HomeMy WebLinkAboutOrdinance 660 Amendment - TOT AppealsORDINANCE NO. 660
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA,
AMENDING SECTION 3.24.100, AND REPEALING AND
REPLACING SECTION 3.24.1101 OF CHAPTER 3.24 OF THE
MORRO BAY MUNICIPAL CODE
THE CITY COUNCIL
City of Morro Bay, California
WHEREAS, Chapter 3.24 (TOT Ordinance) of the Morro Bay Municipal Code (MBMC)
provides for the collection of a transient occupancy tax (TOT) for the City of Morro Bay; and
WHEREAS, Section 3.24.100 ("Failure to collect and report tax — Determination of tax")
and Section 3.24.110 ("Appeal") of the TOT Ordinance provide for a two-step appeal process of
final TOT assessments issued by the City for failure to collect and/or make TOT payments to the
City, whereby first the City Clerk hears appeals on such assessments, and then second the City
Council hears appeals on such assessments; and
WHEREAS, the City Council desires: i) an independent and appointed professional
hearing officer, rather than the City Clerk and the City Council, hear such appeals, submitted
pursuant to requirements of the MBMC, on final TOT assessments by the City for failure to collect
and/or make TOT payments to the City; ii) to clarify procedural steps for conducting such
appeals; iii) to recover, for unsuccessful appeals of such TOT final assessments, the full, rather
than discounted, current fiscal year cost recovery fee published in the City's adopted fee
schedule for appeals of non -land use City administrative decisions; and, iv) provide for
procedural cleanup revisions including affirmation the tax administrator may utilize a designee;
and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORRO BAY,
CALIFORNIA FINDS AND ORDAINS AS FOLLOWS:
SECTION 1. RECITALS. The City Council hereby finds that the recitals set forth above are
all true and correct and are incorporated herein by this reference.
SECTION 2. CODE AMENDMENT.
A. Sections 3.24.100 ("Failure to Collect or Report Tax") of the Morro Bay Municipal
Code is hereby amended to read as follows (new text in bold italics, removed text
in str-o ):
"3.24.100 Failure to Collect or Report Tax
If any operator fails or refuses to collect the tax and to make, within the time provided in this
chapter, any report and remittance of said tax or any portion thereof required by this chapter,
the tax administrator (or designee) shall proceed in such manner as she/he may deem best to
obtain facts and information on which to base her/his estimate of the tax due. As soon as the
tax administrator (or designee) shall procure such facts and information as she/he is able to
obtain upon which to base the assessment of any tax imposed by this chapter and payable by
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Ordinance No. 660
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any operator who has failed or refused to collect the same and to make such report and
remittance, she/he shall proceed to determine and assess against such operator the tax,
interest and penalties provided for by this chapter. In case such determination is made, the tax
administrator (or designee) shall give a notice of the amount so assessed by serving it
personally or by depositing it in the United States mail, postage prepaid, addressed to the
operator so assessed at her/his last known place of address. If the operator fails to file,
pursuant to Section 3.24.110 below, a timely appeal (in part or in whole) of that
assessment, then the assessed tax, interest andlor penalties not appealed shall become
final and conclusive and immediately due and payable. The ,,.,oFa+,,.• r,,", LA,1+h111 +P.R ay
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B. Section 3.24.110 of the Morro Bay Municipal Code is hereby repealed in its entirety
and is replaced in its entirety with new Section 3.24.110 as follows:
"3.24.110 — Appeal
A. An operator may within fifteen (15) days after the service or mailing of a final determination
from the tax administrator (or designee), sent pursuant to Section 3.24.100 above, submit
a notice of appeal to the tax administrator.
B. An appeal must be submitted in writing to the tax administrator signed by the person
making the appeal or their legal representative. The appeal must be accompanied by an
appeal fee in accordance with below Section 3.24.110(C). Any appeal submitted to the
City based upon this chapter shall be supported by evidence and contain the following:
1. Name, address and telephone number of operator/appellant;
2. Specify the decision(s), action(s), or particular part(s) of the assessment that are the
subject of the appeal;
3. Whether all or only specified tax, interest and/or penalties are being appealed;
4. Include a true and correct copy of the notice issued by the tax administrator (or
designee) for which the operator is appealing;
5. State with specificity the reasons and grounds for making the appeal, including, but
not limited to, both:
a. why the assessment (in whole or part) should be revoked, modified, or
otherwise set aside; and
b. a statement of facts upon which the appeal is based in sufficient detail to
enable the hearing officer to understand the nature of the controversy, basis of
the appeal and relief requested;
01181.000 l /919892.7
Ordinance No. 660
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6. All documents or other evidence pertinent to the appeal that the appellant requests
the hearing officer consider at the hearing (documents and evidence not presented at
the time of filing the appeal shall not be considered at the hearing except upon a
showing of good cause);
7. A statement that all of the matters alleged in the appeal are true, followed by the
signature(s) of each appellant(s), and one official mailing address (if different than
address in No. 1 above) for the appellant(s) to receive further notices from City relating
to the appeal.
C. The appeal fee for filing an appeal based upon this chapter is the full amount (i.e., full cost
recovery) of the current fiscal year non -discounted fee provided for in the City's adopted
fee schedule for appeals for non -land use administrative decisions. The appeal fee is
refundable in its entirety if the appeal prevails in its entirety. The appeal fee is refundable
in part, if the appeal prevails on some of its claims, on a pro rata basis calculated by the
amount of the assessment reduction compared to the assessment amount appealed. The
City Manager may provide an appeal fee hardship waiver, in whole or in part, for good
cause.
D. Operators who file a timely written notice of appeal in compliance with this chapter will be
entitled to an administrative hearing before an appointed independent hearing officer. The
City Manager shall designate the hearing officer for the administrative hearing. The
hearing officer shall not be a City of Morro Bay employee. Compensation for the hearing
officer shall not be determined by the outcome of the appeal. The tax administrator shall
forward all timely filed appeals to the hearing officer who shall schedule a hearing within
ninety (90) days of the filing of the appeal. For good cause the hearing date may be
reasonably postponed. The operator/appellant listed in the notice of appeal shall be
notified in writing of the date, time and location of the hearing at least ten (10) days before
the date of the hearing.
E. The appeal hearing is informal and formal rules of evidence and discovery do not apply.
The hearing officer may consider all relevant evidence, and may exclude repetitive or
irrelevant evidence. However, rules of privilege shall be applicable to the extent they are
permitted and/or required by law. The hearing officer may accept and consider late
evidence or documents not presented at the time of filing the appeal only upon a showing
of good cause. The hearing officer shall determine on a case -by -case basis whether good
cause exists for acceptance and consideration of any evidence or documents submitted
late.
F. The appellant bears the burden of proof at the hearing to establish by a preponderance of
the evidence that the appealed assessment of tax, interest and/or penalties as set forth in
the final determination from the tax administrator (or designee) is not due and payable.
G. The City may, at its discretion, record the hearing by stenographer or court reporter, audio
recording or video recording. If the appellant requests from the City that a court reporter,
stenographer or videographer be used, appellant shall bear the cost of the same and shall
deposit such fees prior to commencement of the administrative hearing.
H. If the appellant, or their legal representative, fails to appear at the appeal hearing, the
hearing officer may cancel the appeal hearing and send notice thereof to the appellant by
certified, first class mail to the address stated on the notice of appeal. A cancellation of a
hearing due to a non-appearance of the appellant, or legal representative, shall constitute
the appellant's waiver of the right to appeal and failure to exhaust administrative remedies.
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Ordinance No. 660
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After consideration of all testimony and evidence submitted, the hearing officer shall issue
a written decision to uphold or cancel the appealed assessment of tax, penalties and/or
interest (in part or in whole) within twenty (20) days specifying the reasons for the decision.
The written decision of the hearing officer is final and conclusive and subject to the time
limits set forth in California Code of Civil Procedure §§ 1094.5 and 1094.6 for judicial
review. A copy of the written decision shall be served by certified, first class mail on the
appellant. Any tax, penalty and/or interest determined to be owed and payable by the
hearing officer's decision is immediately due and payable."
SECTION 3. SEVERABILITY. If any section, subsection, sentence, clause, phrase, or
portion of this ordinance is, for any reason, held to be invalid or unconstitutional by the decision
of any court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council hereby declares that it would have adopted this
ordinance and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective
of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions
thereof may be declared invalid or unconstitutional.
SECTION 4. EFFECTIVE DATE. This ordinance shall be in full force and effect thirty (30)
days after its passage and adoption.
SECTION 5. CERTIFICATION. The City Clerk shall certify as to the passage and adoption
of this ordinance, and the City Clerk shall cause the same to be posted and codified in the manner
required by law.
INTRODUCED at a regular meeting of the City Council held on the 12w day of September
2023, by motion of Council Member Ford and seconded by Council Member Barton.
PASSED AND ADOPTED on the 26th day of September, 2023 by the following vote:
AYES: Wixom, Barton, Edwards, Ford, Landrum
NOES: None
ABSENT: None
ABSTAIN: None
RECUSE: None
ATTEST:
I(/(/Yl,4 S &-L--
DANA SWANSON, City Clerk
APPROVED AS TO FORM:
IS F. NELIMEYER, City Attorney
01181.0001/919892.7
CARLA WIXOM, Mayor
Ordinance No. 660
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STATE OF CALIFORNIA
COUNTY OF SAN LUIS OBISPO
CITY OF MORRO BAY
I, Dana Swanson, CITY CLERK OF THE CITY OF MORRO BAY, DO HEREBY CERTIFY
that the foregoing Ordinance Number 660 was duly adopted by the City Council of the City of
Morro Bay at a regular meeting of said Council on the 26th day of September 2023, and that it
was so adopted by the following vote:
AYES:
Wixom, Barton, Edwards, Ford, Landrum
NOES:
None
ABSENT:
None
ABSTAIN:
None
RECUSE:
None
IN WITNESS WHEREOF I have hereunto set my hand and affixed the official seal of the
City of Morro Bay, California, this 2:14'day of'Lfr, ?,a2;9
01181.0001/919892.7
rr 1/ A, EL
DA AA SWANSON, City Clerk
Ordinance No. 660
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