I would like to establish that the term commercial retail use includes
restaurants, ie, a restaurant is a retailer just as a jewelry store is
a retailer. I will need case law or state/city definitions to establish this.

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Request for Question Clarification by darrel-ga on 16 Nov 2002 14:27 PST

Where would this restaurant as retailer be located?

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Clarification of Question by john754-ga on 16 Nov 2002 14:59 PST

In New York City, however, you are free to cite case law and
ordinances from other jurisdictions provided they are English speaking

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Request for Question Clarification by justaskscott-ga on 16 Nov 2002 19:38 PST

For what purpose(s) do you wish to establish that the term commercial
retail use includes restaurants?  I ask this because the definition of
commercial retail use might conceivably depend on the context.

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Clarification of Question by john754-ga on 17 Nov 2002 00:47 PST

We need this for a legal filing. The dictionary meaning of retail (to
sell goods in small quantities directly to the ultimate consumer)
would include restaurants as a sub-category, however, we need to cite
case law and/or statute to be persuasive.

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Request for Question Clarification by justaskscott-ga on 17 Nov 2002 14:32 PST

What kind of legal filing is it, if you don't mind my asking?

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Clarification of Question by john754-ga on 17 Nov 2002 23:41 PST

It's a civil L&T matter

According to FindLaw at:
http://caselaw.lp.findlaw.com/nycodes/c117/a36.html

Section 1101(b)(1) of New York State Tax Law reads:  

"Purchase at retail. A purchase by any person for any purpose other
than those set forth in clauses (A) and (B) of subparagraph (i) of
paragraph (4) of this subdivision."

So, presumably, restaurants are covered, unless specifically excluded
in said clauses, which read (in typical, obfuscating, legalese...)


"(4)  Retail  sale.  (i)  A  sale  of tangible personal property to
any
person for any purpose, other than (A) for resale as such or as a 
phys-
ical  component  part  of  tangible personal property, or (B) for use
by
that person in performing the services subject to tax  under 
paragraphs
(1),  (2),  (3),  (5),  (7) and (8) of subdivision (c) of section
eleven
hundred five where the property so sold  becomes  a  physical 
component
part  of the property upon which the services are performed or where
the
property so sold is later actually transferred to the purchaser  of 
the
service  in  conjunction  with the performance of the service subject
to
tax."

Sounds like restuarants would qualify as retail enterprises, but it
would take a more thorough reading of the law (and case law as well)
to be certain.

There's also this from the FDA: (sorry if the line-breaks don't come
out right.  It looks OK when I send it, but not when it shows up at
Google Answers...it's the simple things that still elude us!)

http://articles.corporate.findlaw.com/articles/file/federal/fda/fda000044

The Small Entity Compliance Guide On:
Regulations to Restrict the Sale and Distribution of Cigarettes and
Smokeless Tobacco In Order to Protect Children and Adolescents (21 CFR
Part 897)

"Retailers are persons who sell cigarettes or smokeless tobacco to
individuals for their personal consumption. This definition applies
regardless of the number of products sold or the price at which they
are sold. For example, even if store A generated most of its sales
from selling food products and cigarettes sales represented only a
fraction of total sales, the store would be a "retailer" subject to
regulation under part 897. The store would also be a "retailer"
regardless of whether it sold those cigarettes above cost, at cost, or
below cost. "

pafalafa-ga

Thanks for your comments. Appreciate the help.

The City of Denver defines restaurant as a food retail establishment.

http://www.denvergov.org/Business_Licensing/template14859.asp

easternangel:

Thank you that's quite helpful.