POMONA — 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.