20000613 2000-14aORDINANCE NO. 2000-14A
AN ORDINANCE AMENDING SECTION 8-60 - 8-72, ARTICE XI, CHAPTER 8
OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA, TO REDEFINE
WHAT CONSTITUTES A MEAL, GROSS RECEIPTS, AND EXEMPTIONS,
PROCEDURES AND PENALTY UPON FAILURE TO FILE.
BE IT ORDAINED by the Council of the City of Fairfax, Virginia, that Section 8-60 - 8-72,
Article XI, Chapter 8 of the Code of the City of Fairfax, Virginia is amended to read in its
entirety as follows:
ARTICLE XI. TAX ON MEALS SOLD BY RESTAUP~,NTS
Sec. 8-60. Definitions.
For the purposes of this article, the following words and phrases shall have the
meanings respectively ascribed to them by this section:
Food All food, beverages or both, including alcoholic beverages, purchased in or
from a food establishment, whether prepared in such food establishment or not, and whether
consumed on the premises or not, and without regard to the manner, time or place of service.
Food Establishment. Anyplace in or from which food or food products are prepared,
packaged, sold or distributed in the city, including but not limited to, any restaurant, dining
room, grill, coffee shop, cafeteria, cafe, snack bar, lunch counter, convenience store, movie
theater, delicatessen, confectionery, bakery, eating house, eatery, drugstore, ice cream/yogurt
shops, lunch wagon or truck, pushcart, or other mobile facility from which food is sold, public
or private club, resort, bar, lounge, or other similar establishment, public or private, and
shall include private property, outside of and contiguous to a building or structure operated
as a food establishment at which food products are sold for immediate consumption.
Meal. All prepared food and drink offered for sale in a form ready for immediate
consumption either on or off the seller's premises. All such food and drink, unless otherwise
specifically exempted or excluded herein, whether intended to be consumed on the seller's
premises or elsewhere, whether designated as breakfast, lunch, snack, dinner, supper or by
some other name, and without regard to the manner, time or place.
Purchaser. Any person who purchases a meal.
Commissioner of the revenue. The commissioner of the revenue of the City of Fairfax
and any duly designated deputies.
Sec. 8-61. Levy and amount of tax.
There is hereby imposed and levied by the city, in addition to all other taxes, fees, and
charges of every kind now or hereafter imposed by law, a tax upon each and every meal sold
in the city in or from a food establishment, whether prepared in the food establishment or not
and whether consumed on the premises or not, based on the amount which the purchaser is
charged by the seller for the meal, at the rate of two (2) per cent of the total charge, one-half
cent ($.005) shall be treated as one cent ($.01).
Sec. 8-62. Collection.
The tax shall be collected by the seller from the purchaser at the time that the charge
for the meal shall be due and payable, whether such payment shall be made in cash or on
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credit by means of a credit card or otherwise. The seller shall separately state the amount of
the tax and add such tax to the amount charged for the meal. The tax shall be paid to the city
for its use by the seller as hereinafter provided.
Sec. 8-63. Tax collected to be held in trust.
All money collected as taxes under this article shall be deemed to be held in trust by
the seller who has collected the same until remitted to the city as hereinafter provided.
Sec. 8-64. Reports and remittances.
Every seller shall make a report for each calendar month, which report shall show
the amount of the meal charges collected and the tax required to be collected upon
the form prescribed and provided by the commissioner of the revenue, and shall
sign and deliver such report to the commissioner of the revenue with remittance of
the collected tax. Such reports and remittances shall be made to the commissioner
of the revenue on or before the last day of the calendar month following the month
for which the report is made. The tax required to be collected and remitted to the
commissioner of the revenue may be computed by the seller on the basis of two (2)
percent of the total amount of meal charges collected for the calendar month.
}F-here a purchaser provides a gratuity for an employee of a seller, and the amount
of the gratuity is wholly in the discretion of the purchaser, the gratuity is not
subject to the tax imposed by this ordinance, whether paid in cash to the employee
or added to the bill and charged to the purchaser's account, provided in the latter
case, the full amount of the gratuity is turned over to the employee by the seller.
An amount or percent, whether designated as a gratuity, tip or service charge,
that is added to the price of the food and beverages by the seller, and required
to be paid by the purchaser, as a part of the selling price of the food and
beverages and is subject to the tax imposed by this ordinance.
Sec. 8-64.1. Commission for collection.
For the purpose of compensating sellers for the collection of the tax imposed by this
article, every seller shall be allowed a commission for three (3) percent of the amount of the
tax due and accounted for in the form of a deduction on the seller's monthly return, provided
that the amount due is not delinquent at the time of payment.
Sec. 8-65. Meals furnished to employees.
Meals furnished to employees in the course of or in connection with their employment
in restaurants shall not be considered sales of meals under this article.
Sec. 8-66. Advertising payment of absorption of tax prohibited.
No person shall advertise or hold out to the public in any manner, directly or
indirectly, that all or any part of the tax imposed under this article, will be paid or absorbed by
him or by anyone else, or that he or anyone else will relieve any purchaser of the payment of
all or any part of such tax. Any person who violates this section shall be guilty of a
misdemeanor.
Sec. 8-67. Penalty and interest for failure to remit tax when due.
If any person whose duty it is to do so shall fail or refuse to remit to the commissioner
of the revenue the tax required to be collected under this article within the time and in the
amount specified in this article, there shall be added to such tax by the commissioner of the
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revenue a penalty in the amount of ten (10) per cent thereof at the judgement rate, which shall
be computed upon the tax and penalty for each month or portion thereof from the date when
such tax was due and payable.
Sec. 8-68. Procedure upon failure or refusal to collect or remit taxes.
If any person whose duty it is to do so should fail or refuse to collect the meals tax or
to make timely reports and remittances as required by this article, the commissioner of the
revenue shall proceed in such manner as he may deem best to obtain the facts and information
upon which an estimate of the tax due can be made. As soon as the commissioner of the
revenue procures such facts and information as he is able to obtain, he shall proceed to
determine and assess against such person failing or refusing to comply with the provisions of
this article such tax, penalty and interest as is provided for in this article and shall notify such
person by registered mail at his last known address of the amount of such tax, interest and
penalty. The total amount of the tax, interest and penalty shall be payable within ten (10) days
of the mailing of such notice. If any person, after being so notified, fails to properly remit to
the commissioner of the revenue the total amount of the tax, interest and penalty, the
commissioner of the revenue is authorized to secure the debt as provided for in this article or
by any means provided for under Virginia law.
Sec. 8-69. Preservation of records.
It shall be the duty of every person required by this article to collect the meals tax and
remit the same to the city and to keep and preserve for a period of two (2) years complete
records showing all purchases taxable under this article, the amount charged each purchaser
for each such purchase, the date thereof, the taxes collected thereon and the amount of tax
required to be collected by this article. For the purpose of administering and enforcing the
provisions of this article, the commissioner of the revenue or his duly authorized agents shall
have the power to examine such records at reasonable times and without unreasonable
interference with the business of such person and to make transcripts or copies of any and all
parts thereof.
Sec. 8-70. Persons going out of business.
Should any person required to collect and remit to the city a meals tax under this
article cease to operate or otherwise dispose of his business, any tax payable under this article
to the city shall become immediately due and payable, and such person shall immediately
make a report and pay the tax due.
Sec. 8-71. ~' .... .... r....k..:+.k, ...... :~'"+:""~ Exemptions; limits on application.
(a) The tax imposed under this ordinance shall not be levied on factory-prepackaged
candy, gum, nuts and other items of essentially the same nature served for on or
off-premises consumption.
(b) The tax imposed under this ordinance shall not be levied on the following items
when served exclusively for off-premises consumption:
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(1) Donuts, ice cream, crackers, naps, chips, cookdes and factory-prepackaged
items of essentially the same nature.
(2) Food sold in bulk. For the purposes of this provision, a bulk sale shall mean
the sale of any item that would exceed the normal, customary and usual
portion soM for on premises consumption (e.g. a whole cake, a gallon of ice
cream); a bulk sale shall not include any food or beverage that is catered or
delivered by a food establishment for off-premises consumption.
(3) Alcoholic and non-alcoholic beverages sold in factory sealed containers.
(4) Any food or food product purchased with food coupons issued by the United
States Department of Agriculture under the Food Stamp Program or drafts
issued by the Virginia Special Supplemental Food Program for Women,
Infants, and Children.
(5) Any food or food product purchased for home consumption as defined in the
federal Food Stamp Act of 1977, 7 U.S.C. 3~2012, as amended except hot food
or hot food products ready for immediate consumption. For purposes of
administering the tax levied hereunder, the following items whether or not
purchased for immediate consumption are excluded from the said definition of
food in the federal Food Stamp Act: sandwiches, salad bar items sold from a
salad bar, prepackaged single-serving salads consisting primarily of an
assortment of vegetables, and non factory sealed beverages. This subsection
shall not affect provisions set forth in subparagraphs (d) (3), (4) and (5)
hereinbelow.
(c) A grocery store, supermarket or convenience store shall not be subject to the tax
except for any portion or section therein designated as a delicatessen or
designated for the sale of prepared food and beverages.
(d) The tax imposed hereunder shall not be levied on the following purchases of food
and beverages:
(1) Food and beverages furnished by food establishments to employees as part of
their compensation when no charge is made to the employee.
Food and beverages sold by day care centers, public or private elementary or
secondary schools or food sold by any college or university to its students or
employees.
Food and beverages for use or consumption and which are paid for directly by
the Commonwealth, any political subdivision of the Commonwealth or the
United States.
Food and beverages furnished by a hospital, medical clinic, convalescent
home, nursing home, home for the aged, infirm, handicapped, battered women,
narcotic addicts or alcoholics, or other extended care facility to patients or
residents thereof and the spouses and children of such persons.
Food and beverages furnished by a public or private non-profit charitable
organization or establishment or a private establishment that contracts with
the appropriate agency of the Commonwealth to offer meals at concession
prices to elderly, infirm, blind, handicapped or needy persons in their homes
or at central locations.
Food and beverages sold on an occasional basis, [not exceeding 12 times per
calendar year], by a non-profit educational, charitable or benevolent
organization, church, or religious body as a fundraising activity, the gross
proceeds of which are to be used by such organization exclusively for non-
profit educational, charitable, benevolent or religious purposes.
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(7) Food and beverages sold through vending machines.
Sec. 8-72. Penalty for violation of this article.
Any person violating or failing to comply with any of the provisions of this article
shall be guilty of a class 1 misdemeanor. Each such violation or failure and each
day's continuance thereof shall constitute a separate offense. The commissioner of
the revenue is authorized to institute an action in the appropriate court of record
for the continuing violation of any provision of this article, including but not
limited to prohibiting any person from continuing to conduct or engage in a
business, profession or trade unless or until the appropriate report and meals tax,
and/or penalty and/or interest has been paid. Any such conviction shall not
relieve any person from the payment, collection or remittance of such tax,
penalties and interest as is provided in this article.
(b) The commissioner of the revenue shall cause appropriate summons to be issued
and prosecuted for violations of this article.
This ordinance shall become effective as provided by law.
INTRODUCED:
PUBLIC HEARING:
ADOPTED:
May23,2000
June 13, 2000
June 13, 2000
The vote on the motion to adopt the ordinance was recorded as follows:
Councilman Coughlan
Councilman Greenfield
Councilman Lederer
Councilman Petersen
Councilman Rasmussen
Councilman Silverthome
Vote
Aye
Aye
Aye
Aye
Aye
Aye
ATTEST:
] C(J~rk