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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 2000-14A -2 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 2000-14A -3 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: 2000-14A -4 (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. 2000-14A (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