HomeMy WebLinkAboutOrd 19891
ORDINANCE NO. 1989
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BURLINGAME, ADDING
CHAPTER 6.56 TO TITLE 6 OF THE BURLINGAME MUNICIPAL CODE REGARDING
REGULATIONS RELATING TO SHORT-TERM RENTALS
The City Council of the City of Burlingame ordains as follows:
Division 1. Factual Background
WHEREAS, the proposed amendments to the Burlingame Municipal Code (the
“Ordinance Amendment”) would add Chapter 6.56 to Title 6 of the City of Burlingame
Municipal Code in order to codify short-term rentals as an incidental use to specified
residential uses and to establish rules and standards for such incidental use; and
WHEREAS, this proposed Ordinance Amendment has been reviewed with
respect to applicability of the California Environmental Quality Act ("CEQA") and the State
CEQA Guidelines (California Code of Regulations, Title 14, Sections 15000 et seq.).
Passage of the Ordinance Amendment is not considered a project under Section 15378
as the activity will not result in a direct or reasonably foreseeable indirect physical
change in the environment. Alternatively, the Ordinance Amendment is exempt from
CEQA as it can be seen with certainty that there is no possibility for causing a
significant effect on the environment (Section 15061(b)(3)) as described in the staff report.
Pursuant to CEQA Guidelines Section 15091(e), the documents and other materials that
constitute the record of proceedings upon which the City Council has based its decision
are located in and may be obtained from the Office of the City Clerk at 501 Primrose
Road, Burlingame, CA 94010. The City Clerk is the custodian of records for all matters
before the City.
WHEREAS, said matters were heard by the City Council of the City of Burlingame
on November 2, 2020, at which time it reviewed and considered the staff report and all
other written materials and testimony presented at said hearing.
WHEREAS, at its regular meeting of November 2, 2020, the Burlingame City
Council introduced an ordinance amending Title 6 of the Burlingame Municipal Code to
regulate short-term rentals.
Division 2. The following code sections are amended, repealed or deleted as follows with
underlining indicating new text and strikeouts (strikeout) indicating deleted text.
Section 1: Chapter 6.56 Short-Term Rentals, is added as follows:
Chapter 6.56 Short-Term Rentals
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6.56.010 Purpose.
The purpose of this chapter is to:
(a) Allow limited short-term rental uses while preventing the loss of housing stock;
(b) Preserve residential character and establish operating standards to reduce potential
noise, parking, traffic, property maintenance and safety impacts on adjacent
neighbors; and
(c) Provide a registration process for the City to track and enforce these requirements as
needed and ensure appropriate collection of transient occupancy taxes.
6.56.020 Definitions.
For purposes of this section, the following definitions shall apply:
(a) “Adjacent properties” means the dwelling units located next to and immediately
across the street from the dwelling unit in which the short-term rental is located.
(b) “Authorized agent” means the person specifically authorized by a host of an un-
hosted short-term rental to represent and act on behalf of the host and to act as an
operator, manager and contact person of an un-hosted short-term rental, and to
provide and receive any notices identified in this chapter on behalf of the host. The
authority to operate and manage the short-term residential rental unit must include
the authority to enter the unit at any time while rented for the purposes of verifying
compliance with applicable laws. The authorized agent may include the host, or
persons other than the host.
(c) “Host” means any person who is the owner of record of residential real property or
any person who is a lessee of residential real property pursuant to a written agreement
for the lease of such real property, who offers a dwelling unit, or portion thereof, for
short-term rental either through a hosting platform or individually as an operator. The
host is the person to whom a short-term residential rental permit is issued pursuant to
this section.
(d) “Hosted short-term rental” means a short-term residential rental at which the host is
present while it is being rented. A host is considered present when they are on the
premises at all times between the hours of 10:00 p.m. and 6:00 a.m.
(e) “Hosting platform” means a means through which a host may offer a dwelling unit, or
portion thereof, for short-term rental. A hosting platform includes, but is not limited to,
an internet-based platform that allows a host to advertise and potentially arrange for
temporary occupation of the dwelling unit, or portion thereof, through a publicly
searchable website, whether the short-term renter pays rent directly to the host or to
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the hosting platform.
(f) “Listing” means the advertisement and agreement to rent a primary residence or
portion of a primary residence to a short-term renter for designated dates. A single
listing may not include multiple rental agreements with more than one individual
renter, though multiple people may be included in an individual renter's party.
(g) “Primary residence” means a dwelling unit where a person has been physically
present and that the person regards as home. A person may only have one primary
residence at any given time. Evidence of a person’s primary residence includes, but is
not limited to, documentation from income tax statements or a driver’s license. If a
property has multiple dwelling units, each dwelling unit shall be considered a
separate residence subject to the primary residence requirement.
(h) “Short-term rental” means the use or possession of or the right to use or possess any
room or rooms, or portions thereof in any dwelling unit for residing, sleeping or
lodging purposes for less than thirty (30) consecutive calendar days, counting portions
of days as full calendar days.
(i) “Short-term renter” means a 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 less than thirty (30) consecutive calendar days, counting
portions of calendar days as full calendar days.
(j) “Un-hosted short-term rental” means a short-term residential rental that is not hosted.
6.56.030 Permitted Use.
Short-term rental uses shall be permitted in any primary residence subject to the
requirements of this section, including compliance with the operating standards,
registration, transient occupancy tax payments, and recordkeeping obligations. Short-
term rentals are not permitted in Accessory Dwelling Units, as described in Chapter 25.59
of the Burlingame Municipal Code. Except as provided for in this section, all other short-
term rental uses shall be prohibited.
6.56.040 Registration and Annual Renewal.
(a) Application. Prior to advertising or making available the primary residence for
renting, hosts shall register their primary residence as a short-term rental with the
City. This registration shall be submitted on a form prepared by the City and shall
include:
(1) the name and contact information of the host,
(2) the address of the primary residence being used for short-term rental,
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(3) the number of off-street parking spaces on site
(4) proof of ownership of the proposed short-term residential rental unit, or proof of
the property owner’s consent to the property’s use as a short-term residential
rental,
(5) documentation that establishes the proposed short-term residential rental unit is
the applicant’s primary residence,
(6) the contact information for the authorized agent,
(7) an acknowledgement of compliance with the requirements of the City’s Zoning
Ordinance, Municipal Codes, and applicable health and safety standards,
(8) a City of Burlingame business license for the short-term residential operation; and
(9) other information as requested.
(b) Fee. The registration form shall be accompanied by a filing fee in an amount
established by resolution of the City Council and updated from time to time.
(c) Application Completeness. The submitted information shall be used to determine
whether to register the short-term rental. The host will be notified if an application is
incomplete. If the host fails to submit the required information or fees necessary to
complete the application within one year, the application shall expire and be deemed
withdrawn.
(d) Decision. The Community Development Director or his/her designee shall be
responsible for acting on short-term rental registration applications. After an
application is deemed complete, registration shall be approved where:
(1) The host demonstrates the ability to meet the requirements of this chapter,
(2) The subject primary residence is not the subject of an active code compliance
order or administrative citation from the City in the past twelve (12) months, and
(3) A short-term rental registration for the primary residence has not been denied or
revoked in the prior twenty-four (24)-month period.
(e) Denial. The Community Development Director or his/her designee may deny a short-
term rental registration application when the application does not meet the criteria
listed in subsection (d) above.
(f) Validity. An approved registration shall be valid and payable on a fiscal year basis.
An approved registration shall be personal to the host and shall automatically expire
upon sale or transfer of the dwelling unit. No registration may be assigned,
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transferred, or loaned to any other person.
(g) Annual Renewal. A registration shall be renewed annually upon payment of
registration renewal fees and all required transient occupancy tax remittance
associated with the short-term rental. The host shall submit such information
concerning the short-term rental activity as may be required to enable the tax
collector to verify the amount of tax paid. Failure to renew prior to the expiration date
will result in expiration of the registration.
(h) Requirements Not Exclusive. The issuance of a short-term rental registration shall
not relieve any person of the obligation to comply with all other provisions of this
code applicable to the use and occupancy of the property.
(i) Administrative Policy. The Community Development Director or his/her designee
shall have the authority to develop administrative policies to implement the intent of
this Chapter.
6.56.040 Operating Standards.
The following operating standards shall apply to short-term rentals:
(a) Legal Dwelling. Short-term rentals may only occur within legal dwelling units.
(b) Limitation on Listings. Short-term rentals shall not have more than one listing for the
same primary residence on the same days.
(c) Annual Limit. A primary residence may be occupied as an un-hosted short-term
rental for no more than one hundred and twenty (120) days per calendar year per
unit. There shall be no limit on the number of days a primary residence may be
occupied as a hosted short-term rental.
(d) Authorized Agent. Hosts shall identify to all guests and all occupants of adjacent
properties an authorized agent to be available twenty-four (24) hours per day, seven (7)
days per week during the term of any un-hosted short-term rental. The designated
authorized agent shall be available under the following terms:
(1) When the short-term residential rental unit is rented, the host (for a hosted short-
term rental) or at least one authorized agent (for an un-hosted short-term rental)
must respond to all telephone and e-mail messages relating to issues of permit
compliance or the health, safety, or welfare of the public or the renter at the short-
term residential rental unit within thirty (30) minutes at all times, twenty-four (24)
hours per day.
(2) The host (for a hosted short-term rental) or at least one authorized agent (for an
un-hosted short term-rental) must be on the premises of the short-term residential
rental unit within one (1) hour of being notified of complaints regarding the
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condition or operation of the dwelling unit or the conduct of guests and take
remedial action to resolve such complaints.
(e) Parking. No additional parking shall be required for short-term rentals. Existing on-
site parking spaces shall be made available to short-term renters.
(f) Refuse and Recycling. The host must provide appropriate refuse and recycling
service for the short-term residential rental unit. The property must be free of debris
both on site and in the street. Disposal regulations outlined in Chapter 8.16 of the
Burlingame Municipal Code shall apply to all short-term rentals.
(g) Noise. Noise regulations outlined in Chapter 10.40 of the Burlingame Municipal Code
shall apply to all short-term rentals.
(h) Special Events. Weddings, corporate events, commercial functions,
parties/congregations, and any other similar events which have the potential to cause
traffic, parking, noise or other problems in the neighborhood are prohibited from
occurring at the short-term rental property, as a component of short-term rental
activities.
6.56.060 Transient Occupancy Tax (TOT).
Transient occupancy taxes must be collected for short-term rentals and paid to the City
pursuant to Title 4, Chapter 4.09 of the City of Burlingame Municipal Code. Collection and
remittance of TOT is the responsibility of the host. The hosting platform shall collect TOT
when they have signed a voluntary collection agreement (or equivalent) with the City. If
booked on a hosting platform, collection and remittance of TOT for short-term rentals
shall be the primary responsibility of the hosting platform. Collection and remittance of
TOT for short-term rentals shall be the responsibility of the host if booked directly through
an individual host with no hosting platform involvement.
6.56.070 Enforcement.
(a) Revocation of Registration. A short-term rental registration issued under the
provisions of this Section may be revoked by the Community Development Director
or designee after notice and hearing as provided for in this Section, for any of the
following reasons:
(1) Fraud, misrepresentation, or false statements contained in the application;
(2) Fraud, misrepresentation, or false statements made in the course of carrying on a
short-term rental as regulated by this Section;
(3) Any violation of any provision of this Section or of any provision of this code; or
(4) Any violation of any provision of federal, state or local laws.
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(b) Revocation Hearing. Before revoking a short-term rental registration, the
Community Development Director or his/her designee shall give the responsible host
notice in writing of the proposed revocation and of the grounds thereunder, and also
of the time and place at which the host will be given a reasonable opportunity to
show cause why the registration should not be revoked. The notice may be served
personally upon the host or may be mailed to the host at the last known address or at
any address shown upon the application at least 10 days prior to the date of the
hearing. Upon conclusion of the hearing, the Community Development Director or
his/her designee may, for the grounds set forth herein, revoke the registration.
(c) Appeal from Denial or Revocation of Registration. Any host whose application
has been denied or registration has been revoked shall have the right to an
administrative appeal before the City Manager or a designated hearing officer. An
appeal shall be filed in writing on a form provided by the City stating the grounds
therefore within 10 days of the decision. The City Manager or designated hearing
officer shall hold a hearing thereon within a reasonable time and the decision shall be
final.
(d) Waiting Period. Any host whose registration has been revoked due to a violation
may be ineligible from applying for a new registration for the following durations:
(1) A six (6)-month period if listing limitation is exceeded (as described in Section
6.56.040(b)) or if the annual limit for un-hosted stays is exceeded (as described in
Section 6.56.040(c)).
(2) A twelve (12)-month period if three or more nuisance or noise complaints are
made and substantiated by the Police Department.
(3) A twenty-four (24)-month period for a single complaint made and substantiated
by the Police Department related to a special event, as defined in Section
6.56.040(h)). More than one special-event related complaint shall fall under
subsection (4) below.
(4) Waiting periods for violations not defined by this section shall be determined by
the Community Development Director or his/her designee.
(e) Suspension. Pending code enforcement or criminal complaints brought by the City
shall be grounds for immediate suspension of the registration.
(f) Records of Compliance. The host shall retain records documenting the compliance
with these requirements for a period of three (3) years after each period of short-term
rental, including but not limited to records showing payment of transient occupancy
taxes by a hosting platform on behalf of a host. Upon reasonable notice, the host
shall provide any such documentation to City upon request for the purpose of
inspection or audit to the City Manager or his/her designee.
(g) Violations. Penalties may be imposed for failure to comply with the provisions of this
Chapter and Chapter 4.09; such penalties include those relating to revocation set
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forth in this Chapter, Chapter 4.09, and Title 1 of this Code.
6.56.080 Amnesty Period for Short-Term Rentals.
Notwithstanding any other provision of law, short-term rentals operating on or before the
enactment of this ordinance shall be considered existing, unpermitted uses. An amnesty
period of one (1) year after the effective date of this ordinance is being offered to allow
these existing, unpermitted uses to be legalized by conforming to the requirements of this
Section, including compliance with operating standards, registration, and recordkeeping
obligations. Transient occupancy tax payments shall continue to be required at all times for
short-term rentals, as of the effective date of this ordinance, and must be collected and
paid for the full duration of the amnesty period.
Applications to bring an existing, unpermitted short-term rental use into compliance shall
be made on or before one year after the effective date of this ordinance. Existing short-
term rental uses that do not conform to the requirements of this section shall cease
operation within one year of the effective date of this ordinance and shall be prohibited
from resuming unless and until the use conforms to the requirements of this Chapter.
Section 2: Chapter 4.09 Uniform Transient Occupancy Tax, is amended as follows:
4.09.010 Title.
This chapter shall be known as the “Uniform Transient Occupancy Tax Ordinance of
the city of Burlingame.”
4.09.020 Definitions.
(a) “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, lodginghouse, roominghouse, apartment house, dormitory, public or
private club, mobile home or house trailer at a fixed location, or other similar structure
or portion thereof. “Hotel” does not mean any of the following: any hospital,
sanitarium, medical clinic, convalescent home, rest home, home for aged people,
foster home or other similar facility operated for the care or treatment of human
beings; any asylum, jail, prison, orphanage or other facility in which human beings
are detained and housed under legal restraint; any housing owned or controlled by
any educational institution and used exclusively to house students, faculty or other
employees, and any fraternity or sorority house or similar facility occupied exclusively
by students and employees of such educational institution, and officially recognized
or approved by it; any housing operated or used exclusively for religious, charitable
or educational purposes by any organization having qualifications, for exemption
from property taxes under the laws of California; any housing owned by a
governmental agency and used to house its employees or for governmental
purposes; any camp as defined in the labor code or other housing furnished by an
employer exclusively for employees.
(b) “Occupancy” means the use or possession, or the right to the use or possession, of
any room or rooms or portion thereof, in any hotel or short-term rental for dwelling,
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lodging or sleeping purposes.
(c) “Operator” means the person who is proprietor of the hotel or short-term rental,
whether in the capacity of owner, lessee, sublessee, mortgagee in possession,
licensee or any other capacity. Where the operator performs his or her functions
through a managing agent of any type or character other than an employee, the
managing agent of any type or character is an operator for the purposes of this
chapter and shall have the same duties and liabilities as his or her principal. In
relation to short-term rentals, the operator is the party responsible for collecting the
transient occupancy tax, whether that entity is a hosting platform or host. Compliance
with the provisions of this chapter by either the principal or the managing agent shall,
however, be considered to be compliance by both.
(d) Person. Except as used in the definition for transient below, “person” means 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.
(e) “Rent” means the consideration charged, whether or not received, for the occupancy
of space in a hotel or short-term rental 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. The
value of complimentary meals or other similar services or inducements shall not be
deducted. In the event of dispute the tax administrator shall determine the proper
rent.
(f) “Tax administrator” means the city finance director/treasurer or the
director/treasurer’s designated representative.
(g) “Transient” means any individual who exercises occupancy or is entitled to
occupancy of a specific room by reason of concession, permit, right of access,
license or other agreement for a period of thirty (30) consecutive calendar days or
less, counting portions of calendar days as full days. Any such individual so
occupying space in a hotel or short-term rental shall be deemed to be a transient until
the period of thirty (30) days has expired unless there is an agreement in writing
providing for a longer period of occupancy of the room. In determining whether a
person is a transient, uninterrupted periods of time extending both prior and
subsequent to the effective date of this chapter may be considered.
(h) “Short-term rental” means the use or possession of or the right to use or possess any
room or rooms, or portions thereof in any dwelling unit for residing, sleeping or
lodging purposes for less than 30 consecutive calendar days, counting portions of
days as full calendar days.
4.09.025 Tax rate.
For the privilege of occupancy in any hotel or short-term rental, each transient is subject
to and shall pay a tax in the amount of twelve (12) percent of the rent charged by the
operator.
4.09.030 Tax imposed.
The tax imposed by this chapter 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
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tax to the operator of the hotel or short-term rental 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 to occupy space in the hotel or
short-term rental. If for any reason the tax due is not paid to the operator of the hotel or
short-term rental, the tax administrator may require that such tax shall be paid directly to
the tax administrator.
4.09.040 Exemptions.
No tax shall be imposed upon:
(a) Any person as to whom, or any occupancy as to which it is beyond the power of the
city to impose this tax; provided, employees of the state or federal government are
exempt only if room charges are paid directly by their employing agency. Copies of
official travel orders are generally required. (See 46 Cal. Ops. Atty. Gen. 16).
(b) Any properly credentialed officer or employee of a foreign government who is exempt
by reason of express provision of federal law or international treaty.
4.09.050 Operators duties.
Each operator shall collect the tax imposed by this chapter to the same extent and at the
same time as the rent is collected from every transient. The amount of tax shall be
separately stated from the amount of the rent charged, and each transient shall receive a
receipt for payment from the operator. No operator of a hotel or short-term rental shall
advertise or state in any manner, whether directly or indirectly, that the tax or any part
thereof will be assumed or absorbed by the operator, or that it will not be added to the
rent, or that, if added, any part will be refunded except in the manner provided in this
chapter.
4.09.060 Registration.
(a) No more than five (5) days after commencing business or after a change in operator,
each operator of any hotel or short-term rental renting occupancy to transients shall
register the hotel or short-term rental with the tax administrator and obtain from the
administrator a transient occupancy registration certificate that will be posted at all
times in a conspicuous place on the hotel or short-term rental premises. This
certificate shall, among other things, state the following:
(1) The name of the operator;
(2) The name and address of the hotel or short-term rental; and
(3) The date upon which the certificate was issued;
(b) This transient occupancy registration certificate signifies that the person named on
the face hereof has fulfilled the requirements of the uniform transient occupancy tax
ordinance by registering with the tax administrator for the purpose of collecting from
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transients the transient occupancy tax and remitting said tax to the tax administrator.
This certificate does not authorize any person to conduct any unlawful business or to
conduct any lawful business in an unlawful manner, nor to operate a hotel or short-
term rental without strictly complying with all local applicable laws, including, but not
limited to, those requiring a permit from any board, commission, department or office
of this city. The certificate does not constitute a permit.
(c) No more than five (5) days after changing the name of a hotel registered under this
section, the hotel operator shall notify the tax administrator of the new name in
writing and obtain from the administrator an amended transient occupancy
registration certificate specifying the new hotel name.
4.09.070 Reporting and remitting.
(a) Each operator shall, on or before the last day of each month, make a return to the tax
administrator, on forms provided by the administrator, of the total rents charged and
the amount of tax calculated for transient occupancies for the preceding month.
Unless a separate bank account is permitted and established as hereinafter set forth,
the full amount of the tax calculated shall be remitted to the tax administrator together
with the return. If any exemptions or bad debts are included on the return, copies of
back-up information including room folios shall be included with the return. The
signed, original return together with the remittance shall be delivered in person to the
tax administrator or postmarked no later than the last day of the month in which it is
due. Returns and remittances mailed pursuant to this subsection shall be sent by
certified mail. The tax administrator may establish shorter reporting and/or remitting
periods for any operator and may require additional information in any return.
Returns and payments are due immediately upon cessation of business for any
reason.
(b) Any operator collecting less than ten thousand dollars ($10,000.00) in transient
occupancy taxes per quarter shall deposit such taxes in a separate bank account in
trust for the benefit of the city, until payment thereof is made to the tax administrator.
(c) All other operators shall post a bond or irrevocable letter of credit guaranteeing
payment of taxes, equal to one quarter’s tax as determined by the tax administrator.
Any such bond shall provide for no more than ten (10) days notice of cancellation to
city.
(d) Notwithstanding subsection (c) above, the tax administrator may require an operator
to establish a separate bank account in trust for the city for deposit of transient
occupancy taxes, until payment is made to the city, when the tax administrator
determines that an operator may not be capable of properly complying with the
collection or remittance requirements of this chapter.
(e) The city may also appoint or obtain an agent or receiver to collect the taxes due at
the hotel or short-term rental itself.
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(f) Any hosting platform, as defined in Chapter 6.56, that assists with arranging transient
occupancy may enter into a voluntary collection agreement (or equivalent) with the
City for the collection and payment of transient occupancy taxes. Where a hosting
platform has entered into such an agreement, the hosting platform shall have the
same duties and liabilities of the operator under this Chapter. Compliance with the
provisions of this Chapter by either the operator or the hosting platform shall be
considered to be compliance by both. To comply with Section 4.09.060, a hosting
platform shall register in its own name and post its Transient Occupancy Registration
Certificate on its website, if applicable. Operators that only use a hosting platform for
providing lodging to transients shall not be required to register separately with the tax
administrator or post a Transient Occupancy Registration Certificate on-site so long
as such hosting platform used by the operator has registered pursuant to Section
4.09.060.
4.09.080 Penalties and interest.
(a) Original Delinquency. Any operator who fails to remit any tax imposed by this chapter
within the time required shall pay a penalty of five (5) percent of the amount of the tax
in addition to the amount of the tax.
(b) Continued Delinquency. Any operator who fails to remit any delinquent remittance on
or before a period of fifteen (15) days following the date on which the remittance first
became delinquent shall pay a second delinquency penalty of five (5) percent of the
amount of the tax in addition to the amount of the tax and the five (5) percent penalty
first imposed. An additional penalty of five (5) percent shall be paid for each fifteen
(15) days thereafter which the remittance is delinquent.
(c) Fraud. If the tax administrator determines that the nonpayment of any remittance due
under this chapter is due to fraud, a penalty of twenty-five (25) percent of the amount
of the tax shall be added thereto in addition to the penalties stated in subsections (a)
and (b) of this section.
(d) Interest. In addition to the penalties imposed, 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 tax, exclusive of penalties, from the date on
which the remittance first became delinquent until paid.
(e) Penalties Merged with Tax. Every penalty imposed and such interest as accrues
under the provisions of this section shall become a part of the tax required to be paid
by this chapter.
4.09.090 Failure to collect and report tax—Determination of tax by tax
administrator.
(a) If any operator shall fail or refuse to collect said 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 or if the tax administrator reasonably believes that a hotel or
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short-term rental operator has not accurately and fully made any such report or
remittance, the tax administrator shall proceed in such manner as the administrator
may deem best to obtain facts and information on which to base the administrator’s
estimate of the tax due.
(b) The tax administrator may review any return filed pursuant to this chapter and may
request or inspect any documents or accounts as provided for in this chapter to
determine what the correct tax due is. The tax administrator, and any person
designated as an agent by the tax administrator, may, at any time during normal
business hours, for the purpose of enforcing the provisions of this chapter, inspect
and audit the accounts, books, papers, and documents of any operator that holds
any tax certificate of the city under this chapter or that has filed a return with the city
under this chapter. Any person shall produce under the seal of the city the person’s
authority to make such an audit or inspection.
(c) No person conducting an inspection or review pursuant to this section may reveal the
information obtained from such an inspection or audit to anyone not charged with the
administration or enforcement of the provisions of this title.
(d) As soon as the tax administrator shall procure such facts and information as the
administrator is able to obtain upon which to base the assessment of any tax
imposed by this chapter and payable by any operator who has neglected, failed or
refused to collect the same and to make such report and remittance, the
administrator shall proceed to determine and assess against such operator the tax,
interest and penalties provided for by this chapter. The administrator may include in
said assessment costs of any necessary audits or investigations. These costs will
include any additional visits or expenses incurred because an operator failed to
provide records as required by this chapter. In case such determination is made, the
tax administrator 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 his or her last known place of address.
(e) The operator to be assessed by the administrator’s determination may, within ten
(10) days after the serving or mailing of such notice, make application in writing to the
tax administrator for a hearing on the amount assessed. If application by the operator
for a hearing is not made within the time prescribed, the tax, interest and penalties, if
any, determined by the tax administrator shall become final and conclusive and
immediately due and payable. If such application is made, the tax administrator shall
give not less than five (5) days’ written notice in the manner prescribed herein to the
operator to show cause at a time and place fixed in said notice why the amount
specified should not be fixed for such tax, interest and penalties. At the hearing, the
operator may appear and offer evidence why such specified tax, interest and
penalties should not be so fixed. After the hearing, the tax administrator shall
determine the proper tax to be remitted and shall thereafter give written notice to the
operator of the determination and the amount of the tax, interest and penalties now
due. The amount determined to be due shall be payable after fifteen (15) days unless
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an appeal is taken as provided in Section 4.09.100.
4.09.100 Appeal.
Any operator aggrieved by any decision of the tax administrator with respect to the
amount of such tax, interest and penalties, if any, may appeal to the council by filing a
notice of appeal with the city clerk within fifteen (15) days of the serving or mailing of the
determination of tax due. The council shall fix a time and place for hearing such appeal,
and the city clerk shall give notice in writing to such operator at his or her last known
place of address. The findings of the council shall be final and conclusive and shall be
served upon the appellant in the manner prescribed above for service of notice of
hearing. Any amount found to be due shall be immediately due and payable upon the
service of notice.
4.09.110 Records.
It shall be the duty of every operator liable for the collection and payment to the city of any
tax imposed by this chapter to keep and preserve, for a period of three (3) years, all
records as may be necessary to determine the amount of such tax as he or she may have
been liable for the collection of and payment to the city, which records the tax
administrator shall have the right to inspect at all reasonable times. Such records shall be
maintained at the operator’s premises or shall be available for delivery to the tax
administrator within one week after request. Such records shall be so maintained for at
least six (6) months after a change of operator. The records shall include at least the
following:
(a) Daily summaries of room occupancies;
(b) A record of each occupancy charge for which an exemption is claimed, including the
name of the individual occupying the room, dates of occupancy and reasons for
exemption;
(c) List of bad debts claimed for exemption, including names and addresses of debtor,
amount of room rent unpaid, and all room folios documenting the applicable
occupancies;
(d) Bank statements for the separate account required in Section 4.09.070.
4.09.120 Refunds.
(a) Whenever the amount of any tax, interest or penalty has been erroneously or illegally
collected or received by the city under this chapter, it may be refunded as provided in
subsections (b) and (c) of this section provided a claim in writing therefor, stating
under penalty of perjury the specific grounds upon which the claim is founded, is filed
with the city council within the time period set forth in Chapter 4.15. Accrual of the
cause of action shall be the date upon which payment of the tax was actually made
or the date the tax was due, whichever was earlier.
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(b) An operator may claim a refund or take as credit against taxes collected and remitted
the amount overpaid, paid more than once or erroneously or illegally collected or
received when it is established in a manner prescribed by the tax administrator that
the person from whom the tax has been collected was not a transient; provided,
however, that neither a refund nor a credit shall be allowed unless the amount of the
tax so collected has either been refunded to the transient or credited to rent
subsequently payable by the transient to the operator.
(c) A transient may obtain a refund of taxes overpaid or paid more than once or
erroneously or illegally collected or received by the city by filing a claim in the manner
provided in subsection (a) of this section, but only when the tax was paid by the
transient directly to the tax administrator, or when the transient, having paid the tax to
the operator, establishes to the satisfaction of the tax administrator that the transient
has been unable to obtain a refund from the operator who collected the tax.
(d) 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.
4.09.130 Collection of tax. The following shall apply to hotel and short-term rental
operations:
(a) Actions to Collect. 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
collectible by any operator which has not been paid to the city shall be deemed a
debt owed by the operator to the city. The amount of the tax collected by the operator
shall be held to be a special fund in trust for the city and shall be deemed to be public
monies upon collection. This trust obligation shall apply whether the taxes collected
are held in a separate account or not. 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) Recording Certificate—Lien. If any amount required to be paid to the city under the
ordinance codified in this chapter is not paid when due, the administrator may within
three (3) years after the amount is due file for record in the office of the San Mateo
county recorder a certificate specifying the amount of tax, penalties and interest due,
the name and address as it appears on the records of the tax administrator of the
operator liable for the same 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 filing for record, the amount required to be paid together with
penalties and interest constitutes a lien upon a real property in the county owned by
the operator or acquired by him or her afterwards and before the lien expires. The
lien has the force, effect and priority of a judgment lien and shall continue for ten (10)
years from the time of filing of the certificate unless sooner released or otherwise
discharged.
(c) Priority and Lien of Tax. The amounts required to be paid by any operator under this
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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 or her 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; or
(4) Whenever the estate and effects of an absconding, concealed or absent person
required to pay any amount under this chapter 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.
(b) Warrant for Collection of Tax. At any time within three (3) years after any operator is
delinquent in the payment of any amount herein required to be paid off within years
after the last recording of a certificate of lien under subsection (b) of this section, 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, marshal or constable and shall have the
same effect as a writ of execution. The warrant shall be levied and sale made
pursuant to it in the same manner and with the same effect as a levy of and a sale
pursuant to a writ of execution. The tax administrator may pay or advance to the
sheriff, marshal or constable, the same fees, commissions and expenses for his or
her services as are provided by law for similar services pursuant to a writ of
execution.
The following shall apply to hotel operations only:
(a) 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 any 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 occupancy taxes due shall be only of property of the operator
not exempt from execution under the provisions of the code of civil procedure.
(b) Successor’s Liability—Withholding by Purchaser. If any operator liable for any
amount under this chapter sells out his or her business or quits the business, his or
her successor 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.
(c) Liability of Purchaser—Release. If the purchaser of a hotel fails to withhold funds
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from the purchase price as required, he or she shall become personally liable for the
payment of the amount required to be withheld by him or her to the extent of the
purchase price, valued in money. Within sixty (60) days after receiving a written
request from the purchaser for a certificate, or within sixty (60) 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 ninety (90) days after receiving the request, the
tax administrator shall either issue the certificate or mail notice to the purchaser at his
or her 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 shall release the purchaser from any further
obligation to withhold 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 the later.
(d) Sale of a hotel, dismissal of the operator or other termination of his or her rights to
operate the facility shall not relieve him or her from liability for taxes due or owing
under this chapter.
4.09.140 Violations—Misdemeanor.
Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor
and shall be punishable therefor by a fine of not more than five hundred dollars ($500.00)
or by imprisonment for a period of not more than six (6) months or by both such fine and
imprisonment.
Any operator or other person who fails or refuses to register as required herein, or to
furnish any return required to be made, or who fails or refuses to furnish a supplemental
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 as aforesaid. 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 as
aforesaid.
Division 3: If any section, subsection, sentence, clause or phrase of this Ordinance is for
any reason held to be invalid, such decision shall not affect the validity of the remaining
portions of this Ordinance. The Council declares that it would have adopted the
Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective
of the fact that any one or more sections, subsections, sentences, clauses or phrases be
declared invalid.
Division 4: This Ordinance shall be published in a newspaper of general circulation in
accordance with California Government Code Section 36933, published, and circulated in
the City of Burlingame, and shall be in full force and effect thirty (30) days after its final
passage.
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_________________________________
Emily Beach, Mayor
I, Meaghan Hassel-Shearer, City Clerk of the City of Burlingame, certify that the
foregoing ordinance was introduced at a public hearing at a regular meeting of the City
Council held on the 2nd day of November 2020, and adopted thereafter at a regular
meeting of the City Council held on the 16th day of November 2020, by the following vote:
AYES: Councilmembers: BEACH, BROWNRIGG, COLSON, O’BRIEN KEIGHRAN, ORTIZ
NOES: Councilmembers: NONE
ABSENT: Councilmembers: NONE
__________________________________
Meaghan Hassel-Shearer, City Clerk
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