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HomeMy WebLinkAbout2292 - Measure D ORDINANCE NO. 2292 MEASURE "D" 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. 1 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: 2 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 3 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 4 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. 5 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. 6 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. 7 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 "D" 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. 8 Adopted by the People of the City of Arcadia on the 10th day of April, 2012. 411, oro `? a ityo Arcadia ATTEST: City Clerk APPROVED AS TO FORM: t; Step en P. Deitsch City Attorney 9