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HomeMy WebLinkAbout94-42 - Adding Chapter 3.34 of the Newport Beach Municipal Code Establishing a Marine Charter Passenger Tax• • • 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. 2 (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. 3 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 4 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 5 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. 6 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. 7 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, a • • • 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 ' R 9