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Official Opinions

 

June 2013 Opinions

Please click on Opinion number to view entire opinion.

Official opinions will be posted as they are issued, generally within 24 to 48 hours. Please check this page at regular intervals to determine whether additional opinions have been issued.

IMPORTANT NOTE:  Official opinions represent the attorney general’s analysis of current law based on his thorough research of existing statutes, the Virginia and United States constitutions, and relevant court decisions.  They are not "rulings" and do not create new law, nor do they change existing law.  Creating and amending laws are the responsibility of the General Assembly, not the attorney general. 

Official opinions are legal advice, not personal opinions, and do not reflect the attorney general’s personal views about what the law should be.  Such advice is provided to ensure clients/the requester are in compliance with the law.  While the opinions may be given deference by the courts, they are not binding on the courts.

The official opinions issued by the attorney general are part of the duties of the office (see Code § 2.2-505). A person authorized by statute, such as the governor, a member of the General Assembly, a constitutional officer, or the head of a state agency, can ask the attorney general for an official opinion on the law. Members of the general public are not authorized to ask for opinions.

 

Opinion #

Requestor

Summary

The Honorable William A. Hazel, Jr.,M.D.
Secretary of Health and Human Resources

Some of the appropriations inquire about are appropriations to a charitable institution for benevolent purposes, and thus, are impermissible because they violate Article IV, § 16 of the Constitution of Virginia. Some other appropriations identified are permissible, because the language of the appropriation explicitly or implicitly authorizes a state agency to enter into a bona fide contract with the charitable entity. Other appropriations may be permissible, but because the appropriation’s language does not articulate clearly the goods or services to be purchased, the agencies administering those appropriations must be able to enter into bona fide contracts in order to comply with Article IV, § 16. Other appropriations comport with Article IV, § 16 because the entity receiving funds is owned or controlled by the Commonwealth or the Commonwealth is passively distributing federal funds. Finally, whether certain appropriations violate Article IV, § 16 cannot be determined without knowing the specific terms of the grant or other particularized facts related to those appropriation.

The Honorable Jennifer R. Sims
Clerk of Court, Warren County Circuit Court

A subordinate mortgage giving a security interest to the Department of Housing and Urban Development is subject to state and local recordation taxes.

The Honorable Dana Lawhorne
Sheriff, City of Alexandria

The jail sentence is not tolled during the period when the inmate is temporarily transferred to another jurisdiction for a court appearance.  As a result, the outside jurisdiction may not prohibit the Alexandria Detention Center from giving the inmate credit for the period of his temporary transfer out of Alexandria.

The Honorable Scott A. Surovell
Member, House of Delegates

On and after July 1, 2013, if a driver operates a vehicle on a highway recklessly or at a speed in a manner so as to endanger the life, limb, or property of any person, while using a hand held personal communication device, that driver can be charged and convicted of reckless driving regardless of whether there are grounds to support a violation of § 46.2-1078.1.  Nonetheless, Virginia case law makes clear that the mere happening of an accident or use of a hand held personal communication device likely would be insufficient, standing alone, to support a conviction of reckless driving. 

 

The Hononrable Joe T. May
Member, House of Delegates

The Loudoun County School Board does not currently have the legal authority to fund capital renovation costs for school property that it does not lease and which is fully owned and operated by the Fairfax County School Board.

12-071

The Honorable Rosalyn R. Dance
Member, House of Delegates

Virginia law does not create a verbal Durable Do Not Resuscitate Order.  Further, a physician, physically present with a patient in cardiac or respiratory arrest and for whom a Durable Do Not Resuscitate Order has not been issued, has the authority to issue any orders he deems in his professional judgment to be appropriate under the circumstances.

11-132

The Honorable Brenda L. Pogge
Member, House of Delegates

Allowing agriculture “by right” in areas zoned Rural Residential does not constitute a zoning classification as used in § 3.2-301.

13-024

The Honorable Joe T. May
Member, House of Delegates

Law enforcement officers may enforce against trail users stop signs installed on the Washington &Old Dominion Park if such signs represent a rule or regulation of the Northern Virginia Regional Park Authority.

13-055

William H. Hefty, Esquire
County Attorney for Surry County

On July 1, 2013, Surry County will not be subject to the regional transportation taxes and fees included in the 2013 Transportation Funding Bill.

12-004

The Honorable Robert B. Bell
Member, House of Delegates

The City of Charlottesville may lawfully erect signs to regulate parking on city-owned property, including signs that state “Reserved Parking” for “Low Emitting/Fuel Efficient Vehicles Only.”

13-040

The Honorable John T. Frey
Clerk of the Circuit Court
Fairfax County Circuit Court

The term “state-certified” as used in § 18.2-308(G)(7) and (P1)(7) refers to a firearms instructor that is certified by any state in the United States. 

11-139

Scot S. Farthing, Esquire
Wythe County Attorney

While “tourism” has not been defined for purposes of § 58.1-3819, it is generally considered to be a domestic and international travel market that is important to the economy of the Commonwealth. The requirement in § 58.1-3819 for the specified localities is that any transient occupancy tax imposed in excess of two percent must be spent to attract travelers to the locality, increase occupancy at lodging properties, and to generate tourism. Further, the determination on spending requires input from the local tourism industry. Finally, localities have reasonable discretion in determining what are “local tourism industry organizations,” but the inclusion of representatives of lodging properties is required.

12-111

The Honorable La Bravia J. Jenkins
Commonwealth's Attorney
City of Fredericksburg

The results of the preliminary breath tests described may be admissible for the offenses of underage possession of alcohol, possession, or consumption of alcoholic beverages by an interdicted person and public intoxication at the discretion of the trial judge and subject to the proper foundation.