Chapter 3.04 TRANSIENT ROOM TAX

“Fee” means either the tax payable by the transient or the aggregate amount of tax due from an operator during the period for which collections must be reported. The term includes taxes imposed by DMC 3.04.030.

“Hotel” means any structure (or portion thereof) occupied, intended or designed for transient occupancy for 30 consecutive calendar days or less for dwelling, lodging, or sleeping purposes. “Hotel” includes any hotel, inn, tourist home, motel, rooming house, apartment house, club, bed and breakfast, space in mobile home or trailer or similar structure or portions thereof so occupied, provided such occupancy is for 30 consecutive calendar days or less.

“Occupancy” means the use or possession or the right to the use or possession, for lodging or sleeping purposes, of any room or rooms or space in a hotel.

“Operator” means the person who is the proprietor of the hotel in any capacity. Where the operator performs functions through a managing agent of any type or character other than an employee, the managing agent shall 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 be considered to be compliance by both.

“Person” means any individual, firm, partnership, joint venture, association, social club, fraternal organization, fraternity, sorority, public or private dormitory, 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 by the operator, for the occupancy of space in a hotel valued in money, goods, labor, credits, property or other consideration valued in money, without any deduction. “Rent” excludes, however, the sale of any goods, services and commodities, other than the furnishing of rooms or room or space in a hotel.

“Transient” means any individual who exercises occupancy or is entitled to occupancy in a hotel for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days.

1. The day a transient checks out of the hotel shall not be included in determining the 30-day period if the transient is not charged rent for that day by the operator. Any such individual so occupying space in a hotel shall be deemed to be a transient until the 30 days has expired, unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy.

2. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this chapter may be considered. A person who pays for lodging on a monthly basis, irrespective of the number of days in such months, shall not be deemed a transient. [Ord. 418-2003 § 2].

3.04.030 Imposition of fee.

A. Transient Room Fee. For the privilege of occupancy in any hotel each transient shall pay a fee in the amount of 10 percent of the rent charged by the operator.

B. Payment of Fee by Transient.

1. The fees imposed by this chapter constitute a debt owed by the transient to the city, which is extinguished only by payment to the operator.

2. The transient shall pay the fees to the operator of the hotel at the time rent is paid.

3. If rent is paid in installments, the transient shall pay a proportionate share of the fee to the operator with each installment.

C. Payment of Fee by Operator. The fee collected or accrued by the operator is to be held by the operator in trust for the city and shall be deemed to be a debt owed by the operator to the city. [Ord. 536-2014 § 1; Ord. 471-2008 § 1; Ord. 418-2003 § 3].

3.04.040 Exemptions.

The fee imposed by this chapter does not apply to:

A. Any occupant who pays for lodging on a monthly basis, irrespective of the number of days in such months;

B. Any occupant whose rent or cash equivalent thereof is less than $5.00 per day; or

C. Any occupant whose rent is paid for hospital room, medical clinic, convalescent home or similar care facility. [Ord. 471-2008 § 2; Ord. 418-2003 § 4].

3.04.050 Disposition of revenue – Adjustment.

Any adjustment of fees, penalties or interest necessary to correct a mistake or error in collection or distribution may be made by the administrator at a subsequent collection or disbursement or as set out in DMC 3.04.190. [Ord. 418-2003 § 5].

3.04.060 Collection of revenues – Use of revenues.

A. The 10 percent fee shall be remitted to the city consistent with DMC 3.04.110, except that the operator may retain five percent of the overall collected transient room tax revenue to help defray costs associated with the administration and collection of the fee. Records must adequately show that the retained portion is accurate.

B. Thirty percent of the collected taxes shall be placed in the general fund to be used to fund city services.

C. Seventy percent of the collected taxes shall be placed in a special revenue fund to be known as the tourism fund. The tourism fund shall be used to fund tourism promotion or tourism-related facilities. “Tourism promotion” means any of the following activities:

1. Advertising, publicizing or distributing information for the purpose of attracting and welcoming tourists;

2. Conducting strategic planning and research necessary to stimulate future tourism development;

3. Operating tourism promotion agencies as defined by ORS 320.300(8); and

4. Marketing special events and festivals designed to attract tourists.

“Tourism-related facilities” means a conference center, convention center, visitor information center, and other improved real property that has a useful life of 10 or more years and has a substantial purpose of supporting tourism or accommodating tourist activities. [Ord. 536-2014 § 2; Ord. 471-2008 § 3; Ord. 418-2003 § 6].

3.04.070 Creation of tourism committee – Duties.

A. There shall be appointed by the mayor, with the advice and consent of the council, a tourism committee which committee shall consist of nine positions, the appointees to which shall be as follows: one shall be an incumbent Dundee city councilor and a minimum of three of the remaining members shall be residents of the city of Dundee.

B. Members are appointed to two-year terms and serve at the pleasure of the city council, except the terms shall be staggered as described below. Terms of the councilor member and three of the other appointed members shall expire December 31st of the even numbered years, and terms of the remaining five members shall expire December 31st of the odd numbered years. Any vacancy shall be filled for the remainder of the unexpired term.

C. The councilor member shall chair the meetings. The presence of a majority of the filled positions of the committee shall constitute a quorum for the conduct of business. The committee shall act by a majority vote of the members present at a meeting, excluding members present but abstaining. The committee shall meet at such times as the committee may determine are appropriate and necessary. Meetings of the committee shall be conducted in conformance with Oregon’s Public Meetings Law. Minutes shall be taken of each meeting and filed with the city recorder.

D. The duties of the tourism committee include:

1. Development of a long-range strategic plan aimed at promoting tourism in the city through the use of a transient room tax.

2. Recommendation to the council on programs for use of the fee and annual budget appropriations for the tourism fund.

3. Working with the city administrator on implementation of tourism promotion programs and development of tourism-related facilities. [Ord. 564-2018 § 1; Ord. 555-2017 § 1; Ord. 506-2011 § 1].

3.04.080 Administration of chapter.

The administrator (or his or her designee) shall administer the provisions of this chapter and may do or cause to be done all things reasonably necessary for its implementation, operation and enforcement. [Ord. 418-2003 § 8].

3.04.090 Registration of operator – Form and contents – Execution – Certification of authority – Display.

A. Every person engaging in, or about to engage in, business as an operator of a hotel in the city shall register with the administrator on a form provided by the city.

1. Operators engaged in business at the time the ordinance codified in this chapter is adopted must register not later than 30 calendar days after the effective date of the ordinance codified in this chapter.

2. Operators commencing business after the ordinance codified in this chapter is adopted must register within 15 calendar days after commencing business.

3. The privilege of registering after the date of commencing business shall not relieve any person from the obligation of payment or collection of the transient room fee from the date of commencing business regardless of the date of registration.

B. On the registration form, the operator shall set forth the name under which he or she transacts or intends to transact business, the location of the hotel(s) and such other information to facilitate collection of the fee as the administrator requires.

C. The administrator shall, as soon as reasonably possible after receipt of a properly completed registration form, issue a certificate of transient occupancy registration which shall, at a minimum, contain the following information:

1. The name of the operator;

2. The address of the hotel; and

3. The date upon which the certificate was issued.

D. Each certificate shall be prominently displayed in the hotel to which it is applicable so as to be seen and come to the notice readily of all occupants and persons seeking occupancy. [Ord. 418-2003 § 9].

3.04.100 Collection of fee by operator.

A. Unless otherwise exempted by this chapter, every operator shall collect the fee from the transient at the time the transient pays rent.

B. Operators may not advertise or allow that any part of the fee will be assumed or absorbed by the operator, or that the fee will not be added to the rent or, if added, that any part of it will be refunded, except in the manner provided by this chapter. [Ord. 418-2003 § 9].

3.04.110 Monthly reporting and payment – Extension.

A. On or before the last day of each month, every operator shall report the rents paid to the operator during the preceding month and pay the appropriate amount of the fee to the city along with a return setting out the amount of the fee collected or otherwise due for the period, show the total rentals upon which the fee was collected or otherwise due, the gross receipts of the operator for the period and an explanation of any discrepancy between those amounts and the exempt rents, if any. The return shall be signed by the operator or an authorized agent thereof.

B. The operator liable for filing the return required under this section shall deliver the return together with the fee due to the city of Dundee. Delivery must be in person or by first class mail. If the return is mailed, the postmark shall be considered the date of delivery for determining delinquencies.

C. The administrator may, upon written request received on or before the due date of the return or fee, for cause satisfactory to the administrator, extend the time for filing the return or paying the fee for a period not to exceed 30 days. Any operator to whom an extension is granted and who pays the fee within the period for which the extension is granted shall pay, in addition to the fee, simple interest at the rate of nine percent per annum from the date on which the fee would otherwise have been due.

D. A report and a fee return are required for each reporting period even though there may be no rents due or payable to the hotel or operator during the preceding month nor any fees due. [Ord. 471-2008 § 4; Ord. 418-2003 § 10].

3.04.120 Failure to file reports.

If an operator fails to make a report of the information required by DMC 3.04.110 within the time and manner prescribed, the administrator may examine the books, records, and files of the operator to determine the fee due on the rents, as provided by this chapter. [Ord. 418-2003 § 11].

3.04.130 Special determination and collection – Operator delay.

A. The administrator may make a special determination of the fee amount and may make that amount due and payable immediately; provided, that:

1. The administrator reasonably believes that delay may jeopardize either the collection of any amount of any fee or the determination of that fee amount; and

2. The purpose of the collection is noted on the special determination.

B. The administrator shall serve notice of the special determination to the operator in person or, if by first class mail, at the operator’s last known address shown in the administrator’s records.

C. The operator shall pay the determined amount to the administrator immediately upon receiving notice of the special determination.

D. After making the required payment, but within 14 days of receiving notice of the special determination, the operator may appeal the decision by filing a petition for re-determination with the administrator, pursuant to DMC 3.04.190. [Ord. 418-2003 § 12].

3.04.140 Operator required to keep records.

A. Every operator shall state the fee imposed under this chapter separately on room receipts and shall account for such fees separately in the hotel’s records.

B. Every operator liable for the reporting or payment of the fee imposed under this chapter shall keep such records, receipts, and other pertinent documents in such form as the administrator may require.

C. Every operator shall keep such records for not less than three years, unless the administrator issues written authorization to destroy them sooner. [Ord. 418-2003 § 13].

3.04.150 Records exempt from disclosure.

A. Pursuant to ORS 192.502(16) and except as provided by subsection (B) of this section, no city of Dundee employee or agent, and no employee or agent of cities participating by ordinance or resolution under this chapter, may disclose the records, reports, and returns required by this chapter to be submitted to or inspected by the city to allow it to determine the amount of any transient fee payable or the amount of such fees paid, to the extent that such information is in a form that would permit identification of the individual concern or enterprise.

B. Nothing in this section shall limit the use that the city may make of such information for regulatory purposes, or the admissibility of such information in any enforcement proceedings.

C. In the event that the payment of fees imposed under this chapter is delinquent by more than 60 days, the city shall disclose, at the request of any person, the following information:

1. The identity of the individual concern or enterprise that is delinquent;

2. The period for which the fees are delinquent; and

3. The actual or estimated amount of the delinquency. [Ord. 418-2003 § 14].

3.04.160 Refunds.

A. Whenever an operator has paid the amount of any fee, penalty, or interest more than once, or the administrator has erroneously or illegally collected or received it under this chapter, it may be refunded; provided, that the operator first files a petition for re-determination and refund with the administrator, pursuant to DMC 3.04.190. In addition to any other requirements imposed by this chapter, the petitioner shall state the specific reason upon which the claim is founded and file the petition within three years from the date of overpayment. All refunds shall be charged to the transient room fee reserve account.

B. Whenever the fee required by this chapter has been collected by the operator, and deposited by the operator with the administrator, and it is later determined that the fee was erroneously or illegally collected or received by the administrator, it may be refunded by the administrator to the transient; provided, that the transient, or the administrator or other person acting in the transient’s behalf, first files a petition for re-determination and refund with the administrator, pursuant to DMC 3.04.190. In addition to any other requirements imposed by this chapter, the petitioner shall state the specific reason upon which the claim is founded and file the petition within three years from the date of the overpayment. All refunds shall be charged to the transient room fee reserve account. [Ord. 418-2003 § 13].

3.04.170 Delinquency.

Unless an operator obtains an extension pursuant to DMC 3.04.110, the operator becomes delinquent with respect to this chapter any time the operator fails:

A. To submit reports completely, accurately, on time or as otherwise required by this chapter; or

B. To remit his or her fee payment fully, on time, or as otherwise required by this chapter. [Ord. 418-2003 § 14].

3.04.180 Sanctions.

A. An operator who is delinquent may be subject to one or more of the following sanctions:

1. If an operator is delinquent in submitting reports, the administrator may take one or both of the following measures:

a. Examine the operator’s books, records, and files in order to compute the fee due on the rents, as provided for by this chapter.

b. Assess the fee at no more than twice the amount estimated to be due and add a penalty of 10 percent of the amount of the fee assessed. This penalty shall be in addition to all other penalties. The amount of assessment of additional fee and penalty shall depend on the operator’s record of past delinquencies.

2. If an operator is delinquent in making fee payments the administrator may assess interest payments on the outstanding fee accounts at a rate of 10 percent per annum from the date due until the date of payment.

B. Once the administrator determines that an operator is delinquent and is subject to the sanction or sanctions imposed by subsection (A)(1) or (A)(2) of this section, the administrator shall give that operator a written notice of the delinquency.

1. The notice may be served personally or by mail, and if by mail, the notice shall be sent by certified mail and addressed to the operator at the last known address as it appears in the records of the administrator. In case of service by mail of any notice required by this chapter, the service is complete at the time of postmark by the United States Post Office.

2. Except in the case of fraud, or intent to evade the provisions of this chapter, every deficiency determination shall be made and notice thereof mailed within three years after the last day of the month following the close of the monthly period for which the amount is proposed to be determined or within three years after the return is filed, whichever period expires later.

3. The amount stated in the determination shall become due and payable immediately upon receipt of notice. Such determination shall become final unless the operator files a petition for re-determination pursuant to DMC 3.04.190.

C. At any time within three years after any fee or any amount of fee required to be collected becomes due and payable or at any time within three years after any determination becomes final, the administrator may bring an action in the courts of this state, or any other state, or of the United States in the name of the city to collect the amount delinquent, together with penalties and interest. [Ord. 418-2003 § 15].

3.04.190 Petition for re-determination.

A. Any operator who receives a notice of determination or delinquency may petition the administrator for re-determination. The petitioner may request an oral hearing on the matter by stating this request on the petition.

1. The petition for re-determination allowed under this section must be received by the administrator no more than 14 days after the administrator serves the notice of delinquency or determination. It must be on a form supplied by the administrator or it must state substantially the same information.

2. No petition for re-determination shall be effective for any purpose unless the operator has first paid any and all fees and interest due and payable on the account.

3. In the event of an oral hearing, the administrator shall give petitioner a 10-day written notice of the time and place of the hearing. The administrator may continue the hearing from time to time, as necessary.

4. After reconsidering his or her determination, the administrator shall prepare a decision in writing and shall serve notice of this decision to the petitioner by first class mail. Service shall be complete at the time of postmark by the United States Postal Service.

B. As a result of the re-determination, the administrator may increase or decrease the amount of the delinquency or determination. If an increase is established, it shall be due and payable immediately after the decision is made. If a decrease is established, the administrator shall refund the amount or credit it to the operator or the hotel’s assignees or executors.

C. The decision of the administrator upon a petition for re-determination becomes final, unless within 14 days following the service of such notice the petitioner files an appeal of the re-determination with the city council pursuant to DMC 3.04.200. [Ord. 418-2003 § 16].

3.04.200 Appeals to city council.

A petitioner affected by the re-determination of the administrator may appeal to the city council by filing a notice of appeal with the administrator within 14 days of the service of the re-determination. The administrator shall transmit the notice of appeal, together with the file of the appealed matter, to the city council which shall fix a time and place for hearing such appeal. The city council shall give the appellant not less than 14 days’ written notice of the time and place of hearing. The city council shall consider the matter de novo and may approve, revise, or remand the administrator’s re-determination. The city council’s decision shall be by written order and shall be subject to writ of review proceedings pursuant to ORS 34.010 et seq. [Ord. 418-2003 § 17].

3.04.210 Liens.

A. The tax paid to the operator and owed to the city, and interest, penalty, filing fees, and any advertising costs incurred when the tax becomes delinquent, shall be a lien on all tangible personal property in the operator’s hotel from the date of its recording with the county clerk until the tax is paid. The tax, penalty and interest owed to the city by the operator shall continue to accrue until such time as the lien is satisfied. The lien shall be superior to all subsequently recorded liens on all tangible personal property in the operator’s hotel. The lien may be foreclosed and the necessary property may be sold to discharge the lien, as provided by law.

B. Notice of the personal property lien shall be issued by the administrator when the operator has defaulted in payment of the tax, interest and penalty. A copy of the notice shall be sent by certified mail to the operator.

C. Personal property subject to the lien may be foreclosed in the same manner as a nonpossessory chattel lien as set forth in ORS Chapter 87.

D. A lien for the tax, interest and penalty shall be immediately released by the administrator when the full amount has been paid to the city. The operator or person making the payment shall receive a receipt stating that the full amount of the tax, interest and penalty has been paid, that the lien is released and the record of the lien is satisfied.

E. Lien on Real Property. The tax imposed by this chapter, together with the interest, administrative costs, attorney fees and penalties herein provided and the filing fees paid to the clerk of Yamhill County, Oregon, and advertising costs which may be incurred when same becomes delinquent as determined by the administrator and as set forth in this chapter, shall become a lien on the hotel real property 30 days after notification of payment due. The lien hereby created may be foreclosed in any manner provided by law.

F. Attorney Fees. In the event of litigation to foreclose a lien created by this section, the prevailing party shall be entitled to recover reasonable attorney fees and other costs and disbursements provided by law. [Ord. 471-2008 § 5].

3.04.220 Violation – Penalty.

Failure to register pursuant to this chapter is punishable by a fine not to exceed $100.00 per day for each continuing day of violation, in addition to the penalties assessed for nonpayment as set forth herein. [Ord. 471-2008 § 6].