Rancho Palos Verdes City Council
   

To:

TO: Mayor Gardiner and Members of the City Council

FROM: Carol Lynch, City Attorney

DATE: February 17, 2004

SUBJECT: PROPOSED ORDINANCE OF THE CITY OF RANCHO PALOS VERDES CLARIFYING THE PROCEDURES RELATING TO THE SUBMISSION OF CLAIMS AND THE PAYMENT OF CERTAIN TAXES

RECOMMENDATION:

Adopt Ordinance No. ___U, AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES AMENDING CERTAIN PROVISIONS OF TITLE 3 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO CLARIFY THE PROCEDURES RELATING TO THE SUBMISSION OF CLAIMS AND THE PAYMENT OF CERTAIN TAXES AND DECLARINGTHE URGENCY THEREOF; (2) INTRODUCE ORDINANCE NO. ___ AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES AMENDING CERTAIN PROVISIONS OF TITLE 3 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO CLARIFY THE PROCEDURES RELATING TO THE SUBMISSION OF CLAIMS AND THE PAYMENT OF CERTAIN TAXES.

BACKGROUND:

Title 3 of the Municipal Code, entitled Revenue and Finance, contains the Cityís Utility Userís Tax, the Golf Tax and the Transient Occupancy Tax. It also contains the process established by the California Government Code for filing claims with the City, which is a prerequisite to filing most lawsuits seeking monetary damages.

Although the California Constitution and provisions within the State Government Code prevent the City from increasing or imposing new taxes without voter approval, the City Council may amend the procedures pertaining to the processing and collection of taxes without voter approval.

The ordinances attached to this staff report, which are identical except for the urgency findings, make procedural revisions to Title 3, which are described in the remainder of this staff report. Because none of these revisions impose a new tax, increase an existing tax, or expand the tax base to a person or entity that was not taxed previously, voter approval is not required to make these amendments to the Municipal Code. These findings are set forth in the last recital of the attached ordinances.

DISCUSSION:

Section 1 of the ordinances amend Section 3.16.120 of the Cityís Transient Occupancy Tax to establish a one year time period within which a claim must filed with the City in order to have the City repay an overpayment of tax, a refund or repay a tax that was collected erroneously. This revision also clarifies that the filing of a claim is a prerequisite to filing a lawsuit against the City. This paragraph also provides that claims that arose prior to the effective date of the ordinances, which are not already barred by the statute of limitations, must be filed within ninety days of the effective date of the ordinance. These changes are also being made to the Utility Users Tax (see Section 10 of the Ordinances) and to the Golf Tax (see Section 12 of the Ordinances). By making these changes, the City is providing a uniform process to submit claims to the City and is shortening the statute of limitations to one year.

Sections 2 and 3 of the Ordinances amend Chapter 3.24, which is the chapter that establishes the process to file any claims for money with the City. These sections clarify that claims must be independently verified by each claimant and that the filing of a claim is a prerequisite to filing a lawsuit against the City. Section 3 also expands the reference to the provisions of the state Tort Claims Act, which is codified in the California Government Code, from Section 945 through 949 to 940 through 949.

Section 4 amends Section 3.30.020(I) of the Utility Userís Tax, which is the definition of the term "Telephone Communications Services." Currently, that paragraph states that to be within the scope of the tax, the telephone services must be services that provide access through the "public switched network." That distinction is not altered by the revised definition, which clarifies that to be subject to the Cityís tax, services must be through "interconnected service " with the "public switched network," as those terms are defined by the FCC, and specifically excludes services that are not interconnected with the public switched network. This section also clarifies the services that are subject to the tax so that reflect recent technological advances, which fall within this definition, are not inadvertently excluded.

Sections 5, 6 and 7 of the ordinances amend the definition of the term "charges" for telephone, electricity and gas, respectively, to clarify that if taxable charges, as defined in those sections, are bundled together with nontaxable charges on invoices to the consumer, this does not alter the fact that the Cityís tax is still required to be collected on the taxable charges.

Section 8 of the ordinances clarifies that users of gas or electricity, which is obtained from non-utility providers, still are obliged to pay the tax to the City.

Section 9 adds two additional paragraphs to the duties of the tax administrator, who is the Director of Finance. Paragraph G allows the tax administrator to survey and identify the taxable charges that are bundled with non-taxable charges on invoices to the consumer and then promulgate administrative rulings on that subject. Paragraph H allows the tax administrator to make determinations about the amount of the tax that is owed on these bundled items, upon the request of the customer, by using one of the methodologies set forth in that paragraph.

Section 11 adds a process by which decisions of the tax administrator regarding the Utility Users Tax can be appealed to the City Council. This makes the UUT ordinance consistent with the Transient Occupancy Tax and the Golf Tax, both of which have an administrative appeal mechanism.

CONCLUSION:

The ordinances make procedural clarifications and make the appeal and claims provisions consistent. They do not increase any of the taxes, impose a new tax or increase the tax base. Accordingly, voter approval is not required. Staff recommends that the Council, by four-fifths vote, adopt the urgency ordinance so that it will be effective immediately and introduce the non-urgency ordinance.

 

 

Respectfully submitted, Reviewed by,

Carol W. Lynch Les Evans

City Attorney City Manager

ORDINANCE NO. ___U

AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES AMENDING CERTAIN PROVISIONS OF TITLE 3 OF THE RANCHO

PALOS VERDES MUNICIPAL CODE TO CLARIFY THE PROCEDURES RELATING TO THE SUBMISSION OF CLAIMS AND THE PAYMENT OF CERTAIN TAXES AND DECLARING THE URGENCY THEREOF

WHEREAS, the City Council of the City of Rancho Palos Verdes previously enacted certain provisions of the Rancho Palos Verdes Municipal Code to impose certain taxes on individuals or entities that do business within the City; and

WHEREAS, in accordance with the provisions of Proposition 62, California Government Code Section 53720 et seq., and other requirements of State Law, certain of the taxes that were imposed by the City Council subsequently were submitted to, and approved by, the Cityís voters; and

WHEREAS, it is necessary to update certain provisions of Title 3 of the Municipal Code to clarify the Code to reflect the Cityís existing practices and to address certain changes in procedures and technology; and

WHEREAS, the modifications to Title 3 of the Municipal Code set forth herein are not intended in any manner either to increase any tax percentage or expand the base of any tax that is imposed by Title 3 of this Code;

NOW, THEREFORE, THE CITY COUNCIL OF THE CITYOF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS:

Section 1. Subsection A of Section 3.16.120 of Chapter 3.16 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

A. Whenever the amount of any tax, interest or penalty has been overpaid, or has been paid more than once or 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 tax administrator within one year of the date of payment. Any action brought against the City pursuant to this section shall be subject to the provisions of Government Code Sections 945.6 and 946. Compliance with this section shall be a prerequisite to a suit thereon. The claim shall be on forms furnished by the tax administrator, shall be presented in accordance with the requirements of Section 3.24.030 of this Title 3, and shall clearly establish the claimantís right to the refund by written records demonstrating entitlement thereto. It is the intent of the city that the one year claim requirement of this subsection be given retroactive effect; provided, however, that any claims that arose prior to the enactment date of the one-year claims period set forth in the subsection, which are not otherwise barred by the then-applicable statute of limitations or claim procedure, must be filed with the tax administrator as provided in this title 3 within ninety days following the effective date of this amended subsection A.

Section 2. Section 3.24.030 of Chapter 3.24 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

3.24.030. Presenting and filing.

All claims against the city for money or damages not otherwise governed by the Tort Claims Act, California Government Code Sections 900 et seq., or another state law (hereinafter referred to as "claims") shall be presented to the city within the time, and in the manner, prescribed by Part 3 of Division 3.6 of Title 1 of the California Government Code, (commencing with Section 900 thereof) for the claims to which that Part applies by its own terms, as those provisions now exist or shall hereafter be amended, and as further provided by this chapter. All claims shall be made in writing and shall be verified by the claimant or by his or her guardian, conservator, executor or administrator. No claim may be filed on behalf of a class of persons unless verified by every member of that class as required by this section. In addition, all claims shall contain the information required by California Government Code Section 910. In accordance with California Government Code Sections 935(b) and 945.6, all claims shall be presented as provided in this Chapter and acted upon by the City Council prior to the filing of any action on such claims, and no such action may be maintained by a person who has not complied with the requirements of this Chapter.

Section 3. Section 3.24.040 of Chapter 3.24 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

      1. Action against city.

Any action brought against the city upon any claim or demand shall conform to the requirements of Sections 940 through 949 of the California Government Code. Any action brought against any employee of the city shall conform to the requirements of Sections 950 through 951 of the California Government Code.

Section 4. Subsection I of Section 3.30.020 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

    1. "Telephone communication services" means those services as defined in sections 4251 and 4252 of the Internal Revenue Code, and the regulations thereunder, and shall included any telephonic-quality communication for the purpose of transmitting messages or information [including, but not limited to, voice, both analog and digital-including the use of the Internet Protocol ("IP") or other similar means for digitization or packetization of telephonic quality communications for transmission via digital networks, in part or in whole), telegraph, teletypewriter, data, facsimile, video or text] by electronic, radio or similar means through "interconnected service" with the "public switched network" [as these terms are commonly used in the Federal Communications Act and the regulations of the Federal Communications Commission (see 47 U.S.C. Section 332(d))], whether such transmission occurs by wire, cable, cable modem or digital subscriber line ("DSL"), internet, fiber-optic, light wave, laser, microwave, radio wave [including, but not limited to, mobile telecommunications service, cellular service, commercial mobile service and commercial radio service (see 47 U.S.C. Section 332(d)(1) and Part 20.3 of Title 47 of the Code of Federal Regulations), personal communications service ("PCS"), specialized mobile radio ("SMR"), and other similar services, regardless of radio spectrum used], switching facilities, satellite or any other similar facilities. "Telephone communications services" shall not include "private mobile radio service" (as defined in Part 20.3 of Title 47 of the Code of Federal Regulations) or "private mobile service" (as defined in 47 U.S.C.A. Section 332(d)(3)) and any other service that is not interconnected to the public switched network.

Section 5. Subsection B of Section 3.30.050 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

B. "Charges," as used in this section, shall include charges made for (1) metered energy; and (2) minimum charges for service, including customer charges, service charges, standby charges, charges for temporary services, demand charges, annual and monthly charges, and any other charges, fees and surcharges that are necessary to or common for the receipt, use or enjoyment of electric service; which are authorized or mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees or surcharges appear on a bundled or line item basis on the customer billing.

Section 6. Subsection B of Section 3.30.070 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

B. "Charges," as used in this section, shall include charges made for (1) metered gas or mobile transport; (2) gas transportation charges, and (3) charges for service, including customer charges, service charges, minimum charges, demand charges, and annual and monthly charges, and any other charge which is authorized or mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees or surcharges appear on a bundled or line item basis on the customer billing.

Section 7. Subsection B of Section 3.30.080 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

B. "Charges," as used in this section, shall include charges made for (1) metered water; and (2) minimum charges for service, including customer service charges, ready to serve charges, standby charges, and annual and monthly charges, and any other charges, fees and surcharges that are necessary to or common for the receipt, use or enjoyment of water service, whether or not such charges, fees or surcharges appeal on a bundled or line item basis on the customer billing.

Section 8. Section 3.30.100 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended by adding new paragraph D thereto to read as follows:

D. Any service user subject to the tax imposed by section 3.30.050 or section 3.30.070 of this chapter, which receives gas or electricity , including any related supplemental services, directly from a non-utility service supplier not under the jurisdiction of this chapter, or which, for any other reason, is not having the full tax collected and remitted by its service supplier, a non-utility service supplier, or its billing agent on the use of electricity or gas in the city, shall report said fact to the tax administrator and shall remit the tax due directly to the tax administrator within thirty days of such use.

Section 9. Section 3.30.130 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended by adding new paragraphs G and H thereto to read as follows:

G. The tax administrator, from time to time, may survey the providers of the various utility services, which are subject to the provisions of this chapter, to identify the various unbundled billing components of such service that that they commonly provide to residential and commercial customers in the city, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such service. Thereafter, the tax administrator may issue and disseminate to such service providers an administrative ruling identifying those components and items that are: (1) necessary for or common to the receipt, use or enjoyment of such service, or (2) currently, or historically have been, included in a single or bundled rate for such service by a provider to a class of retail customers. Charges for such components and items shall be subject to the tax that is imposed by this chapter 3.30.

H. If one or more non-taxable items are bundled or billed together with one or more taxable items under a single charge on a customerís bill, the entire single charge shall be deemed taxable by the tax administrator unless, upon the written request of the customer, the service supplier can reasonably identify the non-taxable component of the single charge based upon one or more of the following methodologies, as selected by the tax administrator: (1) the average industry charges for the individual non-taxable items included in the entire single charge; (2) the amount of the entire single charge less the average industry charges for the individual taxable items included in the entire single charge, or (3) the service supplierís books and records that are kept in the regular course of business, which must be consistent with generally accepted accounting principles.

Section 10. Subsection A of Section 3.30.150 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

A. Whenever the amount of any tax, interest or penalty has been overpaid, or has been paid more than once or has been erroneously or illegally collected or received by the city under this chapter, it may be refunded as provided in subsection B 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 tax administrator within one year of the date of payment. Any action brought against the City pursuant to this section shall be subject to the provisions of Government Code Sections 945.6 and 946. Compliance with this section shall be a prerequisite to a suit thereon. The claim shall be on forms furnished by the tax administrator, shall be presented in accordance with the requirements of Section 3.24.030 of this Title 3, and shall clearly establish the claimantís right to the refund by written records demonstrating entitlement thereto. It is the intent of the city that the one year claim requirement of this subsection be given retroactive effect; provided, however, that any claims that arose prior to the enactment date of the one-year claims period set forth in the subsection, which are not otherwise barred by the then-applicable statute of limitations or claim procedure, must be filed with the tax administrator as provided in this title 3 within ninety days following the effective date of this amended subsection A.

Section 11. Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended by renumbering Sections 3.30.160. 3.30.170 and 3.30.180, respectively, as Sections 3.30.170. 3.30.180 and 3.30.190 and adding new Section 3.30.160 thereto to read as follows:

      1. Appeal.

Any person who is aggrieved by any decision of the tax administrator with respect to the amount of such tax, interest and penalties, if any, or any other determination of the tax administrator made pursuant to section 3.30.130 may appeal to the city council by filing a notice of appeal with the city clerk within fifteen days of the serving or mailing of the tax administratorís determination. The city clerk shall fix a time and date for hearing such appeal and shall give notice in writing to the appellant in the manner prescribed in section 3.30.130 D for service of notice of hearing. The findings of the city council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in section 3.30.130 D. Any amount found to be due shall be immediately due and payable upon the service of the notice.

Section 12. Subsection A of Section 3.40.100 of Chapter 3.40 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

A. Whenever the amount of any tax, interest or penalty has been overpaid, or has been paid more than once or 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 tax administrator within one year of the date of payment. Any action brought against the City pursuant to this section shall be subject to the provisions of Government Code Sections 945.6 and 946. Compliance with this section shall be a prerequisite to a suit thereon. The claim shall be on forms furnished by the tax administrator, shall be presented in accordance with the requirements of Section 3.24.030 of this Title 3, and shall clearly establish the claimantís right to the refund by written records demonstrating entitlement thereto. It is the intent of the city that the one year claim requirement of this subsection be given retroactive effect; provided, however, that any claims that arose prior to the enactment date of the one-year claims period set forth in the subsection, which are not otherwise barred by the then-applicable statute of limitations or claim procedure, must be filed with the tax administrator as provided in this title 3 within ninety days following the effective date of this amended subsection A.

Section 13. The City Council finds that the amendments to Title 3 of the Municipal Code are substantially the same as previous provisions of the Rancho Palos Verdes Municipal Code or any other ordinance repealed, amended or superseded upon the enactment of this ordinance and that the amendments to Title 3 shall be construed as a restatement and continuation of the previous provisions. As such, to ensure certainty regarding standards applicable to current and future applications for new structures or additions thereto, the amendments must become effective as quickly as possible.

Section 14. The City Council declares that the provisions of this ordinance are severable. If, for any reason, any sentence, paragraph, or section of this ordinance is determined by a court of competent jurisdiction to be invalid, such determination will not affect the validity of the remaining provisions of this ordinance.

Section 15. The City Council finds and determines that the immediate preservation of the public health, safety and welfare requires that this ordinance be enacted as an urgency ordinance pursuant to Government Code Section 36937 and shall take effect immediately upon adoption. Said finding and determination is based upon the recitals set forth above and the following:

A. The amendments set forth above are declaratory of existing policy and practice. Clarifications proposed by this ordinance are necessary to ensure that the provisions for the collection of taxes and the submission of claims are uniform in their application so that disparate treatment of City residents, which could result if the ordinance does not take effect immediately, does not occur.

B. If the amendments regarding the procedures and time periods to present claims to the City do not take immediate effect, and without the uniform periods within which to submit claims to the City for refunds or the repayment of taxes that are established by this ordinance, the City will not be able to budget its resources in these uncertain fiscal times, which would adversely impact the pubic health, safety and welfare.

PASSED, APPROVED and ADOPTED this ___________ day of ______________, 2004.

 

____________________________________

Mayor

ATTEST:

 

_______________________________

City Clerk

ORDINANCE NO. ___

AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES AMENDING CERTAIN PROVISIONS OF TITLE 3 OF THE RANCHO

PALOS VERDES MUNICIPAL CODE TO CLARIFY THE PROCEDURES RELATING TO THE SUBMISSION OF CLAIMS AND THE PAYMENT OF CERTAIN TAXES

WHEREAS, the City Council of the City of Rancho Palos Verdes previously enacted certain provisions of the Rancho Palos Verdes Municipal Code to impose certain taxes on individuals or entities that do business within the City; and

WHEREAS, in accordance with the provisions of Proposition 62, California Government Code Section 53720 et seq., and other requirements of State Law, certain of the taxes that were imposed by the City Council subsequently were submitted to, and approved by, the Cityís voters; and

WHEREAS, it is necessary to update certain provisions of Title 3 of the Municipal Code to clarify the Code to reflect the Cityís existing practices and to address certain changes in procedures and technology; and

WHEREAS, the modifications to Title 3 of the Municipal Code set forth herein are not intended in any manner either to increase any tax percentage or expand the base of any tax that is imposed by Title 3 of this Code;

NOW, THEREFORE, THE CITY COUNCIL OF THE CITYOF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS:

Section 1. Subsection A of Section 3.16.120 of Chapter 3.16 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

A. Whenever the amount of any tax, interest or penalty has been overpaid, or has been paid more than once or 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 tax administrator within one year of the date of payment. Any action brought against the City pursuant to this section shall be subject to the provisions of Government Code Sections 945.6 and 946. Compliance with this section shall be a prerequisite to a suit thereon. The claim shall be on forms furnished by the tax administrator, shall be presented in accordance with the requirements of Section 3.24.030 of this Title 3, and shall clearly establish the claimantís right to the refund by written records demonstrating entitlement thereto. It is the intent of the city that the one year claim requirement of this subsection be given retroactive effect; provided, however, that any claims that arose prior to the enactment date of the one-year claims period set forth in the subsection, which are not otherwise barred by the then-applicable statute of limitations or claim procedure, must be filed with the tax administrator as provided in this title 3 within ninety days following the effective date of this amended subsection A.

Section 2. Section 3.24.030 of Chapter 3.24 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

3.24.030. Presenting and filing.

All claims against the city for money or damages not otherwise governed by the Tort Claims Act, California Government Code Sections 900 et seq., or another state law (hereinafter referred to as "claims") shall be presented to the city within the time, and in the manner, prescribed by Part 3 of Division 3.6 of Title 1 of the California Government Code, (commencing with Section 900 thereof) for the claims to which that Part applies by its own terms, as those provisions now exist or shall hereafter be amended, and as further provided by this chapter. All claims shall be made in writing and shall be verified by the claimant or by his or her guardian, conservator, executor or administrator. No claim may be filed on behalf of a class of persons unless verified by every member of that class as required by this section. In addition, all claims shall contain the information required by California Government Code Section 910. In accordance with California Government Code Sections 935(b) and 945.6, all claims shall be presented as provided in this Chapter and acted upon by the City Council prior to the filing of any action on such claims, and no such action may be maintained by a person who has not complied with the requirements of this Chapter.

Section 3. Section 3.24.040 of Chapter 3.24 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

      1. Action against city.

Any action brought against the city upon any claim or demand shall conform to the requirements of Sections 940 through 949 of the California Government Code. Any action brought against any employee of the city shall conform to the requirements of Sections 950 through 951 of the California Government Code.

Section 4. Subsection I of Section 3.30.020 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

    1. "Telephone communication services" means those services as defined in sections 4251 and 4252 of the Internal Revenue Code, and the regulations thereunder, and shall included any telephonic-quality communication for the purpose of transmitting messages or information [including, but not limited to, voice, both analog and digital-including the use of the Internet Protocol ("IP") or other similar means for digitization or packetization of telephonic quality communications for transmission via digital networks, in part or in whole), telegraph, teletypewriter, data, facsimile, video or text] by electronic, radio or similar means through "interconnected service" with the "public switched network" [as these terms are commonly used in the Federal Communications Act and the regulations of the Federal Communications Commission (see 47 U.S.C. Section 332(d))], whether such transmission occurs by wire, cable, cable modem or digital subscriber line ("DSL"), internet, fiber-optic, light wave, laser, microwave, radio wave [including, but not limited to, mobile telecommunications service, cellular service, commercial mobile service and commercial radio service (see 47 U.S.C. Section 332(d)(1) and Part 20.3 of Title 47 of the Code of Federal Regulations), personal communications service ("PCS"), specialized mobile radio ("SMR"), and other similar services, regardless of radio spectrum used], switching facilities, satellite or any other similar facilities. "Telephone communications services" shall not include "private mobile radio service" (as defined in Part 20.3 of Title 47 of the Code of Federal Regulations) or "private mobile service" (as defined in 47 U.S.C.A. Section 332(d)(3)) and any other service that is not interconnected to the public switched network.

Section 5. Subsection B of Section 3.30.050 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

B. "Charges," as used in this section, shall include charges made for (1) metered energy; and (2) minimum charges for service, including customer charges, service charges, standby charges, charges for temporary services, demand charges, annual and monthly charges, and any other charges, fees and surcharges that are necessary to or common for the receipt, use or enjoyment of electric service; which are authorized or mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees or surcharges appear on a bundled or line item basis on the customer billing.

Section 6. Subsection B of Section 3.30.070 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

B. "Charges," as used in this section, shall include charges made for (1) metered gas or mobile transport; (2) gas transportation charges, and (3) charges for service, including customer charges, service charges, minimum charges, demand charges, and annual and monthly charges, and any other charge which is authorized or mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees or surcharges appear on a bundled or line item basis on the customer billing.

Section 7. Subsection B of Section 3.30.080 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

B. "Charges," as used in this section, shall include charges made for (1) metered water; and (2) minimum charges for service, including customer service charges, ready to serve charges, standby charges, and annual and monthly charges, and any other charges, fees and surcharges that are necessary to or common for the receipt, use or enjoyment of water service, whether or not such charges, fees or surcharges appeal on a bundled or line item basis on the customer billing.

Section 8. Section 3.30.100 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended by adding new paragraph D thereto to read as follows:

D. Any service user subject to the tax imposed by section 3.30.050 or section 3.30.070 of this chapter, which receives gas or electricity , including any related supplemental services, directly from a non-utility service supplier not under the jurisdiction of this chapter, or which, for any other reason, is not having the full tax collected and remitted by its service supplier, a non-utility service supplier, or its billing agent on the use of electricity or gas in the city, shall report said fact to the tax administrator and shall remit the tax due directly to the tax administrator within thirty days of such use.

Section 9. Section 3.30.130 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended by adding new paragraphs G and H thereto to read as follows:

G. The tax administrator, from time to time, may survey the providers of the various utility services, which are subject to the provisions of this chapter, to identify the various unbundled billing components of such service that that they commonly provide to residential and commercial customers in the city, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such service. Thereafter, the tax administrator may issue and disseminate to such service providers an administrative ruling identifying those components and items that are: (1) necessary for or common to the receipt, use or enjoyment of such service, or (2) currently, or historically have been, included in a single or bundled rate for such service by a provider to a class of retail customers. Charges for such components and items shall be subject to the tax that is imposed by this chapter 3.30.

H. If one or more non-taxable items are bundled or billed together with one or more taxable items under a single charge on a customerís bill, the entire single charge shall be deemed taxable by the tax administrator unless, upon the written request of the customer, the service supplier can reasonably identify the non-taxable component of the single charge based upon one or more of the following methodologies, as selected by the tax administrator: (1) the average industry charges for the individual non-taxable items included in the entire single charge; (2) the amount of the entire single charge less the average industry charges for the individual taxable items included in the entire single charge, or (3) the service supplierís books and records that are kept in the regular course of business, which must be consistent with generally accepted accounting principles.

Section 10. Subsection A of Section 3.30.150 of Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

A. Whenever the amount of any tax, interest or penalty has been overpaid, or has been paid more than once or has been erroneously or illegally collected or received by the city under this chapter, it may be refunded as provided in subsection B 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 tax administrator within one year of the date of payment. Any action brought against the City pursuant to this section shall be subject to the provisions of Government Code Sections 945.6 and 946. Compliance with this section shall be a prerequisite to a suit thereon. The claim shall be on forms furnished by the tax administrator, shall be presented in accordance with the requirements of Section 3.24.030 of this Title 3, and shall clearly establish the claimantís right to the refund by written records demonstrating entitlement thereto. It is the intent of the city that the one year claim requirement of this subsection be given retroactive effect; provided, however, that any claims that arose prior to the enactment date of the one-year claims period set forth in the subsection, which are not otherwise barred by the then-applicable statute of limitations or claim procedure, must be filed with the tax administrator as provided in this title 3 within ninety days following the effective date of this amended subsection A.

Section 11. Chapter 3.30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended by renumbering Sections 3.30.160. 3.30.170 and 3.30.180, respectively, as Sections 3.30.170. 3.30.180 and 3.30.190 and adding new Section 3.30.160 thereto to read as follows:

      1. Appeal.

Any person who is aggrieved by any decision of the tax administrator with respect to the amount of such tax, interest and penalties, if any, or any other determination of the tax administrator made pursuant to section 3.30.130 may appeal to the city council by filing a notice of appeal with the city clerk within fifteen days of the serving or mailing of the tax administratorís determination. The city clerk shall fix a time and date for hearing such appeal and shall give notice in writing to the appellant in the manner prescribed in section 3.30.130 D for service of notice of hearing. The findings of the city council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in section 3.30.130 D. Any amount found to be due shall be immediately due and payable upon the service of the notice.

Section 12. Subsection A of Section 3.40.100 of Chapter 3.40 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

A. Whenever the amount of any tax, interest or penalty has been overpaid, or has been paid more than once or 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 tax administrator within one year of the date of payment. Any action brought against the City pursuant to this section shall be subject to the provisions of Government Code Sections 945.6 and 946. Compliance with this section shall be a prerequisite to a suit thereon. The claim shall be on forms furnished by the tax administrator, shall be presented in accordance with the requirements of Section 3.24.030 of this Title 3, and shall clearly establish the claimantís right to the refund by written records demonstrating entitlement thereto. It is the intent of the city that the one year claim requirement of this subsection be given retroactive effect; provided, however, that any claims that arose prior to the enactment date of the one-year claims period set forth in the subsection, which are not otherwise barred by the then-applicable statute of limitations or claim procedure, must be filed with the tax administrator as provided in this title 3 within ninety days following the effective date of this amended subsection A.

Section 13. The City Council finds that the amendments to Title 3 of the Municipal Code are substantially the same as previous provisions of the Rancho Palos Verdes Municipal Code or any other ordinance repealed, amended or superseded upon the enactment of this ordinance and that the amendments to Title 3 shall be construed as a restatement and continuation of the previous provisions.

Section 14. The City Council declares that the provisions of this ordinance are severable. If, for any reason, any sentence, paragraph, or section of this ordinance is determined by a court of competent jurisdiction to be invalid, such determination will not affect the validity of the remaining provisions of this ordinance.

PASSED, APPROVED and ADOPTED this ___________ day of ______________, 2004.

____________________________________

Mayor

ATTEST:

City Clerk