Three current and former occupants of a boarding house, a motel and a residential hotel here have filed suit against the city, claiming that its transient occupancy tax is vague, discriminatory and unconstitutional.
The suit, filed last week in Pomona Superior Court, asserts that the 8% tax--which is assessed on all innkeepers in the city, who then collect it from their guests--places an unfair burden on Pomona's poorest residents, who rent rooms by the week because they cannot afford apartments.
Although the occupancy tax ordinance has been on the books for more than 22 years, the City Council amended it last June to require longtime occupants of residential hotels and boarding houses to pay the tax. Previously, those who lived in a hotel for more than 30 days consecutively were exempt from the ordinance.
"That amendment is at the heart of our lawsuit," said Pomona attorney Christopher A. Brancart, who is representing the three renters. "We do not contend that a transient occupancy tax is unconstitutional per se.
"The problem with Pomona's tax is that it deems permanent residents of Pomona to be transients for the purposes of this tax. They are not transients. They are very poor people who cannot afford to live in apartments."
Brancart said the plaintiffs are seeking to have the ordinance struck down on the grounds that it violates constitutional guarantees of due process and equal protection under the law by taxing some Pomona residents hundreds of dollars a year simply because they live in hotels. The suit also seeks a court order requiring the city to make refunds to long-term residents who have paid the tax.
City Atty. Patrick J. Sampson said the city has yet to file a response to the suit, which he received Monday. Based on a cursory reading of the complaint, Samson said, he will probably file a motion to have the suit dismissed, claiming that is without legal foundation.
"I don't see any serious constitutional issues here," Sampson said, adding that the city is free to classify those who remain in hotels for long periods of time as "transients."
"Cities have a very wide discretion in classifying in their taxing power," Sampson said. "Essentially, it's a legal classification argument, and if the court says we have the right to classify (hotel dwellers as transients), they're out of luck."
Sampson said the amended ordinance is actually more fair than the old one because it taxes all hotel occupants equally.
"We're taxing all lodgers in the city," Samson said. "I think it's more reasonable to tax everybody, no matter how long they lodge."
In the suit, Brancart also argues that the amended ordinance should be declared void because it is too vague in specifying what constitutes a "hotel" and a "transient."
As amended, the ordinance defines a "transient" as a person who stays in a hotel for any length of time. It defines a hotel as any structure designed for occupancy by transients, including residential hotels, rooming houses and recreational vehicle parks.
Brancart said that to define a transient as someone who lives in a hotel and then define a hotel as place that houses transients is circular reasoning. But to Sampson, Brancart's contention is an exercise in semantics.
"It almost sounds like (Brancart) is upset because we're calling them transients," Sampson said. "If that's the case, hell, we'll call them anything he wants. . . . We simply defined 'transient' as a person who is a lodger in a hotel. We could just call them 'lodgers.' "
Sampson said buildings defined as "hotels" under the ordinance occupy land that is zoned for commercial, not residential, use. If some innkeepers are using their hotels to house people as permanent residents, they are violating the city's zoning laws, he said.
"If, in fact, they've converted a lodging house into an apartment house, it's an illegal use," Sampson said.
Before June, Pomona's transient occupancy tax was similar to "bed taxes" charged by many other cities, most of which define a transient as someone who stays in a hotel for 30 days or less.
The measure to amend the ordinance was approved by all four council members then in office. In interviews this week, council members gave a number of reasons for supporting the amendment.
Councilman E. J. (Jay) Gaulding said he favored the amendment in part to help raise revenue for the city, which has had budget difficulties in recent years. In the 1986-87 fiscal year, the tax generated $381,291 for Pomona's $39-million budget, according to the city treasurer's office.
Gaulding also cited problems in enforcing the ordinance with the 30-day exemption, since records kept by innkeepers often made it difficult to determine how long a person had actually stayed at a hotel.
However, Councilman Mark Nymeyer said the amendment was not intended to generate tax dollars for the city, since the additional revenue created would be negligible. Nymeyer said he saw the amendment as an attempt to remedy the problem of people using transient lodgings as full-time residences.
"Motels where people stay for long periods of time, that's something I would like to see phased out of the city," Nymeyer said. "It's not conducive to a good-quality city. Those kinds of motels have a tendency to attract prostitution and people who hop from job to job."
Mayor Donna Smith concurred with Gaulding that the amendment was necessary to prevent some innkeepers from skirting the ordinance by catering to long-term guests.
"To address fairness, all motel and hotel facilities are now treated alike under the tax," Smith said.
The "transients" who filed the suit all lived in the same hotel or rooming house for more than a year, Brancart said.
One of the plaintiffs, Linda Miller, has rented a room with her husband and daughter at the Pala Motel on East Holt Avenue since November, 1986. The small room, with an adjoining kitchenette and bathroom, rents for $125 a week, more than would normally be a charged for a studio apartment of comparable size.
"It's a lot of money to pay out for a whole year," Miller said. She added that the family has looked for an apartment but cannot afford to pay the first and last months' rent, plus security deposit. "It's just too much."
Plaintiff Jenny Britt lived in a complex on Third Street--considered a "hotel" under the ordinance because it charges rent by the week--for 18 months before leaving the city in November, the suit states. Another plaintiff, Larry E. Mayfield, has rented a room at a boarding house on Main Street continuously since April, 1986, according to the suit.
Neither Britt nor Mayfield could be reached for comment.
Brancart said residential hotels or motels are frequently the only alternative to homelessness for people who depend on government assistance such as unemployment insurance, Social Security or Aid to Families with Dependent Children.
For such people, Brancart said, the initial cost of renting an apartment can easily exceed $1,000.
"That can be a considerable sum of money when you're talking about persons who are trying to make ends meet on government subsidies," Brancart said. "They live week to week."
Nymeyer said that in times of austere budgets, the city should not have to bear the burden of preventing homelessness, particularly when private charities and other government agencies exist for that purpose.
"I don't believe the city has a responsibility to provide housing for those people," Nymeyer said. "We can barely pay our own bills."
Brancart said he is aware of the city's financial hardships, but argued that the current transient occupancy tax is not an acceptable means of generating revenue.
"There's no doubt that the city needs money, that it provides many needed services and those services cost money," Brancart said. "But the tax is an unconstitutional attempt to balance the books on the backs of the poor."