HomeMy WebLinkAboutOrd. 1388-2007ORDINANCE NO. 1388-07
AN ORDINANCE AMENDING CHAPTER 4.22 OF THE
SOUTH SAN FRANCISCO MUNICIPAL CODE TO ADD
ADMINISTRATIVE PROVISIONS FOR THE COLLECTION
OF THE COMMERCIAL PARKING TAX
WHEREAS, on July 11, 2007, the City Council adopted Resolution No. 76-2007, which
put a measure to create a Commercial Parking Tax on the ballot for the November 6, 2007
general election. If passed by the voters of the City of South San Francisco, the Commercial
Parking Tax will be codified in chapter 4.22 of the South San Francisco Municipal Code; and
WHEREAS, if passed by the voters of the City of South San Francisco, the Commercial
Parking Tax will begin being imposed on January 1, 2008, unless the City Council passes a
resolution to have the business license tax on commercial parking facilities be imposed instead of
the Commercial Parking Tax; and
WHEREAS, the City Council finds that if the Commercial Parking Tax is passed by the
voters of the City of South San Francisco and begins to be imposed on January 1, 2008, certain
administrative provisions would aid the Director of Finance in the administration of this tax; and
W riEREAS, if the Commerciai Parking Tax is passed by the voters there wiil not be
sufficient time to enact these administrative provisions between the time that the results of the
election are confirmed and the implementation of the Commercial Parking Tax on January 1,
2008.
NOW THEREFORE, the City Council of the City of South San Francisco does hereby ordain
as follows:
SECTION 1. IMPLEMENTATION OF THE AMENDMENTS 1N THIS ORDINANCE
Section 2 of this Ordinance contains amendments to Chapter 4.22 of the South San
Francisco Municipal Code, which shall go into effect only if the voters of the City of South San
Francisco approve the measure on the ballot of the November 6, 2007 general election creating a
Commercial Parking Tax, in which case the amendments in Section 2 of this Ordinance shall
automatically go into effect once the City Council has declared the results of the election.
SECTION 2. AMENDMENTS
The City Council hereby amends Chapter 4.22 of the South San Francisco Municipal Code to
read as foiiows:
4.22.010 Short title.
This chapter shall be known as the Commercial Parking Tax of the City of South
vehicles maybe parked, stored, housed or kept, for which any charge is made.
(k) "Parking ticket" -The record provided by the operator to the occupant setting
forth the time and date that the occupant's vehicle entered the parking station that is used
by the operator to determine the rent charged to the occupant.
(1) "Public transit authority" - A public entity or agency of a public entity that
provides public transportation by using trains, ferries, or buses to transport passengers
between multiple stops, terminals, or stations that are located in multiple communities or
cities.
(m) "Rent" -The consideration received for occupancy valued in money, whether
received in money or otherwise, including all receipts, cash, credits and property or
services of any kind or nature, and also the amount for which credit is allowed by the
operator to the occupant without any deduction therefrom whatsoever.
(n) "Tax administrator" -The director of finance.
(o) "Transaction" -The calculation and payment of rent for occupancy.
(p) "Unaccounted ticket" - A ticket that is issued to an occupant and is not
returned to the operator. A lost ticket is an unaccounted ticket.
(q) "Unaccounted ticket ratio" -The ratio of unaccounted tickets to issued tickets
for a given period, expressed as a percentage of issued tickets.
(r) "Voided ticket" - A parking ticket that is not issued to an occupant, but which
is used in the course of the operator's testing, repair, or maintenance of equipment used
by the operator for transactions.
4.22.030 Imposition and rate of parking tax.
Subject to the provisions of this chapter, there is hereby imposed a tax of eight
percent of the rent of every occupancy of a parking space in a parking station in the city.
4.22.040 Charges subject to parking tax.
The term "rent," as defined in section 4.22.020(m), shall be deemed to include the
total charges required to be paid by an occupant (including but not limited to any
separately stated valet or service labor charge for parking) in connection with the use or
occupancy of a parking space, provided that nothing herein shall require the payment of
parking tax on the sale of petroleum products, automobile parts, or the like, or the
rendering of services (including car-wash services) totally unconnected with the use or
occupancy of a parking space. The cost of services provided by an operator to an
occupant at no extra or separate charge shall not reduce the amount of rent subject to the
tax.
4.22.050 Occupant to pay parking tax to operator.
Unless prohibited by the laws of the United States, the State of California, or
exempted by the provisions of this code, every occupant occupying a parking space or
spaces in a parking station in the city shall be required to pay the parking tax to the
operator along with the rent for occupancy. This obligation is not satisfied until the
parking tax has been paid to the city, except that a receipt indicating payment of the rent
from an operator maintaining a piace of business in the city or from an operator who is
authorized by the tax administrator to collect the parking tax shall be sufficient to relieve
the occupant from further liability for the parking tax for the transaction to which the
receipt refers.
4.22.060 Exemptions.
No parking tax shall be imposed
(a) On the rent for the occupancy of a parking space in a parking station of which
the city is the owner or operator, either directly or through contract.
(b) On the rent for the occupancy of a parking space in a parking station where
(1) the operator is a public transit authority,
(2) the parking station serves users of a bus stop, ferry terminal, or train
station of that public transit authority, and
(3) the occupant occupies the parking space for less than 2~+ consecutive
hours.
(c) On the rent for the occupancy of a parking space in a parking station where
the occupant is exempt from being subject to the parking tax under the laws of the United
States or the State of California.
4.22.070 Administration.
(a) The tax administrator shall deposit all moneys collected pursuant to this
chapter into the general fund of the city. The collections maybe expended for any city
purpose.
(b) The tax administrator shall enforce the provisions of this chapter and may
prescribe, adopt, and enforce rules and regulations not inconsistent with the provisions of
this chapter as maybe necessary or desirable to aid in the administration and enforcement
of the provisions of this chapter. Such rules and regulations may include exemptions
from the parking tax and may otherwise create limitations to the application of the
parking tax. However, any rule or regulation promulgated by the tax administrator that
creates an exemption or limitation to the parking tax shall be only temporary unless
explicitly approved by the city council as a permanent exemption or limitation. The tax
administrator may also prescribe the extent to which any rule or regulation shall be
applied without retroactive effects.
4.22.080 Collection of parking tax by operator; receipt to occupant.
(a) Every operator renting a parking space in a parking station in the city to an
occupant who is not exempted under this chapter or elsewhere in this code, shall at the
time of collecting the rent from the occupant collect the parking tax from the occupant
and on demand shall give to the occupant a receipt for the transaction. In all cases in
which the parking tax is not collected by the operator the operator shall be liable to the
city for the amount of parking tax due on the amount of taxable rent collected from the
occupant under the provisions of this chapter, the same as though the parking tax were
paid by the occupant.
(b) Unless the operator can provide an explanation or other sufficient proof that
the tax administrator in his or her sole discretion deems to be credible to establish the
validity of a claim for a lost ticket or an otherwise unaccounted ticket, every lost ticket
and unaccounted ticket shall be considered as a full value parking ticket for which the
operator is liable for transmitting to the city the full value of the parking tax required
under this code applicable to a full day's rent for a single parking space occupancy
without discount, except that an operator shall be allowed an unaccounted ticket ratio of
1.5 percent for each parking station that it operates in a reporting period for which the
operator shall not be liable for failure to remit the parking tax.
(c) The operator shall have the burden of explaining and establishing the validity
of lost tickets and cancelled transactions. The tax administrator may consider a verified
statement signed by the occupant claiming a lost ticket that includes the occupant's name,
address, telephone number, the occupant's motor vehicle license plate number, the time
of entry and the time of exit as sufficient proof of a valid lost ticket transaction. An
operator shall maintain a log of all lost tickets and cancelled transactions.
4.22.090 Reporting and remitting.
(a) On or before the last day of each month, each operator shall file a return with
the tax administrator on forms provided by the city reporting the total amount of rent
charged and received and the total amount of parking tax collected by the operator for the
occupancy of the operator's parking spaces in the previous month.
(b) On or before the last day of each month, each operator shall remit to the tax
administrator the parking tax collected by the operator for the occupancy of the operator's
parking spaces in the previous month.
(c) Returns and remittances are due within ten days of the cessation of business
for any reason, or within ten days of a change in ownership of the business. All parking
taxes collected by operators pursuant to this chapter shall be held in trust for the account
of the city until payment thereof is made to the tax administrator.
4.22.100 Penalties and interest.
(a) Any parking tax that is not remitted to the city within the time required is
delinquent and the operator shall pay a penalty of ten percent of the amount of delinquent
parking tax.
(b) An operator who fails to remit any delinquent parking tax on or before a
period of thirty days following the date on which the parking tax first became delinquent
shall pay an additional delinquency penalty of another ten percent of the amount of the
delinquent parking tax.
(c) If the tax administrator determines that the nonpayment of any remittance due
under this chapter is due to fraud, a penalty of ten percent of the amount of the tax shall
be added thereto in addition to the penalties stated in subdivisions (a) and (b) of this
section.
(d) In addition to the penalties imposed by this section, any operator who fails to
remit any tax imposed by this chapter shall pay interest at the rate of one percent per
month, or fraction thereof, on the amount of the delinquent tax, exclusive of penalties,
from the date on which the remittance first became delinquent until paid.
(e) Every penalty imposed and such interest as accrues under the provisions of
this section shall become a part of the parking tax required to be remitted by the operator.
4.22.110 Failure to collect or to report parking tax; determination by tax collector of
amount due; right to hearing on determination.
(a) If an operator fails or refuses to collect the parking tax or to make within the
time provided in this chapter any report or remittance of the parking tax or any portion
thereof required by this chapter, the tax administrator shall proceed in such manner as he
or she may deem best to obtain facts and information on which to make an estimate of the
parking tax due. The tax administrator shall then determine and assess against the
operator the parking tax, interest, and penalties, as provided for by this chapter. The tax
administrator shall give notice to the operator of the amount determined and assessed as
provided in section 4.22.130.
(b) If an operator files a tax return and remits the amount of parking tax stated on
the return, but it appears to the tax administrator that the operator has not remitted the full
amount of parking tax that has been or should have been collected, the tax administrator
shall proceed in such manner as he or she may deem best to obtain facts and information
on which to make an estimate of the parking tax that should have been collected and
remitted. The tax administrator shall then determine the amount of parking tax that
should have been collected and remitted, but which was not remitted, and assess against
the operator this amount of parking tax, interest, and penalties, if any, as provided for by
this chapter. The tax administrator shall give notice to the operator of the amount
determined and assessed as provided in section 4.22.130.
(c) Within ten days after the serving or mailing of notice of a determination and
assessment by the tax administrator made pursuant to subdivisions (a) or (b) above, the
operator may submit to the tax administrator an application in writing for a hearing on the
amount assessed in the determination. If no application by the operator for a hearing is
made within the time prescribed, the parking tax, interest and penalties, if any,
determined and assessed by the tax administrator pursuant to subdivisions (a) or (b)
above shall become final and conclusive and immediately due and payable. If such
application is made, the tax administrator shall give not less than five days' written notice
in the manner prescribed in section 4.22.130 to the operator to show cause at a time and
place fixed in the notice as to why the amount determined and assessed by the tax
administrator should not be fixed as the amount of parking tax, penalties, and interest
owing. At such hearing, the operator may appear and offer evidence why such specified
parking tax, interest, and penalties should not be so fixed. After such hearing the tax
administrator shall determine the proper parking tax to be assessed and shall thereafter
give written notice to the operator in the manner prescribed in section 4.22.130. The
amount determined and assessed to be due shall be payable ten days from the service of
the decision, unless an appeal is taken as provided in section 4.20.120(a).
4.22.120 Appeal.
(a) Any operator aggrieved by any decision of the tax administrator with respect
to the amount of parking tax, interest, or penalties determined to be due and owing by the
tax administrator may appeal the tax administrator's decision to the city manager by filing
a notice of appeal with the city clerk within ten days of the service of the determination
by the tax administrator that is being appealed. The city manager shall fix a time and
place for hearing such appeal, and the city clerk shall give notice in writing to the
operator as provided in section 4.22.130. Following the hearing the city manager shall
make findings and issue a decision, which shall be served upon the operator as provided
is section 4.22.130. The decision of the city manager shall be final and conclusive and
any amount found to be due shall be due and payable ten days from the service of the
decision, unless an appeal is taken as provided in section 4.20.120(b).
(b) Any operator aggrieved by a decision of the city manager on an appeal taken
pursuant to section 4.22.120(a) may appeal the city manager's decision to the city council
by filing a notice of appeal with the city clerk within ten days of the service of the
decision of the city manager that is being appealed. The city council shall fix a time and
place for hearing such appeal, and the city clerk shall give notice in writing to the
operator as provided in section 4.22.130. Following the hearing the city council shall
make findings and issue a decision, which shall be final and conclusive and shall be
served upon the operator as provided is section 4.22.130. Any amount found to be due
shall be immediately due and payable upon the service of notice.
4.22.130 Notice.
Whenever notice is required under this chapter, it shall be delivered personally or
by depositing it in the United States mail, postage prepaid. Notice to an operator shall be
delivered to the operator's last known place of business.
4.22.140 Maintenance and examination of books, records, and witnesses.
(a) It shall be the duty of every operator liable ~r the collection ar~d remittance to
the city of the parking tax imposed by this chapter to keep and preserve for a period of
three years all records as maybe necessary to determine the amount of parking tax as the
operator may have been liable for the collection and remittance to the city.
(b) The tax administrator, or his or her designee, is authorized to examine the
books, papers, and records of any operator, including any person subject to this chapter,
for the purpose of verifying the accuracy of any return made, or if no return was made, to
ascertain the parking tax due. Every operator or person subject to the provisions of this
chapter is required to furnish to the tax administrator or his or her designee the means,
facilities, and opportunity for making such examination and investigations. The tax
administrator is authorized to examine any person under oath and to compel the
production of books, papers, and records for the purpose of verifying the accuracy of any
return made, or if no return was made to ascertain the parking tax due.
4.22.150 Information confidential.
(a) The tax administrator and any person having an administrative duty under the
provisions of this chapter shall keep confidential and not disclose the business affairs,
operations, or information obtained by an investigation. of records and equipment of any
operator, including the amount or source of income, profits, losses, or expenditures of the
operator.
(b) Nothing in this section shall be construed to prevent:
(1) The disclosure to, or the examination of records and equipment by, another
city official, employee, or agent for collection of taxes for the sole purpose of
administering or enforcing any provisions of this or any other city codes.
(2) The disclosure of information to or the examination of records by federal or
state officials, or the tax officials of another city or county, or city and county, if a
reciprocal arrangement exists, or to a grand jury or court of law upon subpoena;
(3) The disclosure of information and results of an examination of records of a
particular operator, or relating to a particular operator, to a court of law in a proceeding
brought to determine the existence or amount of any parking tax liability of the particular
operator to the city;
(4) The disclosure by way of public meeting or otherwise of such information as
maybe necessary to the city council in order to permit it to be fully advised as to the facts
when an occupant or operator files a claim for refund of parking tax, or submits an offer
of compromise with regard to a claim asserted against an occupant or operator by the city
for parking tax.
(5) The disclosure of general statistics regarding taxes collected or business done
in the city.
4.22.160 Nonconclusiveness of statements.
No declarations or statements shall be conclusive as to the matters set forth
therein. Declarations and statements shall be subject to audit and verification by the tax
administrator or his or her designees who are authorized to examine, audit, and inspect
such books and records of any operator as maybe necessary in their judgment to verify or
ascertain the amount of parking tax due.
4.22.170 Refunds.
(a) Wherever the amount of any parking tax, i~iterest, or penalty iias 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 this section provided a
claim in writing stating under penalty of perjury the specific grounds upon which the
claim is founded is filed with the tax administrator within one year of the date of
payment. The claim shall be on forms furnished by the tax administrator.
(b) An operator may claim a refund for the amount of parking tax overpaid or
erroneously or illegally collected or received when it is established in a manner prescribed
by the tax administrator that the occupant from whom the parking tax was collected was
exempt from the parking tax; provided, however, that a refund shall not be allowed unless
the amount of the parking tax so collected has been refunded to the occupant who paid
the parking tax.
(c) An operator may claim a refund for the amount of parking tax remitted to the
city in excess of the parking tax that was due to be collected and which, in fact, was not
actually collected from occupants when it is established in a manner prescribed by the tax
administrator that the operator remitted more parking tax than was required and that this
excess parking tax was not in fact collected from occupants.
(d) An occupant who has paid the parking tax may obtain a refund of parking tax
overpaid or illegally collected or received by the city by filing a claim in the manner
provided in subdivision (a), but only when the parking tax was paid by the occupant
directly to the tax administrator, or when the occupant, having paid the parking tax to the
operator, establishes to the satisfaction of the tax administrator that the occupant has been
unable to obtain a refund from the operator who collected the parking tax.
(e) No refund shall be paid under the provisions of this section unless the
claimant establishes his or her right thereto by written records showing entitlement
thereto.
(f) Any decision by the tax administrator regarding a claim for refund under this
section maybe appealed by the claimant to the city manager by filing a notice of appeal
with the city clerk within ten days of the service of the decision by the tax administrator
that is being appealed. The city manager shall fix a time and place for hearing such
appeal, and the city clerk shall give notice in writing to the claimant as provided in
section 4.22.130. Following the hearing the city manager shall make findings and issue a
decision, which shall be final and conclusive and shall he served upon the claimant as
provided in section 4.22.130.
4.22.180 Actions to collect; lien procedures.
(a) Any parking tax required to be paid by any occupant under the provisions of
this chapter shall be deemed a debt owed by the occupant to the city. Any such parking
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 in an action brought in the name of the city for
the recovery of such amount.
(b) 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) If any amount required to be paid to the city by an operator under this chapter
is not paid when due, the tax administrator may, within three years after the amount is
due, file for recording in the office of the San Mateo County Recorder a Certificate of
Delinquency of Parking 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 Parking Tax Lien, the amount required to be paid together with interest,
penalties, and attorney's fees shall constitute a lien upon all real property in the county
owned by the operator or thereafter acquired by the operator 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) The amounts required to be remitted and/or paid by any operator under this
chapter, including penalties and interest, shall be satisfied first in any of the following
cases:
(1) Whenever the operator is insolvent;
(2) Whenever the operator makes a voluntary assignment of his or her assets;
(3) Whenever the estate of an operator in the hands of executors, administrators,
or heirs is insufficient to pay all the debts due from the operator;
(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.
(e) This section 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.
(f) 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 parking tax
due shall be only property of the operator not exempt from execution under provisions of
the Code of Civil Procedure.
(g) If any operator that is liable for any amount under this chapter sells out his or
her business or quits the business, his or her successor or assignee shall withhold
sufficient of the purchase price to cover such amount for which the operator is liable 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.
(h) If the purchaser of a parking station fails to withhold from the purchase price
as required in subdivision (g) of this section, the purchaser shall become personally liable
for the payment of the amount required to be withheld by the purchaser 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 the purchaser's 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 or her business or at the time that the
determination against the operator becomes final, whichever event occurs later.
(i) 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
4.22.190 Violations; misdemeanor.
(a) Any person violating any of the provisions of this chapter shall be guilty of a
misdemeanor and shall be punishable therefore by a fine of not more than five hundred
dollars or by imprisonment for a period of not more than six months or by both such fine
and imprisonment.
(b) Any operator or other person who fails or refuses to furnish any return
required to be made, or who faiis or refuses to furnish a suppiementai return or other data
required by the tax administrator, or who renders a false or fraudulent return or claim, is
guilty of a misdemeanor, and is punishable therefore by a fine of not more than five
hundred dollars or by imprisonment for a period of not more than six months or by both
such fine and imprisonment.
(c) 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 therefore by a fine of not more than five hundred dollars
or by imprisonment for a period of not more than six months or by both such fine and
imprisonment.
4.22.200 Determination by city council to impose either the commercial parking tax
or the business license tax on commercial parking facilities.
(a) For any calendar year the city may only impose throughout the city either the
commercial parking tax of this chapter or the business license tax on commercial parking
facilities in section 6.16.047 of this Code. The city may not impose both taxes anywhere
in the city at the same time. The decision whether to impose ine commerciai parking tax
or the business license tax on commercial parking facilities is within the discretion of the
city council to decide. If the city council wishes to change which tax is being collected, it
shall do so by resolution passed before the start of the calendar year to which it is to
apply.
(b) Whenever the commercial parking tax of this chapter is being imposed, and
the business license tax on commercial parking facilities in section 6.16.047 is not being
imposed, commercial parking facilities shall be subject to the business license tax
provided for in section 6.16.240.
SECTION 3. SEVERABILITY
In the event any section or portion of this ordinance shall be determined invalid or
unconstitutional, such section or portion shall be deemed severable and all other sections or
portions hereof shall remain in full force and effect.
SECTION 4. PUBLICATION
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, although the amendments in Section 2 of this Ordinance will not be implemented until
such time as provided in Section 1.
Introduced and adopted at a regular meeting of the City Council of the City of South San
Francisco, held the 25th day of July, 2007.
Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the
City Council held the 8th day of August, 2007 by the following vote:
AYES: Councilmembers Addiego, Matsumoto, Fernekes, Vice Mayor Gonzalez
and Mayor Garbarino
NOES: None
ABSTAIN: None
ABSENT: None
''~
ATTEST:
`` ~ City Clerk Deputy City Clerk
As Mayor of the City of South San Francisco, I do hereby approve the foregoing
Ordinance this 8th day of August, 2007.
R chard A. Garbarino, Mayor