HomeMy WebLinkAbout93-15 - Amending Portions of Chapter 3.28 of the Newport Beach Municipal Code Pertaining to the Visitor's Service FeeORDINANCE NO. 93 -15
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH AMENDING PORTIONS OF CHAPTER
3.28 OF THE NEWPORT BEACH MUNICIPAL CODE
PERTAINING TO THE VISITOR'S SERVICE FEE.
The City Council of the City of Newport Beach does hereby
• ordain that portions of Chapter 3.28 the Newport Beach Municipal
Code is amended to read as follows:
3.28.010 Definitions.
3.28.035 Exemptions.
3.28.040 Reporting and Remittina.
3.28.065 Refunds.
3.28.070 Notice.
3.28.075 Fee Declared a Debt - Action to Collect.
3.28.080 Penalty for violations.
3.28.010 Definitions. Except where the context otherwise
requires, the definitions given in this section shall govern the
construction of this chapter:
• Person. Except as used in the term 11guest'l, the term
"person" shall mean any individual, firm, partnership, joint
venture, association, social club, fraternal organization, joint
stock company, corporation, estate, trust, business trust,
receiver, trustee, syndicate, or group.
Hotel. The term "hotel" shall mean any structure or any
portion of any structure, which is occupied or intended or designed
for occupancy by guests for dwelling, lodging or sleeping purposes,
and includes any hotel, inn, tourist home or house, motel, studio
hotel, bachelor hotel, lodging house, rooming house, apartment
house, rental unit, dormitory, public or private club, mobile home
or house trailer at a fixed location, or other similar structure or
portion thereof.
Occupancy. The term "occupancy" shall mean the use or
possession, or the right to use or possession of a specific room or
rooms or portion thereof, in any hotel for dwelling, lodging or
sleeping purposes.
Guest. The terms "guest" shall mean any individual 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
portions of calendar days as full days. Any individual occupying
space in a hotel shall be deemed to be a guest until the period of
• thirty (30) days
has
expired,
unless
there a qualifying
rental
agreement between
the
operator
and the
individual providing
for a
longer period of occupancy.
Rent. The term "rent" shall mean 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.
Qualifying Rental Agreement. The term Ilqualifying rental
agreementIf shall mean a written contract signed by both the
landlord and tenant, legally enforceable by either party, by which
a room or rooms in a hotel are rented for a period of not less than
thirty -one (31) consecutive days. "Qualifying rental agreementIN
expressly excludes:
(a) any agreement, regardless of the rental term, which is
terminated for any reason, by either party, or by mutual
consent, prior to the thirty -first consecutive day of
occupancy; or,
(b) any agreement which would be unlawful or constitute a
violation of law.
Finance Director. The term "Finance Directors' shall mean the
Finance Director of the City of Newport Beach or his or her
designated representative.
Operator. The term "operator" shall mean 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 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. (Ord. 86 -5 § 1 (part) . 1987).
Individual. The term "individuals, shall mean any natural
person.
3.28.035 Exemptions. No fee shall be imposed upon:
• (A) Any person as to whom, or any occupancy as to which, it
is beyond the power of the City to impose the fee required by this
chapter.
(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 therefore
made at the time rent is collected and under penalty of perjury
upon a form prescribed by the Finance Director. (Ord. 86 -5 § 1
(part). 1987).
3.28.040 Reporting and Remitting. On or before the last day
•of the month following the close of each calendar quarter, or such
different reporting period as may be established by the Finance
Director, each operator shall make return to the Finance Director,
on forms provided by the City, of total rents charged and received,
the amount of the fees collected during the preceding three (3)
months, the number of rental units available on the premises, and
such information as may be required by the Finance Director. The
full amount of the fee collected shall be remitted to the Finance
Director at the time the return is filed. A return must be filed,
and payment of all fees must be made, within thirty (30) days from
the date any hotel ceases operation. All fees collected by
operators pursuant to this chapter shall be held in trust for the
account of the City until payment is made to the Fiance Director.
• (Ord. 86 -5 § 1 (part), 1987).
3.28.065 Refunds.
A. CLAIM REQUIRED. Whenever the amount of any tax, interest
or penalty has been overpaid or paid more than once or has been
erroneously or illegally collected or received by the City under
this chapter, it may be refunded as provided in Subparagraphs B and
C of this section; provided, that a claim in writing therefore,
stating under penalty of perjury the specific grounds upon which
the claim is founded, filed with the Finance Director within three
(3) years of the date of payment. The claim shall be on forms
• furnished by the Finance Director.
B. CLAIM BY OPERATOR. An operator may claim a refund, or
take as credit against taxes collected and remitted, the amount
overpaid, paid more than once or erroneously or illegally collected
or received when it is established in a manner prescribed by the
Finance Director that the person from whom the tax has been
collected was not a transient; provided, however, that neither a
refund nor a credit shall be allowed unless the amount of the tax
so collected has either been refunded to the transient or credited
to rent subsequently payable by the transient to the operator.
C. CLAIM BY TRANSIENT. A transient may obtain a refund of
taxes overpaid or paid more than once or erroneously or illegally
collected or received by the City by filing a claim in the manner
• provided in Subparagraph A, but only when the tax was paid by the
transient directly to the Finance Director, or when the transient,
having paid the tax to the operator, establishes to the
satisfaction of the Finance Director that the transient has been
unable to obtain a refund from the operator who collected the tax.
D. EVIDENCE. No refund shall be paid under the provisions of
this section unless the claimant establishes his right thereto by
written records showing entitlement thereto. (1949 Code § 6911,
added by Ord. 1101; December 28, 1964).
3.28.070 Notice. Any notice required to be given pursuant
• to this chapter, shall be deemed given if personally served on the
operator or the operator's representative, or if deposited in the
United States mail, first class postage prepaid, and addressed to
the operator at the address shown on the transient occupancy
registration certificate. (Ord. 86 -5 § 1 (part), 1987).
3.28.075 Fee Declared a Debt- Action to Collect. Any fee
collected by an operator pursuant to this chapter which has not
been paid to the City shall be deemed a debt owed by the operator
to the City and the operator shall be liable in an action brought
in the name of the City of Newport Beach for the recovery of the
• unremitted fees. (Ord. 86 -5 § 1 (part), 1987).
3.28.080 Penalty for Violations. Any operator or other
person who fails or refuses to register as required herein, 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 Finance
Director, or who renders a false or fraudulent return or claim, is
guilty of a misdemeanor, and is punishable as provided in Section
1.04.010 of this Code. 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 guilty of a
misdemeanor and is punishable as aforesaid. (Ord. 86 -5 § 1 (part),
• 1987).
Section 2: The Mayor shall sign and the City Clerk shall
attest to the passage of this Ordinance. The City Clerk shall
cause the same to be published once in the official newspaper of
the City, and it shall be effective thirty (30) days after the date
of its adoption.
Section 3: That if any section, subsection, sentence,
clause or phrase of this ordinance is, for any reason, held to be
invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this
• ordinance. The City Council hereby declares that it would have
passed this ordinance, and each section, subsection, clause or
phrase hereof,. irrespective of the fact that any one or more
sections, subsections, sentences, clauses and phrases be declared
unconstitutional.
Section 4: This Ordinance was introduced at a regular
meeting of the City Council of the City of Newport Beach held on
the 28 day of June, 1993, and adopted on the 12 day of July, 1993,
by the following vote, to -wit:
AYES,
COUNCILMEMBERS
SANSONE, WATT, TURNER, HART, COX, DEBAY
ABSTAINED,
•
COUNCIL MEMBER HEDGES
NOES,
COUNCILMEMBERS
NONE
ABSENT
COUNCILMEMBERS
NONE
ATT a
CITY CLERK
•