HomeMy WebLinkAbout94-42 - Adding Chapter 3.34 of the Newport Beach Municipal Code Establishing a Marine Charter Passenger Tax•
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ORDINANCE NO.: 9442
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH ADDING CHAPTER 3.34 OF THE
NEWPORT BEACH MUNICIPAL CODE ESTABLISHING
A MARINE CHARTER PASSENGER TAX.
Section 1. Findings. The City Council finds and declares as follows:
(a) During the past ten (10) years there has been a significant increase in the
number of marine charter operations, the number of vessels and companies engaged in
marine charters, and the number of marine charter passengers operating in Newport
Harbor.
(b) Marine charter passengers and marine charter operations have a significant,
but as yet unquantified, fiscal impact on the City of Newport Beach.
(c) Marine charter operations are conducted on property granted to the City of
Newport Beach, involve significant use of City infrastructure and marine charter operators
do not provide adequate on -site parking or other amenities to the same degree as landside
commercial operations.
(d) The cost of accommodating and providing services for marine charter
passengers is more significant than other entertainment establishments such as motion
picture theaters and recreational establishments which are required to provide on -site
parking and other facilities for their patrons.
(e) Sport fishing and whale watching operations have historically operated out of
Newport Harbor and based on this historical tie to the harbor, should be exempt from the
proposed tax.
Section 2. The City Council of the City of Newport Beach
does ordain as follows:
Chapter 3.34 is hereby added to the Municipal Code to read as follows:
Chapter 3.34
MARINE CHARTER PASSENGER TAX
• Sections:
3.34.010. Definitions
3.34.020 Tax Imposed
3.34.025 Exemptions
3.34.030 Liability for Tax
3.34.040 Registration
3.34.050 Collection of Tax by Operator; Receipt to Passenger; Rules for Collection
3.34.060 Reporting and Remitting
3.34.070 Failure to Collect and Report; Determination by Revenue Manager
3.34.080 Penalties and Interest
3.34.090 Appeals
3.34.100 Tax Deemed a Debt
• 3.34.110 Records
3.34.120 Violation by Operator a Misdemeanor
3.34.130 Severability
3.34.010. Definitions. For the purposes of this chapter, unless otherwise apparent
from the context, certain words and phrases used in this chapter are defined as follows:
(a) "Charter Fee" shall mean, with respect to Charter Vessels serving the public on
a ticketed passenger basis, the total cost, without deductions, required for passage on the
vessel. With respect to all other charters, charter fee shall be the total consideration paid
to the Owner, Operator, and all persons providing any supplies, entertainment, dock fees
or on -board service in connection with the charter.
(b) "Vessel' shall mean a passenger vessel or small passenger vessel as defined by
• Section 2101 of title 46, U.S. Code, with seven (7) or more passengers on board.
(c) "Charter" or "Chartered" shall mean any contract arrangement, agreement or
lease pursuant to which consideration is paid to the Owner or Operator of a vessel for the
right to use, or the right of carriage on, any vessel which will operate, at least in part, on
the waters of Newport Harbor provided, however, the term Charter shall not include those
activities which are exempt from the permit requirements of Chapter 5.18 or Chapter
17.41 of the Newport Beach Municipal Code.
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(d) "Chartered Vessel' shall mean any passenger vessel or small vessel as defined
by Section 2101 of title 46, U.S. Code, with six (6) or more passengers on board and
which has been chartered.
(e) "Commercial Harbor Activity Permittee" shall mean any charter business
• authorized to conduct marine charters pursuant to Newport Beach Municipal Code
Chapter 17.41.
(f) "Marine Charter Permittee" shall mean any charter business authorized to
conduct marine charters pursuant to Newport Beach Municipal Code Chapter 5.18.
(g) "Operator" shall mean any person who, on behalf of, or pursuant to agreement
with the Owner, arranges for the charter of any vessel or the issuance of any marine
charter permit.
(h) "Owner" shall mean any person who owns any vessel that is chartered.
(i) "Passenger" shall mean every natural person carried on any vessel that has been
chartered other than the Owner, and any employee, agent, representative, or subcontractor
of the Owner or Operator who has not paid consideration for carriage and who is paid
consideration for on -board services.
• 0) "Person" shall mean any individual, corporation, partnership, association or
other group or combination of individuals acting as an entity.
(k) "Revenue Manager" shall mean the Revenue Manager of the City of Newport
Beach.
(1) "Ticket Price" shall mean either the product of the charter fee divided by the
number of passengers, or the actual ticket price imposed per passenger, whichever is
greater.
(m) "Consumer Price Index" (CPI) shall mean the United States Department of
Labor, Bureau of Labor Statistics Consumer Price Index, Los Angeles - Anaheim -
Riverside (1982 -84 =100).
(n) "Out of Town Vessel' shall mean any vessel which, for property tax purposes,
has a situs outside Newport Beach.
(o) "Sport fishing vessel' shall mean a documented vessel carrying or transporting
• seven or more people for hire for commercial passenger fishing purposes which holds a
certificate of inspection from the United States Coast Guard and a commercial fishing boat
license from the California Department of Fish and Game.
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3.34.020. Tax Imposed.
(a) There is hereby imposed a tax upon every passenger of each chartered
vessel. The tax shall be the obligation of, and paid by, the passenger to the owner or
operator, and shall be stated as a separate charge on agreements for charters. The amount
• of the tax shall be:
(1) $0.50 for ticket prices between $26.00 and $50.00;
(2) $1.00 for ticket prices greater than $50.00;
(b) For each charter of an out of town vessel, an additional surcharge shall be
imposed on the owner or operator as follows: .
(1) $50.00 for vessels with a capacity of less than fifty (50) passengers;
(2) $100.00 for vessels with a capacity of fifty (50) or more passengers;
(c) Starting July 1, 1996, the ticket price on which the tax is imposed along with
the tax and surcharge shall be automatically adjusted each July 1, to reflect the percentage,
rounded to the nearest quarter, in the cost of doing business, as measured by the C.P.I.;
(d) Notwithstanding the provisions of Subsection (a), (b), and (c), charter vessel
passengers which, on the effective date of this ordinance have entered into an enforceable
• contractual arrangement for passage on or before June 30, 1995, shall be exempt from the
tax for such charter.
(e) Passengers on a charter subject to rates regulated by the California Public
Utilities Commission shall be exempt from the imposition of the tax until approval by the
Public Utilities Commission of a rate increase or on January 1, 1995, whichever is earlier.
3.34.025 Exemptions. Passengers on sport fishing and whale watching vessels,
while engaged in sport fishing or whale watching activities outside the harbor of Newport
Beach, shall be exempt from the tax imposed by Section 3.34.020.
3.34.030 Liability for Tax. In addition to the passenger of a vessel chartered for
consideration, the Operator or Owner shall be liable for the tax imposed pursuant to this
chapter in the event of any failure to collect the tax from the passenger or remit the tax to
• the City as provided in this Chapter. Liability of the passenger shall not be extinguished
until the tax has been paid or the passenger presents a receipt from the Operator or Owner
which evidences payment of the tax.
3.34.040. Registration.
(a) No person shall conduct any marine charter for which a permit is required
pursuant to the provisions of Chapter 5.18 of the Newport Beach Municipal Code without
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first applying for, and receiving, a Certificate of Registration pursuant to the provisions of
this Chapter.
(b) Every Owner or Operator who applies for a Marine Charter Permit pursuant
to Chapter 5.18 shall apply for, and obtain, a Certificate of Registration from the Revenue
• Manager. The Owner or Operator shall apply for the Certificate of Registration on forms
provided by the City. The Revenue Manager shall issue a Certificate of Registration upon
completion, execution and submittal of the form. The Owner or Operator shall comply
with all standard conditions specified on the registration form or Certificate of
Registration.
(c) Every Commercial Harbor Activity Permittee shall register with the Revenue
Manager within fifteen (15) days after the effective date of this Ordinance. The Certificate
of Registration shall be issued upon completion, execution and submittal of the form
provided by the City. The Commercial Harbor Activity Permittee shall comply with all
standard conditions on the Certificate of Registration.
(d) Certificate of Registration shall be issued by the Revenue Manager without
charge to the Owner or Operator.
• 3.34.050. Collection of Tax by Operator; Receipt to Passenger; Rules for
Collection. Each Owner or Operator shall collect the tax imposed by this Chapter prior to
operation of the Charter. The amount of tax shall be separately stated from the amount of
the charter fee charged. Upon request by the passenger, the Owner or Operator shall give
the passenger a receipt for the payment of the tax required by this Chapter.
3.34.060. Reporting and Remitting.
(a) Each Commercial Harbor Activity Permittee, Owner or Operator shall, on or
before the last day of the month following the close of the reporting period, as established
by the Finance Director, file a return with the Revenue Manager on forms provided by the
City, listing the total number of passengers carried during the reporting period and the
total tax collected by the Permittee. The full amount of the tax collected shall be remitted
• to the Revenue Manager at the time the return is filed. Returns and tax payments shall be
due immediately upon cessation of business for any reason. All taxes collected by
Permittees shall be held in trust for the account of the City until payment thereof is made
to the Revenue Manager.
(b) Each Owner or Operator conducting charters pursuant to Chapter 5.18 shall
pay the tax upon obtaining the Marine Charter Permit. No Marine Charter Permit
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required by Newport Beach Municipal Code 5.18 shall be issued until the required Marine
Charter Tax has been paid.
(c) The Revenue Manager shall have the power to adopt rules and regulations
prescribing methods and schedules for the collection and payment of the tax.
• 3.34.070. Failure to Collect and Report; Determination by Revenue Manager.
(a) If any Owner or Operator shall fail to collect all or a portion of the tax
due pursuant to this Chapter or shall fail to make, within the time provided in this Chapter,
any report and remittance of such tax, or any portion thereof, required by the provisions of
this chapter, the Revenue Manager shall proceed in such manner as he /she may deem best
to obtain the facts and information on which to base his/her estimate of the tax due. As
soon as the Revenue Manager shall procure such facts and information as he/she is able to
obtain upon which to base the assessment of any such tax imposed by the provisions of
this Chapter and payable by any Owner or Operator who has failed or refused to collect
the same and to make such report and remittance, the Revenue Manager shall proceed to
determine and assess against such Owner or Operator the tax, interest, and penalties
• provided for by the provisions of this chapter. The Revenue Manager shall give notice of
the amount so assessed by serving it personally or by depositing it in the United States
mail, postage prepaid, addressed to the Owner or Operator at his last known place of
address.
(b) Such Owner or Operator may, within ten (10) days after the service or
mailing of such notice, make an application in writing to the Revenue Manager for a
hearing on the amount assessed. If an application by the Owner or Operator for a hearing
is not made within the time prescribed, the tax, interest, and penalties, if any, determined
by the Revenue Manager shall become final and conclusive and immediately due and
payable. If such a request for hearing is made, the Revenue Manager shall give not less
than five (5) days' written notice in the manner prescribed in this section to the Owner or
Operator to show cause at a time and place fixed in such notice why the amount specified
herein should not be fixed for such tax, interest, and penalties. At such hearing the Owner
• or Operator may appear and offer evidence why the tax, interest, and penalties should not
be so fixed. After the hearing the Revenue Manager shall determine the proper tax ,
interest and penalty due, and shall thereafter give written notice to the Owner or Operator
in the manner prescribed in this section. The amount determined to be due shall be
payable after fifteen (15) days unless an appeal is filed.
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3.34.080. Penalties and Interest.
(a) Original Delinquency. Any Owner or Operator who fails to report and remit
any tax imposed by the provisions of this Chapter within the time required shall pay a
• penalty in the amount of ten (10 %) percent of the tax in addition to the amount of the tax.
(b) Continued Delinquency. Any Owner or Operator who fails to remit any tax
and penalty on or before a period of thirty (30) days following the date on which the
remittance first became delinquent shall pay a second penalty in the amount of ten percent
(10 %) of the tax in addition to the amount of the tax and the ten percent (10 %) penalty
first imposed.
(c) Interest. In addition to the penalties imposed, any Owner or Operator who
fails to remit any tax imposed by the provisions of this chapter shall pay interest at the rate
of one and one -half percent (1 &1/2 %) 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.
(d) Penalties and Interest Merged With Tax. Every penalty imposed, and such
interest as accrues, pursuant to the provisions of this section shall become a part of the tax
required to be paid by the provisions of this Chapter.
3.34.090. Appeals. Any Owner or Operator aggrieved by any decision of the
Revenue Manager with respect to the amount of such tax, interest, penalties, if any, may
appeal to the City Manager by filing a notice of appeal within fifteen (15) days after the
service or mailing of the determination of the tax due. The City Manager of the City of
Newport Beach may preside over the appeal or, in the alternative, the City Manager may
appoint a hearing officer to conduct the hearing, receive relevant evidence and submit to
• the City Manager findings and recommendations. The City Manager shall render his/her
decision within fifteen (15) days of receiving the findings and recommendations of the
hearing officer. The findings of the City Manager shall be final and conclusive and shall be
served upon the appellant in the manner prescribed in this Chapter for the service of a
notice of hearing. Any amount found to be due shall be immediately due and payable to
the City upon the service of notice.
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3.34. 100. Tax Deemed a Debt. The amount of any tax or penalty imposed by this
Chapter shall be deemed a debt due to the City by the Person required hereby to collect
the same.
• 3.34.110. Records. It shall be the duty of every Owner or 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, a daily record of the number of passengers for
each charter vessel, and the charter fee imposed. Said records shall be maintained at the
Operator's business premises or shall be available for delivery to the City within one week
after request. The Revenue Manager shall have the right to inspect records at all
reasonable times. The records shall include at least the following:
(a) Daily summaries of the number of passengers for each vessel operated.
(b) Daily summaries of the total consideration paid to the Owner, Operator, and all
persons providing any supplies, entertainment, dock fees or service in conjunction with
each vessel chartered.
(c) The ticket price.
• 3.34.120. Violation by Operator a Misdemeanor. Any Operator or other person
who fails or refuses to register as herein required 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
Revenue Manager, or who renders a false or fraudulent return, is guilty of a misdemeanor.
Any person required to make, render, sign or verify any report who makes any false or
fraudulent report is guilty of a misdemeanor.
3.34.130. Severability. If any section, subsection, sentence, clause or phrase of
this Ordinance shall for any reason be invalid, such holding or holdings shall not affect the
validity of the remaining portions of this Ordinance. The City Council has declared that it
would have passed this 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 thereof be declared invalid.
Section 3: That if any section, subsection, sentence, clause or phrase of this
ordinance is for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The City
Council hereby declares that it would have passed this ordinance and each section,
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subsection, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses, and phrases be declared unconstitutional.
Section 4: The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City shall cause the same to be published once in the official
newspaper of the City and it shall be effective thirty (30) days after its adoption.
Section 5: This Ordinance was introduced at a regular meeting of the City
Council of the City of Newport Beach held on the eighth day of August, 1994, and
adopted on the twenty sixth day of September, 1994, by the following vote, to -wit:
AYES, COUNCIL MEMBERS
COX, DEBAY, TURNER, WATT
NOES, COUNCIL MEMBERS
HART, HEDGES.SANSONE
ABSENT COUNCIL MEMBERS
NONE
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