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HomeMy WebLinkAboutOrd. 1386-2007ORDINANCE NO. 1386-2007 AN ORDINANCE AMENDING TITLE 4, CHAPTER 4 OF THE SOUTH SAN FRANCISCO MUNICIPAL CODE TO PROVIDE AUDIT AND LIEN AUTHORITY FOR TRANSIENT OCCUPANCY TAX REPORTING AND COLLECTION WHEREAS, on August 22, 1966, pursuant to its authority under California Revenue and Taxation Code sections 7280 et seq., the City Council of the City of South San Francisco adopted Ordinance No. 554 (South San Francisco Municipal Code Chapter 4.20) ("TOT Ordinance"), which provided for the imposition and collection of a general excise tax on the privilege of using hotel accommodations in the City (a "transient occupancy tax" or "TOT") to be paid by hotel users and collected by hotel operators; and WHEREAS, the City Council has adopted several amendments to the TOT Ordinance, the last of which was Ordinance No. 1365 in 2005 (a one percent rate increase approved by voters), and it has found that certain changes necessary in order to improve and enhance the administrative and enforcement components of TOT collection; and WHEREAS, the City Council hereby finds that this ordinance adds new methods of enforcing the City's existing TOT and will not impose a new tax, extend or increase the existing tax .rate, or revise the methodology by which the tax is calculated in a manner that increases the existing tax rate. NOW THEREFORE, the City Council of the City of South San Francisco does ORDAIN as follows: SECTION 1. AMENDMENTS The City Council hereby amends section 130 of Chapter 4.20 of Title 4 of the South San Francisco Municipal Code to read as follows as follows: "4.20.130 Actions to collect. (a) Any tax required to be paid by any transient under the provisions of this chapter shall be deemed a debt owed by the transient to the city. Any such tax collected by an operator which has not been paid to the city shall be deemed a debt owed by the operator to the city. Any person owing money to the city under the provisions of this chapter shall be liable to an action brought in the name of the city for the recovery of such amount. (b) Attorney's Fees and other costs. In an action authorized by this section, the prevailing party shall recover court costs, attorney's fees, personnel costs, and auditor's fees to be added to the judgment and set by the court. These fees are recoverable at all levels of trial and appeal. (c) Recording Certificate -Lien. If any amount required to be paid to the city under this chapter is not paid when due, the tax administrator may, within three years after the amount is due, file for record in the office of the San Mateo County recorder a certificate of delinquency of transient occupancy tax lien specifying the amount of tax, penalties, interest, and attorney's fees and personnel costs due, the name and address of the operator liable for the same as it appears on the records of the tax administrator, and the fact that the tax administrator has complied with all provisions of this chapter in the determination of the amount required to be paid. From the time of the recording of the Certificate of Delinquency of Transient Occupancy Tax Lien, the amount required to be paid, together with interest, penalties and attorney's fees, constitutes a lien upon all real property in the county owned by operator or thereafter acquired before the lien expires. The lien has the force, effect, and priority of a judgment lien and shall continue for thirty years unless sooner released or otherwise discharged. (d) Priority and Lien of Tax. The amounts required to be remitted and/or paid by any operator under this chapter with penalties and interest shall be satisfied first in any of the following cases: (1) Whenever the person is insolvent; (2) Whenever the person makes a voluntary assignment of his assets; (3) Whenever the estate of the person in the hands of executors, administrators, or heirs is insufficient to pay all the debts due from the deceased; (4) Whenever the estate and effects of an absconding, concealed or absent person required to pay any amount under this chapter are levied upon by process of law. This chapter does not give the city a preference over any recorded lien which attached prior to the date when the amounts required to be paid became a lien. The preference given to the City by this section shall subordinate to the preference given to claims for personal service by Sections 1204 and 1206 of the Code of Civil Procedure. (e) Seizure and Sale. At any time within three (3) years after any operator is delinquent in the payment of any amount, the tax administrator may forthwith collect the amount in the following manner: the tax administrator shall seize the property, real or personal, of the operator and sell the property, or a sufficient part of it, at public auction to pay the amount due together with any penalties and interest imposed for the delinquency and any costs incurred on account of the seizure and sale. Any seizure made to collect transient occupancy taxes due shall be only property of the operator not exempt from execution under provisions of the Code of Civil Procedure. (f) Successor's Liability. If any operator liable for any amount under this chapter sells out his business or quits the business, his successor or assignee shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the tax administrator showing that it has been paid or a certificate stating that no amount is due. (g) Liability ofPurchaser -Release. If the purchaser of a hotel fails to withhold from the purchase price as required, he shall become personally liable for the payment of the amount required to be withheld by him to the extent of the purchase price, valued in money. Within 30 days after receiving a written request from the purchaser for a certificate, or within 30 days from the date the former owner's records are made available for audit, whichever period expires the later, but in any event not later than 60 days after receiving the request, the tax administrator shall either issue the certificate or mail notice to the purchaser at his address as it appears on the records of the tax administrator of the amount that must be paid as a condition of issuing the certificate. Failure of the tax administrator to mail the notice will release the purchaser from any further obligation to withhold from the purchase price as above provided. The time within which the obligation of the successor may be enforced shall start to run at the time the operator sells his business or at the time that the determination against the operator becomes final, whichever event occurs later. (h) If the taxes are not paid when due, such tax, penalty and interest shall constitute a special assessment against such business property and shall be a lien on the property for the amount thereof, which lien shall continue until the amount thereof including all penalties, interest and costs of collection are paid, or until it is discharged of record. SECTION 2. SEVERABILITY If any provision of this ordinance or the application thereof to any person or circumstance is held invalid or unconstitutional, the remainder of this ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this ordinance are severable. The City Council of the City of South San Francisco hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. SECTION 3. PUBLICATION AND EFFECTIVE DATE This Ordinance shall be published once, with the names of those City Councilmembers voting for or against it, in the San Mateo Times, a newspaper of general circulation in the City of South San Francisco, as required by law, and shall become effective thirty (30) days from and after its adoption. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the 1 lth day of June, 2007. Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the City Council held the 25th day of July, 2007 by the following vote: AYES: Councilmembers Mark N. Addiego, Joseph A. Fernekes and Karyl Matsumoto, Vice Mayor Pedro Gonzalez and Mayor Richard A. Garbarino NOES: N ABSTAIN: None ABSENT: ATTEST: `-~' Interim City Cler As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this 25th day of July 2007. ~j (~. - Mayor