant to this section shall
be held in trust for the account of the City until payment thereof is made to the Tax
Administrator.
3 -61.8 - Failure to Collect and Report Tax; Determination of Tax by Tax Administrator.
If any operator shall fail or refuse to collect the tax and to make, within the time
provided in this section, any report and remittance of the tax or any portion thereof
required by this section, the Tax Administrator shall proceed in such manner as he/she
may deem best to obtain facts and information on which to base his/her estimate of the
tax due. As soon as the Tax Administrator shall procure such facts and information as
he/she is able to obtain upon which to base the assessment of any tax imposed by this
section and payable by any operator who has failed or refused to collect the same and
to make such report and remittance, he/she shall proceed to determine and against
such operator the tax, interest and penalties provided for by this section. In case such
determination is made, the Tax Administrator shall give a notice of the amount so
assessed by postage prepaid, addressed to the operator so assessed at his/her last
known place of address. Such operator may within ten (10) days after the serving or
mailing of such notice make application in writing to the Tax Administrator for a hearing
on the amount assessed. If application by the operator for a hearing is not made within
the time prescribed, the tax, interest and penalties, if any, determined by the Tax
Administrator shall become final and conclusive and immediately due and payable. If
such application is made, the Tax Administrator shall give not less than five (5) days
written notice in the manner prescribed herein to the operator to show cause at a time
and place fixed in the notice why the amount specified therein should not be fixed for
such tax, interest and penalties. At such hearing, the operator may appear and offer
evidence why such specified tax, interest and penalties should not be so fixed. After
such hearing the Tax Administrator shall determine the proper tax to be remitted and
shall thereafter give written notice to the person in the manner prescribed herein of such
determination and the amount of such tax, interest and penalties. The amount
determined to be due shall be payable after fifteen (15) days unless an appeal is taken
as provided in subsection 3-61.9.
3-61.9 - Appeal.
Any operator aggrieved by any decision of the Tax Administrator with respect to the
amount of such tax, interest and 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 determination 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/her 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.
3-61.10 - Records.
It shall be the duty of every operator liable for the collection and payment to the City
of any tax imposed by this section to keep and preserve, for a period of three (3) years,
all records as may be necessary to determine the amount of such tax as he/she may
have been liable for the collection of and payment to the City, which records the Tax
Administrator shall have the right to inspect at all reasonable times.
3-61.11 - Refunds.
a. Whenever the amount of any tax, interest or penalty has been overpaid or paid
more than once or has been erroneously or illegally collected or received by the City
under this section it may be refunded as provided in paragraphs b. and c. of this
subsection provided a claim in writing therefor, stating under penalty of perjury the
specific grounds upon which the claim is founded, is filed with the Tax Administrator
within three (3) years of the date of payment. The claim shall be on forms furnished
by the Tax Administrator.
An operator may claim a refund or take as 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
Administrator that the person from whom the tax has been collected 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 transient
or credited to rent subsequently payable by the transient 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 paragraph a. of this subsection, but only when the tax was paid
by the transient directly to the Tax Administrator, or when the transient having paid
the tax to the operator, establishes to the satisfaction of the Tax Administrator that
the transient has been unable to obtain a refund from the operator who collected the
tax.
d. No refund shall be paid under the provisions of this subsection unless the claimant
establishes his right thereto by written records showing entitlement thereto.
3 -61.12 - Actions to Collect.
Any tax required to be paid by any transient under the provisions of this section
shall be deemed a debt owed by the transient to the City. Any such tax collected by an
operator which has not been paid 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
section shall be liable to an action brought in the name of the City of Alameda for the
recovery of such amount.
3 -61.13 - Penalties and Interest.
a. Original Delinquency. Any operator who fails to remit any tax imposed by this
section within the time required shall pay a penalty of ten (10 %) percent of the
amount of the tax in addition to the amount of the tax.
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 of ten (10 %)
percent of the amount of the tax in addition to the amount of the tax and the ten
(10 %) percent penalty first imposed.
c. Fraud. If the Tax Administrator determines that the nonpayment of any remittance
due under this section is due to fraud, a penalty of twenty -five (25 %) percent of the
amount of the tax shall be added thereto in addition to the penalties stated in
paragraphs a. and b. of this subsection.
d. Interest . In addition to the penalties imposed, any operator who fails to remit any
tax imposed by this section shall pay interest at the rate of one-half of one (.5%)
percent 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 and such interest as accrues
under the provisions of this subsection shall become a part of the tax herein
required to be paid.
3-61.14 - Violations; Misdemeanor.
Any person violating any of the provisions of this section shall be guilty of a
misdemeanor and shall be punishable therefor by a fine of not more than five hundred
($500.00) dollars or by imprisonment for a period of not more than six (6) 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, or who fails or refuses to furnish a
supplemental return or other data required by the Tax Administrator, or who renders a
false or fraudulent return or claim, is guilty of a misdemeanor, and is punishable as
aforesaid. Any person 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
determination of any amount due required by this section to be made, is guilty of a
misdemeanor and is punishable as aforesaid.
Section 2: DECLARATORY OF EXISTING LAW
The provisions of this Ordinance are intended to clarify certain provisions of the
underlying ordinance consistent with its purpose and intent. Accordingly, the City
Council finds and declares that the provisions of this Ordinance do not constitute a
change in, but are declaratory, of existing law.
Section 3: IMPLIED REPEAL
Any provision of the Alameda Municipal Code inconsistent with this Ordinance, to the
extent of such inconsistencies and no further, is hereby repealed or modified to the
extent necessary to effectuate this Ordinance.
Section 4: CEQA DETERMINATION
The City Council finds and determines that the adoption of this ordinance is exempt
from review under the California Environmental Quality Act (CEQA) pursuant to the
following, each a separate and independent basis: CEQA Guidelines, Section 15378
(not a project) and Section 15061(b)(3) (no significant environmental impact).
Section 5: SEVERABILITY
If any provision of this Ordinance is held by a court of competent jurisdiction to be
invalid, this invalidity shall not affect other provisions of this Ordinance that can be given
effect without the invalid provision and therefore the provisions of this Ordinance are
severable. The City Council declares that it would have enacted each section,
subsection, paragraph, subparagraph and sentence notwithstanding the invalidity of any
other section, subsection, paragraph, subparagraph or sentence.
Section 6: EFFECTIVE DATE
This Ordinance shall be in full force and effect from and after the expiration of thirty (30)
days from the date of its final passage.
Presiding . Office o the City Courrcil
Attest:
Lara Weisiger, City Clerk
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda in a regular
meeting assembled on the 3rd day of December, 2019, by the following vote to wit:
AYES: Councilmembers Daysog, Knox White, Oddie, Vella and
Mayor Ezzy Ashcraft — 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal
of said City this 4th day of December, 2019.
Lara Weisiger, City Clerk
City of Alameda
Approved as to form:
Yibin Shen, City Attorney
City of Alameda