[Added 9-2-2021 by Ord. No. 2021-07]
For purposes of this article, the following words and phrases
have the following meanings respectively ascribed to them by this
section, except where the context clearly indicates a different meaning:
Includes any roll of any size or shape for smoking, whether
filtered or unfiltered, with or without a mouthpiece, made wholly
or partly of cut, shredded or crimped tobacco or other plant or substitute
for tobacco, whether it is flavored, adulterated or mixed with another
ingredient, if the wrapper or cover is made of any material other
than leaf tobacco or homogenized leaf tobacco, regardless of whether
the roll is labeled or sold as a cigarette or by any other name.
Any individual, partnership or corporation engaged in the
sale of packages of cigarettes from vending machines.
The Commissioner of the Revenue of the City and any of his
or her duly authorized deputies and agents.
Includes every manufacturer, jobber, wholesaler, retailer,
cigarette machine operator, public warehouseman, or other person who
supplies a seller or agent with cigarettes for sale within the City.
Any container, regardless of the material used in its construction,
in which separate cigarettes are placed without such cigarettes being
placed into any container within the package. Packages are those containers
of cigarettes from which individual cigarettes are ordinarily taken
when they are consumed by their ultimate user. Ordinarily, a package
contains 20 cigarettes; however, the term "package" includes those
containers in which fewer or more than 20 cigarettes are placed.
Includes any individual, firm, partnership, society, association,
joint stock company, group, agency, syndicate, corporation, estate,
receiver, trustee, assignee, referee, or any other person acting in
a fiduciary or representative capacity, whether appointed by a court
or otherwise, and any combination of individuals. The word "person"
as applied to a partnership, unincorporated association or other joint
venture means the partners or members thereof, and as applied to a
corporation, includes all of the officers and directors thereof.
Includes any place where cigarettes are sold, placed, stored,
offered for sale or displayed for sale or where cigarettes are brought
or kept for the purpose of sale, consumption or distribution, including
vending machines, by a dealer within the City.
Every person to whom title to any cigarettes is transferred
by a seller within the jurisdictional limits of the City.
Includes every act or transaction, irrespective of the method
or means employed, including the use of vending machines and other
mechanical devices, whereby ownership or possession, or both, of any
cigarettes is transferred from the seller to any other person within
the jurisdictional limits of the City.
Every person who transfers title to any cigarettes or in
whose place of business title to any cigarettes is transferred, within
the jurisdictional limits of the City, for any purpose other than
resale.
A small, gummed piece of paper or decal to be sold by the
Treasurer and to be affixed to every package of cigarettes sold at
retail in the City, and any insignia or symbols printed by meter machine
upon any such package under the authorization of the Treasurer.
The Treasurer of the City and any of his or her duly authorized
deputies and agents.
Each distributor, wholesaler, vendor, retailer, or other person
selling, storing, or possessing cigarettes within or transporting
cigarettes within or into the City for sale or use shall first register
with the Commissioner of the Revenue. The application form, which
shall be supplied upon request, shall require such information relative
to the nature of the business engaged in by the applicant as the Commissioner
of the Revenue deems necessary for the administration and enforcement
of this article. Any applicant whose place of business and residence
is outside the City shall automatically, by filing his application,
submit himself to the City's legal jurisdiction and appoint the City
Manager as his agent for any service of lawful process. A copy of
any such process served on the City Manager shall be sent forthwith
by registered mail to the distributor, wholesaler, vendor, retailer,
or other person.
There is hereby levied and imposed by the City a tax at the
rate of $0.0125 per cigarette on each cigarette sold, with a minimum
of $0.25 per package, to the ultimate consumer in the City. The amount
of such tax shall be paid by the seller, if not previously paid, in
the manner and at the time provided for in this article.
A.
The tax imposed by this article shall be paid by affixing or causing
to be affixed a stamp or stamps, of the proper denominational or face
value, to each and every package of cigarettes sold within the City,
in the manner and at the time or times provided for in this article.
Every dealer and every seller in the City, once registered, shall
have the right to buy such stamps from the City Treasurer and to affix
the same to packages of cigarettes as provided in this article.
B.
The Commissioner of the Revenue may permit the payment in advance
of the tax levied and imposed by this article by the method of placing
imprints of the stamps upon original packages by the use of meter
machines, in lieu of the method of paying such tax by the purchase
and affixing of gummed stamps and may prescribe and enforce the necessary
regulations setting forth the method to be employed and the condition
to be observed in the use of such meter machines.
For the purpose of making stamps available for use, the Commissioner
of the Revenue shall prescribe, prepare and furnish to the City Treasurer,
and the City Treasurer shall sell stamps of such denominations and
in such quantities as may be necessary for the payment of the taxes
imposed by this article.
A.
Every dealer in cigarettes is hereby required and it shall be his
duty to purchase such stamps, at the office of the Commissioner of
the Revenue and payment to the City Treasurer, as shall be necessary
to pay the tax levied and imposed by this article, and to affix or
cause to be affixed a stamp or stamps of the monetary value prescribed
by this article to each package of cigarettes prior to delivery or
furnishing of such cigarettes to any seller. Nothing herein contained
shall preclude any dealer from using a stamp meter machine in lieu
of gummed stamps to effectuate the provisions of this article.
B.
Every seller shall examine each package of cigarettes prior to exposing
the same for sale, for the purpose of ascertaining whether such package
has the proper stamps affixed thereto or imprinted thereon, as provided
by this article. If, upon such examination, unstamped or improperly
stamped packages of cigarettes are discovered, the seller, where such
cigarettes were obtained from a dealer, shall immediately notify such
dealer, and upon such notification, such dealer shall forthwith either
affix to or imprint upon such unstamped or improperly stamped packages
the proper number of stamps, or shall replace such packages with others
to which stamps have been properly affixed or imprinted thereon.
C.
Should a seller obtain or acquire possession of, from any person
other than a dealer, any unstamped or improperly stamped cigarettes,
such seller shall forthwith, before selling or offering or exposing
such cigarettes for sale in the City, purchase and affix or cause
to be affixed to such packages of cigarettes the proper stamps, or
the markings of a meter machine, covering the tax imposed by this
article.
D.
In the event any seller elects to purchase and affix stamps or imprints
of a meter machine, before offering cigarettes for sale, any dealer
delivering and furnishing cigarettes to such seller shall not be required
to purchase and affix such stamps or imprints to such cigarettes so
sold or furnished; provided that any such dealer shall, on the day
after such delivery and furnishing, file with the Commissioner of
the Revenue a copy of the delivery memorandum showing the name and
address of the seller and the quantity and type of cigarettes so delivered
and furnished.
Stamps or the printed markings of a meter machine shall be placed
upon each package of cigarettes in such manner as to be readily visible
to the purchaser.
The Commissioner of the Revenue may, from time to time, and
as often as he or she may deem advisable, provide for the issuance
and exclusive use of stamps of a new design and forbid the use of
stamps of any other design.
A.
Should any person, after acquiring from the Commissioner of the Revenue
and payment to the City Treasurer for any stamps or metered imprints
provided for in this article, cease to be engaged in a business necessitating
the use thereof, or should any such stamps become mutilated and unfit
for use, other than by cancellation as provided in this article, or
otherwise not be used, such person shall be entitled to a refund of
the denominational or face amount of any stamps or imprints so acquired
and not used by him, upon presenting such stamps or imprints to the
Commissioner of the Revenue and furnishing the Commissioner of the
Revenue with an affidavit showing, to his satisfaction, that such
stamps or imprints were acquired by such person and have not in any
manner been used and the reason for requesting such refund.
B.
All refunds for unused and mutilated stamps and for nonuse of imprints
of stamps by meter machines provided for under this section are hereby
authorized to be made on vouchers approved by the Commissioner of
the Revenue and, when made, the same shall be charged against the
sums collected for the sale of such stamps and for the use of such
imprints.
A.
Whenever the Chief of Police or any of his or her officers shall
discover cigarettes in quantities of more than six cartons within
the City which are subject to the tax imposed by this article and
upon which the tax has not been paid or upon which stamps have not
been affixed or evidence of such tax shown thereon by the printed
markings of an authorized meter machine, as this article requires,
such cigarettes shall be conclusively presumed for sale or use within
the City and the Chief of Police or any of his or her officers may
forthwith seize and confiscate such cigarettes, if:
(1)
They are in transit, and are not accompanied by a bill of lading
or other document indicating the true name and address of the cosigner
or seller and of the cosigner or purchaser, and the brands and quantity
of cigarettes so transported; or are in transit and accompanied by
a bill of lading or other document which is false or fraudulent in
whole or in part; or
(2)
They are in transit and are accompanied by a bill of lading or other
documents indicating:
(a)
A cosignee or purchaser in another state or the District of
Columbia who is not authorized by the law of such other jurisdiction
to receive or possess such tobacco products on which the taxes imposed
by such other jurisdiction have not been paid, and unless the tax
of the state or district of destination has been paid and the said
products bear the tax stamp of that state or district; or
(b)
A cosignee or purchaser in the Commonwealth but outside the
City who does not possess a Virginia sales and use tax certificate,
a Virginia retail tobacco license and where applicable, both a business
license and retail tobacco license issued by the local jurisdiction
of destination; or
(3)
They are not in transit and the tax has not been paid, nor have approved
arrangements for payment been made, provided that this subsection
shall not apply to cigarettes in the possession of distributors or
public warehouses which have filed notice and appropriate proof with
the Commissioner of the Revenue that those cigarettes are temporarily
within the City and will be sent to cosignees or purchasers outside
the City in the normal course of business.
B.
All cigarettes seized and confiscated according to Subsection A(1) of this section shall thereupon be deemed to be forfeited to the City and may be sold within a reasonable time thereafter, after proper notice of such seizure is given to the known holders of property interests in the cigarettes. Such notice shall be given to known holders of property interests, if any, by certified mail and by written notice posted on the bulletin board(s) of City Hall at least seven days before the date of sale. Such notice shall contain the time and place at which the sale is to occur and procedures for administrative appeal as well as affirmative defenses which may be asserted by such holders. All moneys collected under this section shall be paid to the City Treasurer and treated as other taxes collected under this article. No credit from any sale or other disposition shall be allowed toward any tax or penalties owed.
A.
Any coin-operated vending machine, in which any cigarettes are found, stored or possessed bearing a counterfeit or false tobacco tax stamp or impression or any unstamped cigarettes, or any cigarettes upon which the tax has not been paid, may be declared contraband property and be subject to confiscation and sale as provided in § 366-64B. When any such vending machine is found containing such cigarettes, it shall be presumed that such cigarettes were intended for distribution, sale or use therefrom. In lieu of immediate seizure and confiscation of any vending machine used in an illegal evasion of the tax, it may be sealed by appropriate enforcement authorities to prevent continued illegal sale or removal of any cigarettes and may be left unmoved until other civil and criminal penalties are imposed or waived. Notice requirements shall be the same as if the machine had been seized. Such seal may be removed, and the machine declared eligible for operation only by authorized enforcement authorities. Nothing in this section shall prevent seizure and confiscation of a vending machine at any time after it is sealed.
B.
Any counterfeit stamps or counterfeit impression devices found may
also be seized and confiscated.
It shall be the duty of every dealer and seller to maintain
and keep, for a period of two years, such records of cigarettes sold
and delivered by him as may be required by the Commissioner of the
Revenue and to make all such records available for examination by
such Commissioner of the Revenue, upon demand, at any and all reasonable
times.
A.
The Commissioner of the Revenue may prescribe, adopt, promulgate
and enforce rules and regulations relating to the method and means
to be used in the cancellation of stamps and to all other matters
pertaining to the administration and enforcement of the provisions
of this article. It shall be unlawful for any person to fail, neglect
or refuse to comply with such rules and regulations.
B.
The Commissioner of the Revenue may examine books, records, invoices,
papers and any and all cigarettes in and upon any premises where the
same are placed, stored, sold, offered for sale or displayed for sale
by a seller or dealer.
The tax levied and imposed by this article shall be in addition
to all other taxes of every kind levied and imposed by any other ordinance
or law.
A.
Any person violating any of the provisions of this article shall
be guilty of a Class 1 misdemeanor. In addition, any person who shall
perform any fraudulent act or fail to perform any act for the purpose
of evading the payment of any tax imposed by this article shall be
required to pay a penalty in the amount of 50% and interest not to
exceed 3/4 of 1% per month upon any tax found to be overdue and unpaid.
Conviction and payment of a fine for such violation shall not relieve
any person from the payment of any tax imposed by this article.
B.
Each violation of, or noncompliance with, any of the provisions of
this article shall be and constitute a separate offense and shall
subject every person convicted thereof to the penalties prescribed.
It shall be unlawful and a violation of this article for any
person:
A.
To perform any act or fail to perform any act for the purpose of
evading the payment of any tax imposed by this article or of any part
thereof; or for any dealer or seller, with intent to violate any provision
of this article, to fail or refuse to perform any of the duties imposed
upon him under the provisions of this article or to fail or refuse
to obey any lawful order which the Commissioner of the Revenue may
issue under this article.
B.
To falsely or fraudulently make, forge, alter or counterfeit any
stamp or the printed markings of any meter machine or to procure or
cause to be made, forged, altered or counterfeited any such stamp
or printed markings of a meter machine or to knowingly and willfully
alter, publish, pass or tender as true any false, altered, forged
or counterfeited stamp or stamps or printed markings of a meter machine.
C.
To sell any cigarettes upon which the tax imposed by this article
has not been paid and upon which evidence of payment thereof is not
shown on each package of cigarettes.
D.
To reuse or refill with cigarettes any package from which cigarettes,
for which the tax imposed has been theretofore paid, have been removed.
E.
To remove from any package any stamp or the printed markings of a
meter machine with intent to use or cause the same to be used after
the same have already been used, or to buy, sell or offer for sale
or give away any used, removed, altered or restored stamps or printed
markings of a meter machine to any person, or to reuse any stamp or
printed markings of a meter machine which had theretofore been used
for evidence of the payment of any tax prescribed by this article,
or, except as to the City Treasurer, to sell or offer to sell any
stamps or printed markings of a meter machine provided for in this
article.
A.
In the event any package of cigarettes is found in the possession
of a seller, without the proper stamps being affixed thereto or without
authorized printed markings of a meter machine thereon, and the seller
shall be unable to submit evidence establishing that he received such
package within the immediately preceding 48 hours and that he has
not offered the same for sale, the presumption shall be that such
package is being kept by such seller in violation of the provisions
of this article and shall subject him to the penalties provided for
such violation.
B.
Any cigarettes placed in any coin-operated vending machine located
within the City shall be presumed for sale within the City. Any vending
machine located within the City containing cigarettes upon which the
stamp has not been affixed or containing cigarettes placed so as not
to allow visual inspection of the stamp through the viewing areas
as provided for by the vending machine manufacturer shall be presumed
to contain untaxed cigarettes in violation of this article.
C.
Any cigarettes, coin-operated vending machines, counterfeit stamps,
or other property found in violation of this article shall be declared
contraband goods and may be seized by the Sheriff or any of his deputies.
In addition to any tax due, the dealer or other person liable for
the tax possessing such untaxed cigarettes shall be subject to civil
and criminal penalties herein provided.
D.
In lieu of seizure, the Sheriff or any of his deputies may seal such
vending machines to prevent continued illegal sale or removal of such
cigarettes. The removal of the seal from a vending machine by any
unauthorized person shall be in violation of this article. Nothing
in this article shall prevent the seizure of any vending machine at
any time after it is sealed.
E.
All cigarette vending machines shall be plainly marked with the name,
address and telephone number of owner of the machine.
