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Ord 1913 - Urgency Ordinance Amending Article III of Chapter 25 of the Town Code Regarding Transient Occupancy TaxORDINANCE 1913 URGENCY ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AMENDING ARTICLE III OF CHAPTER 25 OF THE TOWN CODE REGARDING TRANSIENT OCCUPANCY TAX THE TOWN COUNCIL OF THE TOWN 'OF LOS GATOS DOES HEREBY ORDAIN: SECTION I URGENCY The Town Council hereby finds and declares that the public health, safety, and welfare require the adoption of this ordinance as an urgency measure in order to avoid confusion or uncertainty with respect to the Town's transient occupancy tax, the duties and obligations of operators and their successors, and the latitude of the tax collector in ensuring that all tax dollars are duly paid the Town. The current difficult economic conditions and financial constraints of the hotel business require immediate clarification in order to ensure that confusion does not result in interference with the public welfare. SECTION II Section 25.30.010 is amended to read as follows: Section 25.30.010. Definitions. For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section: Hotel means any structure, or any portion of any structure, which is occupied or intended to be designed for occupancy by transients for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, studio hotel, bachelor hotel, 1 lodginghouse, roominghouse, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof. 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. Operator means 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 the operator's 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 article, and shall have the same duties and liabilities as the managing agent's principal. Compliance with the provisions of this article by either the principal or the managing agent shall, however, be considered to be 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. Rent means 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 means the Finance Manager of the Town. Transient means 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 (30) consecutive calendar days or less, counting portion of calendar days as full days. 2 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 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 article may be considered. SECTION III Section 25.30.016 is added as follows: Section 25.30.016. 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 Town to impose the tax herein provided;* (b) Any officer or employee of a foreign government who is exempt by reason of expression of federal law or international treaty. SECTION IV Section 25.30.030 is amended as follows: Section 25.30.030. Returns and remitting of tax. 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 the Tax Administrator, of the total rents charged and received and the amount * State and federal employees are not exempt 46 Ops. Atty. Gen. 16. 3 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 it is deemed necessary in order to ensure timely collection of the tax. The Tax Administrator may also require further information in the return. All taxes collected by operators pursuant to this Article shall be held in trust for the account of the Town until payment thereof is made to the Tax Administrator. Returns and payments are due immediately upon cessation of business for any reason. SECTION V Section 25.30.035 is amended as follows: Section 25.30.035. Penalties and interest. (a) Original delinquency. Any operator who fails to remit any tax imposed by this article 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- percent penalty first imposed. (c) Fraud. If the Tax Administrator determines that the nonpayment of any remittance due under this article 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 4 subsections (a) and (b) of this section. (d) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this article shall pay interest at the rate of one -half of one 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 section shall become a part of the tax required by this article to be paid. SECTION VI Section 25.30.050 is added to read as follows: Section 25.30.050. Records to be kept by operators. It shall be the duty of every operator liable for the collection and payment to the Town of any tax imposed by this article 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 the operator may have been liable for the collection of and payment to the Town, which records the Tax Administrator shall have the right to inspect at all reasonable times. The records shall include at least the following: (1) Daily summaries of room occupancies; (2) A record of each occupancy charge for which an exemption is claimed, including the name of the individual occupying the room, dates of occupancy, and reasons for exemption; k, (3) Lists of bad debts. claimed for exemption, including names and addresses of debtor and amount of room rent unpaid. SECTION VII Section 25.30.060 is added to read as follows: Section 25.30.060. Collection of tax. (a) Actions to Collect any tax required to be paid by any transient under the provisions of this article shall be deemed to be a debt owed by the transient to the Town. Any such tax collected by an operator which has not been paid to the Town shall be deemed a debt owed by the operator to the Town. Any person owing money to the Town under the provisions of this article shall be liable to an action brought in the name of the Town for the recovery of such amount. (b) Recording Certificate - Lien. If any amount required to be paid to the Town under the ordinance codified in this article is not paid when due, the Tax Administrator, upon expiration of the second delinquency period referenced in Section 25.30.035 (b), may within three years after the amount is due file for record in the office of the Santa Clara county recorder and in the office of the county recorder of any other county in which the operator owns real property, a certificate specifying the amount of tax, penalties and interest due, the name and address as it appears on the records of the Tax Administrator of the operator liable for the same and the fact that the Tax Administrator has complied with all provisions of this article in the determination of the amount required to be paid. From the time of the filing for record, the amount required to be paid together with penalties and interest constitutes a lien upon any real property in the county owned by the 2 operator or acquired by him afterwards and before the lien expires. The lien has the force, effect and priority of a judgment lien and shall continue for ten years from the time of filing of the certificate unless sooner released or otherwise discharged. (c) Priority and lien of Tax. The amounts required to be paid by any operator under this article with penalties and interest shall be satisfied first in any of the following cases: (1) Whenever the person is insolvent; (2) Whenever the person makes a voluntary assignment of his assets; (3) Whenever the estate of the person in the hands of executors, ad- ministrators or heirs is insufficient to pay all the debts due from the deceased; or (4) Whenever the estate and effects of an absconding, concealed or absent person required to pay any amount under this article levied upon by process of law. This article does not give the Town a preference over any recorded lien which attached prior to the date when the amounts required to be paid became a lien. (d) Warrant for Collection of Tax. At any time within three years after any operator is delinquent in the payment of any amount herein required to be paid off after the last recording of a certificate of lien under subsection (b) of this section, the Tax Administrator may issue a warrant for the enforcement of any liens and for the collection of any amount required to be paid to the Town under this article. The warrant shall be directed to any sheriff, marshal or constable and shall have the same effect as a writ of execution. The warrant shall be levied and sale made pursuant to it in the same manner and with the same effect as a levy of and a sale pursuant to a writ of execution. The Tax Administrator may 7 pay or advance to the sheriff, marshal or constable the same fees, commissions and expenses for his services as are provided by law for similar services pursuant to a writ of execution. (e) Seizure and Sale. At any time within three years after any operator is delinquent in the payment of any amount, the Tax Administrator may forthwith collect the amount in the following manner: The Tax Administrator shall seize any property, real or personal, of the operator and sell the property, or a sufficient part of it, at public auction to pay the amount due together with any penalties and interest imposed for the delinquency and any costs incurred on account of the seizure and sale. Any seizure made to collect occupancy taxes due shall be only of property of the operator not exempt- from execution under the provisions of the code of civil procedure. (f) Successor's Liability (1) Withholding by Purchaser. If any operator liable for any amount under this chapter sells out his or her business or quits the business, the operator's successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the Tax Administrator showing that it has been paid or a certificate stating that no amount is due. (2) Liability of Purchaser - Release. If the purchaser of a hotel fails to withhold funds from the purchase price as required,he shall become personally liable for the payment of the amount required to be withheld by him to the extent of the purchase price, valued in money. Within sixty (60) days after receiving a written request from the purchaser for a certificate, or within sixty (60) days from the date the former owner's 8 records are made available for audit, whichever period expires the later, but in any event,not later than ninety (90) days after receiving the request, the Tax Administrator shall either issue the certificate or mail notice to the purchaser at his address as it appears on the records of the Tax Administrator of the amount that must be paid as a condition of issuing the certificate. Failure of the Tax Administrator to mail the notice shall release the purchaser from any further obligation to withhold purchase price as above provided. The time within which the obligation of the successor may be enforced shall start to run at the time the operator sells his business,or at the time that the determination against the operator becomes final, whichever event occurs later. (g) Sale of a hotel, dismissal of the operator or other termination of his rights to operate the facility shall not relieve him from liability for taxes due or owing under this article. Any person assuming responsibility for operation of a hotel after causing dismissal of an operator or termination of his rights to operate the facility shall, by such action, assume the liability for all taxes due and owing under this article. This liability is in addition to and does not extinguish the liability of the former operator. SECTION VIII This ordinance takes effect immediately and shall be published once in the Los Gatos Weekly - Times, a newspaper of general circulation, published in the Town of Los Gatos within fifteen (15) days. 9 The foregoing ordinance was passed and adopted at a regular meeting Los Gatos Town Council on the 21st day of September, 1992 and adopted by the following vote as an urgency ordinance of the Town of Los Gatos. COUNCIL MEMBERS: AYES: Randy Attaway, Steven Blanton, Brent N. Ventura Mayor Eric D. Carlson NAYES: None ABSENT: Joanne Benjamin ABSTAIN: None SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: a � D CLERK OF THE TOWN F LOS GATOS LOS GATOS, CALIFORNIA. N; \ATY \TOT2.AMD 10