Chapter 3.32
VISITOR SERVICES FEE AND FUND
Sections:
3.32.070 Reporting and remitting.
3.32.080 Penalties and interest.
3.32.090 Failure to collect and report fee – Determination of fee by fee administrator.
* Prior ordinance history: Ord. 509.
3.32.010 Definitions.
Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter.
A. “Fee administrator” means the city manager or such person as is appointed by him or her to fulfill the position.
B. “Hotel” means 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, 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.
C. “Occupancy” means the renting of any room or rooms, or portion thereof, in any hotel for dwelling, lodging or sleeping purposes.
D. “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 his or 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 chapter and shall have the same duties and liabilities as his or her principal. Compliance with the provisions of this chapter by either the principal or the managing agent shall, however, be considered to be compliance with both.
E. “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.
F. “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.
G. “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 consecutive calendar days or less, counting portions of calendar days as full days. Any person so occupying space in a hotel shall be deemed to be a transient until the period of thirty days has expired, unless there is a lease 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 chapter may be considered. (Ord. 513 (part), 1982)
3.32.030 Fee/tax imposed.
For the privilege of occupancy in any hotel, each transient is subject to and shall pay a general tax in an amount of twelve percent 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 by the operator 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 due upon the transient’s ceasing to occupy space in the hotel. If for any reason the tax is not paid to the operator of the hotel, the fee administrator may require that such tax shall be paid directly to the fee administrator. The general tax revenues of eleven and one-quarter percent shall be placed in the city’s general fund; four-tenths percent shall be allocated exclusively to local business groups for marketing and community improvements, and thirty-five-hundredths percent shall be allocated exclusively to youth and early childhood programs. (Ord. 1024 § 1, 2018; Ord. 843 § 1, 2002; Ord. 702 § 2, 1990; Ord. 513 (part), 1982)
3.32.040 Exemptions.
No fee shall be imposed upon:
A. Any federal or state officer or employee when on official business;
B. Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international 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 fee administrator. (Ord. 513 (part), 1982)
3.32.050 Operator’s duties.
Each operator shall collect the fee imposed by this chapter to the same extent and at the same time as the rent is collected from every transient. The amount of fee shall be separately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator. (Ord. 513 (part), 1982)
3.32.060 Registration.
Within thirty days after the effective date of the ordinance codified in this chapter, or within thirty days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register said hotel with the fee administrator and obtain from him or 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 thereof has fulfilled the requirements of the Transient Occupancy Fee Ordinance by registering with the Fee Administrator for the purpose of collecting from transients the Transient Occupancy Fee and remitting said 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. (Ord. 513 (part), 1982)
3.32.070 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 fee administrator, make a report to the fee administrator, on forms provided by him, of the total rents charged and received and the amount of tax collected for transient occupancies. At the time the report is filed, the full amount of the fees collected shall be remitted to the fee administrator. The fee administrator may establish shorter reporting periods for any certificate holder if he or she deems it necessary in order to insure collection of the fee and he or she may require further information in the return. Reports and payments are due immediately upon cessation of business for any reason. All fees 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 fee administrator. (Ord. 513 (part), 1982)
3.32.080 Penalties and interest.
Any operator who fails to remit any fee imposed by this chapter within the time required shall pay a penalty of ten percent of the amount of the fee in addition to the amount of the fee.
A. Continued Delinquency. Any operator who fails to remit any delinquent remittance on or before a period of thirty days following the date on which the remittance first becomes delinquent shall pay a second delinquency penalty of ten percent of the amount of the fee in addition to the amount of the fee and the ten percent penalty first imposed.
B. Interest. In addition to the penalties imposed, any operator who fails to remit any fee imposed by this chapter shall pay interest at the rate of one and one-half percent per month or fraction thereof on the amount of the fee, exclusive of penalties, from the date on which the remittance first became delinquent until paid. (Ord. 513 (part), 1982)
3.32.090 Failure to collect and report fee – Determination of fee by fee administrator.
If any operator fails or refuses to collect the fee and to make, within the time provided in this chapter, any report and remittance of the fee or any portion thereof required by this chapter, the fee administrator shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his or her estimate of the fee due. As soon as the fee administrator procures such facts and information as he or she is able to obtain upon which to base the assessment of any fee 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 or she shall proceed to determine and assess against such operator the fee, interest and penalties provided for by this chapter. In case such determination is made, the fee administrator shall give a 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 so assessed at his or her last known place of address. If no address is known, the notice shall be sent to the address of the hotel. Such operator may within ten days after the serving or mailing of such notice make application in writing to the fee administrator for a hearing on the amount assessed. If application by the operator for hearing is not made within the time prescribed, the fee, interest and penalties, if any, determined by the fee administrator shall become final and conclusive and immediately due and payable. If such application is made, the fee administrator shall give not less than five 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 fee, interest and penalties. At such hearing, the operator may appear and offer evidence why such specified fee, interest and penalties should not be so fixed. After such hearing the fee administrator shall determine the proper fee 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 fee, interest and penalties. The amount determined to be due shall be payable after fifteen days unless an appeal is taken as provided in Section 3.32.100. (Ord. 513 (part), 1982)
3.32.100 Appeal.
Any operator aggrieved by any decision of the fee administrator with respect to the amount of such fee, interest and penalties, if any, may appeal to the city council by filing a notice of appeal with the city clerk within fifteen days of the serving or mailing of the determination of tax due. The city 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 or her last known place of address. The findings of the city 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. (Ord. 513 (part), 1982)
3.32.110 Records.
It shall be the duty of every operator liable for the collection and payment to the city of any fee 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 fee, as he or she may have been liable for the collection of and payment to the city, which records the fee administrator shall have the right to inspect at all reasonable times. (Ord. 513 (part), 1932)
3.32.120 Refunds.
Whenever the amount of any fee, interest or penalty has been overpaid or paid more than once or has been erroneously collected or received by the city under this chapter it may be refunded provided:
A. A claim in writing thereof, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the fee administrator within eighteen months of the date of payment;
B. Any additional information requested by the fee administrator is provided; and
C. Providing the fee administrator finds the claim to be meritorious. (Ord. 513 (part), 1982)
3.32.130 Actions to collect.
Any fee 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 fee 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 chapter shall be liable to an action brought in the name of the city of Capitola for the recovery of such amount. (Ord. 513 (part), 1982)
3.32.140 Violations.
Any person violating any of the provisions of this chapter shall be punishable in the manner provided in Section 1.01.090 and Title 4 of this code.
Any operator or other person who fails or refuses to register as required in this chapter, 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 fee administrator, or who renders a false or fraudulent return or claim, 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 chapter to be made, is punishable as aforesaid. (Ord. 955 § 1, 2011; Ord. 513 (part), 1982)