Ordinance
The following information is directly from the City of Shawnee website (www.shawneeok.org) online codebook. This is taken from Chapter 25, which covers taxation. Article IV specifically covers the occupancy surcharge.
ARTICLE IV. OCCUPANCY SURCHARGE*
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*Editor's note: Ordinance No. 2156NS, § 1, adopted May 17, 2004, amended the title of art. IV to read as herein set out. Art. IV previously was titled Hotel Occupancy Surcharge.
Cross references: Businesses, permits and licenses, ch. 8.
State law references: Authority, 68 O.S. § 2701.
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This article shall be known and cited as the "City of Shawnee Occupancy Surcharge Ordinance of 2004," and is referred to herein as "this article."
(Code 1986, § 24-120; Ord. No. 2156NS, § 1, 5-17-2004)
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Hotel or motel means any building, structure, trailer or other facility in which the public may, for consideration, obtain sleeping accommodations in which three or more rooms are used for the accommodation of transient guests, whether such rooms are in one or several structures, and recreational vehicle spaces. The term includes hotels; apartment hotels; motels; tourist homes, houses or courts; lodginghouses; bed and breakfast inns; inns; roominghouses; trailer houses; trailer motels; apartments and sleeping rooms not occupied by permanent residents; recreational vehicle spaces; and all other facilities where rooms or sleeping accommodations or space are furnished for a consideration. The term does not include hospitals, sanitariums, nursing homes, university dormitories or other educational or charitable institutions.
Occupancy means the use or possession of or the right to use or possess any room in a hotel or the right to the use or possession of the furnishings or to the services and accommodations accompanying the use and possession of the room.
Occupant means a person who, for a consideration, uses, possesses or has the right to use or possess any room in a hotel under any lease, concession, permit, right of access, license to use or other agreement.
Operator means any person operating a hotel in this city, including but not limited to the owner, proprietor, lessee, sublessee, mortgagee in possession, licensee or any other person otherwise operating such hotel.
Rent means the consideration received for occupancy valued in money, whether received in money or otherwise, including all receipts, cash, credits and property or services of any kind or nature, and also any amount for which credit is allowed by the operator to the occupant, without any deduction therefrom whatsoever.
Return means any return filed or required to be filed as provided in this article.
Room means any room of any kind in any part or portion of a hotel which is available for or let out for use or possessed for any purpose other than a place of assembly. As used in this definition, the term "place of assembly" means a room or space which is not capable of being occupied for lodging purposes and which is used for educational, recreational or amusement purposes and includes dancehalls; cabarets; nightclubs; restaurants; any room or space for public or private banquets, feasts, socials, card parties or weddings; lodge and meeting halls or rooms; skating rinks; gymnasiums; swimming pools; billiards, bowling and table tennis rooms; halls or rooms used for public or private catering purposes; funeral parlors; markets; recreational rooms; concert halls; broadcasting studios; and all other places of similar type of occupancy.
Surcharge means the surcharge levied pursuant to this article.
Treasurer means the city treasurer-finance director.
(Code 1986, § 24-123)
Cross references: Definitions generally, § 1-2.
Sec. 25-228. Effective date; termination.
This article shall become and be effective on or after September 1, 2004, subject to the approval of the registered voters of the city voting on this article in the manner prescribed by law. Upon approval by the voters as required in this section, this article shall remain in effect and not be replaced unless repealed by a majority of registered voters of the city voting to repeal this article in the manner as required by its approval.
(Code 1986, § 24-122; Ord. No. 2156NS, § 2, 5-17-2004)
The people of the city, by their approval of this article (Ordinance No. 2156NS and Ordinance No. 1681NS, as amended) at the election provided in section 25-228 authorize the city commission, by ordinance duly enacted, to make such administrative and technical changes or additions in the method and manner of administering and enforcing this article as may be necessary or proper for efficiency and fairness, except that the rate of the surcharge provided in this article shall not be changed without approval by the qualified city voters, as provided by law.
(Code 1986, § 24-145; Ord. No. 2156NS, § 3, 5-17-2004)
Sec. 25-230. Article cumulative.
The sections of this article shall be cumulative and in addition to any and all other taxing provisions of city ordinances.
(Code 1986, § 24-146)
The provisions of this article are declared to be severable, and if any section, paragraph, sentence or clause of this article is for any reason held invalid or inoperative by any court of competent jurisdiction, such decision shall not affect any other section, paragraph, sentence or clause of this article.
(Code 1986, § 24-147)
Sec. 25-232. Ratification of state permits.
All valid and subsisting permits to do business by the state tax commission pursuant to the state Sales Tax Code are, for the purposes of this article, ratified, confirmed and adopted in lieu of any requirement for an additional city permit for the same purpose.
(Code 1986, § 24-121)
Sec. 25-233. Powers of treasurer.
In addition to all other powers granted to the treasurer, under this article the treasurer is authorized and empowered to:
(1) Make, adopt and amend rules and regulations appropriate to the collection of surcharges pursuant to this article.
(2) Extend for cause shown the time for filing any return for a period not exceeding 60 days and, for cause shown, to waive, remit or reduce penalties or interest.
(3) Delegate his functions under this article to an assistant or other city employee.
(4) Assess, reassess, determine, revise and readjust the surcharges imposed by this article.
(5) Prescribe methods for determining the surchargeable and nonsurchargeable rents.
(Code 1986, § 24-139)
Sec. 25-233.1 Administration of oaths and compelling testimony.
The treasurer, or his/her designated representative, shall have the power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of their powers and duties under this article. The treasurer shall have the power to subpoena and require the attendance of witnesses and the production of books, papers and documents to secure information pertinent to the performance of his/her duties hereunder and all the enforcement of this article and to examine them in relation thereto.
(Ord. No. 2207NS, § 1, 6-20-2005)
Funds collected pursuant to this article shall be set aside and used exclusively for one or more of the following purposes:
(1) Encouraging, promoting and fostering visitor and tourism conventions, conferences and tourism development in the city.
(2) Solicitation of visitor attractions, events, tourism, conferences, conventions and meetings in the city.
(Code 1986, § 24-124)
Any notice provided for under this article shall be deemed to have been given when such notice has been delivered personally to the operator or deposited in the United States mail addressed to the last known address of the operator.
(Code 1986, § 24-137)
Sec. 25-236. Retention of money for administration.
One percent of the gross receipts derived from surcharges collected pursuant to this article shall be retained by the office of the treasurer for the purpose of administering and collecting the surcharge.
(Code 1986, § 24-141)
Sec. 25-237. Remedies exclusive.
The remedies provided in this article shall be exclusive remedies available to any person for the review of surcharge liability imposed by this article.
(Code 1986, § 24-138)
Sec. 25-238. Payment of legal fees.
If a suit in a court of competent jurisdiction is caused to be filed, either on behalf of or against the city, and such cause is the direct result of the conditions, stipulations or requirements set forth in this article, an amount necessary to pay all legal fees incurred by the city, as well as fines or penalties imposed against it, shall be set aside from the monies authorized to be collected in payment thereof, regardless of whether such cause was for the purpose of enforcing or defending this article.
(Code 1986, § 24-148)
Sec. 25-239. Confidentiality of records.
The confidential and privileged nature of the records and files concerning the administration of the surcharge under this article is legislatively recognized and declared, and to protect the confidentiality of records and files the provisions of 68 O.S. § 205 of the state Sales Tax Code and each subsection thereof are adopted by reference and made fully effective and applicable to the administration of this article as if set forth in this article.
(Code 1986, § 24-143)
Secs. 25-240--25-265. Reserved.
DIVISION 2. PAYMENT AND COLLECTION
There is levied an occupancy surcharge of five percent upon the gross receipts from all occupancy of hotel and motel rooms, or $1.00 per occupied room per night for said occupancy, whichever is greater, within the city, except that the surcharge shall not be assessed where an occupant rents the room for a period in excess of 30 days. This surcharge shall be in addition to any existing sales taxes imposed by the city or the state.
(Code 1986, § 24-125; Ord. No. 2156NS, § 4, 5-17-2004)
Sec. 25-267. Assessment and determination.
If a return required by this article is not filed or if a return when filed is incorrect or insufficient, the amount of surcharge due shall be assessed by the treasurer from such information as may be obtainable, and, if necessary, the surcharge may be estimated on the basis of external indices, such as number of rooms, location, scale of rents, comparable rents, types of accommodations and services, number of employees or other factors. Written notice of such assessment shall be given to the person liable for the collection and payment of the surcharge. The assessment shall finally and irrevocably fix and determine the surcharge unless the person against whom it is assessed, within 90 days after the giving of notice of such assessment, shall apply in writing to the city commission for a hearing or unless the treasurer, upon his own initiative, shall reassess the surcharge. After the hearing, the city commission shall give written notice of its determination to the person against whom the surcharge is assessed, and such determination shall be final.
(Code 1986, § 24-135)
Sec. 25-268. Registration certificates; certificates of authority.
For the purposes of this article, every operator shall file with the treasurer a registration certificate in a form prescribed by the treasurer. For an operator commencing business or opening a new hotel, the registration certificate shall be filed within three days after such commencement or opening. The treasurer shall, within five days after the filing of such certificate, issue without charge to each operator a certificate of authority empowering such operator to collect the surcharge from the occupant and duplicates thereof for each additional hotel. Each certificate or duplicate shall state the hotel to which it is applicable. Such certificate of authority shall be permanently displayed by the operator in such manner that it may be seen and come to the notice of all occupants and persons seeking occupancy. Such certificate shall be nonassignable and nontransferable and shall be surrendered immediately to the treasurer upon the cessation of business at the hotel or upon its sale or transfer.
(Code 1986, § 24-140)
Officers, agents, representatives or employees of any government, corporation, organization or association that is legally exempted from state sales taxation or city sales taxation and whose occupancy of the room is required in connection with the official business or affairs of such government, corporation, organization or association shall be exempt from the surcharge levied by this article. Any persons or groups renting rooms directly related to an organized religious function shall also be exempt.
(Code 1986, § 24-126)
Sec. 25-270. Proof of exemption required.
Amy person claiming to be exempt from the surcharge pursuant to section 25-269 shall display proof of exemption and a tax identification number certifying that the corporation, organization or association with which he is affiliated is exempt from the surcharge.
(Code 1986, § 24-127)
Sec. 25-271. Designation on statements or receipts.
The operator shall separately designate, charge, and show all surcharges levied under this article on all bills, statements, receipts or any other evidence of charges or payment of rent for occupancy issued or delivered by the operator.
(Code 1986, § 24-128)
Sec. 25-272. Operator's responsibility for collection.
The operator shall be responsible for the collection of the surcharge levied under this article from the occupant and shall be liable to the city for the surcharge.
(Code 1986, § 24-129)
Editor's note: Ord. No. 2207NS, § 4, adopted June 20, 2005, repealed § 25-273, which pertained to discount and derived from Code 1986, § 24-130.
It shall be the duty of every operator required to make a return and pay any surcharge under this article to keep and preserve suitable records of the gross daily rentals together with other pertinent records and documents which may be necessary to determine the amount of surcharge due and such other records as will substantiate and prove the accuracy of such returns. All records shall remain in the city and shall be preserved for a period of three years, unless the treasurer, in writing, has authorized their destruction or disposal at an earlier date, and the records shall be open to examination at any time by the treasurer or by any of his duly authorized agents. The burden of proving that a sale was not a surchargeable sale shall be upon the operator who makes the sale.
(Code 1986, § 24-131)
(a) The surcharge levied under this article shall be due and payable to the treasurer on the first day of each month, except as provided in this article, by any person liable for the payment of any surcharge due under this article. For the purpose of ascertaining the amount of the surcharge payable under this article, it shall be the duty of all operators, on or before the 20th day of each month, to deliver to the treasurer, upon forms prescribed and furnished by him, returns, under oath, showing the total number of rooms occupied per night during the preceding calendar month. Such returns shall show such further information as the treasurer may require to correctly compute and collect the surcharge levied. In addition to the information required on returns, the treasurer may request and the operator shall furnish any information deemed necessary for a correct computation of the surcharge levied. Such operator shall compute and remit to the treasurer the required surcharge due for the preceding calendar month. The remittance of the surcharge shall accompany the returns required under this article. If not paid on or before the 20th of each month, the surcharge shall be delinquent after such date, provided that no interest or penalty shall be charged on such return filed on or before the 20th day of such month.
(b) The treasurer may permit or require returns to be made by shorter or longer periods and upon such dates as he may specify. The form of return shall be prescribed by the treasurer and shall contain such information as he may deem necessary for the proper administration of this article. The treasurer may require amended returns to be filed within 20 days after notice, which amended return shall contain the information specified in the notice.
(Code 1986, § 24-132)
At the time of filing a return of occupancy and of rents, each operator shall pay to the treasurer the surcharge imposed by this article upon the rents included in such return, as well as all other monies collected by the operator acting or purporting to act under this article.
(Code 1986, § 24-133)
Where the treasurer believes that any operator is about to cease business, leave the state or remove or dissipate assets or for any other similar reason he deems it necessary in order to protect revenues under this article, he may require such operator to file with the city a bond issued by a surety company authorized to transact business in this state in such amount as the treasurer may fix to secure the payment of any surcharge or penalties and interest due or which may become due from such operator. If the treasurer determines that an operator is to file such bond, he shall give notice to the operator specifying the amount of bond required, which shall in no event exceed twice the amount of the sum in controversy. The operator shall file such bond within five days after receiving the notice unless within such five days the operator shall request in writing a hearing before the city commission, at which time the necessity and amount of the bond shall be determined by the city commission. Such determination shall be final and shall be complied with within 15 days thereafter. In lieu of such bond, securities approved by the treasurer or cash in such amount as he may prescribe may be deposited with the treasurer who may, at any time after five days' notice to the depositor, apply them to any surcharge and/or any penalties due, and for that purpose the securities may be sold at private or public sale.
(Code 1986, § 24-134)
(a) Procedure. Under this article, the treasurer shall refund or credit any surcharge erroneously, illegally or unconstitutionally collected if written application to the treasurer for such refund shall be made within 90 days from the date of payment thereof. For like causes and in the same period, a refund may be made upon the initiative and the order of the treasurer. Whenever a refund is made, the reasons therefor shall be stated in writing. Such application may be made by the person upon whom such surcharge was imposed and who has actually paid the surcharge. The application may also be made by the person who has collected and paid the surcharge to the treasurer, provided that the application is made within 90 days of the payment by the occupant to the operator, but no refund of money shall be made to the operator until he has repaid to the occupant the amount for which the application for refund is made. The treasurer, in lieu of any refund required to be made, may allow credit therefor on payments due from the applicant.
(b) Determination and hearing. Upon application for a refund, the treasurer may receive evidence with respect thereto and make such investigation as he deems necessary. After making a determination as to the refund, the treasurer shall give notice thereof to the applicant. Such determination shall be final unless the applicant, within 90 days after notice, shall apply in writing to the city commission for a hearing. After such hearing, the city commission shall give written notice of its decision to the applicant.
(Code 1986, § 24-136)
Sec. 25-279. Interest on delinquent surcharge.
If any surcharge levied by this article becomes delinquent, the person responsible and liable for such surcharge shall pay interest on the unpaid surcharge at the rate of 1 1/2 percent per month on the unpaid balance from the date of delinquency until such unpaid balance is paid in full.
(Code 1986, § 24-142)
Sec. 25-280. Fraudulent returns.
The willful failure or refusal of any operator to make reports and remittances required under this article or the making of any false or fraudulent report for the purpose of avoiding or escaping payment of any surcharge or a portion thereof rightfully due under this article shall be an offense against the city.
(Code 1986, § 24-144)
Sec. 25-281. Collection by suit.
Such surcharge and interest due hereunder shall at all times constitute a prior, superior and paramount claim as against the claim of unsecured creditors and may be collected by suit as any other debt.
(Ord. No. 2207NS, § 2, 6-20-2005)
Sec. 25-282. Proceedings to recover surcharge.
(a) Whenever any taxpayer or other person shall fail to collect and pay over any surcharge or surcharge penalty due and owing, or interest imposed by this article as herein provided, the city attorney shall, upon the request of the city treasurer, take appropriate action to enforce the payment of the same.
(b) Further, pursuant to the authority of 68 O.S. § 2704, all surcharges, interest and penalties imposed by this article are hereby declared to constitute a lien in favor of the city upon all franchises, property and rights to property, whether real or personal, then belonging to, or thereafter acquired, by the person, firm or corporation owing the surcharge, whether such property is employed by such person, firm or corporation in the conduct of its business, or in the hands of an assignee, trustee or receiver for the benefit of creditors, from the date said surcharges are due and payable under the provisions of this article.
(c) Any sum or sums collected or required to be collected in this article shall be deemed to be held in trust for the city; and as trustee, the collecting person, firm or corporation shall have a fiduciary duty to the city in regard to such sums and shall be subject to the trust laws of this state. Any person, firm or corporation who willfully or intentionally fails to remit the surcharge, after the surcharge levied by this article was collected from the occupant, and appropriates the surcharge held in trust to his own use, or to the use of any person, firm or corporation not entitled thereto, without the authority of law, shall be guilty of embezzlement.
(Ord. No. 2207NS, § 3, 6-20-2005)
Shawnee, Oklahoma 74801
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