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4846FOLLOWS: ORDINANCE NO. 4846 AN ORDINANCE OF THE CITY OF ANAHEIM AMENDING SECTIONS 2.12.010, 2.12.020, AND 2.12.050 OF CHAPTER 2.12 OF TITLE 2 OF THE ANAHEIM MUNICIPAL CODE RELATING TO TRANSIENT OCCUPANCY TAX. THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS SECTION 1. That Section 2.12.010 Anaheim Municipal Code be and the as follows: "2.12.010 TAX IMPOSED of Chapter 2.12 of Title 2 of the same is hereby, amended to read For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of ten percent (100) of the rent charged by the operator. The tax constitutes a debt owed by the transient to the City which is extinguished only by payment of such tax to the operator. 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 due upon the transient's ceasing to occupy space in the hotel." SECTION 2. That subsection .010 of Section 2.12.020 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: 11.010 Each operator shall collect the tax imposed by this chapter to the same extent and at the same time as the rent is collected from every transient. The amount of the rent charged and the tax thereon shall be separately stated from all other amounts on all receipts and books of record of the hotel, and each transient shall receive a receipt for payment from the operator with such rent charges and tax separately stated thereon. 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. Notwithstanding the foregoing provisions of this subsection, nothing contained herein shall require the operator to separately state the amount of the rent charged and the tax thereon on receipts and books of record or prohibit the operator from advertising or stating that the tax will be assumed or absorbed by the operator, or that such tax will not be added to the rent, provided such room accommodations constitute a portion of a collective group of services, privileges, entitlements or benefits (hereinafter 'benefits') which benefits include, at a minimum, room accommodations and food and beverage services or room accommodations and at least one other benefit having ascertainable fair market value (hereinafter 'special package') offered by the operator for one fixed charge (hereinafter 'special package rate')." SECTION 3. That new subsections .011, .012, .013, and .014 be, and the same are hereby, added to Section 2.12.020 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code to read as follows: ".011 In the event the operator fails to separately state the amount of the rent (or the amount of the special package rate) and the room tax thereon from other amounts on all receipts and books of record, the rent attributable to such accommodations for purposes of determining the tax payable pursuant to this Chapter (hereinafter 'taxable rate') shall be deemed the room rate specified in writing by the operator and filed with the City License Collector (hereinafter 'specified rate') within ten (10) days following the date such special package rate is first offered by the operator which specified rate shall be no lower than fifty percent (500) of the maximum double occupancy rate for a majority of the rooms available for the package rate as posted in such rooms pursuant to the requirements of Section 1863 of the Civil Code or any successor section thereto ('posted rate') as filed with the City concurrently with the specified rate and which specified rate or posted rate may be modified at any time by the operator upon the filing of written notice thereof with the City License Collector. .012 In the event an operator fails to file a specified rate and posted rate with the License Collector within the manner provided in subsection .011 above, the portion of the special package rate attributable to the room accommodations for purposes of determining the tax payable pursuant to this Chapter shall be deemed an amount equal to the median average double occupancy room rate for such accommodations as -2- posted in such room pursuant to the requirements of Section 1863 of the Civil Code or any successor section thereto. The burden to prove such posted room rates shall be upon the operator. In the event the operator fails to present satisfactory proof of such rates to the City at the time of any City audit, such posted rates shall be deemed the posted rates in effect at the time of the audit. .013 Notwithstanding subsections .011 and .012 above, if any audit conducted by City under the authority of this Chapter reveals that the gross income to the operator attributable to the accommodations portion of such special package (hereinafter 'audited rate') is more than five percent (50) greater than the specified rate (or the median posted rate in the event subsection .012 is applicable), the taxable rate for such accommodations for purposes of determining the tax payable pursuant to this Chapter shall be deemed to be the audited rate and additional tax, penalties and interest shall be paid to the City by the operator for the difference between the specified rate or median posted rate, whichever is applicable, and the audited rate. The audited rate shall be determined by the City by an audit of a representative random sample of the special packages sold by the operator within an individual special package category for the period of the audit. The audited rate shall be deemed the amount remaining of the special package rate after deducting the fair market value of each of the benefits advertised within the special package other than room accommodations. Where more than one type of special package was offered by an operator within the audit period, each type of special package shall be audited separately for purposes of determining the applicable audit rate and credits or offsets shall not be allowed between different special packages for purposes of determining the tax payable hereunder. .014 The tax required to be collected by the operators and any amount unreturned to the transient which is not tax but was collected under the representation by the operator that it was tax, constitutes debts owed by the operator to the City of Anaheim." -3- SECTION 4. That new subsection .050 be, and the same is hereby, added to section 2.12.020 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code, to read as follows: 11.050 Nothing contained in this Chapter shall be deemed to authorize an operator to claim as a credit against any future rent reportable or tax collectable and payable pursuant to this Chapter any amount collected and returned by the operator to any tour promoter, travel agent, or other third party rather than the occupant of the accommodations. Travel agent commissions are to be deemed an expense of the operator and are not to be deducted from room revenues for purposes of determining the tax due pursuant to this Chapter." SECTION S. That new subsection .040 be, and the same is hereby, added to section 2.12.050 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code, to read as follows: 11.040 Notwithstanding any other provision of this chapter, any operator aggrieved by any determination of the License Collector that a penalty be imposed because the operator failed to remit any tax imposed by this Chapter within the time specified and such operator does not dispute the amount of tax or interest, if any, then the operator may appeal such determination directly to the City Council pursuant to the terms of Section 2.12.070 hereof by filing a written notice of appeal with the City Clerk within fifteen (15) days following the date of service on operator of the determination of the imposition of the penalty by the License Collector." SECTION 6. EFFECTIVE DATE This Ordinance shall become effective on August 1, 1987. SECTION 7. SAVINGS CLAUSE Neither the adoption of this ordinance nor the repeal hereby of any other ordinance of this City shall in any manner affect the prosecution for violations of ordinances, which violations were committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof. The provisions of this ordinance, insofar as they are substantially the same as ordinance provisions previously adopted by the City replacing to the same subject matter, shall be construed as restatements and continuations, and not as new enactments. -4- SECTION 8. SEVERABILITY The City Council of the City of Anaheim hereby declares that should any section, paragraph, sentence or word of this ordinance, hereby adopted, be declared for any reason to be invalid, it is the intent of the Council that it would have passed all other portions of this ordinance independent of the elimination herefrom of any such portion as may be declared invalid. THE FOREGOING ORDINANCE is approved and adopted by the City Council of the City of Anaheim this 30th day of June, 1987. ATTEST: Y CLERK OF THE CITY OF ANAHEIM ROF:jb 1852L 061287 -5- MAYOR OF THE CITY OF NAHEIM CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Ordinance No. 4846 was introduced at a regular meeting of the City Council of the City of Anaheim, held on the 23rd day of June, 1987, and that the same was duly passed and adopted at a regular meeting of said City Council held on the 30th day of June, 1987, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Ehrle, Hunter, Kaywood NOES: COUNCIL MEMBERS: None ABSTAINED: COUNCIL MEMBERS: Pickler, Bay ABSENT: COUNCIL MEMBERS: None AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Ordinance No. 4846 on the 30th day of June, 1987. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 30th day of June, 1987. CITY CLERK OF THE CITY OF ANAHEIM (SEAL) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Ordinance No. 4846 and was published once in the Anaheim Bulletin on the 10th day of July, 1987. CITY CLERK