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2010 SESSION
10101463DBe it enacted by the General Assembly of Virginia:
1. That §§ 58.1-3833, 58.1-3834, and 58.1-3842 of the Code of Virginia are amended and reenacted as follows:
§ 58.1-3833. County food and beverage tax.
A. Any county is hereby authorized to levy a tax on food and
beverages sold, for human consumption, by a restaurant, as such term is defined
in subdivision 9 of § 35.1-1, not to exceed four percent of the amount
charged for such food and beverages at a rate established in the local
ordinance. The tax shall be computed based upon the amount charged for
such food and beverages. Such tax shall not be levied on food and beverages
sold through vending machines or by: (i) boardinghouses that do not accommodate
transients; (ii) cafeterias operated by industrial plants for employees only;
(iii) restaurants to their employees as part of their compensation when no
charge is made to the employee; (iv) volunteer fire departments and rescue
squads; nonprofit churches or other religious bodies; educational, charitable,
fraternal, or benevolent organizations, on an occasional basis, not exceeding
three times per calendar year as a fundraising activity, the gross proceeds of
which are to be used by such church, religious body or organization exclusively
for nonprofit educational, charitable, benevolent, or religious purposes; (v)
churches that serve meals for their members as a regular part of their
religious observances; (vi) public or private elementary or secondary schools,
colleges, and universities to their students or employees; (vii) hospitals,
medical clinics, convalescent homes, nursing homes, or other extended care
facilities to patients or residents thereof; (viii) day care centers; (ix)
homes for the aged, infirm, handicapped, battered women, narcotic addicts, or
alcoholics; or (x) age-restricted apartment complexes or residences with
restaurants, not open to the public, where meals are served and fees are
charged for such food and beverages and are included in rental fees. Also, the
tax shall not be levied on food and beverages: (a) when used or consumed and
paid for by the Commonwealth, any political subdivision of the Commonwealth, or
the United States; or (b) provided by a public or private nonprofit charitable
organization or establishment to elderly, infirm, blind, handicapped, or needy
persons in their homes, or at central locations; or (c) provided by private
establishments that contract with the appropriate agency of the Commonwealth to
offer food, food products, or beverages for immediate consumption at concession
prices to elderly, infirm, blind, handicapped, or needy persons in their homes
or at central locations.
Grocery stores and convenience stores selling prepared foods ready for human consumption at a delicatessen counter shall be subject to the tax, for that portion of the grocery store or convenience store selling such items.
This tax shall be levied only if the tax is approved in a
referendum within the county which shall be held in accordance with § 24.2-684
and initiated either by a resolution of the board of supervisors or on the
filing of a petition signed by a number of registered voters of the county
equal in number to 10 percent of the number of voters registered in the county,
as appropriate on January 1 of the year in which the petition is filed with the
court of such county. The clerk of the circuit court shall publish notice of
the election in a newspaper of general circulation in the county once a week
for three consecutive weeks prior to the election. If the voters affirm the
levy of a local meals tax, the tax shall be effective in an amount and on such
terms as the governing body may by ordinance prescribe. If such resolution of
the board of supervisors or such petition states for what projects and/or
purposes the revenues collected from the tax are to be used, then the question
on the ballot for the referendum shall include language stating for what
projects and/or purposes the revenues collected from the tax are to be used.
The term "beverage" as set forth herein shall mean alcoholic beverages as defined in § 4.1-100 and nonalcoholic beverages served as part of a meal. The tax shall be in addition to the sales tax currently imposed by the county pursuant to the authority of Chapter 6 (§ 58.1-600 et seq.) of this title. Collection of such tax shall be in a manner prescribed by the governing body.
B. Notwithstanding the provisions of subsection A of this
section, Roanoke County, Rockbridge County, Frederick County, Arlington County,
and Montgomery County, are hereby authorized to levy a tax on food and beverages
sold for human consumption by a restaurant, as such term is defined in § 35.1-1
and as modified in subsection A above and subject to the same exemptions, not
to exceed four percent of the amount charged for such food and beverages,
provided that the governing body of the respective The tax authorized
pursuant to this section shall only be imposed if the governing body of the county
holds a public hearing before adopting a local food and beverage tax, and the
governing body by unanimous vote adopts such tax by local ordinance
imposing the tax is adopted by a majority vote of the [ elected
] members of the governing body of the county. The tax shall be
effective in an amount and on such terms as the governing body may by ordinance
prescribe.
No increase in the tax authorized pursuant to this section
shall become effective unless the governing body of the county holds a public
hearing before adopting such increase, and the local ordinance increasing the
tax is adopted by a majority vote of the [ elected ] members
of the governing body of the county.
C. Nothing herein contained shall affect any authority heretofore granted to any county, city or town prior to July 1, 2010, to levy a meals tax. The county tax limitations imposed pursuant to § 58.1-3711 shall apply to any tax levied under this section, mutatis mutandis. All food and beverage tax collections and all meals tax collections shall be deemed to be held in trust for the county, city or town imposing the applicable tax. The wrongful and fraudulent use of such collections other than remittance of the same as provided by law shall constitute embezzlement pursuant to § 18.2-111.
D. No county which has heretofore that has
adopted an ordinance pursuant to subsection A of this section prior
to July 1, 2010, shall be required to submit an amendment to its meals tax
ordinance to the voters in a referendum. No county that is proposing to
adopt an ordinance pursuant to this section on or after July 1, 2010, shall be
required to submit the proposed meal tax ordinance to the voters in a
referendum.
E. Notwithstanding any other provision of this section, no locality shall levy any tax under this section upon (i) that portion of the amount paid by the purchaser as a discretionary gratuity in addition to the sales price; (ii) that portion of the amount paid by the purchaser as a mandatory gratuity or service charge added by the restaurant in addition to the sales price, but only to the extent that such mandatory gratuity or service charge does not exceed 20% of the sales price; or (iii) alcoholic beverages sold in factory sealed containers and purchased for off-premises consumption or food purchased for human consumption as "food" is defined in the Food Stamp Act of 1977, 7 U.S.C. § 2012, as amended, and federal regulations adopted pursuant to that act, except for the following items: sandwiches, salad bar items sold from a salad bar, prepackaged single-serving salads consisting primarily of an assortment of vegetables, and nonfactory sealed beverages.
§ 58.1-3834. Apportionment of food and beverage or meals tax.
In any case where a business is located partially within two
or more local jurisdictions by reason of the boundary line between the local
jurisdictions passing through such place of business, and one or more of the
local jurisdictions imposes the food and beverage or meals tax, the tax rate
shall be computed by applying the apportionment formula in § 58.1-3709 to the
food and beverage or meals tax rate of each applicable local jurisdiction. Such
apportioned rate shall be rounded to the nearest one-half percent; provided,
the total tax rate shall not exceed the rate authorized in § 58.1-3833.
§ 58.1-3842. Combined transient occupancy and food and beverage tax.
A. Rappahannock County, by duly adopted ordinance, is hereby
authorized to levy a tax on occupancy in a bed and breakfast establishment on
which the county is authorized to levy a transient occupancy tax under §
58.1-3819 and on food and beverages sold for human consumption within such
establishment on which the county is authorized to levy a food and beverage tax
under § 58.1-3833, when the charges for the occupancy of the room or space and
for the sale of food and beverages are assessed in the aggregate and not
separately stated. Such tax shall not exceed four percent of the total
amount charged for the occupancy of the room or space occupied and for the food
and beverages the county's rate of tax pursuant to § 58.1-3833. The tax
shall be computed based upon the total amount charged for the occupancy of the
room or space occupied and for the food and beverages. Such tax shall be in
such amount and on such terms as the governing body may, by ordinance,
prescribe. The tax shall be in addition to the sales tax currently imposed by
the county pursuant to the authority of Chapter 6 (§ 58.1-600 et seq.) of this
title. Collection of such tax shall be in a manner prescribed by the governing
body. All taxes collected under the authority of this article shall be deemed
to be held in trust for the county imposing the tax.
B. If a bed and breakfast establishment separately states charges for the occupancy of the room or space and for the sale of food and beverages, a transient occupancy tax levied under § 58.1-3819 and a food and beverage tax levied under § 58.1-3833 shall apply to such separately stated charges, as applicable.
C. Any tax imposed pursuant to this article shall not apply within the limits of any town located in such county, where such town now, or hereafter, imposes a town meals tax or a town transient occupancy tax on the same subject. If the governing body of any town within a county, however, provides that a county tax authorized by this article shall apply within the limits of such town, then such tax may be imposed within such towns.
D. This tax shall be levied only if a food and beverage tax
has been approved in a referendum within the county held prior to July 1,
2010; or, on or after July 1, 2010, has been adopted by a majority vote of the [
elected
] members of the governing body of the county as provided by the
second paragraph of subsection A subsection B of § 58.1-3833. No
county in which the levy of a food and beverage tax has been approved in a
referendum pursuant to subsection A of § 58.1-3833 prior to July 1,
2010, shall be required to submit an amendment to its meals tax ordinance
or a further question to the voters in a referendum prior to adopting an
ordinance adopting or amending the tax authorized by this article
section.
E. Nothing herein contained shall affect any authority heretofore granted to any county, prior to July 1, 2010, to levy a food and beverage tax or a transient occupancy tax.