[Adopted 1-23-2017 by Ord. No. 2017-02]
As used in this article, the following terms shall have the
meanings indicated:
Includes alcohol, spirits, wine and beer, and every liquid
or solid, patented or not, containing alcohol, spirits, wine or beer,
and capable of being consumed as a beverage by a human being.
Any and all solid, semi-solid, liquid, powder, or other food
substance used or intended to be used for internal human consumption,
whether simple, compound, or mixed.
Any natural individual, firm, partnership, association, joint
stock company, joint venture, public or private corporation (including
not-for-profit), limited-liability company, or a receiver, executor,
trustee, guardian, or other representative appointed by order of the
court. The term "person" does not include units of local government
or school districts.
Food or alcoholic liquor prepared for or made readily available
for consumption on-premises (even if not actually consumed on-premises
because it is made available for carry-out, drive-through, delivery,
or similar service), and requiring no further action at the time of
sale to allow a purchaser to consume the food or alcoholic beverage.
A tax is imposed on the sale at retail of alcoholic beverages
prepared for immediate consumption and food prepared for immediate
consumption, sold in the Village by a person who provides, on such
person's own premises or on premises of another pursuant to license,
franchise, lease, or other contractual agreement, facilities for on-premises
consumption of that food or alcoholic beverage ("food and beverage
tax"). The food and beverage tax shall be levied at the rate of 1%
of the purchase price of each sale and is in addition to all other
taxes. The food and beverage tax shall not apply to: a) meals provided
to patients or residents of health-care facilities, nursing homes,
or other such institutions incidental to other services where no separate
consideration is charged for meals; b) food dispensed from vending
machines; or c) food sold under the authority of public school systems.
The ultimate incidence and liability for payment of the food and beverage
tax shall be upon the seller of the food or alcoholic beverage.
A.Â
Food and beverages sales reports.
(1)Â
A food and beverages sales report, on forms as may be prescribed
by the Village Manager, shall be filed by each person required to
pay the food and beverage tax. The food and beverages sales report
shall certify all gross receipts received from the sale of food and
alcoholic beverages prepared for immediate consumption during the
preceding calendar month ("reporting month"). In connection with the
filing of such food and beverages sales reports, the Village Manager
may require any person subject to the food and beverage tax to submit
its ST-1 or comparable sales report filed with the Illinois Department
of Revenue. In the event that ST-1 or comparable sales reports are
required, the Village acknowledges that such reports comprise commercial
or financial information that are furnished under a claim that they
are proprietary, privileged, or confidential, and that disclosure
of the trade secrets or commercial or financial information would
cause competitive harm to the person or business, thus being exempt
from disclosure under the Freedom of Information Act under 5 ILCS
140/7(1)(g).
(2)Â
Each food and beverages sales report shall be accompanied by payment
to the Village of all food and beverage taxes due and owing for the
reporting month.
(3)Â
The food and beverages sales report shall be filed monthly with,
and the tax due and owing shall be paid at the same time to, the Village
on or before the 25th day of the month following the end of each reporting
month (the "reporting date"). Any person whose food and beverages
sales tax report is received by the Village or postmarked on or before
the reporting date shall be entitled to retain 2% of the amount of
taxes remitted to offset such person's administrative expenses
in collecting and delivering the food and beverage tax to the Village.
(4)Â
Any person that does not prepare a monthly ST-1 or comparable sales
report with the Illinois Department of Revenue may petition the Village
Manager in writing setting forth its standard reporting period. Upon
confirmation of the standard reporting period for such person, the
Village Manager shall authorize such person to file its food and beverages
sales report on a basis other than monthly; provided, however, that,
as a condition of such authorization, the Village Manager may require
the person receiving such authorization to deposit sums with the Village
in an amount reflective of the estimated monthly food and beverage
tax to be paid by such person times the number of months authorized
between the filing of food and beverages sales reports.
B.Â
Inspection of books and records. The Village Manager or the Manager's
designee may enter the premises of any person for the purpose of inspecting
and examining the person's books and records to ensure proper
administration of and compliance with this article and to otherwise
enforce the collection of the food and beverage tax. It shall be unlawful
for any person to prevent, hinder, or interfere with the Village Manager
or the Manager's designee in the discharge of the duties created
by this article or other applicable ordinances of the Village.
A.Â
Notice of delinquency. If the Village Manager determines that a person
required to pay the food and beverage tax has failed to pay to the
Village all taxes due pursuant to this article, the Village Manager
shall notify the person of that determination in writing. The notice
shall also set forth a date on which the person may contest the determination
in an administrative hearing before the Village Board of Trustees.
B.Â
Suspension or revocation of license. If, after an administrative
hearing, it is found that any person has willfully evaded its responsibility
to collect and pay to the Village the food and beverage taxes due
pursuant to this article, the Village Manager or Village President
may, in addition to any other authorized actions, suspend or revoke
any or all Village licenses issued to the person. Any license suspension
or revocation resulting from the hearing shall not relieve or discharge
the person of civil liability for the nonpayment of the food and beverage
tax. The suspension or revocation of a liquor license shall be subject
to the notice and hearing procedures set forth in the Village's
liquor control regulations;[1] provided, however, that a violation of this article shall
be justification for a pre-hearing suspension of a liquor license.
In the event any such person fails to collect and remit the
food and beverage tax (or any portion thereof) to the Village within
seven days after any reporting date, a penalty of 10% of the unpaid
portion of the food and beverage tax due with respect to such reporting
period shall be assessed and collected against such person. In addition,
in the event any person required to collect and remit the food and
beverage tax fails to collect and remit the tax (or any portion thereof)
to the Village within 30 days after the reporting date as provided
in this article, interest shall begin and continue to accumulate and
be due upon the unpaid portion of the food and beverage tax and any
penalty at the rate of 1% per month. Whenever any interest or penalty
shall be imposed in accordance with this section, any payment received
from a person obligated to pay the food and beverage tax shall be
credited first to any interest, next to any penalty, and finally to
the food and beverage tax that is due and owing, beginning with the
taxes that have been outstanding the longest. Interest and penalties
shall continue to accrue until all food and beverage taxes that are
due and owing have been paid.
All funds and proceeds from the food and beverage tax, including,
without limitation, any interest and penalties collected pursuant
to this article, shall be credited to and deposited into the general
fund of the Village.
In addition to other penalties or enforcement actions that may
be imposed pursuant to other provisions of this article or other applicable
statutes or ordinances, any person found guilty, in a court of competent
jurisdiction, of violating, disobeying, omitting, neglecting, or refusing
to comply with, or resisting or opposing the enforcement of, any provision
of this article, upon conviction thereof, shall be punished by a fine
of not less than $50 nor more than $750 for the first offense in any
calendar year, and not less than $250 nor more than $750 for the second
and each subsequent offense in any calendar year. Each day any violation
of any provision of this article continues to exist shall constitute
a separate punishable offense.
Any person who is liable to pay the food and beverage tax imposed
pursuant to this article may file an appeal with the Village Clerk
to challenge the applicability of such tax to any food or alcoholic
beverage item sold by such person (the "appellant"). The requirements
for pursuing and prosecuting an appeal are as follows:
A.Â
The appellant shall file an appeal with the Village Clerk in writing,
which filing shall be identified as an "Appeal to Applicability of
Food and Beverage Tax" and shall identify the appellant, the appellant's
place of business within the Village limits, the specific item that
the appellant believes is not subject to the food and beverage tax,
and the legal basis for the appeal. Although an appellant may file
multiple appeals, each appeal shall address the applicability of the
food and beverage tax to no more than one particular item.
B.Â
Within seven days after receiving an appeal, the Village Clerk shall
forward the appeal to the Village Board members. Within 35 days after
the Village Clerk receives an appeal, the Village Board shall notify
the appellant regarding the time and place for a hearing on the appeal,
provided that the hearing date shall be no sooner than 14 days nor
later than 30 days from the date of such notice.
C.Â
At the hearing on the appeal, the appellant and the Village shall
have the right to present and cross-examine witnesses and otherwise
to present relevant evidence. The Village Board (or a hearing officer
designated by the Village Board) shall hear the evidence at the hearing.
If a hearing officer is utilized, then the hearing officer shall present
a written set of proposed findings and a recommendation on the applicability
of the food and beverage tax to the Village Board; the Village Board
shall then consider the materials from the hearing officer and make
a determination by written resolution. If the Village Board conducts
the hearing, then the Board shall make its findings and determination
in a written resolution. The appellant shall bear the burden of establishing
that the food and beverage tax does not apply to the item that is
the subject of the appeal. The final determination of the Village
Board shall be rendered within 35 days after the conclusion of the
hearing.
D.Â
During the pendency of any appeal, the appellant shall be required
to collect and hold the food and beverage taxes imposed upon the item
that is the subject of the appeal. In the event that the appellant
prevails on the appeal, the appellant shall not be obligated to remit
the food and beverage tax on the item to the Village. In the event
that the appellant does not prevail on the appeal, within 14 days
after the Village Board's determination, the appellant shall
be required to remit to the Village (along with all relevant reports
establishing the amount that was to have been collected and held)
the food and beverage tax that was to have been collected and held
with respect to the item that was the subject of appeal. In the event
that such food and beverage taxes are not timely remitted to the Village,
the penalties and interest otherwise prescribed in this article shall
apply.
E.Â
Successful appeals.
(1)Â
A
successful appellant shall be authorized:
(a)Â
To cease all future collection of the food and beverage tax with
respect to the item that was the subject of the successful appeal;
(b)Â
Not to remit the food and beverage tax for such item to the Village as further set forth in Subsection D; and
(c)Â
To make application for a reimbursement of the food and beverage
tax paid on the item that is the subject of an appeal for a period
of up to 60 days prior to the filing of the appeal. An application
for reimbursement shall:
[1]Â
Be filed within 60 days after the written resolution of the Village
Board is approved finding an exemption.\;
[2]Â
Provide reasonable and reliable records to establish the amount of
the food and beverage tax so collected; and
[3]Â
Set forth the manner in which the appellant will return the food
and beverage taxes so collected to the persons from whom appellant
received the food and beverage tax revenues.
(2)Â
The
Village Board shall review each application for reimbursement and
shall approve such application based on the appellant's reasonable
proof regarding the amount to be reimbursed and the effectiveness
of the appellant's procedure for returning such food and beverage
tax receipts to the persons from whom the appellant received food
and beverage tax revenues.
Nothing in this article shall be deemed to:
