Town Council Denies Resolution to File Suit Against Tortilla Factory

The Herndon Town Council voted to deny a resolution for the town to file a suit for injunction against Tortilla Factory for meals taxes owed to the town.

Town Attorney Richard Kaufman said the suit would have allowed the town to file the suit in order to bring the restaurant into compliance for the amount. He said the restaurant’s owners owed more than $14,000 to the town, but since last week had made a payment of $3,251.41. The business now owes $11,049.21.

The Town of Herndon has been trying to work with Tortilla Factory’s owners since 2009 to bring the restaurant into compliance with the town’s meals taxes, Kaufman said. He said the restaurant has been collecting the taxes, but not remitting them to the town.

Payments on the meals tax since 2009 have been stop and start, with some being voluntary and others collected involuntarily, using bank levies and civil court actions, Kaufman said. He said his office, as well as the department of finance and the town manager have spent a lot of time working on collecting the taxes and negotiating with Tortilla Factory owner, Chuck Curcio. 

Kaufman said he believes Curcio will work with the town to file the appropriate returns and pay the taxes owed. However, the bigger issue is the lack of compliance and the amount of time and energy the town has spent attempting to bring the restaurant into compliance.

The suit for injunction could result in Curcio being held in contempt for not complying with a court order, and having to pay civil fines or face possible civil incarceration, Kaufman said. He recommended the Council adopt the resolution.

During the comments from the public portion of the meeting Curcio spoke to the Council. He said, “I’m hoping that after my comments that any action on resolution 12-G-03 won’t be necessary.” Curcio said he had begun to pay back the town and was in discussions with town staff on filing the appropriate paperwork to work to pay the taxes.

“I have made a payment for the December portion of it,” he said. “I have met with Myra and picked up the months that are currently owed, and have discussed the different amounts and the disputed amounts with her and have agreed to get supporting information to her by the end of the week.”

“And to make appropriate payments upon that happening, and then just to give an assurance that with the limited future that we have left that we will make all appropriate payments,” Curcio said.

Councilwoman Connie Hutchinson made a motion to deny the resolution, which was seconded by Mayor Steve DeBenedittis. She said the town is already involved in general district court cases with the business owner, and he has assured them he will continue to abide by the town’s laws in the future.

“The only thing this injunction allows is personal persecution of Mr. Curcio,” Hutchinson said. She said his business has given a lot back to the town of Herndon for many years and could not support an action that would attack the personal property of Curcio.

Councilwoman Sheila Olem said the resolution “seems a bit punitive” and didn’t want to move forward with it if it could hurt the business owner’s ability to do business in the future. She said in that case it might make it more difficult for the town to collect taxes.

Councilman Bill Tirrell asked Curcio if he was going to work to solve the issue. Curcio responded that he would. Councilman Jasbinder Singh said he agrees with Olem that he didn’t think the suit for injunction would be worthwhile.

The Council voted unanimously to deny the resolution. DeBenedittis said he hates the meals tax, but hates taking legal action against town businesses more. He said the biggest issue is the amount of time town staff is spending on the issue.