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HomeMy WebLinkAbout1985-10-22; City Council; 8027-1; Collection Procedures Transient Occupancy TaxLn 00 N N 1 O 0 Uj O M n. a Q z 0 H U a J U z D 0 0 CI:°'� OF CARLSBAD — AGENL''BILL i 00'�L;l AB#-PL,Z _-i- TITLE: REVISIONS TO COLLECTION PROCEDURES DEPT. N MTG. 10/22/85 FOR THE TRANSIENT OCCUPANCY TAX CITY AT DEPT. FIN CITY ME RECOMMENDED ACTION: That the City Council introduce Ordinance No. J 2 ?8^ ITEM EXPLANATION The City has recently experienced several serious problems in collecting transient occupancy tax. In two cases it was necessary to ask the City Attorney's office to commence litigation in order to collect. These problems have pointed up some deficiencies in the City's municipal code. In that regard, attached is an ordinance which would revise the collection procedures for the transient occupancy tax and essentially implements in Carlsbad what is already being done in the City of San Diego. A memorandum from the City Attorney discussing the recommended changes is attached. FISCAL IMPACT Some additional administrative expense will be required as a result of the new reporting and payment schedules. This should be more than offset by increased collections and reduced cost of enforcement. EXHIBITS Ordinance No. / �2 PS Memorandum from City Attorney B ORDINANCE NO. 1285 1 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF 2 CARLSBAD, CALIFORNIA AMENDING TITLE 31 CHAPTER 3.12 OF THE CARLSBAD MUNICIPAL CODE BY THE 3 AMENDMENT OF SECTIONS 3.12.060 AND 3.12.080 AND BY THE ADDITION OF SECTION 3.12.160 THROUGH 4 3.12.220 TO REVISE THE PROVISIONS FOR THE COLLECTION OF THE TRANSIENT OCCUPANCY TAX. 5 The City Council of the City of Carlsbad, California 6 7 does ordain as follows: SECTION 1: That Chapter 3.12, Section 3.12.060 of the 8 Carlsbad Municipal Code is amended by the deletion of the last 9 sentence of that section which reads, "This certificate does not 10 constitute a permit." and by the addition of the following 11 12 sentence: "It shall be unlawful to operate a hotel in the City 13 of Carlsbad without a currently valid certificate." u SECTION 2: That Chap'.er 3.12, Section 3.12.080 o the U.m j z 14 o A ° 15 Carlsbad Municipal Code is amended by the addition of subsection U - Q i W W o 16 (g ) to read as follows: U co >K ' n 17 "(g) Revocation. In addition to the other penalties r provided by this section, if an operator is delinquent in any 18 waymore than one time in any twelve month period the tax administrator may revoke the operator's transient occupancy 19 registration certificate." SECTION 3: That Chapter 3.12 of the Carlsbad Municipal 20 21 Code is amended by the addition of Sections 3.12.160, 3.12.170, 22 3.12.180, 3.12.190, 3.12.200, 3.12.210 and 3.12.220 to read as 23 follows: . 113.12.160 Revocation of certificate. Whenever any 24 operator fails to comply with any provision of this chapter 25 relating to occupancy tax or any rule or regulation of the tax and adopted administrator relating to occupancy tax prescribed under this chapter, the tax administrator upon hearinq, after 26 giving the operator ten days notice in writing specifying the 27 time and place of hearing and requiring him to show cause why his certificate should not be revoked, may suspend or revoke 28 5 500 1 the certificate held by the operator. The tax administrator shall qive the operator written notice of the suspension or 2 revocation of his certificate. The notice herein required may be served personally or by mail in the manner prescribed for service 3 of notice of a deficiency determination. The tax administrator shall not issue a new certificate after a revocation unless he is 4 satisfied that the former holder of the certificate will comply with the provisions of this chapter relating to the occupancy tax 5 and regulations of the tax administrator. 3.12.170 Closure of hotel without certificate. During 6 any period of time during which a certificate has not been issued 7 or is suspended, revoked or otherwise not validly in effect, the tax administrator may require that the hotel be closed. 8 3.12.180 Recording notice of lien. If any amount 9 required to a remittedor paid to t e C y under this chapter is not remitted or paid when due, the tax administrator may, within 10 three years after the amount is due file for record in the office of the San Diego County recorder a Notice of Lien specifying the 11 amount of tax, penalties and interest due, the name and address as . it appears on the records of the tax administrator of the 12 operator liable for the same and the fact that the tax c administrator has complied with all provisions of this chapter in the determination of the amount required to be remitted and paid. 13 From the time of the filing for record, the amount required to be remitted together with penalties and interest constitutes a O U n °z o W CC lien lien upon all real property in the county owned by the operator o a ° 15 or afterwards and before the lien expires acquired by him. The CO ��� lien has the force, effect and priority of a judgment lien and z W w c 16 shall continue for ten years from the time of filing of the LU ; Notice of Lien unless sooner released or otherwise discharged. <^ ZO 17 3.12.190 Priority and lien of tax. (a) The amounts 1$ required to a paid y any operator under-7-his chapter with penalties and interest shall be satisfied first in any of the 19 following cases: (1) Whenever the person is insolvent; 20 (2) Whenever the person makes a voluntary assignment of his assets; 21 ( 3 ) Whenever the estate of the person in the hands of executors, administrators, or heirs is insufficient to pay all 22 the debts due from the deceased; (4) Whenever the estate and Affects of an 23 absconding, concealed or absent person required to pay any This amount under this chapter are levied upon by process law. 24 chapter does not give the City a preference over any recorded lien which attached prior to the date when the amounts required 25 to be paid became a lien. (b) The preference qiven to the City by this section 26 shall be subordinate to the preferences given to claims for personal services by Section 1204 and 1206 of the Code of Civil 27 Procedure. 2. 28� 3.12.200 Warrant for collection of tax. At any time 1 within three years after any operator is delinquent in the 2 remittance or payment of any amount herein required to be remitted or paid or within three years after the last recording 3 of a Notice of Lien under Section 3.12.180, the tax administrator may issue a warrant for the enforcement of any liens and for the collection of any amount required to be paid to the City under this chapter. The warrant shall be directed to any sheriff, 5 marshal, or constable and shall have the same effect as a writ of execution. The warrant shall be levied and sale made pursuant to 6 it in the same manner with the same effect as a levy of and a sale pursuant to a writ of execution. The tax administrator may 7 pay or advance to the sheriff, marshal, or constable the same fees, commissions and expenses for his services as are provided 8 by law for similar services pursuant to a writ of execution. The tax administrator, and not the court, shall approve the fees for publication in a newspaper. 10 3.12.210 Seizure and sale. At any time within three yeas after any operator is delinquent in the remittance or 11 payment of any amount, the tax administrator may forthwith collect the amount in the following manner. The tax 12 administrator shall seize any property, real or personal, of the e operator and sell the property, or a sufficient part of it, at public auction to pay the amount due together with any penalties 9 13 and interest imposed for the delinquency and any costs incurred 0! a on account of the seizure and sale. Any seizure made to collect zv0Z l� o occupancy taxes due shall be only of property of the operator no m<o 15 exempt from execution under the provision of the Code of Civil u < Procedure. Z ` 16 3.12.220 Withhold notice. If any person or operator k^ 17 is delinquent in the remittance or payment of the amount required a to be :emitted or paid by him or in the event a determination has t 18 been male against him for the remittance of tax and payment of the penalty, the City may, within three years after the tax 19 obligation became due, give notice thereof personally or by registered mail to all persons, including the state or any 20 political subdivision thereof, having in their possession or under their control any credits or other personal property 21 belonging to the taxpayer. After receiving the withholding notice, the person so notified shall make no disposition of the 22 taxpayer's credits, other personal property or debts until the City consents to a transfer or disposition or until sixty days 23 elapse after the receipt of the notice, whichever expires earlier. All persons, upon receipt of said notice, shall advise 24 the City immediately of all such credits, other personal property or debts in their possession, under their control or owing by 25 them. If such notice seeks to prevent the transfer or other disposition of a deposit in a bank or other credits or personal 25 property in the possession or under the control of the bank, to be effective the notice shall be delivered or mailed to the 27 branch or office of such bank at which such deposit is carried or at which such credits or personal property is held. If any 28 ( 3. M I- 1 person so notified makes transfer or disposition of the property or debts required to be held hereunder during the effective 2 period of the notice to withhold, he shall be liable to the City to the extent of the value of the release up to the amount of the 3 indebtedness owed by the taxpayer to the City." 4 EFFECTIVE DATE: This ordinance shall be effective 5 thirty days after its adoption, and the City Clerk shall certify 6 to the adoption of this ordinance and cause it to be published 7 at least once in the Carlsbad Journal within fifteen days after 8 its adoption. 9 INTRODUCED AND FIRST READ at a regular meeting of the 10 Carlsbad City Council on the 22n1 ,lay of October 11 1985, and thereafter 12 PASSED AND ADOPTED at a regular meeting of said City 29th October 13 Council held on the day of . 1985 by d0: � w � 14 the following vote, to wit: o` o 15 AYES: Council Members Casler, Lewis, Kulchin, Chick and Pettine v z c A6 NOES: None CC W 0 17 ABSENT: None a U 18 191 APPROVED AS TO FORM AND LEGALITY 20 / 21 22 C , JR. Attorney 23 24 MAR�H.A SLER, Mayor 25 ATTEST: 26 27- 28 1ALETHA L. RAUTENKRANZ, City Cle k I., August 8, 1985 L3�5 6 78S'� y( 4110 1�8 �, AC/ TO: Assistant City Manager. - Patchett Of S r, C ty call � P40 FROM: City Attorney s',, c/ SUGGESTED REVISIONS TO TRANSIENT OCCUPANCY TAX ORDINANCE In October the Finance Director asked our office to file lawsuits against two hotel operators in the City who had refused to pay a ; substantial amount of the City's transient occupancy tax ($55,000+). As a consequence we had occasion to review Chapter 3.12 of the Carlsbad Municipal Code which provides for the tax. As a result, in a memorandum dated October 24, 1984 we suggested some changes to the ordinance to prevent similar problems in the future. A copy of that memorandum is attached for your ready reference. In response to the memorandum the Finance Director recommended some changes to our ordinance to the City Council. The Council approved them on July 22, 1985 by their adoption of Ordinance No. 1275. Notwithstanding those changes, we continued to experience problems. As a result I consulted with the city attorney in Palm Springs who probably has as much experience with transient occupancy tax as anyone in California. He made some suggestions as to how our ordinance could be improved to minimize the collection problem. Attached to this memorandum is a draft ordinance which is drawn from the Palm Springs municipal code which implements his suggestions. The primary problem we are trying to solve is one of remedies for nonpayment. At the present time if an operator refuses to pay it constitutes a debt to the City which we have to collect in court through a civil action. Even if we win that can take a substantial period of time during whicl: the City is deprived of the use of the money and the possibility exists that the operator may be insolvent, have left the area, or sought protection in the federal bankruptcy courts. In all of those situations the City would not be able to collect. The ordinance attempts to prevent things from getting that far. The pr'nary means used is a permit system. In the event of a delinquency the tax administrator would have the ability to revoke the permit. The ordinance then provides for a summary remedy of closing the business. Attached to this memorandum is a notice for that used by Palm Spring. Although the legality for these provisions have never been established in court Palm Springs reports a 100$ successful collection record using this procedure without having to resort to litigation. They have found it particularly effective to post the notice on Thursday afternoon which is usually followed with payment by noon Friday. LA -2- The ordinance also makes some other changes which would aid the City in collecting by making a deficiency a lien against the property. The primary purpose of these sections is to help when impress upon the operators the need to promptly pay Y required. We think the suggested ordinance would solve substantially all •,f our collection problems and we ask that you consider recommending its adoption to the City Council. Please let us know if you need any further information. VINCENT F. BIONDO, JR. City Attorney rmh attachments c: Finance Director with attachments 7 N0:'ICE OF CLOSING OF BUSINESS TO: PURSUANT TO SECTION 3.12.160 OF THE CITY OF CARLSBAD TRANSIENT OCCUPANCY TAX: ORDINANCE, YOU ARE HEREBY ORDERED TO CEASE AND DESIST FROM OPERATING A HOTEL BUSINESS AT THE ABOVE ADDRESS UNTIL SUCH TIME AS YOU HAVE VALIDLY IN EFFECT A PROPER TRANSIENT OCCUPANCY REGISTRATION' PERMIT SO TO DO, AND WHICH IS OBTAINABLE UPON YOUR COMPLIANCE WITH ALL THE APPLICABLE REQUIREMENTS OF SAID CITY OF CARLSBAD TRANSIENT OCCUPANCY TAX ORDINANCE. YOGI, AND ALL OTHER PERSONS CONCERNED WITH OPERATION OF THE HOTEL AT THE ABOVE ADDRESS, ARE FURTHER ADVISED THAT ANY PERSON PARTICIPATING IN THE OPERATION OF A HOTEL BUSINESS WITH KNOWLEDGE THAT THE TRANSIENT OCCUPANCY REGISTRATION PERMIT THEREFOR IS NOT IN EFFECT, IS GUILTY OF A CRIMINAL OFFENSE AND SUBJECT TO ARREST. THIS ORDER SHALL BE EFFECTIVE 19 AND SHALL REMAIN IN EFFECT UNTIL ORDERED OTHERWISE BY THE UNDERSIGNED OR BY THE CITY MANAGER. THIS ORDER SHALL, HOWEVER, BE DEEMED RESCINDED AT SUCH TIME AS A VALID TRANSIENT OCCUPANCY REGISTRA- TION PERMIT BEARING THE SAME OR A LATER DATE OF THIS NOTICE HAS BEEN ISSUED BY THE UNDERSIGNED AND HAS BEEN POSTED IN A CONSPICUOUS PLACE ON THE PREMISES AS REQUIRED BY SECTION 3.12.160 OF THE CITY OF CARLSBAD TRANSIENT OCCUPANCY TAX ORDINANCE. ADDITIONAL EXPLANATORY INFORMATION: SIGNED THIS DAY OF 19 TAX ADMINISTRATOR r