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4484FOLLOWS: ORDINANCE NO. 4484 AN ORDINANCE OF THE CITY OF ANAHEIM ADDING SECTIONS 2.12.015 AND 2.12.075, AND AMENDING SECTIONS 2.12.020, 2.12.030, 2.12.040, 2.12.045, 2.12.050, 2.12.060, 2.12.070, 2.12.080, 2.12.090 AND 2.12.110 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 new Section 2.12.015 be, and the same is hereby, added to Chapter 2.12 of Title 2 of the Anaheim Municipal Code to read as follows: "2.12.015 EXEMPTIONS. No tax shall be imposed under this chapter upon: .010 Any person as to whom, or any occupancy as to which, it is beyond the power of the city to impose the tax provided in this chapter; or .020 Any federal or state officer or employee while on official business only and when payment for such occupancy is made directly to the operator by duly authorized voucher payment from a governmental account- ing office." SECTION 2. That new Section 2.12.075 be, and the same is hereby, added to Chapter 2.12 of Title 2 of the Anaheim Municipal Code to read as follows: "2.12.075 PAYMENT UNDER PROTEST REQUIRED. Notwithstanding any other provision con- tained in this chapter to the contrary, any operator tendering payment of any tax, interest or penalties to the city pursuant to any provision of this chapter shall for all purposes thereafter be precluded and barred from appealing, contesting or otherwise challenging the validity or amount of any such tax, interest or penal- ties pursuant to any otherwise available procedure set forth in this chapter, or otherwise available by law, unless said payment is made under written protest to the city. Said written protest shall be deemed made for purposes of this chapter only by one of the following methods: (1) a written notation set forth on the check, draft, money order, or other negotiable instrument by which payment is tendered, indicating that such payment is made under protest; or (2) a written notice addressed and delivered to the License Collector or City Auditor at the time of payment indicating that such payment is made under protest." SECTION 3. That Sections 2.12.020, 2.12.030, 2.12.040, 2.12.045, 2.12.050, 2.12.060, 2.12.070, 2.12.080, 2.12.090 and 2.12.110 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code be, and the same are hereby, amended to read as follows: "2.12.020 OPERATOR'S COLLECTION DUTIES. .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 transi- ent. The amount of tax shall be separately stated from the amount of the rent charged on all receipts and books of record of the hotel, 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. 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. .020 For purposes of this chapter, any amount charged and collected by the operator from any person subsequent to the expiration of the period for which the tax imposed by this chapter is required to be col- lected from such person, which amount is in excess of the rent theretofore charged such person for the same accommodations and upon which rental amount tax was required to be imposed and collected by this chapter, shall be conclusively deemed collected under the repre- sentation by the operator that such excess amount was tax unless the operator gives such person written notice prior to the accrual of the obligation therefor that such excess amount constitutes an increase in the rental rate for such accommodations. The burden to prove any such advance written notice was given shall be upon the operator. -2- .030 Whenever an operator who has collected any sum from any person under the representation that it was tax pursuant to this chapter, which sum is not required to be collected as a tax pursuant to this chapter, remits said sum to the city and thereafter refunds such sum to said person, in whole or part, such operator may take the amount of such refund as a credit against any future taxes payable to the city only upon submitting to the License Collector a statement under penalty of perjury specifying the reasons for the proposed credit and proof of payment of such refund. .040 Nothing contained in this chapter shall require the refund by the city to any person of any sum collected by the operator from such person and remitted to the city even where such sum was not otherwise required to be collected and remitted to the city. 2.12.030 REPORTING AND REMITTING. Each operator shall, on or before the last day of each month (hereinafter "due date"), file a return with the License Collector on forms provided by the Office of the License Collector of the total rents charged and the amount of tax collected for transient occupancies during the immediately preceding calendar month. At the time the return is filed, the full amount of the tax (minus any credits otherwise authorized pursuant to this chapter) shall be remitted to the License Collector. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this chap- ter shall be held in trust by such operators for the account of the city until payment thereof is made to the License Collector. 2.12.040 DEFINITIONS. For purposes of this chapter, the fol- lowing terms, words, phrases and their derivations shall have the meanings given herein. "Hotel" means any structure, or any por- tion of any structure, which is occupied or intended or designed for occupancy by transients for dwelling, lodging or sleeping purposes, and includes, without limitation, 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, and shall further include any space, lot, area, or site in any trailer court, camp, park or lot which is occupied or intended or designed for occupancy IMIM by a tent, trailer, recreational vehicle, mobilehome, motorhome, or other similar conveyance, for dwelling, lodging or sleeping purposes. "Transient" means any person who exer- cises occupancy or is entitled to occupancy of any room, space, lot, area, or site in any hotel by reason of concession, permit, right of access, license or other agreement. Any such person shall be deemed to be a transient until the thirtieth consecutive day of such occupancy and said tax shall continue to be due upon all rent collected or accruing prior to said thirtieth day of occupancy unless such occupancy is pursuant to a Qualifying Rental Agreement as defined in this chapter. "Rent" means the consideration charged for accommodations, including any unrefunded advance rental deposits, and further including any separate charges levied by the operator for items or services which are part of such accommodations (including, but not limited to, furniture, fixtures, appliances, linens, towels, and/or maid service). The term "rent" shall not include any charge, billing or account which the operator finds to be worthless or uncollectible and which is charged off for income tax purposes. If the operator has previously paid the tax, he may take such payment as a credit against any future rent reportable where such amount is found to be uncollectible and charged off for income tax purposes. If any such amount is thereafter collected by the operator, in whole or part, the tax on the amount so collected shall be included with the next monthly payment to the city. "Operator" means the person who is the 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 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 chapter and shall have the same duties and liabilities as his principal. Compliance with the provisions of this chapter by either the principal or the managing agent shall, however, be considered to be compliance by both. For purposes of the notice and appeal provisions of Sections 2.12.060 and 2.12.070 of -- this chapter only, the term "operator" shall also include any managing employee or employee in charge of the hotel. -4- "Qualifying Rental Agreement" means and shall be limited to a written contract signed by both the landlord and tenant, legally enforceable by either party thereto, and for a rental period of not less than thirty (30) consecutive days. Notwithstanding any other provision hereof, the term "qualifying rental agreement" as used in this chapter shall expressly exclude: (1) any agreement regardless of rental term which is terminated for any reason by either party thereto, or by mutual consent, prior to the thirtieth consecutive day of tenancy, or (2) any agreement re- gardless of length of rental term which is for occu- pancy of space in an establishment the location and existence of which is legally authorized pursuant to the provisions of Title 18 of this Code as a "hotel" or "motel" use of property as such terms are defined and used in said Title 18, or (3) any agreement regardless of length of rental term for occupancy of space by any recreational vehicle as defined in Section 799.24 of the Civil Code of the State of California or any successor provision thereto, or (4) any agreement regardless of length of rental term which would be unlawful or constitute a violation of any provision of law. 2.12.045 DELINQUENT TAX PAYMENTS - INTEREST. .010 Notwithstanding any other provision of this chapter, and in addition to any penalty payable pursuant to Section 2.12.050 hereof, any operator who fails to remit any tax imposed by this chapter within the time specified herein shall pay to the City of Anaheim, as interest upon such tax due, an additional amount equal to one and one-half percent (1 1/2%) thereof per month calculated from the first day of delinquency to the date of payment. .020 In the event the operator remits payment to the city of any tax due hereunder but fails to remit payment in full of any interest and penalties accruing upon said tax to the date of such payment, interest at the rate specified in subsection .010 above shall accrue and be due to City by operator upon the amount of said unpaid interest and penalties to the date of payment thereof. .030 When the due date for the tax falls on a Saturday, Sunday, or a state or national holiday, pay- ment of the tax may be made without incurring any interest charge on the first working day following said due date. Interest charges in such cases shall attach on the second working day following said due date. -5- .040 For the purpose of this chapter, post- marks shall be accepted as the date of payment made, and such payment shall not be deemed delinquent, prov- ided the transmitting envelope contains a post office postage cancellation bearing a date not later than the due date. 2.12.050 DELINQUENT TAX PAYMENTS - PENALTIES. .010 Notwithstanding any other provision hereof, any operator who fails to remit any tax imposed by this chapter within the time specified shall pay a penalty of ten percent (10%) for each month, or portion thereof, said payment is overdue, which penalty shall be added by the License Collector on the first day im- mediately following the due date thereof; provided, however, that the amount of such penalty shall in no event exceed fifty percent (50%) of the tax due. .020 When the due date for the tax falls on a Saturday, Sunday, or a state or national holiday, pay- ment of the tax may be made without penalty on the first working day following said due date. Penalties in such cases shall attach on the second working day following said due date. .030 For the purpose of this chapter, post- marks shall be accepted as the date of payment made, and such payment shall not be deemed delinquent, pro- vided the transmitting envelope contains a post office postage cancellation bearing a date not later than the due date. 2.12.060 FAILURE TO COLLECT AND REPORT TAX - DETERMINATION OF TAX BY CITY AUDITOR. 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 City Auditor shall proceed in such manner as he may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the City Auditor shall procure such facts and information as he is able to obtain upon which to base the assessment of any tax imposed by this chapter and payable by any operator who has failed or refused to collect the same and to make such report and remittance, he shall pro- ceed to determine and assess against such operator the tax, interest and penalties provided for by this chap- ter. Following any such determination, the City Auditor shall give notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the operator -6- so assessed at his 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 City Auditor 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 City Auditor shall become final and conclusive and immediately due and payable. If such application is timely made, a hearing officer shall be designated by the City Manager for the purpose of conducting an independent hearing on the issues. The hearing officer shall give not less than fifteen (15) days' written notice in the manner prescribed above to the operator to show cause at a time and place fixed in said notice why said 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. A rebuttable presumption shall exist at said hearing that the amount of tax, interest and penalties as determined by the City Auditor is correct and the burden of proof on such issues at said hearing shall be upon the operator. After such hearing the hearing officer shall determine the proper amount to be remitted and shall thereafter given written notice to the operator of such determination and the amount of such tax, interest and penalties in the manner prescribed above. The amount determined to be due shall be due and payable fifteen (15) days from the date of service of said written notice unless an appeal is taken as provided in Section 2.12.070 hereof. Interest and penalties shall continue to accrue to the date of payment. 2.12.070 APPEAL. .010 Any operator aggrieved by any determina- tion of the hearing officer with respect to the calcu- lation of the amount of such tax or interest, or the imposition or calculation of any penalties, may appeal such determination to the City Council 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 amount due. The City Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice of such hearing in writing to such operator at his last known place of address. A rebuttable presumption shall exist at said hearing that the amount of the tax, pen- alties and interest as determined by the hearing offi- cer is correct and the burden of proof on such issues at said hearing shall be upon the operator. The find- ings of the Council shall be final and conclusive and -7- shall be served upon the operator in the manner pre- scribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of such notice. Interest and penalties shall continue to accrue to the date of such payment. Any amount previously paid under protest by the operator in accordance with Section 2.12.075 hereof and found not to be a proper charge under this chapter shall be immediately refunded by city. .020 Where the City Council finds and deter- mines, pursuant to an appeal filed in accordance with Subsection .010 above, that the imposition of any pen- alty imposed pursuant to Section 2.12.050 hereof, or any given portion thereof, would result in a substan- tial injustice to an operator, the City Council shall grant a refund or waiver of the penalty provisions of this chapter or such portion thereof as necessary to remedy said injustice. Nothing contained herein shall be deemed to authorize the waiver of any tax or inter- est otherwise due. .030 The grant of a refund or a waiver of the penalty provisions of this Chapter shall require the affirmative vote of at least four-fifths of the total number of members of the City Council. 2.12.080 STATEMENT OF TRANSIENT OCCUPANCY TAX - NOT CONCLUSIVE ON CITY. No reports or statements by operator shall be conclusive as to the matters set forth therein, nor shall the filing of the same preclude the City of Anaheim from collecting by appropriate action such sum as is actually due and payable hereunder. Such statement and each of the several items therein contained shall be subject to audit and verification by the City Auditor, his deputies, or authorized agents of the city, who are hereby authorized to examine, audit and inspect such books and records of any operator as may be necessary in their judgment to verify or ascer- tain the tax due. It shall be the duty of every operator to keep and preserve, for a period of not less than four (4) years, all records as may be necessary to determine the amount of any tax liability pursuant to this chapter, which records the City Auditor or his deputies or agents shall have the right to inspect and copy at all reasonable times upon demand. Each operator within the city is hereby required to permit an examination of such books and records for the purposes aforesaid at a location within the City of Anaheim. In the event such books and records cannot be made available within the City of Anaheim, the operator -8- is hereby required to reimburse the city for the cost of all transportation, lodging, meals, portal to portal travel time, and other incidental costs reasonably incurred by city in obtaining said audit. The information furnished or secured pursuant to this chapter shall be confidential. Any unauthorized disclosure or use of such information by any officer, agent or employee of the City of Anaheim shall constitute a misdemeanor and such officer, agent or employee shall be subject to the penalty provisions of this chapter, in addition to any other penalties provided by law; provided, however, this section shall not apply to any disclosures made in connection with any appeal proceeding pursuant to this chapter, or any civil action relating to the recovery of such taxes, interest or penalties, or any prosecution of any person for violation of any provisions of this chapter. 2.12.090 TRANSIENT OCCUPANCY TAX A DEBT - CIVIL ACTION. The amount of any tax, interest or pen- alties imposed by the provisions of this chapter shall be deemed a debt owed by the operator to the City of Anaheim. An action may be commenced in the name of said city in any court of competent jurisdiction for the amount of any delinquent tax, interest and penal- ties. 2.12.110 VIOLATIONS - PENALTIES Any person violating any of the provi- sions of this chapter, or knowingly misrepresenting to any officer, employee or agent of this city any mater- ial fact, either orally or in writing, in connection with the imposition or collection of any tax, interest or penalties herein provided for, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not more than five hundred dollars ($500) or by imprisonment in the County Jail for a period of not more than six (6) months, or by both such fine and imprisonment." SECTION 4. SEVERABILITY The City Council of the City of Anaheim hereby declares that should any section, paragraph, sentence or word of this ordi- nance, 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. -9- SECTION 5. 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 viola- tions were committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal pro- visions 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 relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments. SECTION 6. CERTIFICATION The City Clerk shall certify to the passage of this ordinance and shall cause the same to be printed once within fif- teen (15) days after its adoption in the Anaheim Bulletin, a news- paper of general circulation, printed, published and circulated in said city, and thirty (30) days from and after its final passage, it shall take effect and be in full force. THE FOREGOING ORDINANCE is approved and adopted by the City Council of the City of Anaheim this 21st day of February, 1984. ATTEST: CITY OLERK OF THE MTV OF ANAHEIM JLW : fm 1636M 11/10/83 -10- YOR OF VTHECITY CP ANAHE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LINDA D. ROBERTS, City Clerk of the City of Anaheim, do hereby certify that the foregoing Ordinance No. 4484 was introduced at a regular meeting of the City Council of the City of Anaheim, held on the 14th day of February, 1984, �\ and that the same was duly passed and adopted at a regular meeting of said City Council held on the 21st day of February, 1984, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Kaywood, Bay, Overholt, Pickler and Roth NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Ordinance No. 4484 on the 21st day of February, 1984. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 21st day of February, 1984. -71 CITY CLERK OF THE CITY OF ANAHEIM (SEAL) I, LINDA D. ROBERTS, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Ordinance No. 4484 and was published once in the Anaheim Bulletin on the 2nd day of March, 1984. CITY CLERIC -