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HomeMy WebLinkAbout6801 RESOLUTION NO. 6801 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA CALLING FOR THE PLACEMENT OF A GENERAL TAX MEASURE ON AN ALL MAIL BALLOT TO BE HELD AT THE APRIL 10, 2012 GENERAL MUNICIPAL ELECTION FOR THE SUBMISSION TO THE QUALIFIED VOTERS OF A PROPOSED ORDINANCE AMENDING THE CITY'S TRANSIENT OCCUPANCY TAX BY EXTENDING THE PERIOD OF TRANSIENCY SUBJECT TO THE TAX FROM 30 TO 90 DAYS, ADDRESSING ONLINE TRAVEL COMPANY AND OTHER THIRD PARTY BOOKINGS, AND MAKING VARIOUS CONFORMING CHANGES. WHEREAS, pursuant to Section 9222 of the California Elections Code, the City Council has authority to place propositions on the ballot to be considered at a Municipal Election; and WHEREAS, pursuant to Article II, Chapter 6, Part 6 of the Arcadia Municipal Code (A.M.C. §§2661 — 2664.9), the City currently imposes a Transient Occupancy Tax ("TOT") at the rate of ten percent (10%) upon guests of hotels and other transient accommodations within the City; and WHEREAS, the City Council desires to amend the Arcadia Municipal Code to extend the period of transiency subject to the imposition and collection of the TOT from 30 days to 90 days; and WHEREAS, the City Council desires to amend the Arcadia Municipal Code to allow for the imposition and collection of the TOT on the full rent charged to a guest for hotel occupancy, whether the occupancy is booked directly by the guest, through the guest's employer or agent, or through online travel companies which enable guests to purchase occupancy via the Internet, or by similar electronic means; and WHEREAS, the TOT is a general tax the proceeds of which are deposited into the City's general fund. The general fund pays for essential City services such as police 1 protection, fire and paramedic services, street operations and maintenance, library services, parks and recreation services and general municipal services to the public; and WHEREAS, on November 6, 1996, the voters of the State of California approved Proposition 218 (California Constitution, Article XIIIC), an amendment to the State Constitution which requires that all general taxes which are imposed, extended or increased must be submitted to the electorate and approved by a majority vote of the qualified electors voting in the election; and WHEREAS, the amendments proposed in the attached ordinance extending the period of transiency that may be subject to the TOT from 30 days to 90 days may be characterized as an "increase" in the TOT under Proposition 218; and WHEREAS, the amendments proposed in the attached ordinance which apply the TOT rate to the total rent charged to a guest for occupancy in a hotel (including any retail markup and other charges imposed through purchase of occupancy through an employer, agent or on-line travel company) may also be characterized as an "increase" in the TOT under Proposition 218; and WHEREAS, pursuant to Proposition 218 (California Constitution Article XIIIC, §2(b)), any election for the approval of an increase to a general tax must be consolidated with a regularly scheduled general election for members of the governing body of the local government; and WHEREAS, pursuant to the Arcadia City Charter, Section 1100, the City's General municipal elections for the election of officers are held on the second Tuesday in April in each even-numbered year. Therefore, the next regularly scheduled General 2 Municipal Election for the election of members of the City Council will be held on Tuesday, April 10, 2012; and WHEREAS, pursuant to California Elections Code, Section 4000 and Arcadia Municipal Code, Section 1703, the City Council may, by resolution, authorize the election on this Measure to be conducted by all-mail ballot; and WHEREAS, the City Council desires to submit to the voters, via an all mail ballot, at the April 10, 2012 General Municipal Election one ballot proposition, entitled: "Shall an ordinance amending the Arcadia Municipal Code to extend the period of occupancy subject to the Transient Occupancy (Hotel) Tax from 30 days to 90 days, and to apply the Tax to all rent charged by hotel operators, including online travel companies, for the transient occupancy of any hotel room, be adopted to help preserve general City services such as police and fire protection, street operations and maintenance, and library, parks and recreation services?" NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. Findings. The City Council finds that all of the preceding recitals are true and correct and are hereby incorporated and adopted as findings and determinations by the City Council as if fully set forth herein. SECTION 2. Calling and Giving Notice of General Municipal Election. The City Council hereby calls and gives notice of a General Municipal Election to be held on Tuesday, April 10, 2012 to be conducted by all mail ballot in the City of Arcadia, County of Los Angeles. 3 SECTION 3. Submission of Measure. Pursuant to applicable requirements of the laws of the State of California, the City Council hereby orders the ordinance attached hereto as Exhibit "A" and by this reference incorporated herein and made an operative part hereof, to be submitted to the voters of the City at the General Municipal Election by all mail ballot, to be held on Tuesday, April 10, 2012: SECTION 4. The ballot proposition shall be presented and printed upon the ballot submitted to the voters in the manner and form set forth in this Section 4. On the ballot to be submitted to the qualified voters at the City General Municipal Election to be held on Tuesday, April 10, 2012, in addition to any other matters required by law, there shall be printed substantially the following: "Shall an ordinance amending the Arcadia YES Municipal Code to extend the period of occupancy subject to the Transient Occupancy (Hotel) Tax from 30 days to 90 days, and to apply the Tax to all rent charged by hotel operators, including online travel companies, for the transient occupancy of any hotel room, be adopted to help preserve general City services such as police and fire protection, street operations and maintenance, and library, parks and recreation services?" NO fl SECTION 5. Conduct of Election. The City Clerk is authorized, instructed and directed to procure and furnish any and all official ballots, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election by all mail ballot. In all particulars not recited in this 4 Resolution, the election shall be held and conducted as provided by law for holding municipal elections. SECTION 6. That pursuant to the City of Arcadia Municipal Code, and other applicable provisions of the City Charter and Ordinances of the City of Arcadia, said General Election shall be conducted by all mail ballot, and shall be conducted pursuant to Chapter 2 of Division 4 (commencing with Section 4100) of the California Elections Code only insofar as required by law, and only where not inconsistent with the Charter and Ordinances of the City of Arcadia. Notwithstanding Elections Code Section 4103, ballots cast in this General Election shall be returned to the Office of the City Clerk no later than 8:00 p.m. on election day. Only ballots received in the Office of the City Clerk by 8:00 p.m. on election day shall be counted. SECTION 7. Notice of Election. Notice of the time and place of holding the election is hereby given, and the City Clerk is authorized, instructed and directed to give further or additional notice of the election, in time, form and manner as required by law. SECTION 8. Impartial Analysis. Pursuant to California Elections Code Section 9280, the City Council hereby directs the City Clerk to transmit a copy of the measure to the City Attorney. The City Attorney shall prepare an impartial analysis of the measure, not to exceed 500 words in length, showing the effect of the measure on the existing law and the operation of the measure, and transmit such impartial analysis to the City Clerk within ten (10) days following the adoption of this Resolution. SECTION 9. Filing with County. The City Clerk shall, not later than the 88th day prior to the General Municipal Election to be held on Tuesday, April 10, 2012, file with 5 the Board of Supervisors and the County Clerk — Registrar of Voters of the County of Los Angeles, State of California, a certified copy of this Resolution. SECTION 10. Public Examination. Pursuant to California Elections Code §9295, this measure will be available for public examination for no fewer than ten (10) calendar days prior to being submitted for printing in the sample ballot. The examination period will end on the day that is seventy-five (75) days prior to the date set for the election. The Clerk shall post notice in the Clerk's office of the specific dates that the examination period will run. SECTION 11. Certification. The City Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this 6th day of December, 2011. /pit i (ayorlr the Ci of Arcadia ATTEST: ity Clerk _. APPROVED AS TO FORM: SeW4CA..A, �. Stephen P. Deitsch City Attorney 6 Exhibit "A" MEASURE " " AN ORDINANCE OF THE PEOPLE OF THE CITY OF ARCADIA AMENDING THE CITY'S TRANSIENT OCCUPANCY TAX CODE BY EXTENDING THE PERIOD OF TRANSIENCY SUBJECT TO THE TAX FROM 30 TO 90 DAYS, ADDRESSING ONLINE TRAVEL COMPANY AND OTHER THIRD PARTY BOOKINGS, AND MAKING VARIOUS CONFORMING CHANGES. THE PEOPLE OF THE CITY OF ARCADIA, CALIFORNIA DO HEREBY ORDAIN AS FOLLOWS: SECTION 1. Divisions 1 through 3 of Part 6 of Chapter 6 of Article II of the Arcadia Municipal Code are hereby amended to read as follows: "PART 6 —TRANSIENT OCCUPANCY TAX DIVISION 1. — DEFINITIONS 2661. - DEFINITIONS. 2661.1. - TITLE. 2661.2. - HOTEL. 2661.3. - OCCUPANCY. 2661.4. - TRANSIENT. 2661.5. - RENT. 2661.6. - OPERATOR. 2661.7. - TAX ADMINISTRATOR. 2661.8. — ONLINE TRAVEL COMPANY. 2661.9. - PERSON. 2661.10 — BLOCK RESERVATION 2661. - DEFINITIONS. For the purpose of this Part certain words and terms are hereafter defined and shall have the meaning thus ascribed. 2661.1. -TITLE. This Part shall be known as the Transient Occupancy Tax Ordinance of the City of Arcadia. 7 2661.2. - HOTEL. "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, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof. 2661.3. - OCCUPANCY. "Occupancy" means the use or possession, or the right to the use or possession of any room or rooms or portion thereof (whether or not the person entitled to the use or possession actually uses or possesses such room or rooms or portion thereof), in any hotel for dwelling, lodging or sleeping purposes. The use or possession or right to use or possess any room or any suite of connecting rooms as office space, banquet or private dining rooms, or exhibits, sample or display space shall not be considered "occupancy" within the meaning of this definition unless the person exercising occupancy uses or possesses, or has the right to use or possess all or any portion of such room or suite of rooms for dwelling, lodging or sleeping purposes. 2661.4. -TRANSIENT. "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 ninety (90) consecutive calendar days or less, counting portions of calendar days as full days. The following rules shall apply to this definition: 8 A. Any such person so occupying or entitled to occupy a room in a hotel shall be deemed to be a transient until the period of ninety (90) calendar days has expired. In the event a person exercises or is entitled to occupancy for a continuous and uninterrupted period of longer than ninety (90) calendar days, he or she shall be deemed a transient and subject to the tax for only the first ninety (90) calendar days of occupancy and shall cease being a transient and the tax shall not apply on the ninety- first (91st) day of occupancy and following. However, any break or interruption in occupancy shall start a new ninety (90) day period subject to the tax. B. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of this Part may be considered. C. Any person who exercises or is entitled to occupancy for a period of ninety (90) consecutive calendar days or less shall be deemed to be a transient for that period, regardless of whether the reservation and/or payment for occupancy is made directly by the person exercising or entitled to occupancy or by another person. The intent is to tax the person exercising occupancy or having the entitlement to occupancy of a hotel room. D. In the case of a block reservation, a person's employee or agent shall be deemed a transient if that employee or agent exercises or is entitled to occupancy of a room for a period of ninety (90) consecutive calendar days or less, regardless of the duration of any block reservation agreement. By way of example, if a corporation enters into a one-year block reservation agreement with an operator and one of the corporation's employees occupies a room for ninety (90) calendar days, the employee 9 shall be deemed a transient whose occupancy is subject to the tax, notwithstanding the fact that the block reservation agreement has a duration longer than ninety (90) calendar days. 2661.5. - RENT. "Rent" means the total consideration charged to the transient, (including but not limited to, room rates, service charges, parking fees, purchase price, advance registration, block or group reservation charges, assessments, retail markup, commission, processing fees, cancellation charges, attrition fees, or online booking fees), whether or not received, for occupancy 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. Nothing in this definition shall be construed to mean that rent is charged directly or indirectly for occupancy in a hotel when a room is provided to the transient as a compliment for the operator and where no consideration is charged to or received from any other person. Further, bona fide charges for food and beverages which are subject to tax under the California Sales and Use Tax Law (Revenue and Taxation Code Sections 6001 et. seq.) shall not be deemed rent subject to the tax imposed by this Part. 2661.6. - OPERATOR. "Operator" means a person who is proprietor of the hotel or any other person who has the right to rent rooms within the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, seller, reseller, or any other capacity. Where the operator performs his functions through a managing agent or 10 booking agent of any type or character, other than an employee (including, but not limited to, an online travel company), the managing agent or booking agent shall also be deemed an operator for the purposes of this Part and shall have the same duties and liabilities as his principal. Full compliance with the provisions of this Part by either the principal or the managing agent or booking agent shall, however, be considered to be compliance by both. 2661.7. -TAX ADMINISTRATOR. "Tax Administrator" means the City Director of Finance, or his or her designee. 2661.8. — ONLINE TRAVEL COMPANY. "Online Travel Company" shall mean any person, whether operating for profit or not for profit, which enables transients to purchase occupancy in a hotel via the Internet, or by similar electronic means. 2661.9. - PERSON. "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 any other group or combination acting as a unit. 2661.10. — BLOCK RESERVATION. "Block Reservation" shall means an arrangement whereby a person reserves, whether on an exclusive or non-exclusive basis, a room or block/group of rooms for a defined period of time under a written or oral agreement with an operator, intending for such room(s) to be occupied by that person's employees or agents on an intermittent, periodic or "as needed" basis during that defined period of time. 11 DIVISION 2. — IMPOSITION AND RATE 2662. - TAX IMPOSED. 2662. -TAX IMPOSED. For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of ten percent (10%) of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the City which is extinguished only by payment to the operator or 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 occupancy. If for any reason the tax due is not paid to the operator of the hotel, the Tax Administrator may require that such tax shall be paid directly to the Tax Administrator. The proceeds of this tax are allocated to the City's general fund for governmental expenditures. DIVISION 3. - EXEMPTIONS 2663. - EXEMPTIONS 2663.1. - SAME. EXEMPTED BY LAW. 2663.2. - SAME. OFFICIALS. 2663.3. - SAME. FOREIGN AGENCIES. 2663.4. - SAME. PROCEDURE. 2663. - EXEMPTIONS. The tax enacted by this Part shall not be imposed upon any person or agency defined in the following subsections. 2663.1. - SAME. EXEMPTED BY LAW. Any person as to whom, or any occupancy as to which, it is beyond the power of the City to impose the tax herein provided. 12 2663.2. - SAME. OFFICIALS. Any federal or State of California officer or employee when occupying a room while on official government business. For purposes of this section, students, non- employee supporters and volunteers of California public universities and colleges shall not be deemed to be officers or employees of the State of California. 2663.3. - SAME. FOREIGN AGENCIES. Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty. 2663.4. - SAME. PROCEDURE. 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 Tax Administrator. Any federal or State of California officer or employee when on official government business claiming such an exemption shall provide to the operator as conclusive evidence that his or her occupancy is for the official business of his or her employer: (1) Travel orders from his or her government employer; or a government warrant issued by his or her employer to pay for the occupancy; or a government credit card issued by his or her employer to pay for the occupancy; and (2) proof of his or her governmental employment as an employee or officer as described in paragraph (1) of this subsection (b), and proof, consistent with these provisions, that his or her occupancy is for the official business of his or her governmental employer. 13 It shall be the duty of an operator to keep and maintain for a period of three (3) years written documentation in support of each exemption granted under this Division 3." SECTION 2. Effective Date. Pursuant to California Constitution Article XIIIC §(2)(b) and California Elections Code §9217, if a majority of the qualified voters voting in the election on Measure vote in favor of the adoption of such measure, this ordinance shall be deemed valid and binding and shall be considered as adopted upon the date that the vote is declared by the City Council, and shall go into effect ten (10) days after that date. SECTION 3. Severability. If any section, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this ordinance. The People of the City of Arcadia hereby declare that they would have adopted this ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 4. Certification/Summary. Following the City Clerk's certification that the citizens of Arcadia have approved this Ordinance, the Mayor shall sign this Ordinance and the City Clerk shall cause the same to be entered in the book of original ordinances of said City; and shall cause the same, or a summary thereof, to be published as required by law. 14 Adopted by the People of the City of Arcadia on the 10th day of April, 2012. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 15 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6801 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 6th day of December, 2011 and that said Resolution was adopted by the following vote, to wit: AYES: Council Members Amundson, Chandler, Harbicht, Segal and Kovacic NOES: None ABSENT: None City Clerk of the City of Arcadia 16