Chapter 3.40
TAX ON MEALS SERVED IN RESTAURANTS OR BY CATERERS
Sections:
3.40.030 Collection of tax by seller.
3.40.040 Exemptions – Limits on application.
3.40.050 Gratuities and service charges.
3.40.060 Report of taxes collected – Remittance – Preservation of records.
3.40.070 Penalty for violation of ordinance.
3.40.080 Interpretation of ordinance.
3.40.010 Definitions.
The following words and phrases, when used in this chapter, shall have, for the purposes of this chapter, the following respective meanings except where the context clearly indicates a different meaning:
“Cater” means the furnishing of food, beverages, or both on the premises of another, for compensation.
“Caterer” means a person who furnishes meals to be consumed on the premises of another for compensation.
“Collector” means the commissioner of revenue or designee.
“Commissioner” means the commissioner of revenue and any duly designated deputies, assistants, inspectors or other employees.
“Food” means 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” means any place in or from which food or food products are prepared, packaged, sold or distributed in the city of Staunton, including, but not limited to, any restaurant, dining room, grill, coffee shop, cafeteria, café, snack bar, lunch counter, convenience store, caterer, 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 or food products are sold for immediate consumption.
“Meal” shall mean any prepared food or drink offered or held out for sale by a food establishment for the purpose of being consumed by any person to satisfy the appetite and is ready for immediate consumption. All such food and beverage, unless otherwise specifically exempted or excluded herein, shall be included, 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 of service.
“Seller” means any food establishment or caterer selling meals, or the person operating such business. (Code 1985, § 12-170; Ord. 12-13-90, § 1).
3.40.020 Levy.
There is hereby imposed and levied by the city of Staunton on each person a tax at the rate of seven percent on the amount paid for meals purchased from any food establishment, whether consumed on the premises or not. There shall be no tax if the total amount paid is less than $0.25; on larger amounts a fractional cent of tax due shall be rounded to the next higher cent. (Ord. 2017-08; Ord. 2007-08. Code 1985, § 12-171; Ord. 12-13-90, § 1).
3.40.030 Collection of tax by seller.
Every seller receiving any payment for food with respect to which a tax is levied hereunder shall collect and remit the amount of the tax imposed by this chapter from the person on whom the same is levied or from the person paying for such food at the time payment for such food is made; provided, however, that no blind person operating a vending stand or other business enterprise under the jurisdiction of the Department for the Visually Handicapped and located on property acquired and used by the United States for any military or naval purpose shall be required to collect or remit such taxes.
All tax collections shall be deemed to be held in trust for the city of Staunton. (Code 1985, § 12-172; Ord. 12-13-90, § 1).
3.40.040 Exemptions – Limits on application.
(1) The tax imposed under this chapter 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.
(2) The tax imposed under this chapter shall not be levied on the following items when served exclusively for off-premises consumption (items sold through a “drive-in” window of a food establishment, if they fit the definition of “meal,” are, nevertheless, taxable):
(a) Donuts, ice cream, crackers, nabs, chips, cookies and factory-prepackaged items of essentially the same nature.
(b) 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 sold 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.
(c) Alcoholic and nonalcoholic beverages sold in factory-sealed containers.
(d) 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 through the Virginia Special Supplemental Food Program for Women, Infants, and Children.
(e) Any food or food product purchased for home consumption as defined in the federal Food Stamp Act of 1977, 7 U.S.C. Section 2012, as amended, except hot food or hot food products ready for immediate consumption. For the 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 nonfactory-sealed beverages. This subsection shall not affect provisions set forth in subsections (4)(c), (d) and (e) of this section.
(3) 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.
(4) The tax imposed hereunder shall not be levied on the following purchases of food and beverages:
(a) Food and beverages furnished by food establishments to employees as part of their compensation when no charge is made to the employee.
(b) 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.
(c) 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.
(d) 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.
(e) Food and beverages furnished by a public or private nonprofit 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.
(f) Food and beverages sold on an occasional basis, not exceeding four times per calendar year, by a nonprofit educational, charitable or benevolent organization, church, or religious body as a fund-raising activity, the gross proceeds of which are to be used by such organization exclusively for nonprofit educational, charitable, benevolent or religious purposes.
(g) Food and beverages sold through vending machines.
(h) Food and beverages sold in movie theaters.
(i) Food and beverages sold at the Staunton Farmer’s Market. (Ord. 2006-15. Code 1985, § 12-173; Ord. 12-13-90, § 1).
3.40.050 Gratuities and service charges.
The tax imposed by this chapter shall be imposed and levied on any gratuity for an employee of a seller; except, however, no such tax shall be imposed and levied on that portion of the amount paid by the purchaser as a discretionary gratuity in addition to the sales price of the meal or that portion of the amount paid by the purchaser as a mandatory gratuity or service charge added by the food establishment in addition to the sales price of the meal, but only to the extent that such mandatory gratuity or service charges do not exceed 20 percent of the sales price. (Ord. 2008-19. Code 1985, § 12-174; Ord. 12-13-90, § 1).
3.40.060 Report of taxes collected – Remittance – Preservation of records.
It shall be the duty of every person required by this chapter to pay to the city of Staunton the taxes imposed by this chapter to make a report thereof setting forth such information as the commissioner may prescribe and require, including all purchases taxable under this chapter, the amount charged the purchaser for each such purchase, the date thereof, the taxes collected thereon and the amount of tax required to be collected by this chapter. Such records shall be kept and preserved for a period of five years. The commissioner 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, for the purpose of administering and enforcing the provisions of this chapter, and to make transcripts of all or any parts thereof. (Code 1985, § 12-175; Ord. 12-13-90, § 1).
3.40.070 Penalty for violation of ordinance.
(1) Any person willfully failing or refusing to file a return as required under this chapter shall, upon conviction thereof, be guilty of a Class 1 misdemeanor except that any person failing to file such a return shall be guilty of a Class 3 misdemeanor if the amount of tax lawfully assessed in connection with the return is $1,000 or less. Any person violating or failing to comply with any other provision of this chapter shall be guilty of a Class 1 misdemeanor.
(2) Except as provided in subsection (1) of this section, any corporate or partnership officer, as defined in Section 58.1-3906 of the Code of Virginia, or any other person required to collect, account for, or pay over the meals tax imposed under this chapter, who willfully fails to collect or truthfully account for or pay over such tax, or who willfully evades or attempts to evade such tax or payment thereof, shall, in addition to any other penalties imposed by law, be guilty of a Class 1 misdemeanor.
(3) Each violation of or failure to comply with this chapter shall constitute a separate offense. Conviction of any such violation shall not relieve any person from the payment, collection or remittance of the tax as provided in this chapter. (Code 1985, § 12-176; Ord. 12-13-90, § 1).
3.40.080 Interpretation of ordinance.
The commissioner of revenue for the city of Staunton is empowered to interpret the provisions of this chapter. Any person, firm, or corporation aggrieved by such interpretation may file an appeal therefrom to the circuit court for the city of Staunton, Virginia. (Code 1985, § 12-177; Ord. 6-12-86; Ord. 12-13-90, § 1; Ord. 6-27-00).