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2013 Official Opinions

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.

{tab December}

 

Opinion #

Requestor

Summary

The Honorable William M. Stanley
Member, Senate of Virginia

If a “lobbyist relationship” as defined by § 30-111 arises in the context of an election campaign, the separate disclosure requirement of § 30-111 for members and members-elect of the General Assembly applies irrespective of any disclosure the Campaign Finance Disclosure Act of 2006 may require of the campaign committee for the member or member-elect. Further, a “lobbyist relationship” is not established when a person who has registered as a lobbyist provides volunteer assistance to the election campaign of a member or member-elect if the nature of that assistance is not within the scope of the lobbyist’s usual occupation in legal, consulting or public relations services.

     

The Honorable Cathy C. Hogan
Clerk of the Circuit Court of Bedford County

An indigent criminal defendant convicted in a circuit court may be taxed for court-approved, reasonable expenses in addition to, and over and above the court-appointed counsel pre-waiver compensation limit set forth in § 19.2-163(2).  Further, §§ 17.1-275.5 and 19.2-163 must be read together to determine the amount of combined court-appointed counsel compensation and approved expenses that may be assessed against such a defendant.  Finally, the amount of expenses that may be assessed against such a defendant who is represented by an attorney from a public defender or capital defender office is not limited by the court-appointed counsel pre-waiver compensation limit set forth in § 19.2-163(2).

     

The Honorable Priscilla S. Bele
Commissioner of the Revenue
City of Newport News

The Honorable Robert S. Wertz, Jr.
Commissioner of the Revenue
Loudoun County

Larry W. Davis, Esquire
County Attorney for Albemarle County

The exemption from, or deferral of, real property taxes authorized in Article X, § 6(b) for persons not less than 65 years of age or disabled does not extend to a person who has placed title to the real property in any form of trust, but it does extend to a person who otherwise qualifies for the exemption and who holds a life estate in the real property.  Further, the exemption for disabled veterans provided in Article X, § 6-A does extend to a qualifying veteran who holds a life estate in the real property.

     

The Honorable J.E. "Chip" Harding
Sheriff, County of Albemarle

Pursuant to § 8.01-499, a sheriff has discretion to collect or not collect a commission from a sheriff’s sale.  Further, § 15.2-1615 directs what the sheriff must do with the money should he receive a commission.

     

Honorable Tim Hugo, Member, House of Delegates

An annual membership fee is not a “finance charge,” provided that such annual membership fee is assessed as a condition of access to the credit plan and regardless of whether a borrower actually receives an extension of credit from the lender.   Consequently, a lender who extends open-end credit pursuant to § 6.2-312 may charge borrowers an annual membership fee in connection with the provision of open-end credit, regardless of whether the borrower repays the balance in full by the close of a minimum 25-day billing cycle. 

     

Honorable P.W. Higgs, Sheriff, City of Fredericksburg

While judges and sheriffs should work together to resolve any issues or concerns about courthouse security, judges retain rule-making authority over courthouse security, and the sheriff is responsible for enforcing the rules and responding to any security threats or disturbances. 

     

Holly B. Smith, Commonwealth’s Attorney, Gloucester County

The Commonwealth is under no general obligation to disclose the names, addresses, and telephone numbers of her witnesses as part of the discovery process in a criminal case.  Nevertheless, pursuant to Brady v. Maryland, due process of law requires the Commonwealth to disclose the identity of those witnesses who have information that is favorable to the accused, when that evidence is material to the defendant’s guilt or punishment.  Finally, when a confidential informant in a narcotics case possesses exculpatory information under the Brady standard, or is an “active participant” in the criminal activity at issue at trial, the prosecution must disclose the informant’s identity to the defense within a reasonable time in advance of trial.

     

{tab November}

Opinion #

Requestor

Summary

Colonel W.S. Flaherty, Superindendent
Department of State Police

A trust may not register a machine gun pursuant to the Uniform Machine Gun Act as enacted by the Virginia General Assembly.

     

The Honorable C. Linwood Gregory
Commonwealth's Attorney
New Kent County

In the unique situation wherein two “No Through Truck” routes are contiguous, a truck with either an origin or a destination on one of the routes may not lawfully travel through the entire length of the other, contiguous route, when the driver of the truck has notice of the two separate “No Through Truck” route designations, and one or more reasonable alternative routes exist.

     

 

{tab October}

Opinion #

Requestor

Summary

The Honorable John S. Edwards
Member, Senate of Virginia

There is no inherent conflict of interest presented, and, thus, no per serequirement that the Office of the Attorney General recuse from investigating and prosecuting alleged violations of election law, when the Attorney General is a candidate for public office in the same election that is under investigation.  Further, any potential recusal of that Office must be determined on a case-by-case basis.

     

Stephen W. Mullins, Esquire
County Attorney
County of Dickenson

Pursuant to § 2.2-1520 of the Code of Virginia, a political subdivision of the Commonwealth is authorized to pay for the legal defense costs of an employee when such costs are incurred because of the employee’s actions in furtherance of his or her duties when serving the political subdivision. 

     

James E. Barnett, Esquire
County Attorney
York County

Section 15.2-2291 does not require all counselors and other staff persons to reside at a facility for individuals with mental illness, intellectual disability, or developmental disabilities to qualify as a residential occupancy by a single family for zoning purposes. 

     

C. Eric Young, Esquire
County Attorney for Tazewell County

A county may not enter into an agreement with another state to perform building inspections of industrialized buildings manufactured in a Virginia facility, to determine compliance with the building code of the other state.  Further, neither the county nor its employees would be entitled to the protection of sovereign immunity with respect to the performance of such inspections.

     

Angela L. Horan, Esquire
County Attorney
County of Prince William

Section 15.2-2288 authorizes localities to require a special use permit for “the storage or disposal of nonagricultural excavation material, waste and debris if the excavation material, waste and debris are not generated on the farm,” regardless of the end use to which the materials may be put.

     

The Honorable Richard H. Black
Member, Senate of Virginia

An individual excepted from the concealed handgun prohibition found in § 18.2-308 may be restricted from carrying a weapon through voluntary membership in an organization that restricts the carrying of firearms by members while on the organization’s property.

     

The Honorable Richard H. Black
Member, Senate of Virginia

The Virginia Retirement System may recover the overpayments in benefits paid out to its retirees that were a result of an error in calculating the 2009 Cost of Living Adjustment.

     

The Honorable Donald W. Merricks
Member, House of Delegates

A locality currently cannot regulate uranium mining in any fashion because uranium mining is not a permitted activity within the Commonwealth.  Further, should the General Assembly act to permit and provide for the regulation of uranium mining, a locality’s authority related to uranium mining will depend upon federal and state law in effect at that time, including the enabling legislation for uranium mining enacted by the General Assembly.  Finally, a locality does not have authority under existing federal and state law to take certain of the presented actions.

     

{tab September}

Opinion #

Requestor

Summary

13-072

James E. Barnett, Esquire
County Attorney, York County

To determine whether the email distribution list is a public record subject to the Freedom of Information Act, it is necessary to determine whether the newsletter utilizing the email distribution list is a public record.  This is a fact-specific determination that cannot be made based on the facts provided. 

     

13-064

The Honorable Douglas W. Domenech
Secretary of Natural Resources

The prohibition on appropriations to charities set forth in Article IV, § 16 of the Constitution of Virginia precludes DEQ from distributing state funds pursuant to the appropriation about which you inquire, because the language of the appropriation is in the nature of a gift.

     

12-099

Larry W. Davis, Esquire
County Attorney for the County of Albemarle

Under § 10.1-1011, conservation easement land covered by the provisions of the statute must meet the minimum acreage requirement of § 58.1-3233 at the time the easement is dedicated, unless the easement was placed on the property before the local land use assessment ordinance was adopted; subsequent changes in acreage or use that are permitted under the conservation easement would not affect the continuing eligibility of the land for use assessment under § 10.1-1011(C).  In addition, no back taxes, including the roll-back tax, may be imposed when conservation easement land, through apparent unpermitted use or development, no longer appears to qualify for use assessment under § 10.1-1011(C).  Finally, upon the initiation of appropriate proceedings and the making of factual findings respecting the land and easement in question, such subsequent violations of the conservation easement could render the land ineligible for use assessment under § 10.1-1011(C).

     

13-053

James R. Benkahla, Esquire
Interim County Attorney
Office of County Attorney
County of Spotsylvania

The Spotsylvania County Board of Supervisors may not enact a zoning ordinance amendment that applies to parcels located in areas defined by the boundaries of electoral districts, without regard to the boundaries of the county’s zoning districts.

13-089

The Honorable R. Steven Landes
Member, House of Delegates

For specified zoning classifications, § 15.2-905(A) authorizes Albemarle County to ban the keeping of inoperable vehicles unless the inoperable vehicle is “within a fully enclosed building or structure or otherwise shielded or screened from view . . . .”  

     

13-069

The Honorable John T. Frey, Clerk
Circuit Court of Fairfax

Clerks of court should assess the regional congestion relief fee on real estate conveyance instruments based upon the date of recordation.

     
13-026

Mark C. Popovich, Esquire
County Attorney
County of Isle of Wight 

The deed of conveyance between the Commonwealth and Isle of Wight Countyobligated the county to maintain and preserve the dwelling in good condition, including to take reasonable measures to protect it from catastrophic loss.  Further, the county’s failure to maintain and preserve the dwelling does not give rise to a right of entry and reverter under the deed, so as to entitle the Commonwealth to reclaim title to the Fort Boykin property.

     

{tab August}

Opinion #

Requestor

Summary

The Honorable Barbara O. Carraway, CPA
Chesapeake City Treasurer
A city treasurer is authorized to enter into an agreement with the local Commonwealth’s Attorney for the collection of delinquent court debt. Further, the city treasurer is authorized to receive a contingent collection fee provided the percentage amount of this fee is no higher than 35 percent of any amounts recovered. Finally, the city treasurer may receive an administrative fee under § 58.1-3958 in addition to the contingent collection fee.
     
12-009 The Honorable Stephen H. Martin
Member, Senate of Virginia
Section 3.2-6528 authorizes a locality to charge a kennel establishment more than $50.00 in local license taxes in circumstances where the establishment maintains multiple blocks of kennels, however, the locality may not charge more than $50.00 for any one individual kennel block.
     
13-045 The Honorable Lacey E. Putney
Member, House of Delegates
 
Section 15.2-2204(B) of the Code of Virginia requires a local planning commission to give written notice to the owner of each parcel of land involved in a downzoning, notwithstanding the fact that other rezoning proposals under consideration include increases in density allowances which, considered in conjunction with the downzoning, result in no net loss of subdividable lots in the locality.
     
13-027 The Honorable Scott A. Surovell
Member, House of Delegates

 
House Bill No. 2338, as codified in § 19.2-324.1, is constitutional; the legislation does not infringe upon the protections against double jeopardy contained in the Fifth Amendment to the U.S. Constitution or Article I, Section 8, of the Constitution of Virginia. Further, no amendment to the Constitution of Virginia was necessary for this enactment to take effect.
     
13-047 The Honorable Terry G. Kilgore
Member, House of Delegates


 
A local governing body may not mandate that individuals not employed by the clerk be granted access to a case management system without the clerk’s authorization.
     
13-051 The Honorable Scott A. Surovell
Member, House of Delegates

 
A Commonwealth’s Attorney is authorized to request that a bill of particulars be ordered in a district court where a motion to suppress evidence is filed that includes no factual basis for the motion.
     
12-112 Honorable Christopher P. Stolle
Member, House of Delegates
 
The Virginia Department of Health may utilize expedited partner therapy if it does so in accordance with § 54.1-3303(C).
     
12-114 Honorable Phillip P. Puckett
Member, Senate of Virginia





 

The County may abandon a bridge that is neither in the State Highway System nor the secondary highway system if the bridge is no longer necessary or if abandonment would serve the public interest. Upon such abandonment, the bridge’s ownership normally will revert to the owner of the underlying fee, if any such owner exists. In addition, if the County owns the fee, it lawfully may convey the bridge property to a private party in exchange for consideration by either a public or private sale, and, that such consideration may include the County’s making of a monetary payment to the purchaser. Finally, no opinion can be rendered regarding whether the County would retain liability following its abandonment of a bridge needing repair or replacement, for such determination of liability would depend on specific facts existing at the time of occurrence of injury or damage.

 

     
12-115 Honorable Phillip P. Puckett
Member, Senate of Virginia




 
Section 33.1-72.1 of the Code of Virginia provides the requirements and funding options to improve a road to be taken into the secondary system of highways by the Virginia Department of Transportation. Whether the covenant described would be an impediment to acceptance into the secondary system of state highways requires a determination of fact that is beyond the scope of this opinion.
     
13-041 Honorable Philip J. Kellam
Commissioner of the Revenue City of Virginia Beach




 
Planned Parenthood of Southeastern Virginia, Inc. is exempt from local real and personal property taxes as a consequence of licensure as a category of hospital if the commissioner of the revenue determines that it is operated not for profit, but to promote the charitable purposes of the organization, and that the property belongs to and is actually and exclusively occupied and used by the organization.
     
13-052 Honorable Tony Wilt
Member, House of Delegates








 
Local public school boards have authority over the care, management, and control of the property of the school division and as such are separate and apart from the local government, and the employees of the school board are not local government employees for purposes of § 15.2-915. Therefore, local school districts may prohibit an employee from storing a lawfully possessed firearm and ammunition in a locked motor vehicle on school district property.
     

 

{tab July}

Opinion #

Requestor

Summary

Mark D. Stiles, Esquire
City Attorney, City of Virginia Beach
When a locality, acting pursuant to § 15.2-922, adopts an ordinance to require installation of smoke detectors in “any building containing one or more dwelling units,” that enactment does not necessitate the retrofitting with smoke detectors of existing buildings containing dwelling units.   At such time as smoke detectors may be installed in any building containing dwelling units, the installation must comply with the then-current provisions of the Uniform Statewide Building Code.  Finally, to remain in compliance with the ordinance, once the smoke detectors are initially installed, the terms of the Uniform Statewide Building Code govern the maintenance or replacement of the smoke detectors.
     
The Honorable Dana T. Bundick
Treasurer, County of Accomack
A Virginia locality may provide appropriations to certain organizations providing fire or emergency medical services regardless of their classification as IRS non-profit entities and regardless of whether they provide compensation to individual members.  Further, a county treasurer’s records must be located in the same building as that county treasurer’s office, and that the county treasurer should maintain, store, and retain his records in accordance with the disposition schedule established for treasurers by the Library of Virginia.  Finally, to the extent that other county offices are in possession of public records, such county offices may be required to produce information contained in these records pursuant to the Virginia Freedom of Information Act. 
     

11-136

Steven D. Briglia, Esquire
Town Attorney for the Town of Vienna

Fairfax County lacks authority to impose a limit or subject to County review or approval the water service rates Vienna sets for those persons using the Town’s water service, including any customers residing outside the Town limits. 

     

12-044

Robert W. Duncan, Executive Director
Virginia Department of Game and Inland Fisheries

Jack G. Travelstead, Commissioner
Virginia Marine Resources Commission

An Indian who habitually resides on an Indian reservation or an Indian that is a member of a Virginia recognized tribe who resides in the Commonwealth is not required to obtain a license to fish in Virginia’s inland waters, or to hunt or trap in Virginia.  Members of the Virginia tribes that were parties to the Treaty of 1677 with England are not required to obtain a license to fish or oyster in Virginia’s tidal waters provided the activity is limited to harvest for sustenance.  Finally, Virginia Indians are bound by the trapping, hunting and fishing laws and regulations of the Commonwealth regardless of whether they live on or off a reservation.

     

11-110

The Honorable Deborah F. Williams
Commissioner of the Revenue
County of Spotsylvania

The exemption afforded under § 58.1-3703(C)(1) does not apply to the subsidiary of a Class I railroad that operates a transloading facility unless it was certified by the Interstate Commerce Commission during that agency’s existence or is registered with the Surface Transportation Board for insurance purposes.  Further, the application of § 58.1-2607 depends on who owns the real and tangible property being taxed. 

     

12-063

The Honorable Christopher K. Peace
Member, House of Delegates

The Fauquier County Zoning Ordinance for farm wineries, at least in part, is an invalid exercise of local authority because it exceeds the locality’s delegated zoning authority and is preempted by state law governing alcoholic beverages.

     

12-076

The Honorable Michael F.A. Morehart
State Inspector General

The Office of the State Inspector General is not required to assume all duties, powers, and resources from the predecessor entities.  Further, the jurisdiction of OSIG is limited to executive branch agencies; non-governmental entities that are wholly or principally supported by state funds not otherwise excepted by the definition of “nonstate agency;” and public institutions of higher education to the extent that there are allegations of fraud, waste, abuse, or corruption concerning either the president of the institution or such institution’s internal audit department. 

     

12-089

The Honorable R. Steven Landes
Member, House of Delegates

The director of the Office of the State Inspector General may designate himself and no more than 30 members of the investigation unit to have the same powers as a sheriff or law-enforcement officer in the investigation of allegations of criminal behavior affecting the operations of a state agency or a nonstate agency pursuant to OSIG duties.

     

13-042

The Honorable Michael W. Taylor
Sheriff, Pittsylvania County

The local board of supervisors may provide school resource officers for the county’s private schools as well as the county’s public schools

     

13-058

The Honorable William H. Fralin, Jr.
Chairman, Board of Commissioners
Virginia Port Authority

Section 2.2-434 does not prohibit the Virginia Port Authority from employing a lobbyist for compensation to represent its interests at the federal level of government.

13-036

The Honorable Ray S. Campbell, Jr.
Clerk of the Circuit Court of Caroline County

The amendments to § 18.2-308(D) took effect on July 1, 2013.  Further, beginning on July 1, 2013, the clerk of court must withhold from public disclosure the applicant’s name and other information contained in all concealed handgun permit applications and orders, including those filed prior to the effective date.  Further, the clerk must withhold from public disclosure court orders issuing such permits, whether they are maintained electronically or in “Order Books.”  Finally, the clerk is required to comply with this statute irrespective of receiving any funding from the General Assembly.

     

12-100

Douglas W. Napier, Esquire
Town Attorney
Town of Front Royal

A locality may lawfully operate a capture and sterilization program for the purpose of controlling a population of feral cats.  The feral cats may be captured in a humane fashion, and such captured cats may be sterilized by a licensed veterinarian.  The feral cats may not, however, be released by the locality back to the location from whence they came or some other location in the wild.  Finally, persons who capture feral cats while acting as agents of or in conjunction with a locality as part of its trap and sterilize program are companion animal finders and do not become the de facto or de jure owners of such cats.

     

12-105

The Honorable Terry L. Yowell
Commissioner of the Revenue
Culpeper County

Short-term rental property is to be classified as a distinct category of merchants’ capital and may be taxed by a locality as merchants’ capital or as short-term rental property, but may not be classified or taxed as personal tangible property.  Further, a locality lawfully may decline to impose a tax on merchant’s capital, including short-term rental property. Finally, the absence of a local ordinance imposing a tax on merchant’s capital or short-term rental property represents a choice by the locality’s governing body not to impose a tax on such property.

     

12-084

The Honorable Judith C. Wells
Treasurer, Isle of Wight County

If the local governing body made a lump sum appropriation to the school board for fiscal year 2011-2012 and a surplus resulted from debt service savings, then the school board may reallocate and spend those savings for other school needs. Nonetheless, whether a lump sum appropriation was made to the local school board depends upon the interpretation of a local ordinance, a practice from which this Office has traditionally abstained.

     

12-065

The Honorable William O. Watson
Sheriff, City of Portsmouth

While the chief judge and, collectively, the  judges of a judicial circuit, do possess legal authority to establish rules regarding courthouse security, such power may not be delegated to a circuit court administrator. In addition, the chief judge and, collectively, the circuit judges, possess the legal authority to establish a general rule that cellular telephones are permitted in the courthouse. Nonetheless, the sheriff possesses the legal authority to take action in any specific instance in which a cellular telephone causes a disturbance, or otherwise endangers public safety within the courthouse.

     

12-014

The Honorable Scott A. Surovell
Member, House of Delegates

A member of the General Assembly is not precluded from soliciting or accepting contributions during a regular session of the General Assembly on behalf of the following: (1) candidates for public office in states other than Virginia; (2) federal political action committees; (3) federal accounts maintained by state, congressional district, or county or city political party committees pursuant to federal campaign finance laws; and (4) independent expenditure only committees (commonly referred to as “Super PACs”) if they are considered “federal political action committees” under § 24.2-945.1(A).

     

11-093

The Honorable Lucretia A. Carrico
General District Court Judge, Retired
Petersburg General District Court 

A General District Court is authorized to order postrelease supervision of a person convicted of violating § 18.2-472.1(A), but in the case of misdemeanor convictions that period is limited to six months for each such conviction. Further, the court can order the Virginia Department of Corrections to oversee such supervision.

     

{tab June}

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 abona 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.

     

{tab May}

Opinion #

Requestor

Summary

Cynthia E. Hudson, Esquire
City Attorney for the City of Hampton

The City of Hampton may lawfully conduct churning operations to detect crimes involving the diversion of tobacco products.  Further, funds derived from a churning operation, of which the city ultimately may obtain an ownership interest, are not exempt from general laws governing the use of local government funds.  In addition, the Office of the Attorney General cannot definitively opine on the ownership of the completed operation’s residual funds and other assets.  Finally, the City of Hampton may not appropriate or expend such funds until it establishes a lawful ownership interest in them.

     

13-043

The Honorable Gregory D. Habeeb
The Honorable Johnny S. Joannou
Members, House of Delegates

The Honorable Richard D. Holcomb
Commissioner, Department of Motor Vehicles

Mr. Bruce Gold, Executive Director
Motor Vehicle Dealer Board 

The proper tax rate to impose on a vehicle sale transaction in Virginia is the tax rate in effect at the time of the sale, when ownership or possession of the vehicle is transferred, whichever of these events of sale occurs first.  After the tax is imposed on the sales transaction, the tax is then owed and is paid and collected when the vehicle is titled by the DMV.  

     

12-109

The Honorable H. Roger Zurn, Jr.
Treasurer, County of Loudoun

Because the Code does not distinguish between the source of taxing authority, with each of the presented taxes constituting an assessment against real estate, and because the Code does not otherwise provide for priority of liens based on delinquent payments of such assessed taxes, the Treasurer, in both of the scenarios presented, should apply any payment first to the most delinquent assessed taxes, and, second, ratably or pro-rata between such taxes when they have accrued at the same time.

     

The Honorable Barry D. Knight
Member, House of Delegates

Absent a statutory rule to the contrary, a member of a state board or commission holds over after the conclusion of his term and may continue to serve in his office and execute the full range of duties of that office until the qualification of his successor.

     

12-015

The Honorable Charles McConnell, Chairman, Board of Commissioners, Virginia Housing Development Authority

Officers and employees of VHDA are prohibited by COIA from participating as owners in the federal Housing Choice Voucher program administered by VHDA; current regulations governing the program expressly bar officers and certain employees of VHDA from participating in the program as owners.

     

13-016

The Honorable C.T. Woody, Jr., Sheriff, City of Richmond

Because the requirements set forth in 
§ 32.1-288 apply only to human remains that have been the subject of a death investigation conducted by the OCME pursuant to Article 1 of Chapter 8 of Title 32.1such requirements do not oblige the sheriff to dispose of other unclaimed remains.

     

12-096

The Honorable Kenneth L. Alger, II, Esquire, Commonwealth’s Attorney, Page County

The provisions of § 22.1-287 may be reconciled with those of the Family Educational Rights and Privacy Act. Based upon the factual scenario described, the school superintendent possessed authority to rely upon FERPA provisions to deny access to a pupil’s records to a law enforcement officer seeking information in the course of his duties.

     

{tab April}

Opinion #

Requestor

Summary

13-006

The Honorable Charles N. Dorsey, Judge
Twenty-third Judicial Circuit

Circuit Court may appoint a guardian ad litem in proceedings pending before the VWWC.

     

11-104

Cynthia E. Hudson, Esquire
City Attorney for the City of Hampton 

The City of Hampton does not have the authority to grant a preference in the award of construction contracts procured by competitive sealed bidding to contractors who employ, or agree to grant hiring preference to, Hampton residents for work to be performed under the contract.  Further, the City may not impose a requirement in its construction contracts that the contractors give a preference for hiring Hampton residents for such work.

     

13-009

The Honorable S. Chris Jones
Member, House of Delegates

Because there is no available exemption to the prohibitions of Article VII, § 6 of the Constitution of Virginia and § 15.2-1535 of the Code of Virginia, neither the Mayor, Vice Mayor, or any other Hampton City Council member may be appointed by the Hampton City Council to serve as a member of the FMA Board.  Further, members of the FMA Board, as individuals holding public office, stand in a fiduciary relationship with the FMA and thus are subject to the common law duties of loyalty, care, obedience, and disclosure that are generally applicable to those in such a fiduciary relationship.  Finally, a FMA Board member who fails to fulfill his lawful duties may be removed from office in accordance with the Board’s by-laws and applicable law.

     

11-101

Ms. Evelyn McGill
Executive Director
Virginia Workers' Compensation Commission

The Commission is not authorized under current law to use funds in the Criminal Injuries Compensation Fund to purchase a new office building in which to house the headquarters of the Commission and the Director of CICF and her staff, but there is no constitutional or other legal impediment to the introduction of future legislation that would enable the Commission to utilize the Fund for such purposes.  Finally, effective July 1, 2013, the Commission is permitted to locate its headquarters outside the City of Richmond, provided the facility remains within the Commonwealth.

     

12-107

The Honorable Richard H. Black
Member, Senate of Virginia

While a definitive opinion cannot be rendered due to a lack of knowledge of all the pertinent and particular facts of a future case arising in Virginia, persuasive legal arguments exist to assert that the portion of the Virginia civil identity protection statute prohibiting the intentional communication of an individual’s social security number, as contained in § 59.1‑443.2(A)(1) of the Code of Virginia, is not preempted by the National Labor Relations Act.  Under facts identical to those presented in Fisher v. Communications Workers of America, it is likely that Virginia’s courts would reach the same  result.  In the more likely event of labor relations litigation arising on different facts, a much stronger prospect exists to successfully defeat a federal preemption claim.

     

12-101

The Honorable Robert B. Beasley, Jr.
Commonwealth's Attorney, County of Powhatan

The Executive Director of DGIF or his designee, once he has issued a “kill permitˮ pursuant to § 29.1-529 for the taking of a bear, may not restrict that authorization so as to prohibit the use of dogs in hunting the bear.

     

The Honorable Michael F. A. Morehart
State Inspector General

Fines generated from local ordinances pursuant to § 46.2-1313 do not constitute “fines collected for offenses committed against the Commonwealth” within the meaning of Article VIII, Section 8 of the Virginia Constitution; such sums constitute revenue of the locality; and the General Assembly may enact legislation to appropriate such funds to the Literary Fund as “such other sums as the General Assembly may appropriate.”  Further, fines and fees arising from violations of town ordinances should not be considered part of total revenue from fines of the county in which the town is located.

     

{tab March}

Opinion #

Requestor

Summary

The Honorable Terry H. Whittle
Clerk of Court, Winchester Circuit Court

Pursuant to the exemption provided by 12 U.S.C. § 1768, Federal Credit Unions are exempted from paying the recordation tax imposed on grantors by § 58.1-802 of the Code of Virginia.

     

The Honorable Robert G. Marshall
Member, House of Delegates

Although the imposition of different taxes on transactions in different localities does not violate Article X, § 1, HB 2313’s imposition of taxes in the specific localities constitutes a local law related to taxation prohibited by Article IV, § 14(5) of the Virginia Constitution. Further, because the taxes were imposed directly by the General Assembly, the taxes cannot be saved by the provisions of Article VII, § 2, even if they had obtained the affirmative vote of two-thirds of the members elected to each house.

     

The Honorable Robert G. Marshall
Member, House of Delegates

The provisions of the 2013 budget act that purport to authorize Medicaid expansion only “[i]f the Medicaid Innovation and Reform Commission determines that” certain conditions set by the General Assembly have been met constitutes a delegation of the General Assembly’s legislative authority.  Further, the General Assembly may not delegate final legislative authority regarding budgetary or other matters to a committee composed of a subset of the members of the General Assembly.

     

The Honorable Robert G. Marshall
Member, House of Delegates

The Honorable Patrick A. Hope
Member, House of Delegates

Because the Virginia Tort Claims Act does not provide relief for torts committed by agents of the Commonwealth that occurred prior to July 1, 1982, it is unlikely that a claimant could successfully bring an action against the Commonwealth for having been sterilized.

     

The Honorable Priscilla J. Davenport
Middlesex County Commissioner of the Revenue

Should a commissioner of the revenue make the factual determination that a parcel of land meets the criteria set forth in § 58.1-3230, but fails to meet the acreage requirements of § 58.1-3233(2), such parcel may not qualify for use taxation and assessment.

     

Colonel W. S. Flaherty, Superintendent
Department of State Police

Under § 46.2-100, which controls the legal classification of all vehicles, the PS50 ScootCoupe would be classified as a “motor vehicleˮ and the PS150 would be classified as a “motorcycle.ˮ

     

12-086

The Honorable Barry D. Knight
Member, House of Delegates

The First Amendment protection of free speech does not prohibit VDOT, when it is acting in a proprietary capacity, from negotiating commercially reasonable, profit-conscious contracts for advertising and distributing written materials at its Rest Areas.

     

{tab February}

Opinion #

Requestor

Summary

The Honorable Ben L. Cline
Member, House of Delegates

The General Assembly may not delegate final legislative authority regarding budget or other matters to a committee composed of a subset of the members of the General Assembly.

     

12-087

The Honorable Harry B. Blevins
Member, Senate of Virginia

Based on the limited facts provided, that the dependents of the service members described in the scenarios presented neither qualify for waiver of the one-year residency requirement, nor otherwise can be deemed domiciled in Virginia for purposes of in-state tuition based on the service member’s military status. 

     

12-073

Colonel W. S. Flaherty
Superintendent, Virginia Department of State Police

The Data Act does not preclude law enforcement agencies from  maintaining, using and disseminating personal information collected by an LPR, provided such data specifically pertains to investigations and intelligence gathering relating to criminal activity. Further, data collected by an LPR may be classified as “criminal intelligence information” and thereby exempted from the Data Act’s coverage only if the data is collected by or on behalf of the Virginia Fusion Intelligence Center, evaluated and determined to be  relevant to criminal activity in accordance with, and maintained in conformance with the criteria specified in § 52-48 of the Code of Virginia.  Finally, data collected by an LPR that is not properly classified as “criminal intelligence information” and not otherwise relating directly to law enforcement investigations and intelligence gathering respecting criminal activity, is subject to the Data Act’s strictures and prohibitions.

     

13-001

The Honorable Laura M. Rudy
Treasurer, Stafford County

Two or more political subdivisions may exercise their investment powers by investing in a jointly administered investment pool and such pooled investment program may be organized in the form of a trust fund.

     

{tab January}

Opinion #

Requestor

Summary

12-053

Cynthia E. Hudson, Esquire
City Attorney for the City of Hampton

John F. Haugh, Esquire
Acting Commonwealth's Attorney
City of Hampton

Given the absence of a notice of acceptance filed with the Governor whereby the United States has accepted concurrent jurisdiction over the land on which the Designated Facilities are located, the United States does not hold concurrent legislative jurisdiction over the land on which the Designated Facilities are located. 

     
     

12-083

The Honorable George L. Barker
Member, Senate of Virginia

The plain language of § 46.2-716(B) is broad enough to prohibit the placing of a clear plastic covering over a license plate, if the covering in any way obscures information contained on the license plate, but that whether any particular covering would bring rise to a violation of the provision is a determination of fact beyond the scope of this opinion. 

     

12-003

The Honorable Randy C. Krantz
Commonwealth's Attorney, Bedford County

A management company that manages short-term transient occupancy rentals of fewer than thirty days for a portion of the condominium units in a condominium must be licensed with the Virginia Real Estate Board and must employ a licensed real estate broker before renting or offering to rent those condominium units on behalf of the units’ owners.

     

12-104

The Honorable Bryce E. Reeves
Member, Senate of Virginia

The Virginia Property Owners Act does not expressly provide or otherwise allow for a developer to maintain control of a homeowners’ association for a specific period of time or until a specific number of lots or units are sold, there is no Virginia Code provision to evaluate for constitutionality.  In addition, whether an impermissible conflict of interests exists when a lawyer is employed by the developer to serve simultaneously as the attorney for the developer and the association is not a matter of law upon which this Office can opine, but rather an ethical issue properly addressed by the Virginia State Bar.

     

12-072

The Honorable John C. Watkins
Member, Senate of Virginia

A motor vehicle title lender may not disburse loan proceeds through a debit card transaction in which the borrower’s bank account is credited with the amount of the loan.  Further, a motor vehicle title lender may not disburse loan proceeds through an electronic funds transfer to the borrower’s deposit account.

     

12-102

The Honorable Terry G. Kilgore
Member, House of Delegates

Although a local governing body may adopt a zoning ordinance that places restrictions on the location and siting of oil and gas wells that are reasonable in scope and consistent with the Virginia Gas and Oil Act and the Commonwealth Energy Policy, a local governing body cannot ban altogether the exploration for, and the drilling of, oil and natural gas within the locality’s boundaries. 

     

The Honorable Thomas C. Wright Jr.
Member, House of Delegates

Irrigation is not a necessary element for a farm pond to qualify for the agricultural exemption, provided the impounded waters are utilized in a manner found to be required for agricultural production.  Because the determination of whether the agricultural exemption applies to any particular structure is primarily a factual question reserved to the Director of DCR on a case-by-case basis, I decline to render an opinion on the issues raised in the second question presented.  Finally, absent a specific definition in the Dam Safety Act, it is appropriate to look to the definition of the term “forester” provided in the statutes governing the Department of Forestry as an interpretative guide, and that a forester differs from an orchardist in that an orchardist harvests fruit, nuts or sap from trees, while a forester is concerned with the timber itself.

     
     

{/tabs}