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June 14, 2022

MINUTES OF THE BROOKNEAL TOWN COUNCIL

7:00 PM – The regular meeting of the Brookneal Town Council

The municipal government of the Town of Brookneal met with the following members present:

Richard Adams, Mayor
Mark Wilkes, Vice Mayor
Barbara Laprade, Joseph David, Cynthia Johnson, Scott Fisher and Conner Francis, Council Members
Bobbie Waller, Clerk/Treasurer
Russell Thurston, Town Manager
Mike Crews, Public Works Director
Richard Baldwin, Chief of Police

INVOCATION AND PLEDGE OF ALLEGIANCE TO THE FLAG

APPROVAL OF AGENDA

Upon motion by Mark Wilkes, seconded by Conner Francis, and unanimously carried, Council approved the agenda for the June 14, 2022, regular meeting of the Brookneal Town Council with the following additions:  1)  Motion to approve a resolution for Golden Skillet Restaurant for their 50 years of business in the Town to be presented at the July 12, 2022 Town Council meeting    2)  Motion to approve a resolution for retiring Police Chief Richard Baldwin to be presented at the July 12, 2022 Town Council meeting   3)   Comments from Town Attorney Tripp Isenhour.

MINUTES

 

Upon motion by Mark Wilkes seconded by Conner Francis, and unanimously carried, Council approved the minutes for the May 10, 2022, Town Council meeting.

TREASURER’S REPORT

Mayor Adams asked that the June 2022 treasurer’s report be filed for audit.

PRESENTATION AND APPROVAL OF INVOICES

Be it resolved that motion was made by Mark Wilkes, seconded by Cynthia Johnson, and unanimously carried, authorizing the payment of the invoices for the period of May 11, 2022 through June 14, 2022, in the amount of $35,807.49.

PUBLIC COMMENT

Mr. Ken Silby, of 914 Lynchburg Avenue, told the Council that this town has gone to crap.  He said when you send paperwork to people about chickens in their yard, and you don’t worry about the blight properties in Town, the drug dealers in Town, or anything else, but you are worried about somebody with a chicken in their yard.  He said this town, this county, was based and raised and continued to be a farming community; a town in which we had business and we took care of all of our neighbors. He said it didn’t matter and this goes for whoever was the responsible party for being so racist in the grocery store.  He said it didn’t matter what color or where you came from, we took care of each other; we took care of our own.  That’s what this town needs to get back to.  He said forget the chickens; how about doing something about these people that don’t care about their properties, the slum lords that have people outside doing drugs and fighting themselves in the middle of the road and then hitting people in the head with ball bats.  He said it is not where he wants to grow up, and he was glad his kids were grown.  He said if anybody asked him, he would tell them not to come here; it is kind of like a little Chicago.  He said we are not to be governed by people who like to dictate; this town has and will always be somebody and people who vote on stuff.  He said he hadn’t seen the first vote to do away with chickens and farm animals, but he said a whole lot of people talking about doing away with the drug dealers, the slumlords, the blight properties, the bad road maintenance.  He said how about giving the police officers some more money, and the guys that pick up the trash some more money, how about y’all taking a pay cut.

Ms. Carolyn Zimmer, of 116 Charlotte Street, said that she just moved here a little over 6 months ago, and that she had to surrender her animals, her dogs and her chickens.  She said that when she read the ordinance before she moved here that we went under Campbell County rule and that you could have 10 hens.  She said that since then she found out that she can’t have anything which is really disappointing.  She said as the other gentleman said, that there is so much more this Town could be doing than nitpicking on certain items.  She said that she did not understand how someone who lives less than 150 feet from the school can have guns and ammo sold out of their house; she said that makes no sense to her especially with what is going on in the world lately.  She said the town has great opportunity, she said she felt we just need different leadership, she said “you guys” are not going in the right direction.  She said there is a reason people are not coming here with property not being sold.  She said she doesn’t see the Council sending out anything asking people who live here and pay their taxes what they want done with this Town.  She said she sees 9 people sitting up here dictating what we’re doing and nobody is saying let’s put this to a vote for the Town to decide on do we want increases in taxes, do we want this, do we want that. She said, “I just see 9 people dictating everything, and I don’t think that’s how it should be run.”

Ms. Tracey Meisenbach, of 527 Cook Avenue, said that she wanted to talk about an ordinance that is on the books, 92.19, which is about fireworks being exploded in the city limits. She said she is not talking about snappers or sizzlers; she said she is talking about shot up into the air and 10-15-foot-wide starbursts.  She said that it has been going on for several years and the same two families are doing it.  She said she has talked to Chief Baldwin, Clif Mason and Russell Thurston about this.  She said whether anybody likes it or not, she has horses and she has had them here for 23 years.  She said if you shoot off fireworks in a deliberate attempt to spook her horses, you are not only violating a town ordinance, you are violating a state law where it is a misdemeanor to deliberately spook a horse.   She said Chief Hires handled this and Chief Cousins handled this when he was here.  She said she didn’t care about snappers or sizzlers, but when they are shot off by the nursing home and the police are down there and nothing is done and she can see the fireworks going off.  She said she has a video of them and there is a police car in the video and nothing is done. She said somebody should have been charged with a misdemeanor and fined.  She said it is in the town code and it is on the town website.  She said that if it is your position that the ordinances should be enforced, then this July 1-4, 2022 she expects people to be charged and the fireworks to be shut down.  She said it is ridiculous that nobody is enforcing this especially after it is brought to their attention.  She said she would appreciate it if this year if you get a complaint, that something would be done.

POLICE REPORT

Police Chief Richard Baldwin presented the police report for June 2022.  He said of the 156 calls for service, 136 were answered by the Brookneal Police Department and 20 by the Campbell County Sheriff’s office.  He also presented a press release listing the indictments for the May 2022 grand jury term.  He said there were drug-related offenses, distribution and possession of narcotics, weapons violations, as well as various other offenses.

Chief Baldwin addressed the fireworks complaint presented by Ms. Meisenbach.  He said that Ms. Meisenbach is right about the fireworks being illegal in town, anything which explodes, rises into the air or travels laterally, or fires projectiles into the air.  He said that as law enforcement they work on probable cause; he said they can’t work on suspicion only.  He said that if they go somewhere on a complaint where someone is shooting fireworks, but they see no fireworks when they get there; he said if they interview the person, and they say they haven’t done it and there were no witnesses.  He said just because there is a picture, where did that picture come from?  He said they do enforce laws in the Town of Brookneal.  He said if a video is taken of the fireworks being set up and exploding, then that is good evidence.  He said a video of something exploding in the air does not prove where the explosion came from.  Councilperson David noted that a citizen has every right to go to the magistrate and press charges themselves.  Chief Baldwin said they have to have probable cause; they can’t charge somebody with a crime off mere suspicion.  Officer Mason addressed the fireworks complaint and recalled the night it happened.  He said he never saw who shot the fireworks off.  He warned the suspected persons not to shoot off fireworks, but he did not see them shoot it, so he could not charge them.  He said if he charged them and does not have proof, the commonwealth attorney is not going to prosecute any of it.   

Discussion turned to the gun shop on Charlotte Street in light of recent events with a school shooting in Uvalde, Texas.  Chief Baldwin said that he goes by there and talks with the gun shop owner at least once per week; he said he is constantly in contact with him.  He said that the gun shop owner recently renewed his federal firearms license.  There was much discussion about the gun store and discussion turned to the Dillon rule.   Tripp Isenhour, the Town attorney, clarified a statement made by Ms. Meisenbach who said that the Town of Brookneal was absolutely subordinate to Campbell County.  Mr. Isenhour said that the Town of Brookneal is its own independently chartered entity.  He said the Dillon rule specifically states that localities whether it be a town or a county, have no authority to pass laws or ordinances other than what is specifically delegated to them by the state or through the general assembly.  He said the supremacy clause in the Constitution which states that any aspect of law that is governed by federal law, the United States Congress, states and localities cannot mess with.  He said that includes things like firearms regulations that are subject to federal firearms licensing and federal firearms standards.  He said the feds are going to set the standards and that is the only standard that is going to apply and the localities cannot do anything different on that.  He said the distinction between towns and counties, is that towns are within counties, and the counties provide a backdrop.  He said all the rules and restrictions in the County apply in a Town unless and until the Town creates their own rules and once the Town creates their own rules, they can be different from the County entirely.  He said the Town can impose its own rules that can be different from the County because they are independent of the county, the county is just a backdrop.

PUBLIC WORKS REPORT

Public Works Director Mike Crews noted in his report that there is not an agriculture zoning district in the Town of Brookneal, and there has not been once here since the Town of Brookneal incorporated the zoning districts.

Mr. Crews said that the Town is in the middle of a water meter upgrade through Fortiline for radio read water meters.  He said a crew put the collector (the antennas for the radio read meters) on the water tank last week.  He said a washout of the downtown tank was also done last week by a utility service company.  He said they are awaiting reports about the condition of the tank.  He said hopefully they can fill it after a meeting with VDH (Virginia Department of Health) and get it back online.  He said the radio read meters will save time in the maintenance department by eliminating the need for 2 employees to read meters 2 days per month.  He said the meters will be time saving, provide more accurate collection of data, provide the opportunity for wider integration and enhanced customer service.  He said the system will have leak detection which will provide an alert to the office when this occurs.  He said he had received no updates on the part he is waiting for on the 2020 trash truck.  He said the Dixie Girls are hosting all stars this weekend here in Brookneal.

TOWN MANAGER REPORT

Town Manager Russell Thurston told the Council that a new police chief will be starting on August 1, 2022.  He thanked Chief Richard Baldwin for his many years of service in law enforcement, 48 years in total.  Mr. Thurston said that the real estate market has been extremely hot in the Town of Brookneal; houses are selling or going under contract within 30 days of going on the market.  He said Brookneal Elementary is showing the highest increase in student enrollment than any other school in Campbell County. 

Mr. Thurston said that he is working on a new playground at the ball park in the coming fiscal year; he is working with a landscaping design architect. He said his plans are for a new shelter/picnic pavilion that will be handicap accessible for the ball park as well as new playground equipment for the kids.  He said that he is also working on a project to make improvements at the boat landing on Town owned land in that area.  He said he would like to put in a picnic shelter/pavilion that would be designed flood worthy since it is in a flood plain; he said this would make the project more expensive for the correct materials.  He said he plans for improvements at the community building as well.

Mr. Francis asked about dogs being at large in Town, and what the status was on that.  Mr. Francis said he also understood that the Town does not have an animal control contract with Campbell County to enforce the Town’s codes.  Mr. David said that he could not enforce the Town codes without an agreement; he said Altavista has that but Brookneal does not.  Mr. Thurston said that we could have this discussion in the future to have an agreement with the County to enforce the Town codes.

RESOLUTION RECOGNIZING THE GOLDEN SKILLET RESTAURANT

Upon motion by Conner Francis, seconded by Cynthia Johnson, and unanimously carried, the Council voted to approve a resolution for the Golden Skillet Restaurant for their 50 years of business in the Town of Brookneal to be presented at the July 12, 2022, Town Council meeting. 

Voting was as follows:

Mr. Francis      Aye
Mr. David        Aye
Mr. Wilkes       Aye
Mr. Fisher        Aye
Ms. Laprade
Ms. Johnson
Mayor Adams

RESOLUTION FOR RETIRING POLICE CHIEF RICHARD BALDWIN

Upon motion by Barbara Laprade, seconded by Conner Francis, and unanimously carried, the Council voted to approve a resolution for retiring Police Chief Richard Baldwin to be presented at the July 12, 2022 Town Council meeting. 

A roll call vote was taken as follows:

Mr. Francis      Aye
Mr. David        Aye
Mr. Wilkes       Aye
Mr. Fisher        Aye
Ms. Laprade
Ms. Johnson
Mayor Adams

APPROVAL/DISAPPROVAL OF THE 2022/2023 GENERAL FUND BUDGET AS PRESENTED AND ADVERTISED

Upon motion by Barbara Laprade, seconded by Joseph David, and unanimously carried, the Council voted to approve the 2022/2023 general fund budget as presented and advertised. 

A roll call vote was taken as follows:

Mr. Wilkes                   Aye
Ms. Laprade                Aye
Mr. David                    Aye
Ms. Johnson               Aye
Mr. Fisher                    Aye
Mr. Francis                  Aye
Mayor Adams             Aye

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APPROVAL/DISAPPROVAL OF THE 2022/2023 WATER FUND BUDGET AS PRESENTED AND ADVERTISED

Upon motion by Barbara Laprade, seconded by Joseph David, and unanimously carried, the Council voted to approve the 2022/2023 water fund budget as presented and advertised.

A roll call vote was taken as follows:

Mr. Wilkes       Aye
Mr. Francis      Aye
Ms. Johnson   Aye
Mayor Adams    Aye
Mr. Fisher      Aye
Ms. Laprade     Aye
Mr. David        Aye

APPROVAL/DISAPPROVAL OF THE 2022/2023 SEWER FUND BUDGET AS PRESENTED AND ADVERTISED

Upon motion by Barbara Laprade, seconded by Cynthia Johnson, and unanimously carried, the Council voted to approve the 2022/2023 sewer fund budget as presented and advertised. 

A roll call vote was taken as follows:

Mr. Wilkes       Aye
Mr. Francis      Aye
Ms. Johnson   Aye
Mayor Adams    Aye
Mr. Fisher      Aye
Ms. Laprade     Aye
Mr. David        Aye

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MOTION TO REPEAL THE CURRENT MEALS TAX ORDINANCE

Upon motion by Scott Fisher, seconded by Joseph David, and unanimously carried, the Council voted to repeal the existing meals tax ordinance.

MOTION TO REPLACE THE MEALS TAX ORDINANCE TO INCLUDE AN INCREASE IN THE TAX FROM 5% TO 6.5%

Upon motion by Scott Fisher, seconded by Joseph David, and with a vote of 5-1 with Conner Francis voting nay, the Council voted to replace the meals tax ordinance to include an increase in the meals tax from 5% to 6.5% effective July 1, 2022.  A copy of the revised ordinance is below.

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MEALS TAX

§ 34.065  DEFINITIONS.

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• CATER. The furnishing of food, beverages or both on the premises of another, for compensation.
• FOOD.  All FOOD, beverages or both, including alcoholic beverages, purchased in or from a food establishment, whether prepared in that food establishment of not, and whether consumed on the premises or not, and without regard to the manner, time or place of service.
• FOOD ESTABLISHMENT.  Any place in or from which food or food products are prepared, packaged, sold or distributed in the town, including but not limited to any restaurant, dining room, grill, coffee shop, cafeteria, café, 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 or food products are sold for immediate consumption.
• MEAL.  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 that is ready for immediate consumption. All such food and beverage, unless otherwise specifically exempted or excluded in this subchapter, 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.
• SALE (OF A MEAL). A final sale to the ultimate consumer.
• SELLER. Any person receiving any payment for food with respect to which a tax is levied under this subchapter.
• TREASURER.  The Town Clerk/Treasurer and/or any duly designated deputy, assistant or inspector, or any other duly authorized agent, employee or designee.

(1997 Code, § 62-110) (Ord. passed 6-8-2004)

§ 34.066  LEVY OF TAX.

1. There is imposed and levied by the town on each person a tax at the rate of 5% (to be replaced July 1, 2022 with) 6.5% on the amount paid for meals purchased from any food establishment, whether prepared in the food establishment or not, and whether consumed on the premises or not.  Any fractional cent shall be rounded to the next higher cent.
2. The tax imposed by this subchapter applies to all sales of meals and food by a food establishment which place of business is located within the town, without regard to the locality of delivery or possible use by the purchaser.

(1997 Code, § 62-111) (Ord. passed 6-8-2004)

Statutory reference:

Excise tax on meals, see VA Code, § 58.1-3840

§ 34.067  COLLECTION OF TAX BY SELLER.

1. Every seller shall collect and remit the amount of the tax imposed by this subchapter from the person on whom the tax is levied or from the person paying for the food at the time payment for the food is made; provided, however, that as set forth in VA Code, § 51.5-98, no blind person operating a vending stand or other business enterprise under the jurisdiction of the State 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 these taxes.
2. All amounts collected as taxes by the seller under this subchapter shall be deemed to be held in trust by the seller collecting the taxes, until remitted to the town as provided in this subchapter.  If the amounts collected as taxes are not paid as and when due, they shall thereafter become a debt of the seller due to the town.

(1997 Code, § 62-112) (Ord. passed 6-8-2004)

§ 34.068  EXEMPTIONS; LIMITS ON APPLICATION.

1. The tax imposed under this subchapter shall not be levied on the following items when served exclusively for off-premises consumption:
   1. Factory-prepackaged candy, gum, nuts and other items of essentially the same nature;
   2. Factory-prepackaged doughnuts, ice cream, crackers, nabs, chips, cookies and items of essentially the same nature;
   3. Food sold in bulk.  For the purposes of this division, 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;
   4. Alcoholic beverages sold in factory- sealed containers and purchased for off-premises consumption;
   5. 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 thorough the Virginia Special Supplemental Food Program for Women, Infants and Children; or
   6. Any food or food product purchased for home consumption as defined in the federal Food Stamp Act of 1977, 7 U.S.C. § 2012, as amended, except hot food or hot food products ready for immediate consumption.
      1. For the purposes of administering the tax levied under this subchapter, the following items, whether or not purchased for immediate consumption, are excluded from the 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.
      2. This division shall not affect provisions set forth in divisions (C)(3), (4) and (5) of this section.
2. 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.
3. The tax imposed under this subchapter 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;
   2. Food and beverages sold by daycare centers, public or private elementary or secondary schools, or food sold by any college or university to its students or employees;
   3. 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;
   4. 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;
   5. 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 at concession prices to elderly, infirm, blind, handicapped or needy persons in their homes or at central locations;
   6. Food and beverages sold on an occasional basis, not exceeding 3 times per calendar year, by a nonprofit education, charitable or benevolent or religious purposes; or
   7. Food and beverages sold through vending machines.

(1997 Code, § 62-113) (Ord. passed 6-8-2004)

§ 34.069  GRATUITIES AND SERVICE CHARGES.

1. Where 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 subchapter, whether paid in cash to the employee or added to the bill and charged to the purchaser’s account; provided that, in the latter case, the full amount of the gratuity is turned over to the employee by the seller.
2. 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 is subject to the tax imposed by this subchapter.

(1997 Code, § 62-114) (Ord. passed 6-8-2004)

§ 34.070  REPORT OF TAXES COLLECTED; REMITTANCE; PRESERVATION OF RECORDS.

1. It shall be the duty of every seller required by this subchapter to pay to the town the taxes imposed by this subchapter to register with the Clerk/Treasurer providing such information as the Clerk/Treasurer may prescribe.
2. (1)   Every seller required by this subchapter to pay to the town the taxes imposed by this subchapter shall file a report with the Clerk/Treasurer within 20 days after the last day of each calendar month, on forms prescribed by the Clerk/Treasurer, signed by the person, reporting: all purchases taxable under this subchapter; the amount charged the purchaser for each purchase; the date thereof; the taxes collected thereon; and the amount of tax required to be collected by this subchapter.
   1. Each report shall be accompanied by a remittance of the amount of the taxes due thereon for the preceding month.
3. These records shall be kept and preserved for a period of 5 years.  The Clerk/Treasurer shall have the power to examine the records at reasonable times and without unreasonable interference with the business of the person, for the purpose of administering and enforcing the provisions of this subchapter, and to make transcripts of all or any parts thereof.  In the administration and enforcement, the Clerk/Treasurer shall also have the powers set forth in §§ 31.030et seq. and this chapter.
4. For the purpose of compensating the persons required by this subchapter to pay the taxes for accounting for and remitting the tax levied under this subchapter, the person shall be allowed a commission of 2% of the amount of tax due and accounted for in the form of a deduction of that amount in submitting his or her monthly report and remittance, provided that the amount paid was not delinquent at the time of payment.

(1997 Code, § 62-115) (Ord. passed 6-8-2004)

§ 34.071  INTEREST AND PENALTIES FOR FAILURE TO FILE A REPORT OR MAKE REMITTANCES.

1. When any seller shall fail to make any report or remit the tax required by this subchapter there shall be imposed, in addition to any other penalties provided in this section, a specific penalty to be added to the tax in the amount of 10%; provided, however, that in no case shall the penalty be less than $10, and the minimum penalties shall apply whether or not any tax is due for the period for which the report was required.
2. Interest shall accrue at the rate of 10% per annum which shall be computed on the taxes and penalty commencing 30 days from the date the report or remittance is due.

(1997 Code, § 62-116)  (Ord. passed 6-8-2004)  Penalty, see § 10.99

§ 34.072  OBLIGATIONS UPON GOING OUT OF BUSINESS. 

Whenever any person required to collect and pay to the town a tax under this subchapter shall cease to operate or otherwise dispose of his or her business, any tax payable to the town shall become immediately due and payable through that date, and the person shall make a report and remittance thereof within 10 days of that date.

(1997 Code, § 62-117)  (Ord. passed 6-8-2004)  Penalty, see § 10.99

§ 34.073  CIVIL WARRANT FOR COLLECTION OF DELINQUENT TAX.

The Clerk/Treasurer is authorized, when any tax becomes delinquent under this subchapter, to cause a civil warrant to be issued for the collection of the tax, penalty and interest as soon as the tax becomes delinquent against the seller or person liable for payment of the tax.

(1997 Code, § 62-118)  (Ord. passed 6-8-2004)

§ 34.074  PROMULGATION OF SUBCHAPTER REGULATIONS.

1. The Clerk/Treasurer shall monitor and oversee the accuracy, timeliness and completeness of the filing of reports and payment of taxes levied under this subchapter.  The Clerk/Treasurer shall adopt and promulgate rules and regulations and forms not inconsistent with the provisions of this subchapter as deemed necessary for the effective administration of this subchapter.
2. In administering the provisions of this subchapter, the Clerk/Treasurer may give any seller 10 days’ notice to appear before the Clerk/Treasurer, with such books, records and papers as the Clerk/Treasurer may require relating to the seller’s business for the taxable period in question.  The Clerk/Treasurer may require that the seller or its agents and employees give testimony or answer interrogatories under oath administered by the Clerk/Treasurer respecting the meals provided and the revenues therefrom which are or may be subject to the tax imposed hereby, or the failure to make a report thereof as provided in this subchapter.

(1997 Code, § 62-119)  (Ord. passed 6-8-2004)

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MOTION TO ADOPT THE CIGARETTE TAX ORDINANCE WHICH PLACES A $0.27 PER PACK TAX ON EACH PACK OF CIGARETTES SOLD IN THE TOWN OF BROOKNEAL

Upon motion by Cynthia Johnson, seconded by Mark Wilkes, and unanimously carried, the Council voted to adopt the following cigarette tax ordinance which places a $0.27 per pack tax on each pack of cigarettes sold in the Town of Brookneal.  A copy of the ordinance is below.

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134 - CIGARETTE TAX

34.135 - Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Agent means every dealer and other person who shall be authorized by the treasurer to purchase and affix stamps to packages of cigarettes under the provisions of this article.

Dealer means every manufacturer, distributor, jobber, wholesale dealer or other person who supplies a seller with cigarettes.

Package means every package, box, can or other container of any cigarettes to which the internal revenue stamp of the United States government is required to be affixed by and under federal statutes and regulations and in which retail sales of such cigarettes are normally made or intended to be made.

Sale means every act or transaction, irrespective of the method or means employed, including the use of vending machines and other mechanical devices, whereby title to any cigarettes shall be transferred from the seller, as defined in this section, to any other person within the town.

Seller means every person engaged in the business of selling cigarettes at retail within the town, in whose place of business title to any such cigarettes is transferred to any other person and not for the purpose of resale.

Stamp means the small gummed piece of paper or decal to be sold by the treasurer and to be affixed by the agent to every package of cigarettes; it shall also denote any insignia or symbol printed by a meter machine upon any such package under authorization of the treasurer.

Treasurer means the town treasurer and every person duly authorized by him/her to serve as his/her representative.

34.136 - Tax levied; amount.

There is hereby levied and imposed by the town, in addition to any other taxes which may be or have been imposed, a tax to be paid and collected as provided in this article on each and every sale of cigarettes made in the town. The tax is to be paid by the seller, dealer or other agent by affixing a stamp, or causing a stamp to be affixed to every package of cigarettes, in the kind and manner required in this article and at the applicable rates as follows: The rate or amount of tax levied or imposed on cigarettes shall be at the rate of $0.27 for each 20 cigarettes or fractional part thereof.

In the event that the rate stated herein is increased by act of the Town Council, any person with unsold inventory to pay the tax increase on the unsold inventory by filing a return within one calendar year after the increase rather than requiring the use of a stamp or meter impression. Such return shall identify the amount of unsold inventory, the amount of tax paid on such unsold inventory, and the amount of tax due as a result of the tax rate increase. Such return shall be due six calendar months after the effective date of the tax rate increase. For purposes of this subsection, “unsold inventory” means cigarettes held prior to the tax rate increase.

34.137 - Preparation, sale, etc., of stamps; duties of treasurer generally.

1. The treasurer shall acquire, keep and sell necessary stamps to dealers and other agents, the stamps to be of such denominations and quantities as may be necessary for the payment of the tax imposed in this article.
2. In the sale of such stamps to a dealer or other agent, the treasurer shall allow a discount of $0.02 per stamp of the face value thereof to cover the cost which will be incurred by such dealer or agent in affixing the stamps to packages of cigarettes.
3. The treasurer may, from time to time and as often as he/she deems advisable, provide for the issuance and exclusive use of stamps of a new design and forbid the use of stamps of any other design. The treasurer is empowered to make and carry into effect such reasonable rules and regulations relating to the preparation, furnishing, sale and redemption of stamps as he/she may deem necessary. In redeeming stamps or making refunds for destroyed stamps, he/she shall not in any case refund more than 90 percent of the face value of such redeemed or destroyed stamps. He/she is further authorized and empowered to prescribe the method to be employed, the conditions to be observed, and any other necessary requirements not contrary to this article in the use of meter machines for printing upon packages of cigarettes an insignia to represent the payment of the tax and in lieu of stamps.
4. The treasurer may require every dealer, agent or seller to cancel stamps upon all packages of cigarettes in his/her possession.
5. In addition to powers granted in subsections (a) through (c) of this section, the treasurer is further authorized and empowered to:
   1. Prescribe, adopt, promulgate and enforce rules and regulations relating to the method and means to be used in the implementation of this article;
   2. Delegate his/her powers to agents or others, including the police officers of the town;
   3. Act in any other matters pertaining to the administration and enforcement of the provisions of this article.

34.138 - Inspection of records, premises, etc.

The treasurer, or his/her duly authorized agent, is empowered to examine books, records, invoices and papers related to purchases, sales, etc., of cigarettes, and to examine all cigarettes in and upon any premises where cigarettes are placed, sold, stored, offered for sale or displayed for sale by a seller.

34.139 - Seizure and disposition of untaxed cigarettes, etc.

1. If the treasurer or his/her agent discovers any cigarettes subject to the tax imposed under this article, but upon which such tax has not been paid and upon which stamps have not been affixed or evidence of payment is not shown thereon by printed markings of a meter machine in compliance with the provisions of this article, then the treasurer or duly authorized agents or officers, any of them, may seize and take possession forthwith of such cigarettes, which shall thereupon be deemed to be forfeited to the town. Such cigarettes may, within a reasonable time thereafter, and after written notice is posted at the front door of the town hall at least five days before the date given therein for sale, shall sell such cigarettes in the place designated in such notice.
2. Any property, other than motor vehicles, used in the furtherance of any illegal evasion of the tax may be seized, confiscated and disposed of as provided in subsection (a) of this section. No credit from any sale or other disposition shall be allowed toward any tax or penalties owed.
3. The seizure and sale of any property shall not be deemed to relieve any person of any other penalties provided in this article.

34.140 - Presumption based upon stamps or markings.

If any package of cigarettes is found in the possession of a seller without proper stamps or authorized printed markings thereon, and the seller is unable to submit evidence establishing that he/she received such packages, containers or items within the immediately preceding 48 hours, and that he/she has not offered the same for sale, then it shall be presumed that such packages, containers, or items are being kept in violation of the provisions of this article, and the seller shall be subject to the tax and a penalty in the amount of 50 percent thereof, even though such seller is also an agent.

34.141 - Obligation of dealers and agents regarding stamps.

1. Every dealer in cigarettes and every agent appointed under this section shall purchase necessary stamps from the town treasurer to pay the tax imposed under this article and shall affix or cause to be affixed a stamp of the monetary value provided by this article to each package of cigarettes prior to delivery or furnishing such cigarettes to any seller who is not also an agent.
2. Nothing contained in this section shall be deemed to preclude any dealer from employing an agent, so long as such agent is duly authorized by the treasurer, to purchase and affix such stamps on his/her behalf or to have a stamp meter machine used in lieu of stamps to effectuate the provisions of this article.
3. Stamps or printed markings of a meter machine shall be placed upon each package of cigarettes in such a manner as to be readily visible to the purchaser.
4. It shall be the responsibility of every seller to determine that each package of cigarettes offered for sale has a proper stamp affixed thereto in compliance with the provisions of this article.
5. If inspection by the treasurer or his/her agents discloses unstamped or improperly stamped packages of cigarettes, the seller, when such cigarettes were obtained from a dealer, shall immediately notify such dealer and upon such notification such dealer shall forthwith either affix to the unstamped or improperly stamped package, container or item with proper amount of stamps or he shall replace such package, container or item with others to which stamps have been properly affixed. If a seller, who is not also an agent, acquires or has in his/her possession unstamped or improperly stamped cigarettes, the seller shall forthwith notify the treasurer of such fact. The treasurer shall thereupon affix or cause to be affixed the proper stamps to such cigarettes. The cost of such stamps at face value shall be advanced by such seller.
6. Every dealer and seller shall maintain and keep for a period of at least two years such records of cigarettes received and sold by him/her as may be required by the treasurer; such records shall be made available for examination in the town by the treasurer upon demand, and the means, facilities and opportunities for making any such examination shall be made available at all reasonable times.

34.142 - Presumptions based on quantity.

Cigarettes found in quantities of more than six cartons within the town shall be conclusively presumed for sale therein and may be seized and confiscated 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 consignor or seller and of the consignee or purchaser, and the brands and quantity of cigarettes so transported, or they are in transit and accompanied by a bill of lading or other document which is false or fraudulent, in whole in part;
2. They are in transit and are accompanied by a bill of lading or other document indicating:
   1. A consignee 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 cigarettes on which the taxes imposed by such other jurisdiction have not been paid, unless the tax of the state or district of destination has been paid and the products bear the tax stamps of that state or district; or
   2. A consignee or purchaser in the commonwealth but outside the town who does not possess a state sales and use tax certificate, a state retail cigarettes license and, where applicable, both a business license and retail cigarettes 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 town that those cigarettes are temporarily within the town and will be sent to consignees or purchasers outside the jurisdiction in the normal course of business.

34.143 - Disposition of revenue.

Revenue derived from the tax imposed in this article shall be deposited by the treasurer to the credit of the general fund of the town for utilization for such legal purposes as the council of the town may from time to time determine.

34.144 - Illegal acts.

It shall be unlawful and a violation of this article for any dealer or other person liable for the tax to:

1. 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 to fail or refuse to perform any of the duties imposed under him/her under the provisions of this article or to fail or refuse to obey any lawful order which may be issued under this article;
2. Falsely or fraudulently make, or cause to be made, any invoices or reports, or to falsely or fraudulently forge, alter or counterfeit any stamp, or to procure or cause to be made, forged, altered or counterfeited any such stamp or knowingly and willfully to alter, publish, pass or tender as true any false, altered, forged or counterfeited stamp or stamps;
3. Sell, offer for sale or authorize or approve the sale of any cigarettes upon which the town stamp has not been affixed;
4. Possess, store, use, authorize or approve the possession, storage or use of any cigarettes in quantities of more than 60 cigarettes upon which the town stamp has not been affixed;
5. Transport, authorize or approve the transportation of any cigarettes in quantities of more than 60 packages into or within the town upon which the town stamp has not been affixed, if they are:
   1. Not accompanied by a bill of lading or other document indicating the true name and address of the consignor or seller and the consignee or purchaser and the brands and quantity of cigarettes transported;
   2. Accompanied by a bill of lading or other document which is false or fraudulent in whole or part; or
   3. Accompanied by a bill of lading or other document indicating:
      1. A consignee or purchaser in another state or 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 unless the tax on the jurisdiction of destination has been paid and such cigarettes bear the tax stamps of the jurisdiction; or
      2. A consignee or purchaser in the state but outside the taxing jurisdiction who does not possess a state sales and use tax certification, a state retail tobacco license and, where applicable, a business license and a retail tobacco license issued by the local jurisdiction of destination;
   4. Reuse or refill with cigarettes any package from which cigarettes have been removed, for which the tax imposed has been theretofore paid; or
   5. Remove from any package any stamp with intent to use or cause the package to be used after such package has already been used or to buy, sell or offer for sale or give away any used, removed, altered or restored stamps to any person, or to reuse any stamp which had therefore been used for evidence of the payment of any tax prescribed by this article or to sell, or offer to sell, any stamp provided for in this article.

34.145 - Violations and penalty.

Any persons violating any of the provisions of this article shall be guilty of a Class 1 misdemeanor. Any fine and/or imprisonment pursuant to conviction of a Class 1 misdemeanor shall not relieve any such person from the payment of any tax, penalty or interest imposed by this article.

34.146 - Each violation a separate offense.

The sale of any quantity or the use, possession, storage or transportation of more than 60 packages of cigarettes upon which the town stamp has not been affixed shall be and constitutes a separate violation. Each continuing day of violation shall be deemed to constitute a separate offense.

§ 58.1-3830. Local cigarette taxes authorized; use of dual die or stamp to evidence payment.

1. Any locality is authorized to levy taxes upon the sale or use of cigarettes. The governing body of any locality that levies a cigarette tax and permits the use of meter impressions or stamps to evidence its payment may authorize an officer of the local or joint enforcement authority to enter into an arrangement with the Department of Taxation under which a tobacco wholesaler who so desires may use a dual die or stamp to evidence the payment of both the local tax and the state tax, and the Department is hereby authorized to enter into such an arrangement. The procedure under such an arrangement shall be such as may be agreed upon by and between the authorized local or joint enforcement authority officer and the Department.
2. Any county cigarette tax imposed shall not apply within the limits of any town located in such county where such town now, or hereafter, imposes a town cigarette tax. However, if the governing body of any such town shall provide that a county cigarette tax, as well as the town cigarette tax, shall apply within the limits of such town, then such cigarette tax may be imposed by the county within such town.
3. The maximum tax rate imposed by a locality on cigarettes pursuant to the provisions of this section shall be as follows:
   1. If such locality is (i) a city or town that, on January 1, 2020, had in effect a rate not exceeding two cents ($0.02) per cigarette sold or (ii) a county, then the maximum rate shall be two cents ($0.02) per cigarette sold.
   2. If such locality is a city or town that, on January 1, 2020, had in effect a rate exceeding two cents ($0.02) per cigarette sold, then the maximum rate shall be the rate in effect on January 1, 2020.

Code 1950, § 58-757.27; 1960, c. 392, § 27; 1962, c. 473; 1977, c. 595; 1984, c. 675; 2020, cc. 1214, 1263; 2021, Sp. Sess. I, c. 61.

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REQUEST FOR TRANSFERS OF APPROPRIATION

Upon motion by Conner Francis, seconded by Mark Wilkes, and unanimously carried, the Council voted to approve the following transfers of appropriation as outlined by the Clerk/Treasurer.

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COMMENTS FROM TOWN ATTORNEY TRIPP ISENHOUR

Town Attorney Tripp Isenhour addressed some zoning issues and answered questions.  He said the zoning ordinance that has been adopted in the Town was initially adopted in 1968, and there has not been a lot of changes to it since then.  He said he knew chickens in the Town has come up, and he also wants to generally discuss some of the blight issues that have been raised.  Information Mr. Isenhour discussed is as follows:

• The zoning ordinance generally provides 7 different zonings. He said this information is all on the Town website. He said they are all defined in the ordinance. He said the ordinance is what is called an inclusive ordinance which means it defines what is available, what uses are allowed in any particular zone.  That inclusivity excludes anything that is not listed.  The ordinance says you may in a residential zone do these specific things.  If what you want to do is not listed, then you can’t do it.  Every piece of property is zoned and is zoned immediately after being taken in to the Town.     He said he knew there was some questions about whether some portion of the Town may have previously been zoned A1 prior to the boundary adjustment or annexation bringing it in.  He said that may have been the case since the County does have an A1 zone, but the Town does not.   He said the state code requires that upon a boundary adjustment or annexation that the Town that takes in the property must immediately thereafter rezone the property to a zone that is consistent with the Town’s zoning. 
• He said the Town code in section 153.005 includes a number of definitions one of which is agriculture which is the tilling of the soil, raising crops, horticulture, forestry, and gardening including the keeping of livestock and poultry. So, agriculture is listed in the code, it is a specific definition in the code, but look through the 7 different zones:
  
  - Residential
  - General Residential
  - General Business
  - Central Business
  - Manufacturing
  - Flood Plain
  - Residential Mobile Home
  
  The only zone within the Town that allows for any agriculture use is the Flood Plain district.  Within the floodplain district, there is a provision for agricultural use, but for no other zone.  For no other zone in the Town is there a provision for agriculture use and because it is an inclusive ordinance, it says only what you can do, the absence of agriculture in the definition for any of the listed zones excludes any of those zones for agriculture uses.
• Mr. Isenhour responded to a question from Ms. Tracy Meisenbach about a hypothetical scenario. Her scenario was if the Pruitt plantation (on Cook Avenue below Heritage Hall) was taken into the Town limits, and it is a farm and has been a farm since the 1700s. She continued if the Town assigned a zoning of R2 (for example), they would still be allowed to farm into perpetuity (it is grandfathered in) unless they quit farming for a period of 2 years.  Mr. Isenhour said that it is with any prior use not just agriculture, any use that was already claimed (prior to adoption of zoning or boundary adjustments) continues unless it is discontinued for a period of 2 years (he referenced code section 153.031—a non-conforming use).
• Mr. Isenhour responded to a question from Ms. Tracy Meisenbach about land use. She said Campbell County allows you to file for a permit for large pieces of property for land use which reduces your taxes. She asked where this applies to zoning.  He said that properties that are in land use for tax purposes are determined by the Commissioner of Revenue not by the Town.  He said that is related to taxation not land use. The land use determination would go back to Town code 153.031 as to whether it still maintains a non-conforming use status.
• Mr. Isenhour wanted to make the point clear that the enforcement action that has been taken recently is not changing the law as it has been written. The law has been written for some time that agriculture is not allowed on any residential use other than floodplain use in the Town of Brookneal. He said poultry running at large within the Town have been prohibited and simply applying that ordinance…it is simply an enforcement action rather than a change of law.  He said if that is an enforcement action that the Council did not want, then the Council would then need to make changes to the law to designate whether, when and how chickens could or should be allowed.  He said if no changes are needed, then no changes are needed, but if changes are needed then they would have to come from Council.
• Mr. Isenhour said that there are provisions in the code for a re-zoning if a property owner wants to change the zoning on their property. They would need to come to the Town office and make application to rezone their property. He said that request would come before the planning commission and then it would come before Council and Council would make a determination on whether or not that should happen.  Mr. Francis asked would this apply to a special needs case where an assisted animal is needed that is not permitted when the resident could come before the Council and appeal it.  Mr. Isenhour said the ordinance could be amended to allow for that, but right now there is not a provision for that in the Town ordinance.  He said but that could be a potential option for the Council.  He said that is separate from a re-zone. He said right now, it is not possible in “your” ordinance as it currently stands for the Council to allow a special needs case for poultry use because there is simply no provision there, there is no other zone that allows it other than flood plain and floodplain has a very specific definition.  He said the ordinance may be amended to allow for a special use permit. There are 2 ways to handle that.  The first way would be to allow to create an agriculture district if you wanted to where certain properties could be allowed to enter into agricultural zoning; that is a broad-based way to handle that.  The 2nd way to handle that is more specific, focused or case by case basis with a special use permit.   It would be a separate ordinance passed by this body, first the planning commission acts on it and then the Council.  He said that would be an application-based process with an insertion in the Town code that within R1 or R2 or whatever zones you would like to allow a potential for animal, agricultural or poultry usage, you would insert a special use permit process that says animals may be allowed in this zone subject to a special use permit.  He clarified that once that special use permit is given, it’s there forever, unless the use is discontinued for 2 years.   However, he said that it is subject to code enforcement by the Town.
• Mr. Isenhour responded to a question by Mr. Francis concerning the Council’s authority regarding empty buildings, slum lords, and getting them to cleaning up their act. Mr. Francis wanted to know if there was anything the Council could do to these slumlords? Mr. Francis said the Town gets complaints about the abhorrent conditions in some of these properties. Mr. Isenhour said that if a tenant makes a complaint, the building department can go in the property to determine if the property is compliant with local building codes.  Other than that, for rental residential properties, the Town is limited in what can be done to interior conditions.  He said that if the outside conditions create a public nuisance or a danger to life, health and safety of passers-by, that is a property that the Town can take action to abate, but that is costly.  He said for a property just to be an eyesore or less than desirable, that is not enough. 
• Mr. Isenhour said that the ADA (Americans with Disabilities Act) does not speak to zoning or localities. He said a letter concerning the need or desire for a therapy animal does not have any bearing on the zoning of a property. The zoning may be enforced regardless of somebody’s status under the ADA.  Any provider of housing or lodging or town services (for example) permits a citizen to bring a therapy chicken into the Town office if the ADA says they need it.    
• Mr. Francis asked about a committee assignment to look into the possibility of adopting a similar ordinance that the County has regarding chickens. The committee could recommend a public hearing regarding the issue of chickens. Mayor Adams said he didn’t see any harm in that, but he didn’t know what the Town would be able to adopt or what would be suitable for the Town to adopt.  He said everyone has their own versions of this.  
• Ms. Laprade said she felt that perhaps this issue with the child’s chickens (the Gills on Carson Street) and her emotional health needs to be revisited. She said that Mr. David asked where does this end? He said he had spoken with several people who had chickens, and they all call them their emotional support animals.  Mayor Adams concurred with Mr. David and said that if you grant something for one person you better be prepared to grant it to anyone who asks.   Ms. Laprade said that everybody who has chickens doesn’t have a doctor or counselor who will write a letter for them.  Mr. David said that anyone can go on the internet and pay $50 and get a certified therapist letter for any emotional support animal you want.   

COMMITTEE RECOMMENDATIONS 

 

There were no committee recommendations.

ITEMS FROM TOWN COUNCIL

Councilperson Laprade said the hotel project is moving along, and the representative from Cobblestone will be here in Brookneal on June 20, 2022 at 4 p.m. for a meeting.  She also asked that someone be contacted about the big hole with water standing in it in the parking lot of the Family Dollar store; she said her lawn care people are worried about that becoming a mosquito pit as the summer progresses.

ADJOURNMENT

Upon motion by Cynthia Johnson, seconded by Mark Wilkes, and unanimously carried, Mayor Adams announced that the June 14, 2022, Council meeting was adjourned.

Bobbie A. Waller: Clerk/Treasurer

Richard Adams: Mayor