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1999 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.

*Section 2.1-118 of the Code of Virginia authorizes the Attorney General of Virginia to render official opinions to the Governor,  members of the General Assembly, judges, the State Corporation Commission, state agency heads, and certain local officials.  The Honorable Mark L. Earley was sworn in as Attorney General at noon, January 17, 1998.   The Honorable Richard Cullen served as Attorney General of Virginia from June 11, 1997, to January 17, 1998.  The Honorable James S. Gilmore, III, served as Attorney General during 1996 until his resignation on June 11, 1997. 

{tab December}

 

Opinion # Requestor Summary
99-071

Mr. Joseph Benedetti

Director, Department of Criminal Justice Services 

Ordinance incorporating by reference crimes classified as misdemeanors
     
99-064

The Honorable John T. Frey

Clerk, Circuit Court of Fairfax County

Applicant's name on notary commission
     
99-086

The Honorable Philip Hamilton

Member, House of Delegates

Substitution   of chemically dissimilar drugs
     
99-111

The Honorable Robert G. Marshall

Member, House of Delegates 

Copies of board meeting minutes subjects to board approval
     

{tab November}

 

Opinion # Requestor Summary
99-047

The Honorable John T. Frey

Clerk, Circuit Court of Fairfax County 

Substitute power of Attorney
     
99-057

Mr. Jacob P. Stroman IV

County Attorney for Gloucester County

Charities exempt from food and beverage tax
     
99-063

The Honorable Ross A. Mugler

Commissioner of the Revenue for the City of Hampton 

Disclosure of information on distress warrant
     
99-056

The Honorable Richard H. Black

Member, House of Delegates 

Authority of private process server
     
99-039

The Honorable W. Edwards Meeks

Commonwealth’s Attorney for Amherst County 

Public school officials request for drug search
     
99-098

The Honorable Mary Margaret Whipple

Member, Senate of Virginia

Circuit court restoration of felon's civil rights
     
99-046

Mr. Thomas R. Robinett

City Attorney for the City of Winchester 

Winchester city attorney may prosecute criminal violations
     
99-073

The Honorable R. Steven Landes

Member, House of Delegates 

Ability of town to provide electric service
     
99-060

The Honorable Robert S. Bloxom

Member, House of Delegates 

District court may modify another state's child support order
     
99-045

Mr. Richard D. Holcomb

Commissioner, Department of Motor Vehicles 

DMV authority to impose license restrictions and asess demerits
     
99-055

The Honorable Thomas G. Baker

Member, House of Delegates 

Contract between physician and patients
     

{tab October}

 

Opinion # Requestor Summary
99-054

Dr. James R. Perkins

President, Blue Ridge Community College 

Community college employee may not accept cash bonus
     
99-049

The Honorable William J. Howell

Member, House of Delegates

Board of supervisors must file disclosure statement
     
99-051

The Honorable Walter A. Stosch

Member, Senate of Virginia 

Members of a 7 member state board confer by telephone
     
99-058

The Honorable M. Kirland Cox

Member, Senate of Virginia 

Bid restrictions on transfers of city-owned property
     
99-038

The Honorable Rex A. Davis

Clerk, Circuit Court for the City of Newport News 

Attorney for accused requests copy of certificate of analysis
     
99-037

The Honorable Jay W. DeBoer

Member, House of Delegates

School board election
     
99-044

The Honorable Vincent F. Callahan Jr.

Member, House of Delegates 

Constitutional requirements advertising and receiving public bids
     
99-094

The Honorable T Thomas W. Moss Jr.

Speaker of the House of Delegates

Authority to regulate nontidal wetlands
     
99-074

The Honorable William K. Barlow

Member, House of Delegates 

Calculation of roll back taxes
     

{tab September}

 

Opinion # Requestor Summary
99-033

Mr. Sam Kornblau

Chairman, Board of Commissioners 
Virginia Housing Development Authority 
VHDA and Conflict of Interest Act
     
99-007

The Honorable Paul D. Greer

Judge, Juvenile and Domestic Relations District Court for Washington & Smyth Counties/City of Bristol 
Preliminary protective order to protect child
     
99-072

The Honorable Charles D. Griffith Jr.

Commonwealth’s Attorney for the City of Norfolk 

Prosecution of unlawful hazing activities
     
98-114

The Honorable John M. White-Hurst

Commonwealth’s Attorney for Mecklenburg County 

Patient medical records in response to subpoena
     
98-086

The Honorable William D. Spence

Sheriff of Orange County 

Alternative prisoner incarceration program
     
98-110

The Honorable Philip J. Kellam

Commissioner of the Revenue for the City of Virginia Beach

Licenses taxes and travel agencies
     
99-035 Brenda B. Rickman Privacy Protection Act
     
99-083

Ms. Nita K. Stanley

Town Attorney for the Town of Ridgeway 

Consumer utility tax
     

{tab August}

 

Opinion # Requestor Summary
99-020

The Honorable Phillip Hamilton

Member, House of Delegates 

At-Risk Youth and Families
     
99-070

The Honorable William C. Mims

Member, Senate of Virginia

Va. Electric Utility Restructuring Act
     
99-028

The Honorable Walter A. Stosch

Member, Senate of Virginia 

Va. Consumer Protection Act
     
99-052

The Honorable Eric Cantor

Member, House of Delegates 

Executions & Other Means of Recovery Process
     
99-087 Emmett W. Hanger Jr. Franchise & Officers (Qualifications of Voters)
     
99-024 David P. Bobzien Campaign Finance Disclosure Act
     
99-043 Andrew R. McRoberts Crimes Against Administration of Justice
     
99-021 David P. Bobzien Fair Housing - Human Rights
     
99-026 D. Gregory Baker Psychiatric Inpatient Treatment of Minors Act
     
99-015 James L. Williams License Taxes
     
99-067 Richard H. Black Collection of personal property taxes
     

{tab July}

 

Opinion # Requestor Summary
99-040 Clarence E. Phillips Silvicutural activities
     
99-053 Jack Roberts Open Space Land Act
     
98-083 Philip J. Kellam Va. Real Estate Cooperative Act
     
99-062 John J. Davies Deliquency Prevention and Youth Development Act
     
98-105 A.D. Mathews Sr. Local Gov't Officers and Budget Amendment
     
98-060 Stephen O. Simpson Northern Va. Criminal Justice Academy
     
99-065 S. Vance Wilkins Jr. Reasonable Selection of Method Rule
     
99-016 William B. Allen Tuition Assistance Grant Act
     
99-005 David N. Grimes Home/electronic Incarceration Program
     
98-085 Russell O. Slayton Jr. Local Gov't (County and City Officers)
     
99-068 William L. Wimbish Va. Residential Landlord and Tenant Act
     

{tab June}

 

Opinion # Requestor Summary
PDF Joyce A. Fuller Administration of Government Generally
     
PDF Anne P. Petera Property and Conveyances
     
PDF Ray A. Conner Taxation
     
PDF Lee A. Stoffregen Taxation
     
PDF William G. Boice Welfare
     
PDF Walter A. Stosch Banking and Finance
     
PDF W.A. Talley Jr. Civil Remedies and Procedure
     
PDF Kathy J. Byron Conservation
     
PDF Steve M. Draper Counties
     
PDF Eric Cantor Counties
     
PDF Walter A. Stosch Health
     
PDF John J. Davies Motor Vehicles
     
PDF Ross A. Mugler Taxation
     

{tab May}

Opinion # Requestor Summary
PDF Paul Mahoney Dog attacks
     
PDF John Newhart writ of possession
     
PDF Emmett Hanger medical malpractice hearings
     
PDF James Cromwell Retirement contributions
     
PDF Michael Wolfe List of heirs
     

{tab April}

Opinion # Requestor Summary
PDF Patricia Ticer School board meetings
     
PDF William Mims Student citizenship
     
PDF Riley Ingram Eligibility for VRS retirement benefits
     
PDF Alfred Anderson Use of accord and satisfaction in paying taxes
     

{tab March}

Opinion # Requestor Summary
PDF Harry J. Parrish Sanitary districts
     

{tab February}

Opinion # Requestor Summary
PDF A. Victor Thomas Motor vehicles on greenways
     
PDF Walter Stosch Arrest powers of security officers
     
PDF Patricia Scales Dog ordinances
     
PDF Michael M. Foreman Social Security number of marriage license applications
     
PDF C. Richard Cranwell Unattended vehicles
     

{tab January}

Opinion # Requestor Summary
PDF Phillip Hamilton FOIA application to meeting through electronic means
     
PDF Jane H. Woods Date for effective change of medicare reimbursement policy
     
PDF Jackie T. Stump Appalachian school of law
     
PDF Harry J. Parrish Industrial Development authority entering into private contract
     
PDF I. Vincent Behm Jr. Computer models for inspection warrants
     
PDF Phillip Hamilton Paramedics obtaining immunization information
     
PDF Marian Van Landingham Parental consent for immunication information
     
PDF Marsha Compton Fielder Taxation - line of duty exclusion
     

 

{/tabs}

 

 

 

 

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2000 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.

*Section 2.1-118 of the Code of Virginia authorizes the Attorney General of Virginia to render official opinions to the Governor,  members of the General Assembly, judges, the State Corporation Commission, state agency heads, and certain local officials.  The Honorable Mark L. Earley was sworn in as Attorney General at noon, January 17, 1998. The Honorable Richard Cullen served as Attorney General of Virginia from June 11, 1997, to January 17, 1998.  The Honorable James S. Gilmore, III, served as Attorney General during 1996 until his resignation on June 11, 1997.

{tab December}

Opinion # Requestor Summary

00-090

Mr. Edwin N. Wilmot
City Attorney for the City of Hopewell

Buildings owned and used as schools by City of Hopewell are "public places" that may not be sold without recorded three-fourths affirmative vote of all members elected to city council.

     

00-096

The Honorable William C. Mims
Member, Senate of Virginia

Amendment in 2000 House Bill 950 is not necessary to authorize law-enforcement officers of Commonwealth to detain nonresident runaway child. Current law authorizes law-enforcement officers to take into custody out-of-state runaway child who is within Commonwealth.

     

00-099

The Honorable George W. Grayson
Member, House of Delegates

Statutory requirement that copy of certificate of analysis be "mailed or delivered" to counsel for accused at least seven days before hearing or trial does not impose condition that accused, or his counsel, be in possession of such copy within seven days of hearing or trial.

     

00-070

The Honorable Madison E. Marye
Member, Senate of Virginia

The Honorable Albert C. Pollard Jr.

Member, House of Delegates

Act does not include limited liability corporation as entity that must comply with campaign finance reporting requirements; does not address expenditure of funds transferred from political action committee to limited liability corporation. Expenditure of such funds by corporation is not subject to reporting requirements of Act.

     

00-093

The Honorable H. Morgan Griffith

Member, House of Delegates

 

Act permits political action committee to purchase and make available to legislators redistricting-related services to assist in political process of redistricting.

     

00-068

Ms. Deanis L. Simmons
County Attorney for Tazewell County

 

County, within its discretion, may provide emergency equipment for use by fire and rescue organizations in responding to emergency calls and may seek reimbursement for actual cost of equipment use.

     

00-091

The Honorable Emily Couric
Member, Senate of Virginia

 

Locality that chooses to enforce Fire Prevention Code pursuant to Act may not selectively enforce open burning regulations prescribed by Code on geographic basis.

     

00-083

The Honorable Clifton A. Woodrum

Member, House of Delegates

 

Act specifically authorizes Virginia Polytechnic Institute and State University to enter into services contracts with Hotel Roanoke Conference Center Commission and to expend nongeneral funds from continuing education programs in support of operating costs of Hotel Roanoke Conference Center; does not authorize University to contribute to capital expenditures of Commission.

     

00-074

The Honorable Frederick M. Quayle

Member, Senate of Virginia

House Bill 908, which allows locality to require special exception or special use permit for three or more persons unrelated by blood, marriage, or adoption residing in single-family dwelling in area zoned for single-family use, would not violate federal or state fair housing law unless applied in discriminatory manner. Whether bill applies to or affects specific piece of property must be decided on case-by-case basis. Incorporation of term "nonprofit" in definition of "residential facility" in Senate Bill 449 creates discriminatory distinction that violates Virginia Fair Housing Law.

     

00-086

The Honorable Walter W. Stout III

Judge, Circuit Court of the City of Richmond

 

Costs imposed by locality in civil action for establishment of courthouse law library may be used for ordinary and reasonable decorating needs incident to maintaining suitable quarters for library; may not be used for improvement of hallways or elevators leading to library.

     

00-063

The Honorable George W. Harris Jr.

Judge, Twenty-Third Judicial District

Court may establish time frame within which defendant may make deferred or installment payments of unpaid court-ordered fines or costs. Clerk of court may grant or deny request for time to pay in accordance with court’s guidelines authorizing such practice. Clerk’s decision concerning conditions of deferred or installment payment agreements is final and not appealable. Petitions filed by defendants requesting deferred or installment payments are considered to be traffic, and not civil, matters. Court decision regarding deferred or installment payments is not appealable. Court must enter order reinstating defendant’s driver’s license after defendant has paid reinstatement fee to Department of Motor Vehicles and agreement has been entered for defendant to make deferred or installment payments of unpaid court-ordered fines or costs.

     

00-084

The Honorable Phillip A. Hamilton

Member, House of Delegates

Transfer of funds from next biennial budget to current state budget, without approval of General Assembly, to meet reimbursement requirements of Act, provided such action is within legislative intent of Act and 1998 and 1999 Appropriations Acts for 1998-2000 biennium, is authorized by General Assembly. 

     

{tab November}

Opinion # Requestor Summary
00-079 The Honorable Terry G. Kilgore
Member, House of Delegates
Dentists who provide free dental services to Mission of Mercy are liable for civil damages only for acts or omissions resulting from gross negligence or willful misconduct.
     
00-022 The Honorable Robert G. Marshall
Member, House of Delegates
Person with valid concealed weapons permit who carries gun to school and leaves it unattended, and not on his or her person, is in violation of statute prohibiting weapons possession on school property except when engaged in any of activities specifically exempted. Such person is not entitled to carry gun onto school property or school bus.
     
00-062 The Honorable Viola O. Baskerville
Member, House of Delegates
City’s grant of conservation easement to tax exempt nonprofit conservation organization, which effectively results in permanent dedication of public property to its current public use, is tantamount to sale of municipal property, requiring three-fourths affirmative vote of council and public hearing prior to sale.
     
 

{tab October}

Opinion # Requestor Summary
00-030 The Honorable J. L. Warren
Clerk, Circuit Court of Smyth County
Criminal costs, which may or may not be contingent upon sentence but are associated with conviction, and traffic fines are nondischargeable in Chapter 7 bankruptcy proceedings. Debt for restitution or criminal fine included in criminal sentence is nondischargeable in Chapter 13 bankruptcy; criminal fines not contingent upon sentence, traffic fines arising from traffic infractions, and civil traffic fines are dischargeable in Chapter 13 bankruptcies.
     

00-064

Mr. Patrick J. Morgan
County Attorney for Louisa County

Louisa County Board of Supervisors may set maximum annual compensation after January 1 and before July 1 in years 2001 and 2003 for staggered-term board members elected or reelected on November 8, 2001, and November 4, 2003; to become effective after January 1 in years 2002 and 2004, respectively.
     
00-055 The Honorable R. Creigh Deeds
Member, House of Delegates
Provision in subdivision ordinance prescribing minimum time period lot must be in existence prior to its subdivision is more expansive than is permitted by subdivision enabling statutes and is void and unenforceable.
     

00-018

Mr. Randall R. Hamilton
Town Attorney for the Town of Berryville
No requirement, as prerequisite to enforcement of Virginia’s traffic laws, that subdivision street in municipality be constructed according to standards established by Department of Transportation and accepted into state secondary highway system. Municipality would be immune from liability for failure to erect or maintain traffic control devices on subdivision streets that are not compliant with Department standards and have not been accepted into state secondary highway system. When streets in municipality are accepted into state secondary highway system by dedication, municipality would not be liable for injury sustained by pedestrian from fall on unpaved or unfinished street or curb.
     
00-075 The Honorable Emily Couric
Member, Senate of Virginia

 

Board of Education, and not Attorney General, has been delegated authority to determine whether Virginia law permits enrolled, full-time public school student to transfer credit for courses completed outside public school system that offers similar courses.
     

00-028

 

The Honorable Marsha L. Garst
Commonwealth’s Attorney for the City of Harrisonburg and Rockingham County

Local police officers may not enforce statutory fee limit for which owner of trespassing vehicle is liable to towing company, in lieu of towing vehicle.
     

00-024

 

Mr. William H. Leighty, Director
Virginia Retirement System
Statutory prohibition against allowing member of Virginia Retirement System to receive credit for prior active duty military service may not withstand constitutional scrutiny. Board of Trustees of Retirement System has limited authority to adopt rules and policies to conform conflicting military service credit provisions of Retirement System to federal law which allows credit for same service under state and federal retirement systems.
     
00-071 The Honorable William Page Johnson II
Commissioner of the Revenue for the City of Fairfax
Surety insurance company serving in capacity of bail bondsman is exempt from local business license taxation. 
     

{tab September}

Opinion # Requestor Summary
00-058 The Honorable Michael Foreman
Clerk, Circuit Court of the City of Winchester
Marriage license & certificate open to public for inspection
     
00-072 The Honorable Emily Couric, Member, Senate of Virginia

The Honorable Paul C. Harris & Mitchell Van Yahres,
Members, House of Delegates

 
Retirement community resident can serve as Director on facility's Board of Directors
     
00-026 Mr. Henry A. Thompson Sr.
County Attorney for Sussex County
 
Authorization to use taxes to pay personnel cost w/ E-911 system not extended to contract costs
     
00-050 The Honorable R. Steven Landes
Member, House of Delegates
 
Tax credits for property devoted to agricultural & forestal production
     

{tab August}

 

Opinion # Requestor Summary
00-048 The Honorable Harvey B. Morgan
Member, House of Delegates
Two or more counties may establish joint Dept. of Real Estate Assessment
     
00-053 The Honorable William H. Fuller IIII

Commonwealth's Attorney for the City of Danville
 
Define term "operates" pertaining to pyramid promotional
     
00-054 The Honorable Sharon B. Will
Judge, Juvenile and Domestic Relations District Court
 
Transfer legal custody of minor from biological mother to unrelated couple
     
00-001 The Honorable James Camblos III
Commonwealth's Attorney for Albemarle County
Candidates for local office posting signs on state highway rights-of-way
     
00-069 The Honorable H. Morgan Griffith
Member, House of Delegates
 
Transition of City of Clifton Forge to town status
     
00-056 The Honorable W. Edward Meeks III
Commonwealth's Attorney for Amherst County
 
Motorist warned in advance by posted sign of reduced speed limit
     

{tab July}

Opinion # Requestor Summary
00-034 Mr. Robert Bendall
City Attorney for the City of Manassas
Family assessment team may not refer juvenile to JCCA services
     
00-042 The Honorable R Lee Ware Jr.

Member, House of Delegates
 
FOIA and open  School Board meetings
     
00-031 The Honorable Jack Kennedy, Jr.
Clerk, Circuit Court for Wise County and the City of Norton
 
Internet Access to Court records
     
00-049 The Honorable H. Russell Potts Jr.
Member, Senate of Virginia
 
Sharing information with schools about student offenses
     
00-052 Mr. John W. Hasty
Director, Department of Health Professions
 
Definition of commercial establishment in optometry regulations
     
00-038 The Honorable Paul Harris, Sr
Member, House of Delegates
 
Authority of Board of Supervisors to refund real estate taxes
     
00-016 The Honorable R. Wayne Compton
Commissioner of the Revenue for Roanoke County
 
Univeral service charges on cellular phone bills
     

 

{tab June}

Opinion # Requestor Summary
00-039 The Honorable John T. Frey
Clerk, Circuit Court of Fairfax County
Foreign business trusts recognized in Commonwealth
     
99-088 The Honorable Nancy W. Miller
Commissioner of the Revenue for Montgomery County
 
Assessment of local taxes on privates businesses on federal property
     
00-035 The Honorable Vincent Callahan Jr.
Member, House of Delegates
 
Restrictions condominium owners assoc. imposes on unit owners
     
00-033 The Honorable John H. Chichester
Member, Senate of Virginia
 
Use of review standards and appeals of health care service determinations
     
00-036 The Honorable Claude Meinhard
Sheriff for Cumberland County
 
Magistrate can't issue warrant to sheriff who is magistrate's 1st cousin
     

 

{tab May}

Opinion # Requestor Summary
99-061 Mr. Steven Micas
County Attorney for Chesterfield County
City of Hopewell closed meeting to discuss personnel matters
     
00-029 Mr. Jeffrey Parker

Town Attorney for the Town of Remington
 
Individual employed by water dept. may serve on town council
     
00-040 The Honorable Terry Kilgore
Member, House of Delegates
 
Authority to pass money to prospective company to locate in county
     
00-004 Mr. Arnold Oliver
Chancellor, Virginia Community College System
 
Board member may continue to serve after relocating to another state
     
00-009 The Honorable Marsha Garst
Commonwealth's Attorney for the City of Harrisonburg
 
Fire Marshal may use blue lights on vehicle
     
00-021 The Honorable Preston Bryant
Member, House of Delegates
 
Legal sufficiency of notary seal
     
99-113 The Honorable Gary Waters
Sheriff for the City of Portsmouth
 
Whether court may order local sheriff to assign felow to work release program
     
99-093 The Honorable Gene Ergenbright
Commissioner of the Revenue for the City of Staunton
 
Authority to reinstate rate permitted by uncodified enactment
     
00-013 Ms. Betty Cauley
County Attorney for Bath County
Authority of calendar-year locality to change property tax rate
     
99-066 The Honorable Mary Lou Ebinger
Commissioner of the Revenue for Middlesex County
 
Commissioner of Revenue responsibility to administer food/beverage tax
     

{tab April}

Opinion # Requestor Summary
99-079 The Honorable J.R. Zepkin
Judge, Ninth Judicial District
Interpreters in civil cases
     
99-081 The Honorable John P. Grzejka
Commissioner of the Revenue for the City of Manassas
 
Dual office holding by commissioner of revenue
     
00-017 The Honorable William J. Howell
Member, House of Delegates

 
Court approval for distribution under UCTA 
     
 

{tab March}

Opinion # Requestor Summary
99-080 Mr. Edwin N. Wilmot
City Attorney for the City of Hopewell
Hopewell may not hire temporary employees pursuant to written contracts
     
00-003 The Honorable R. Steven Landes
Member, House of Delegates
 
Augusta Co. may not serve persons residing in Staunton/Waynesboro
     
99-119 The Honorable Jo Ann Davis
Member, House of Delegates

 
Property subdivided for conveyance to family member in different counties
     
99-107 The Honorable J. Curtis Fruit
Clerk, Circuit Court of Virginia Beach


 
Signature of judge for attested copy of court order
     
99-085 The Honorable Archer L. Yeatts III
Chief Judge, Henrico County General District Court
 
Not sufficient to impound driver's vehicle after DUI arrest warrant issued
     
00-002 The Honorable Stephen D. Newman
Member, Senate of Virginia
 
Local school board may open meetings with prayer
     
99-078 Mr. Dennis G. Smith
Director, Department of Medical Assistance Services
 
Preneed funeral contract;  Medicaid applicant can qualify for resource exclusion
     
00-005 The Honorable William C. Mims
Member, Senate of Virginia
 
Sales and Use tax exemption applies to equipment for Internet access service
     
99-092 The Honorable Ray A. Conner
Commissioner of the Revenue for the City of Chesapeake
 
Mandatory payment of interest on overpayment of taxes
     

 

{tab February}

Opinion # Requestor Summary
99-075 The Honorable William C. Wampler, Jr.
Member, Senate of Virginia
FOIA - state college board of visitors meeting
     
99-118 The Honorable Charles R. Hawkins, Member, Senate of Virginia
The Honorable Whittington W. Clement, Member, House of Delegates
Securitize tobacco settlement revenues
     
99-105 The Honorable Robert G. Marshall
Member, House of Delegates
Meaning of term "satellite facilities"
     
99-104 The Honorable Robert G. Marshall
Member, House of Delegates
"Off track betting parlor" transmission outside of Commonwealth
     
99-084 The Honorable Robert G. Marshall
Member, House of Delegates
Operate racetracks & simulcast racing in Dumfries &Prince William Co.
     

{tab January}

 

Opinion # Requestor Summary
99-095 The Honorable Kenneth R. Melvin
Member, House of Delegates
Legislator as principal in development team
     
99-099 The Honorable Robert S. Bloxom
Member, House of Delegates
General Assembly members serving on boards
     
99-103 Member, Senate of Virginia Drug testing of students and employees
     
99-090 The Honorable Harry J. Parrish
Member, House of Delegates
Create corporation to contract debt for county
     
99-101 The Honorable Joseph V. Gartlan Jr.
Member, Senate of Virginia
Pupil required to attend drug testing and treatment
     
99-091 The Honorable H. Morgan Griffith
Member, House of Delegates
Abandonment of Route 655
     
99-102 The Honorable Watkins M. Abbitt Jr.
Member, House of Delegates
School bus child safety seats
     
99-110 The Honorable Harry B. Blevins
Member, House of Delegates
Locality's authority to impose food, beverage or meal tax
     

{/tabs}

 

 

 

 

 

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2001 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.

*Section 2.1-118 of the Code of Virginia authorizes the Attorney General of Virginia to render official opinions to the Governor,  members of the General Assembly, judges, the State Corporation Commission, state agency heads, and certain local officials.  The Honorable Mark L. Earley was sworn in as Attorney General at noon, January 17, 1998.   The Honorable Richard Cullen served as Attorney General of Virginia from June 11, 1997,to January 17, 1998.  The Honorable James S. Gilmore, III, served as Attorney General during 1996 until his resignation on June 11, 1997.

{tab December}

Opinion # Requestor Summary
01-102 The Honorable Bill Bolling
Member, Senate of Virginia
Election laws referring to ‘incapacitated’ and constitutional provision referring to ‘mentally incompetent’ as standards for disqualifying person from voting are not in conflict. Court has option to determine whether ‘incapacitated’ adjudication rises to standard of mental incompetence necessary to deprive person of his voting franchise. General Assembly has power to eliminate court’s option.
     
00-107 Mr. Michael M. Collins
County Attorney for Alleghany County
Alleghany County may not offset funding provided to Alleghany-Highlands Economic Development Authority for failed industrial project against minimum amount county is required to remit annually as member of Authority.
     
01-047 The Honorable William C. Mims
Member, Senate of Virginia
Question regarding whether law-enforcement officers employed in off-duty capacity are considered to be performing ‘law enforcement activities’ for purposes of workers’ compensation and personal and property damage liability coverage under local government risk management insurance program requires factual determination rather than interpretation of federal or state law, rule or regulation. Authority of Attorney General to issue official advisory opinions is limited to questions of law.
     
01-046 The Honorable Joel C. Cunningham
Judge, General District Court of Halifax County
General district court clerk is not required, nor authorized, to determine whether deferred judgment order is statutorily authorized prior to assessing applicable costs.
     
01-058 The Honorable Robert J. McCabe
Sheriff for the City of Norfolk
Statutes relating to rights of victims involved in juvenile matters control over general statutes in Crime Victim and Witness Rights Act relating to rights of victims. Proposed computerized system of victim notification may not be implemented in cases involving juvenile offenders.
     
00-106 The Honorable W. Edward Meeks III
Commonwealth’s Attorney for Amherst County
Juvenile court has no authority to appoint guardian ad litem for juvenile defendant, in addition to appointment of legal counsel, to represent child in criminal or delinquency proceeding.
     
00-111 The Honorable Raymond C. Robertson
Commonwealth’s Attorney for the City of Staunton
Duty of teacher or other school administrator who suspects (1) that 18-year-old student is having sexual relationship with 13- or 14-year-old student, or (2) that two students, who are minors and whose age difference falls within purview of § 18.2-63, are engaging in sexual conduct, to report knowledge of such activity to local department of social services for investigation.
     
01-031 The Honorable Timothy S. Fisher
Judge, Seventh Judicial District of Virginia
District court is without jurisdiction to order issuance of restricted permit to individual whose conviction for second offense driving while intoxicated occurred in October 1998.
     
01-080 The Honorable Richard H. Black
Member, House of Delegates
Person with concealed weapons permit is prohibited from carrying concealed weapon onto property within territorial scope of Virginia State Parks Regulations.
     
00-097 The Honorable Dollie M. Compton
Clerk, Circuit Court of Russell County
Circuit court may order payment of restitution prior to payment of court costs. Judge may issue standing order that clerk credit payments made by defendant, as condition of probation, toward restitution before collecting court costs.
     
01-104 The Honorable H. Morgan Griffith
Member, House of Delegates
Commonwealth Transportation Commissioner must value outdoor advertising signs in eminent domain cases using fair market valuation.
     
01-103 The Honorable William C. Mims
Member, Senate of Virginia

The Honorable Joe T. May
Member, House of Delegates

Federal Women’s Health and Cancer Rights Act and state law require coverage for reconstructive breast surgery in course of treatment of cancer where all or part of breast is surgically removed and coverage for surgery to reestablish symmetry between breasts. Any benefit covered under Act that is not mandated by state law is required by Act. Issue of preemption does not arise where state law requires at least same coverage for reconstructive breast surgery as Act requires.
     
01-049 The Honorable Clifford R. Weckstein
Judge, Twenty-Third Judicial Circuit
Person under 18 who has been convicted of committing offense for which demerit points have been assessed or are assessable, or violates safety belt or child restraint laws must attend driver improvement clinic but is prohibited from earning safe driving points. Statute providing that safe driving points shall not be awarded for court-assigned clinic attendance repeals statute authorizing court to determine whether person shall receive safe driving points upon satisfactory completion of driver improvement clinic.
     
01-090 The Honorable R. Steven Landes
Member, House of Delegates
Individual who presses ‘pay inside’ button at self-service gasoline pump to activate pump to dispense fuel into his motor vehicle and drives away without paying is guilty of gasoline theft and is subject to criminal prosecution under petit larceny laws.
     
01-078 The Honorable Jay K. Katzen
Member, House of Delegates
Commonwealth’s attorney should use restraint in discretionary exercise of governmental power, such as in selection of cases to prosecute.
     
01-095 The Honorable William C. Mims
Member, Senate of Virginia
Town that is not separate school district and that imposed tax on town consumers of local cellular telecommunication service after January 1, 2000, has no authority to impose such tax.
     
00-020 The Honorable Mary Lou Ebinger
Commissioner of the Revenue for Middlesex County
Assessment of manufactured home that has become affixed to, and is taxed as, real estate is subject to review by local board of equalization. Assessment of manufactured home that has not become affixed to real estate and is classified as tangible personal property is not subject to review by local board.
     
00-088 The Honorable Sharron S. Mitchell
Clerk, Circuit Court of the City of Fredericksburg
Subject credit line leasehold deed of trust presented for recordation in accordance with bankruptcy court’s order confirming debtor’s plan of reorganization is not subject to state and local recordation taxes.
     
01-055 The Honorable Rossie D. Alston Jr.
Judge, Circuit Court of Prince William County
Circuit court may not waive order of reference to local director of social services for investigation and report to be undertaken in stepparent adoption proceeding when consent by noncustodial birth parent has not been obtained.
     

{tab November}

Opinion # Requestor Summary
01-122 The Honorable Walter A. Stosch
Member, Senate of Virginia
Bank or savings institution may impose returned check processing charge in such amount as agreed, in writing, by borrower, regardless of statutory limitations on returned check processing charges in context of civil actions seeking recovery for such charges.
     
00-087 Mr. Michael D. Clower
Executive Director, Chesapeake Bay Local Assistance Department
Chesapeake Bay Local Assistance Board has authority to intervene in, institute or take legal and administrative actions on its own or on behalf of person who believes Tidewater Virginia jurisdiction is disregarding its zoning ordinances or misinterpreting Board criteria designed to protect quality of state waters within designated preservation areas, and to ensure compliance with Act and Board regulations. Act does not authorize Executive Director of Chesapeake Bay Local Assistance Department or Board to issue cease and desist order to locality that is violating Act and request Attorney General to seek injunction against locality that violates order.
     
01-071 The Honorable Marilyn L. Wilson
Clerk, Circuit Court of Amelia Co.

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

 

Requirement that circuit court clerk charge, according to number of pages or sheets, (1) for recording document without plat, incrementally prescribed fee plus $1 fee for admitting writing to record; and (2) for recording document in conjunction with plat, incrementally prescribed fee for document, and same fee for plat plus $1 fee for admitting writing to record. Clerk must charge single fee prescribed for recording certificate of satisfaction releasing original deed of trust and any modifications to original deed, plus $1 fee required for admitting writing to record.
     
01-089 The Honorable Kenneth W. Stolle
Member, Senate of Virginia
Law-enforcement officer conducting search as conservator of peace with special police powers acts in law-enforcement capacity seeking evidence of crime and must meet standard of probable cause of arrest to justify search. School searches conducted by school safety officer as school official must be reasonably based on individualized suspicion of wrongdoing; searches conducted by school safety officer as conservator of peace must be assessed in terms of probable cause.
     
01-057 The Honorable Thomas M. Moncure Jr.
Clerk, Circuit Court of Stafford Co.
No requirement that circuit court clerk investigate proof of facially valid ordination or certificate to determine authenticity of given religious society or denomination. Clerk has discretionary authority to make order authorizing minister to celebrate rites of matrimony.
     
01-081 The Honorable S. Chris Jones
Member, House of Delegates
Decision by State Board of Elections that candidate’s campaign committee may pay for expenses of campaign only with check drawn on campaign depository and paid directly to vendor providing service is entitled to great weight. No authority for staff member of candidate’s campaign committee to pay for office supplies with personal credit card and to be reimbursed by check drawn on campaign depository for amount of purchase.
     
01-117 The Honorable Martin E. Williams
Member, Senate of Virginia
State Building Code supersedes design elements in Suffolk city ordinance requiring use of specific building materials and finishes in construction of all buildings.
     
01-106 The Honorable Sharon M. McDonald
Commissioner of the Revenue for the City of Norfolk
Commonwealth and its instrumentalities, including Norfolk State University, are not subject to duty of collecting local admissions tax charged for attendance at classified public and private events. Ordinance purporting to impose duty on Commonwealth or its instrumentalities to collect admissions tax is ultra vires.
     
01-083 The Honorable Raymond Lee Richards
Commissioner of the Revenue for the City of Charlottesville
Motor vehicle owned by serviceman domiciled in Virginia and parked or garaged in Germany is not subject to local tangible personal property taxation.
     

{tab October}

Opinion # Requestor Summary
01-101 The Honorable Thomas C. Wright Jr.
Member, House of Delegates
Institutional Review Board is not ‘public body’ subject to the Act’s disclosure requirements. Records generated by such board are not ‘public records’ prepared, owned or possessed by public body; are not required to be open for public inspection. Act’s open meeting requirement does not apply to meetings of Institutional Review Boards and human research review committees.
     
01-093 The Honorable Judy L. Worthington
Clerk, Circuit Court of Chesterfield County
Circuit court, and not clerk, must make specific finding that indigent defendant has demonstrated particularized need for free copy of his trial transcript. Funds expended for preparation of transcript for indigent defendant may be reimbursed pursuant to circuit court order specifically providing for such payment. Indigent defendant previously provided with copy of arrest warrant, indictments and conviction orders is not entitled to additional copies. Circuit court clerk may not waive fees for copying document previously furnished to indigent defendant at no charge.
     
01-088 The Honorable Glenn M. Weatherholtz
Member, House of Delegates
Locality, which contributes to its retirees’ health insurance, may take into account state credit paid toward health insurance of retiree of local constitutional officer.
     
01-091 The Honorable William Page Johnson II Commissioner of the Revenue for the City of Fairfax Commissioner of revenue may publish on Internet web page names of businesses licensed to do business in commissioner’s locality.
     
01-035 The Honorable Ross A. Mugler
Commissioner of the Revenue for the City of Hampton
Exception to federal preemption applies to local license tax levied on businesses participating in TRICARE health insurance program because tax is imposed on broad range of business activity and not solely on cost of individual heath care benefits.
     
00-108 The Honorable Susan P. Ford
Commissioner of the Revenue for Powhatan County
Commissioner of revenue has no authority to effect change in real property ownership on land books based on recorded deed of gift, with attached holographic will that has not been recorded or probated.
     

{tab September}

Opinion # Requestor Summary
01-079 The Honorable William C. Mims
Member, Senate of Virginia
Every offer or extension of consumer credit within Commonwealth must be in compliance with Federal Truth-in-Lending Act and Regulation Z. State law claims are precluded where conduct forming basis of claim is regulated by federal law. Borrower who disputes lender’s ability to establish cut-off or reasonable hour for posting payments to his account is limited substantively and procedurally to remedies and recovery allowed under federal law; is prohibited from recasting his claim under other state law theories.
     
00-076 The Honorable J.S. Walton
Sheriff for King William County
Authority of King William County sheriff’s office on Mattaponi and Pamunkey Indian reservations in county. Same protections of law of Commonwealth are extended to tribal members as are extended to nonmembers. King William County sheriff’s office may exercise same law-enforcement authority on Pamunkey and Mattaponi Indian reservations as elsewhere in county—may serve legal process, arrest warrants, and subpoenas, and investigate misdemeanors and felonies.
     
01-073 The Honorable Gail S. Berry
Treasurer for Greene County
Duty of county sheriff to enforce local ordinance requiring vehicle owners to display current county decals.
     
01-075 The Honorable Riley E. Ingram
Member, House of Delegates
Buildings owned and used as schools by City of Hopewell are "public places" that may not be sold without recorded three-fourths affirmative vote of all members elected to city council.
     
01-021 The Honorable Michael J. Valentine
Judge, Juvenile and Domestic Relations District Court
Juvenile court has jurisdiction to try case involving adult charged with driving in reckless manner which places person of juvenile in danger.
     

{tab August}

Opinion # Requestor Summary
01-042 Mr. George Mason III
County Attorney for  Westmoreland Co.

Town that proposes to extend its sewage system into adjacent county without sewage system and sewerage services is not required to give notice and submit application to county for approval of extension.

     
01-076 The Honorable Donald L. Moseley
Secretary of Administration
Qualified organization authorized to remove proceeds from pull tabs sales from its gross receipts is exempt from permit requirement, provided annual gross receipts resulting from charitable gaming do not exceed $25,000. Charitable Gaming Commission must enforce audit, inspection and enforcement requirements of charitable gaming statutes that are not predicated on organization’s gross receipts. Charitable gaming statutes do not restrict organization’s use of proceeds from pull tabs games.
01-043 The Honorable Geraldine M. Whiting
Commissioner of the Revenue for Arlington County
Commissioner of revenue may disseminate to treasurer or his employees confidential meals tax information that is necessary for treasurer to fulfill his duty to collect meals taxes. Bank designated by treasurer as depository to receive payments due county has authority to receive meals tax payments; its knowledge of proprietary information related to treasurer’s collection is not tantamount to violation of secrecy of information provisions.
01-029 The Honorable Brenda B. Rickman
Commissioner of the Revenue for the City of Franklin
Restaurant is not entitled to refund of local meals taxes erroneously collected from customers and remitted to county.
     

{tab July}

Opinion # Requestor Summary
01-059
The Honorable Kevin G. Miller
Member, Senate of Virginia
State senator may move his residence from City of Harrisonburg to Shenandoah County, which is included in reapportioned 26th Senatorial District precleared by U. S. Department of Justice, and complete his term of office through year 2003.
     
01-033
The Honorable Harvey L. Bryant III
Commonwealth’s Attorney for
the City of Virginia Beach
Specific statute governing role of local offices of consumer affairs and conferring upon such offices power to resolve consumer complaints through mediation is controlling over more general mediation or confidentiality statutes.
     
01-064
The Honorable L. Karen Darner
Member, House of Delegates
Nonresident condominium unit owner whose unit leases for period less than 20 years has not disposed of unit and is not disqualified from membership eligibility on unit owners’ association board of directors.
     

{tab June}

Opinion # Requestor Summary
01-050
The Honorable R. Steven Landes
Member, House of Delegates
Response to question whether Right to Farm Act supersedes local zoning ordinance and permits use of aircraft in surveillance of crops, livestock and property and to pick up repair parts and supplies is inconclusive.
     
01-041
The Honorable Robert H. Brink
Member, House of Delegates
Classified state employee, serving at deputy director level at state governmental agency within executive branch, may seek election to and serve in General Assembly, assuming he exercises no function in connection with federally financed activity, in violation of Hatch Political Activity Act.
     
01-052
The Honorable Johnny S. Joannou
Member, House of Delegates
Attorney General declines to render opinion: (1) whether ordinance delegating authority to architectural review board to determine historical significance of vacant parochial school building for purposes of demolition by church is invalid on its face; such function is properly left to local authority responsible for adoption and enforcement of ordinance; (2) whether decision of architectural review board places substantial burden on religious exercise of church; such decision requires analysis of facts and circumstances rather than interpretation of law; (3) whether review board’s denial of church’s permit application constitutes unconstitutional ‘taking.’ Department of Historic Resources is appropriate agency to determine whether building located in historic district and labeled ‘ruin’ may be removed.
     
01-013
The Honorable Edward DeJ. Berry
Judge, Juvenile and Domestic Relations District Court
Fingerprints of juveniles may be taken only when juvenile is taken into custody. Juvenile who has been issued summons by law-enforcement officer for possession of marijuana and is not taken into custody may not be fingerprinted.
     
01-001
The Honorable Matthew J. Britton
Commonwealth’s Attorney for King George County
Victims’ Services Section of Department of Criminal Justice Services, rather than Attorney General, is appropriate agency to determine what constitutes special circumstances dictating course of action other than arrest in matters involving family violence.
     
01-045
The Honorable Joe T. May
Member, House of Delegates
Jurisdiction of Purcellville Police Department to patrol and enforce laws of Commonwealth may not be extended from 300-yard restriction to 1 mile beyond corporate limits of town.
     
01-025
The Honorable H. Russell Potts Jr.
Member, Senate of Virginia
Discretionary authority of local law-enforcement authorities to share with public schools officials information concerning any offense committed by student(s) off school property on school bus, school property, or at school-sponsored activity that would be criminal offense if committed by adult.
     
01-063
The Honorable Kenneth W. Stolle
Member, Senate of Virginia
Emergency Medical Treatment Act does not preempt or conflict with statutes governing Commonwealth’s involuntary commitment process for mentally ill adults in need of hospitalization. Act complements process by providing court with authority to place individual at any hospital with emergency room departments that execute Medicare provider agreements. Organizations affected by Emergency Medical Treatment Act and Virginia laws governing involuntary commitment process must comply with requirements of both laws; should develop annual written agreements with community services boards to reach satisfactory arrangements for provision of qualified examiners to perform evaluation services.
     
01-022
The Honorable Roy F. Evans Jr.
Commonwealth’s Attorney for Smyth County
1995 resolution establishing Southwest Virginia Community Corrections Program, and providing for Southwest Virginia Community Criminal Justice Board to select consenting participating city or county to act as administrator and fiscal agent for funds awarded to implement local community-based probation programs and services, does not comply with statutory requirement that governing authorities of participating localities select administrator and fiscal agent.
     
01-051
The Honorable John J. Welch III
Member, House of Delegates
Chiropractors may lawfully provide physical therapy modalities as part of treatment program for patients and, therefore, practice physical therapy.
     
01-006
The Honorable Albert Teich Jr.
Clerk, Circuit Court of the City of Norfolk
Authority of Virginia limited liability company to serve as trustee in deed of trust on real property.
     
01-054
The Honorable Terry G. Kilgore
Member, House of Delegates
Commissioner of revenue is proper official to determine whether rental property owned by town is exempt from real estate taxation.
     

{tab May}

Opinion # Requestor Summary

01-048

The Honorable H. Morgan Griffith
Member, House of Delegates
General Assembly may amend 2000 Appropriation Act by means of limited purpose bills rather than by comprehensive budget amendment bill that amends entire Act.
     

01-005

The Honorable John R. Newhart
Sheriff for the City of Chesapeake
Sheriff may hold public sale of personal property seized under fieri facias or distress warrant on private property of debtor. Authority and duty to establish place of sale falls within sheriff’s discretion. Expenses incurred for movement or storage of property or other costs of sale are deductible from sale proceeds.
     

00-110

The Honorable Randy N. Williams
Commissioner of the Revenue for Russell Co.
Commissioner of revenue has no authority to contract with private statistical company to prepare, during normal working hours, report regarding data on new construction and buildings.
     

01-004

Mr. Michael R. Packer
City Attorney for the City of Petersburg
Mayor of City of Petersburg may remove commissioners of Petersburg Hospital Authority for inefficiency, neglect of duty or misconduct, only after commissioners have been given copy of charges against them at least 10 days prior to hearing at which they have opportunity to be heard.
     

00-078

The Honorable Robert E. Maxey Jr.
Sheriff for Campbell Co.
Interjurisdictional law-enforcement authority of sheriff’s office to go beyond locality served by sheriff is limited to activities prescribed by statute. Officer properly engaged in activity so prescribed beyond territorial limits of his locality is authorized to act in same manner and is subject to same limitations as would apply to law-enforcement officer of extraterritorial locality responding to such activities.
     

01-040

The Honorable H. Morgan Griffith
Member, House of Delegates
Formation of tax exempt corporation for purpose of educating public on political position relating to matter of governmental policy constitutes "political purpose," permissible under Act. Group of elected officials may form corporation, or political action committee, exempt from federal taxation, for purpose of influencing public policy.
     

00-073

The Honorable Paul J. Lanteigne
Sheriff for the City of Virginia Beach
Sheriff is not required to notify Department of Motor Vehicles of levy on motor vehicle pursuant to writ of fieri facias that is not accompanied by his actual seizure of vehicle. Lien resulting from fieri facias will not appear on certificate of title to such vehicle; transfer of title to bona fide purchaser is free and clear of any lien. Vehicle levied on but not seized by sheriff and sold by debtor may not be sold at sheriff’s auction.
     

01-027

The Honorable Clinton Miller, Chairman
State Corporation Commission
Commonwealth may not levy electric and natural gas consumption taxes on diplomats from foreign countries to whom Secretary of State has granted diplomatic immunity from taxation; such prohibited taxation extends to portion of taxes remitted to localities. Method of identifying foreign nation diplomats for purposes of exemption from electric and natural gas consumption taxes.
     

{tab April}

Opinion # Requestor Summary
01-028 The Honorable Margaret P. Spencer, Judge
Circuit Court of the City of Richmond
City of Richmond may use funds derived from fees assessed for certain civil actions and court cases to defray increases in cost of heating, cooling, electricity, and ordinary maintenance of courthouses located within city; may not use such funds to pay entire cost of utilities and routine courthouse maintenance.
     
01-002
The Honorable Kenneth W. Stolle
Member, Senate of Virginia
Risk assessment instrument developed by Virginia Criminal Sentencing Commission for integration into state’s sentencing guidelines for sex offenses does not violate federal or state constitution.
     
01-016
The Honorable Melanie L. Rapp
The Honorable Harvey B. Morgan
Members, House of Delegates
York County special election to be held November 6, 2001, to fill vacated position on board of supervisors must be conducted based on election districts existing at time of election. Election following redistricting must be conducted based on new district that most closely approximates district from which supervisor originally was elected.
     

{tab March}

Opinion # Requestor Summary

01-032

Mr. George P. Ramsey III
Chairman, Virginia Aviation Board
Virginia Aviation Board may enter into loan agreement to borrow money and issue note to finance infrastructure projects at airport facility owned by local government, upon approval of Treasury Board, provided Aviation Board receives appropriations or grants to finance such projects at airports categorized as air carrier, air carrier/reliever, and general aviation, and infrastructure projects fall within context of constructing, enlarging or improving airport facility.

00-105

The Honorable Jay K. Katzen
Member, House of Delegates
Vint Hill Farms Economic Development Authority is exempt from competitive procurement procedures of Act with respect to acquisition of property; is not exempt with regard to procurement of contract for services.

00-066

The Honorable Ross A. Mugler
Commissioner of the Revenue for the City of Hampton
Deduction for long distance telephone call charges from gross receipts of mobile telephone company for local business license tax purposes is not applicable to carrier costs incurred by company.
     

{tab February}

Opinion # Requestor Summary
The Honorable H. Morgan Griffith
Member, House of Delegates
Constitution does not prohibit General Assembly from convening special session following adjournment sine die of 2001 Regular Session to conduct decennial reapportionment, recessing special session to convene reconvened session, and resuming special session upon adjournment sine die of reconvened session.
     
The Honorable James F. Almand
Member, House of Delegates
Construction of new Westover Library in Arlington County on different site than its present location is permitted by bond referendum approved by county’s voters in 1998. Proposed construction does not constitute substantial change from question posed to voters.
     
The Honorable Kenneth W. Stolle
Member, Senate of Virginia
Supermajority vote requirement does not apply to sale of right-of-way in Virginia Beach that does not constitute "public place."
     
The Honorable Malfourd W. Trumbo
Member, Senate of Virginia
State school funding continues to be distributed to localities operating school system resulting from consolidation of separate systems only when such funds have been distributed to each locality prior to consolidation of governmental program or function. Joint school system operated by county and city and two school boards pursuant to written agreement did not result from consolidation of two separate systems. Consolidation will occur upon transition of city to town status, and current state school funding distribution will continue, in accordance with statutory schedule.
     
The Honorable Malfourd W. Trumbo
Member, Senate of Virginia
City of Covington must abide by charter provisions governing apportionment of costs and expenses of sheriff elected conjointly with Alleghany County, with regard to funding regional juvenile detention center that is part of sheriff’s budget; may not authorize its share of operational costs of detention center to be determined separately from county under separate lease agreement.
     
The Honorable H. Morgan Griffith
Member, House of Delegates
Legislator’s receipt of campaign contribution in check form on January 9, 2001, amounts to acceptance of contribution prior to commencement of 2001 Session of General Assembly and is lawful.
     
The Honorable Paul Clinton Harris Sr.
Member, House of Delegates
Storage of items such as sparklers, fountains and similar types of displays on private property is not prohibited by Act or Fire Prevention Code, unless locality adopts more restrictive provisions.
     
The Honorable John H. Rust Jr.
Member, House of Delegates
Duty of Norfolk city treasurer to collect outstanding fines owed for violation of city code governing vehicular parking before issuing license decals to delinquent applicant is not discretionary; treasurer may not refuse to enforce Norfolk city code.
     
Mr. Richard D. Holcomb
Commissioner, Department of Motor Vehicles
Amendments proposed in 2001 Appropriation Act satisfy conditions regarding general fund revenues required to implement additional phase of personal property tax reduction. Requirement that tax bills reflect 70% tax reduction on their face must be followed by all localities. Procedures for levying or reimbursing taxes should legislature change reimbursement percentage amount for any tax year after locality has printed its tangible personal property tax bills.
     

{tab January}

Opinion # Requestor Summary

00-100

The Honorable George W. Grayson
Member, House of Delegates

Substantial, rather than strict, compliance with regulatory procedure for validating breath test device is sufficient. Regulatory procedure complies with statutory requirements for validating breath tests to be used as evidence in prosecutions.

     

00-102

The Honorable Harry J. Parrish
Member, House of Delegates

Ten-year period specified for revocation of driver’s license upon second conviction of driving under influence of alcohol or drugs is calculated for adult, from first to second conviction, and for juvenile, between two findings of guilt.

     

00-101

Mr. Patrick J. Morgan
County Attorney for Louisa County

Circuit court clerk vacancy is to be filled promptly on Tuesday date that falls within purview of statutory limitations for holding special elections. November general election day is among dates court may consider for holding such election.

     

01-010

The Honorable M. Kirkland Cox
Member, House of Delegates

No authority for Colonial Heights City Council to call for advisory referendum regarding establishment of recreation center in city.

     

00-109

The Honorable Phillip A. Hamilton
Member, House of Delegates

Transfer of $15.9 million from 2000-2002 biennial budget, containing approximately $5 million in anticipated excess revenues, prior to enactment, effected tax relief in manner consistent with terms of Tax Relief Act and Appropriation Acts for 1998-2000 biennium. Criteria established in Tax Relief Act for funding tax relief exceeding estimates of Department of Motor Vehicles is consistent with constitutional mandate directing General Assembly to establish criteria ensuring equitable expense-revenue ratio. Provided Governor proposes budget amendments addressing difference between estimated cost of funding personal property tax relief for year ended June 30, 2000, and localities’ requests for reimbursements of their qualifying reduced revenues for that year, revenues will be sufficient to meet expenditures, and $15.9 million transfer will not create unbalanced budget, in violation of Constitution. Responsibility of Comptroller to reimburse localities for reduced personal property tax revenues attributable to contemplated tax relief within 2 business days of submission of proper claims is consistent with Appropriation Acts and Tax Relief Act, and is presumed consistent with Constitution. Transfer of funds to meet reimbursement requirements of Act, therefore, was authorized by General Assembly.

     

00-092

The Honorable Warren E. Barry
Member, Senate of Virginia

Gasoline retailer who meets definition of "distributor" and complies with licensure requirements described in Act may be licensed by Commissioner of Department of Motor Vehicles as distributor. Jobber may be licensed either as distributor or transporter of motor fuel to gasoline retailer. Liability for payment of tax on motor fuel removed from terminal rack. First person who receives fuel upon its removal from terminal, and who is not simply motor fuel transporter, is entitled to 1% collection allowance upon remittance of tax payment to supplier. Legislative decision to permit entity that pays supplier for fuel at terminal rack to take advantage of 1% discount does not create classification between jobbers and gasoline retailers that would constitute prohibited special legislation.

     

{/tabs}

 

 

 

 

 

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2002 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.

*Section 2.2-505 of the Code of Virginia authorizes the Attorney General of Virginia to render official opinions to the Governor,  members of the General Assembly, judges, the State Corporation Commission, state agency heads, and certain local officials. The Honorable Jerry W. Kilgore was elected Attorney General by the citizens of Virginia and sworn into office on January 12, 2002 for a term of 4 years.  The Honorable Randolph A. Beales was elected Attorney General by the General Assembly on July 10, 2001, and was sworn into office on July 11, 2001, to fill the unexpired term of the Honorable Mark L. Earley upon his resignation on June 4, 2001.  The Honorable Mark L. Earley was sworn in as Attorney General at noon, January 17, 1998. The Honorable Richard Cullen served as Attorney General of Virginia from June 11, 1997, to January 17, 1998.  The Honorable James S. Gilmore, III, served as Attorney General during 1996 until his resignation on June 11, 1997.

{tab December}

Opinion # Requestor Summary
02-070 The Honorable Ross A. Mugler, Commissioner of the Revenue
  for the City of Hampton

The Honorable Molly Joseph Ward
Treasurer for the City of Hampton
Locality that, by ordinance, enforces payment of local motor vehicle license fee must issue some form of license upon payment of fee; may prescribe form of license, which must be displayed on vehicle.
     
02-078 Mr. John A. Rupp
City Attorney for the City of Richmond
Board for Contractors Regulations do not supplant locality’s ability, under its general police powers, to require licensed plumbers to install backflow prevention devices when such requirement is related directly to protection of locality’s water supply system.
     
02-095 The Honorable J. Jack Kennedy, Jr.,Clerk
Circuit Court for Wise County and City of Norton

Presumption of openness regarding requests for court records in digital format. Duty of circuit court clerks to furnish copies of records requested by citizens, without distinction between paper and digital formats, provided records are not sealed by court order or otherwise exempt from disclosure by law.

     
02-096 The Honorable H.S. Caudill
Sheriff for Tazewell County
Responsibility of police department of town issuing warrant for fugitive’s arrest to retrieve and return to court fugitive held in another locality. Governor may appoint any agent to retrieve and return to court fugitive located in another state.
     
02-098 The Honorable R. Steven Landes
Member, House of Delegates

Reserving existing or future vacancies in established mobile home park solely for seniors, to satisfy federal and state 80% senior occupancy rate requirement, could be interpreted to discriminate against families with children, in violation of state and federal fair housing laws. If mobile home park eventually reaches senior occupancy rate requirement and does not otherwise violate state and federal fair housing laws based on familial status, it may become eligible to operate and advertise as housing for seniors.

     
02-100 The Honorable Christopher B. Saxman
Member, House of Delegates

 Attorney General defers to determination by Commonwealth Transportation Board that funds set aside in Virginia Transportation Act for Southeast Bypass project are to be spent solely on planning, engineering and construction of bypass ; mayand not on be expended to improvinge roads along bypass corridor and alternatives to bypass.

     
02-104 The Honorable Thomas D. Gear
Member, House of Delegates
Hampton Housing Ordinance is unauthorized to extent ordinance applies in areas other than conservation and rehabilitation districts designated by city’s local governing body or blighted areas.
     
02-106 The Honorable Phillip A. Hamilton
Member, House of Delegates

School division coaches and other school personnel may render first aid to students when necessary. Unless such persons are certified athletic trainers, they may not employ physical modalities or tape students’ ankles or wrists in order to prevent or treat injuries or other physical conditions. Certified athletic trainers are responsible for actions of noncertified individuals acting under their supervision and direction; must ensure that such individuals do not perform functions requiring professional judgment or discretion of certified athletic trainers. School board that fails to hire certified athletic trainer is entitled to absolute sovereign immunity. Absent gross negligence, school board employees may be entitled to sovereign immunity for failure to hire certified athletic trainer.

     
02-107 The Honorable Samuel A. Nixon, Jr.
Member, House of Delegates
‘Living wage’ requirement is matter of general social or economic policy that is unrelated to goods or services sought to be procured under Act. Locality has no authority to require contractors to provide living wage to employees as condition to award of public contract.
     
02-111 The Honorable Gene R. Ergenbright, Commissioner of the Revenue
for the City of Saunton
Parcel of real estate remaining after division of property, resulting in two or more different owners, does not have to be reassessed immediately during first year of biennial real estate assessment cycle; must be reassessed as of January 1 of second year of biennial assessment cycle, taking into consideration value of land as divided. Authority for board of equalization to hear and consider taxpayer complaints in second year of biennial assessment.
     
02-112 The Honorable James F. Almand
Member, House of Delegates
Timely issuance of process invokes jurisdiction of circuit court to conduct probation revocation hearing; lack of statutory time period within which to conduct hearing does not violate due process rights of defendant.
     
02-113 The Honorable Gene R. Ergenbright, Commissioner of the Revenue for the
City of Staunton
Commissioner of revenue may release names and addresses of businesses licensed within his locality for purposes of solicitation. Business is considered trading under assumed or fictitious name when assumed or fictitious name certificate is filed in appropriate clerk’s office.
     
02-114 The Honorable Ross A. Mugler, Commissioner of the Revenue for
the City of Hampton
No conflict between statutory and regulatory definitions of ‘definite place of business’; reliance on both definitions for purposes of administering BPOL tax. Determination whether ‘visit’ becomes ‘definite place of business’ is question of fact for local taxing official. Application of internal consistency test for purposes of apportioning BPOL taxes to businesses located in and out of state. BPOL taxable gross receipts deductions should be fairly apportioned between activity within jurisdiction and outside Commonwealth.
     
02-116 The Honorable J. Jack Kennedy, Jr.
Clerk, Wise County-City of Norton
Circuit Court
Circuit court clerk may not decline to record deed of trust containing grantor’s social security number; may be liable for modifying deed of trust offered for recordation.
     
02-119 The Honorable Harry B. Blevins
Member, Senate of Virginia
Parent may consent to drug testing for minor child and obtain results of nondiagnostic drug testing performed on minor child not receiving treatment for substance abuse.
     
02-126 The Honorable William J. Howell
Member, House of Delegates
Meaning of ‘religious association’ for purpose of exempting property of Young Life from taxation by classification. Commissioner of revenue, or other local taxing official, is responsible for determining whether property owned by Young Life qualifies for tax exemption.
     
02-128 The Honorable Michael J. Bush
Commonwealth’s Attorney for Russell County
Statute governing admissibility into evidence at trial of written results of hospital-taken blood alcohol tests is procedural. Commonwealth may introduce such test results into evidence at trial conducted after effective date of statute, even though motor vehicle accident giving rise to charge of involuntary manslaughter as result of driving while intoxicated occurred before effective date of statute.
     

{tab November}

Opinion # Requestor Summary
02-069 The Honorable John M. O’Bannon, III
Member, House of Delegates
Authority of Governor to suspend licensure requirements of health professionals, enforce quarantines, and control and allocate services and resources under federal and state emergency services programs in response to state of emergency. Requirement that Commonwealth provide just compensation for taking of private resources.
     
02-088 The Honorable Richard H. Black
Member, House of Delegates

The Honorable Thomas Davis Rust
Member, House of Delegates

Church property, which is in process of being developed for its intended use and is being used for certain church-related activities, may be tax exempt. Determination depends on question of fact reserved for local commissioner of revenue or other appropriate taxing official.
     
02-089 The Honorable Vincent F. Callahan, Jr.
Member, House of Delegates
Fairfax County School Board has no authority to add sexual orientation as category in its nondiscrimination policy, absent enabling legislation.
     
02-094 The Honorable William J. Howell
Member, House of Delegates
Allowance of credit against individual and corporate income tax in amount equal to 50% of fair market value of land or interest in land donated for conservation purposes. Donor of land or interest in land may transfer tax credit to other taxpayers to make full use of credit. Meaning of ‘taxpayer’ for purposes of Act.
     
02-099 The Honorable Harry B. Blevins
Member, Senate of Virginia
Authority for Chesapeake School Board, based on population count, to increase annual salary of its members to maximum paid to city council members, and annual salary of its chairman to maximum paid to city mayor, upon passage of motion in 2003 approving specific salaries of $25,000 and $27,000, respectively. July 1, 2004, is earliest date that such salary increases may be effective.
     
02-105 The Honorable Harry B. Blevins
Member, Senate of Virginia
Authority for Department of Corrections to employ prisoners to perform roofing work on buildings located on prison grounds; no requirement to procure such services under Acts competitive sealed bidding procedures.
     
02-118 Ms. Sharon E. Pandak
County Attorney for Prince William County
Processing fee authorized by ordinance to be collected by clerk on convicted individuals admitted into county, city, or regional jails is reserved solely for use by local sheriff’s office, even though county or city may participate in regional jail.
     
02-140 The Honorable Clarence E. Phillips
Member, House of Delegates
Authority may pledge funds as collateral for line of credit or loan or grant funds to Dickenson County Industrial Development Authority for purchase of machinery and tools or real estate of medical facility, which qualifies as ‘authority facility’ under Act, provided contemplated use of funds furthers public purpose of Authority; may not make pledge, loan or grant to IDA to fund operating expenses of medical facility.
     

{tab October}

Opinion # Requestor Summary
02-052 Mr. W. Leslie Kilduff, Jr.,
County Attorney for Northumberland Co.
Amendments to Chesapeake Bay Preservation Area Designation and Management Regulations, allowing encroachments into 100-buffer areas for agricultural and silvicultural activities conducted in accordance with best management practices related to improving water quality and protecting Chesapeake Bay and its tributaries, do not violate Equal Protection Clause of U.S. Constitution. Such practices.
     
02-076 The Honorable Michael P. McWeeny
Judge, Nineteenth Judicial Circuit of Virginia
Circuit court clerk may not accept and hold equity interest in Virginia stock corporation operated by commissioner of accounts, subject to direction of court, when transfer is not part of case or controversy properly before court, without improperly assuming legislative function.
     
02-082 The Honorable Marsha L. Garst
Commonwealth’s Attorney
for the City of Harrisonburg
Law-enforcement officer conducting lawful stop to investigate alleged criminal activity may not arrest for obstruction of justice suspect who refuses to identify himself to officer. Depending on circumstances, suspect may be detained for purpose of determining his identity.
     
02-085 The Honorable Charles L. Campbell
Commissioner of the Revenue for Page County
Authority for local governing body to increase minimum acreage for land classified for open-space use for purpose of special land use taxation; no statutory authority for such increase for land classified for agricultural, horticultural or forest use.
     
02-091 The Honorable Molly Joseph Ward
Treasurer for the City of Hampton

Mr. A. Paul Burton
City Attorney for the City of Hampton

 

Amended ordinance establishing Elizabeth Lake Estates Service District does not specify Elizabeth Lake Estates Civic Association as entity to develop plan for services to be rendered in service district, receive funds, or provide services; provides for tax levy to be set annually as part of budget process with other tax rates. Amended ordinance does not create long-term unconditional debt obligation, in violation of Constitution, and does not delegate legislative authority of city council.
     
02-102 The Honorable J. Dean Lewis
Judge, Fifteenth District
Juvenile and Domestic Relations Court
Statutory authorization for juvenile court to dispose of charges of unlawful possession of alcohol by juveniles.
     

{tab September}

Opinion # Requestor Summary
02-066 The Hon. Edward Semonian, Clerk
Circuit Court of the City of Alexandria
Clerk may authorize minister or other clergy to perform marriages upon production before circuit court of proof of ordination or licensure, without personally appearing before clerk. Issuance of order authorizing minister or other clergy to perform marriages is discretionary; clerk may compel personal appearance as condition of such order.
     
02-074 The Honorable Richard H. Black
Member, House of Delegates
Department of Conservation and Recreation has no authority to issue regulation prohibiting, within state parks, carrying of concealed handguns by valid permit holders.
     
02-055 The Honorable John R. Newhart
Sheriff for the City of Chesapeake
Sheriff is appropriate official to determine reasonableness of levying distress warrant for delinquent taxes and holding public sale of property, proceeds from which will not satisfy secured interests or unpaid taxes. Meaning of ‘priority’ as term relates to payment of sale proceeds toward satisfaction of delinquent taxes or secured interests. Secured party with lien on distressed property must receive notice of distress sale.
     
02-077 Mr. William G. O’Brien, Chairman, Board of Directors, Virginia Resources Authority Inclusion of Virginia Resources Authority in Commerce and Trace Secretariat is for state government organizational purposes; does not alter independent nature of Authority to govern its affairs according to enabling statutes. Board of Directors has exclusive power over personnel policies of Authority, with exception of appointment of Executive Director.
     

{tab August}

Opinion # Requestor Summary
02-035 The Honorable Mitchell Van Yahres
Member, House of Delegates
Transference of authority for teacher licensure from Board of Education to independent licensure board is inconsistent with constitutional mandate charging Board with general supervision of Commonwealth’s school system.
     
02-047 The Honorable J. Dean Lewis
Judge, Fifteenth District Juvenile
    and Domestic Relations Court
Juvenile court laws do not allow juvenile court judge to temporarily detain juvenile, pending disposition hearing, who was not detained prior to adjudication hearing at which he was determined delinquent.
     
02-062 The Honorable Terrie L. Suit
Member, House of Delegates
2002 amendment providing that any residential cooperative association under Act shall not be considered business for state and local tax purposes and that tangible personal property of association shall be entitled to exemption from personal property tax on household goods is not declaratory of law existing prior to July 1, 2002, effective date of legislation, and is not retroactive in its application.
     
02-063 The Honorable William G. Barkley
Judge, Albemarle General District Ct.
Special justice, appointed to preside over commitment proceedings involving persons alleged to mentally retarded or mentally ill and in need of hospitalization, may represent individuals in commitment hearings held within judicial circuit of such justice.
     
02-065 The Honorable Clarence E. Phillips
Member, House of Delegates
E-911 personnel may access criminal justice information generated by VCIN/NCIC terminals per statutorily authorized agreement with local sheriff’s office, subject to requirements of State Police. Absent specific statutory authorization, sheriff may not enter into agreement binding his successors in office.
     
02-081 Mr. Thomas J. McCarthy, Jr.
County Attorney for Pulaski Co.
Locality may issue more than one vehicle license free of charge to former volunteer rescue squad and fire department members meeting statutory length-of-service requirements; may not issue more than one such license, or additional licenses at discounted rate, to active members.
     
02-084 The Honorable Fenton L. Bland, Jr.
Member, House of Delegates
Hospital authority, organized as political subdivision, may sell its assets to for-profit corporation upon approval by circuit court of authority’s dissolution.
     
02-057

The Honorable J. Curtis Fruit
Clerk, Circuit Court of Virginia Beach

Recordation tax should be collected on deeds of trust where federal government is guarantor or beneficiary.
     

{tab July}

Opinion # Requestor Summary
02-033 The Honorable Ross A. Mugler
Commissioner of the Revenue for the City of Hampton
Specific statutes relating to the calculation of gross receipts of shareholders in professional corporations and of members in professional limited liability companies control calculation of Business and Professional Occupation License tax over more general statutes authorizing and implementing such tax.

Statutes relating to video programming excise tax, by their own terms, provide for a tax in lieu of the Business and Professional Occupation License tax or exempt the activity from the BPOL tax altogether.

Prior Opinion of the Attorney General determining that the Business and Professional Occupation License tax laws contain no exemption for salaried professionals, and that such professionals are subject to the tax does not conflict with 2000 Business and Professional Occupation License Tax Guidelines promulgated by the Department of Taxation.

Statutes relating to the calculation of gross receipts of shareholders in professional corporations and of members in professional limited liability companies attribute gross receipts only to employees who are also shareholders of the professional corporation or members of the professional limited liability company. Other salaried professional employees who hold state regulatory licenses, but are not shareholders or members, are not subject to local license taxation under those statutes.

     
02-046 The Honorable Robert N. Baldwin
Executive Secretary of the Supreme Court of Virginia
Juvenile court has no authority to appoint counsel for child who is subject of abuse and neglect, entrustment agreement, or petition for termination of residual parental rights, but must appoint guardian ad litem for such child.

Juvenile court has no authority to appoint guardian ad litem for juvenile defendant, in addition to appointment of legal counsel, to represent child in delinquency, child in need of services, or child in need of supervision proceeding.

Juvenile court has no authority to appoint guardian ad litem, in addition to appointment of legal counsel, to represent parent, guardian or other adult charged with abuse or neglect of child or parent or guardian who would be subjected to loss of residual parental rights.

In cases other than abuse and neglect, entrustment agreements, termination of parental rights, delinquency, or child in need of services or supervision, juvenile court may appoint either counsel or guardian ad litem, but not both.

     
02-049 The Honorable Richard L. Saslaw
Senate Minority Leader
Although statutorily authorized testing equipment must be used for tailpipe exhaust emissions tests performed under the Federal Clean Air Act, Virginia’s emissions inspections laws authorize the use of other equipment or software for nontailpipe tests or checks that are part of the federal motor vehicle inspection and maintenance program. Virginia law provides that its enhanced emissions inspections program shall include, and be limited to, testing procedures necessary to comply with the Clean Air Act. Virginia must include in its program, nontailpipe exhaust tests that comply with the Federal Act and may exclude tailpipe exhaust tests that the Act no longer requires.
     
02-051 Mr. Frank Kilgore
County Attorney for Buchanan County
Judges and court personnel carrying out a judge’s order are protected by judicial immunity when participating in court-ordered community service programs. Other public officials and probation officers may be protected by the doctrine of sovereign immunity for discretionary acts.
     
02-056 Colonel W. Gerald Massengill
Superintendent, Department of State Police
Uniform Machine Gun Act does not prevent the discharge or firing of a machine gun by a person not exempt from the Act. A person not exempt from the Act may transport a machine gun away from his registered bona fide permanent residence or business address. The meaning of the phrase "immediate vicinity" as used in the Act, requires a determination of fact rather than one of law, it is not an appropriate issue on which to render an official advisory opinion.
     
02-058 The Honorable J. Dean Lewis
Judge, Fifteenth District Juvenile and Domestic Relations Court
Under 2002 Appropriation Act courts have no authority to assess fee against guardian of child for whom guardian ad litem has been appointed.

Under 2002 Appropriation Act courts can order reimbursement by parent when appointment of guardian ad litem required.

     
02-059 The Honorable Marsha L. Garst
Commonwealth’s Attorney for the City of Harrisonburg and Rockingham County
Police officer may not arrest without a warrant for violation of Virginia Code § 4.1-305 unless offense committed in his presence; offense defined by § 4.1-305 requires dominion and control over alcoholic beverage and is not committed in the officer’s presence if beverage was ingested at an earlier time and place.
     
02-071 The Honorable Frank D. Hargrove, Sr.
Member, House of Delegates
Whether a "bus" is exempt from requirements of child restraint device for transporting children in motor vehicles and whether the interior design of a vehicle or the weight and size of a child makes it "impractical" for the child to be placed in a child restraint device is a factual question. Words are to be given their usual and ordinary meaning. Significantly, the 2002 Session of the General Assembly did not change the types of vehicles that were exempt from child restraint device requirements.
     

{tab June}

Opinion # Requestor

Summary

02-041 The Honorable John T. Frey
Clerk of the Fairfax County Circuit Court
Clerk should assess recordation tax on Security Instrument drawn under Islamic law based on original acquisition balance as defined in instrument and assess separate fees for Assignment Agreement, since document effects two transactions of equal dignity.
     
02-050 The Honorable Harry J. Parrish
Member, House of Delegates
Governor has power to direct State Board of Elections to reduce amounts it reimburses localities for salaries of electoral board members and general registrars in order to achieve legislatively mandated budget cuts.
     
02-053 The Honorable Clifton A. Woodrum
Member, House of Delegates
Virginia Code § 63.1-248.3.A(12) imposes a duty on volunteer and professional Boy Scout leaders, who have reason to suspect that a child has been abused or neglected, to report the matter to the Department of Social Services.
     
02-061 The Honorable C.W. Jackson
Sheriff for Westmoreland County
Northern Neck Regional Jail Board has no independent authority to pay bonuses to its employees. Instead, the Board has the authority to request the participating localities of regional jail to adopt ordinance providing for payment of bonuses to employees of Northern Neck Regional Jail.
     

{tab May}

Opinion # Requestor Summary
01-026 Mr. James E. Barnett
County Attorney for York County
Constitutionality of local ordinance limiting time period within which political signs advocating particular candidate or political party may be displayed on private property, either before or after primary or general election, must be determined on case-by-case basis.
     
02-045 The Honorable John T. Frey
Clerk of the Circuit Court of Fairfax County
Clerk of court should collect $10 assessment fee on every deed recorded on or after May 1, 2002, on which state recordation tax is levied. Deed of correction is not subject to $10 fee. Fee is collected only in jurisdiction where instrument is first recorded and is not collected for recordation of same deed for real estate that is located in more than one jurisdiction. Deeds of release and deeds of partition are not subject to state recordation tax or $10 assessment fee. Assessment by circuit court clerk of $10 fee for recordation of deed of easement, deed of dedication or deed of subdivision depends on clerk’s current treatment of such deeds for state recordation tax purposes.
     
02-032 The Honorable Molly Joseph Ward
Treasurer for the City of Hampton
Ordinance directing City of Hampton to turn over to Elizabeth Lake Estates Civic Association tax revenue collected in service district is unconstitutional. City’s delegation of its legislative authority to Association is unconstitutional. Tax imposed by ordinance is unenforceable.
     
02-031 The Honorable Gordon F. Saunders
Commonwealth’s Attorney for
Rockbridge County & the City of Lexington
Attorney General declines to render opinion regarding whether operation of Free Spin machines under described circumstances constitutes illegal gambling.
     
02-005 The Honorable Ward L. Armstrong
Member, House of Delegates
Disclosure by spouse abuse shelter to law-enforcement officials of presence of resident under described circumstances.
     
02-044 The Honorable Christopher B. Saxman
Member, House of Delegates
Department of Taxation has authority to promulgate guideline definition of term "contractor" that clarifies and explains which businesses are included in "contractor" classification for purpose of determining applicable maximum BPOL tax rate, provided language is not inconsistent with Commonwealth’s license tax laws.
     
02-034 The Honorable Tom Bolvin
Member, House of Delegates
The Workforce Investment Act precludes the General Assembly from directing the Governor to reallocate Unobligated WIA Funds to a community college located within the same geographic area from which the funds were obtained. Consistent with the historical practices of prior Attorneys General, the Attorney General is unable to comment on any actions colleges may take to seek reallocation of such funds.
     
02-040 The Honorable Joel C. Cunningham
Judge, General District Court of Halifax County
Order of remittance does not serve as satisfaction of judgment in general district court; does act as satisfaction of judgment entered on previously forfeited bond under applicable statutes pertaining to judgments filed in circuit courts.
     

{tab April}

Opinion # Requestor Summary
01-108 The Honorable J. Dean Lewis
Judge, Fifteenth District Juvenile and Domestic Relations Court
Decisions of Court of Appeals of Virginia in Commonwealth ex rel. May v. Walker and Mahoney v. Mahoney overrule decision in Avery v. Commonwealth, Department of Social Services, which allows bifurcated appeal in case of father found guilty of civil contempt for failure to pay court-ordered child support. Party in civil contempt proceeding initiated in juvenile court must post appeal bond within 30 days, in amount of support arrearage, in order to perfect appeal to circuit court for trial de novo.
     
02-029 The Honorable Kenneth R. Plum Member, House of Delegates General Assembly would need to enact legislation authorizing Fairfax County to amend its human rights ordinance to prohibit discrimination based on sexual orientation.
     
00-011 The Honorable Thomas D. Horne
Judge, Twentieth Judicial Circuit
Commissioner of accounts is not permitted access to criminal history records of delinquent fiduciaries through Virginia Criminal Information Network, unless such records are released pursuant to circuit court order or rule.
     
01-118 Mr. Michael M. Collins
County Attorney for Alleghany County
Determination regarding whether locality may impose flat tax on itinerant merchants and peddlers without violating Commerce Clause depends on resolution of questions of fact that may establish genuine administrative burden experienced by locality. Attorney General traditionally has declined to render official opinions when request involves question of fact rather than one of law.
     
02-004 The Honorable Clifford R. Weckstein
Judge, Twenty-Third Judicial Circuit
Court reporting services associated with criminal litigation proceedings are exempt from competitive process requirements of Public Procurement Act. Provision of such services lies within sound discretion of court
     
00-060 The Honorable Ronald S. Hallman
City Attorney for the City of Chesapeake
Virginia locality may adopt proffer policy that considers adequate public facilities requirement before applications may be approved for rezoning
     
02-007 The Honorable Norman deV. Morrison
Judge, Clarke County General District Court
Impoundment provisions are applicable to arrest for driving during suspension period, provided driver’s suspension or revocation resulted from DUI conviction.
     
01-111 The Honorable Robert G. Marshall
Member, House of Delegates
Act does not address question whether developer of retirement community, which controls homeowners’ association of development, may establish budget for association that is not based on fact. Developer must provide to potential buyers disclosure statement reflecting financial status of association. Developer may retain control of association and bill homeowners for association expenses, provided developer retains ownership of majority of lots constituting development.
     
01-060 The Honorable Marilyn L. Wilson
Clerk, Circuit Court of Amelia County
Notary public commissioned by State of Maryland is not authorized to notarize in Commonwealth documents for recordation in Virginia circuit court clerk’s office.
     
02-012 The Honorable M. Kirkland Cox
Member, House of Delegates
Colonial Heights police department is responsible for transporting arrestee to regional jail. Once at regional jail, jail superintendent is responsible for conveying prisoners to and from court. City council may adopt ordinance requiring sheriff to perform extra transport duties and may compensate sheriff accordingly. Prisoners awaiting further criminal proceedings at courthouse are within control of sheriff, who is responsible for returning them to jail superintendent for transport to regional jail at conclusion of day’s hearings. If it is necessary for prisoner to remain for further court proceedings within same day, prisoner should be kept in courthouse holding cell until proceedings are concluded and then released to jail superintendent for transport to regional jail.
     
01-062 Colonel W. Gerald Massengill
Superintendent, Department of State Police
Department of State Police is authorized to provide mental health information maintained in Central Criminal Records Exchange to Federal Bureau of Investigation for use in National Instant Criminal Background Check System Index.
     
02-019 The Honorable Kenneth R. Melvin
Member, House of Delegates
Compensation received by standing trustee in Chapter 13 bankruptcy for performance of his administrative duties associated with such bankruptcy is subject to local business license taxation.
     
01-121 The Honorable Barbara O. Carraway
Treasurer for the City of Chesapeake
Local elected constitutional officer is "unit of local government" falling within definition of "agency" under Act. Act’s definition of "agency" includes local constitutional officer.
     
01-119 The Honorable William W. Davenport
Commonwealth’s Attorney for Chesterfield County
Requirement that law-enforcement agency enter into Virginia Criminal Information Network certain information contained on warrant or capias received by agency is directory in nature, and does not otherwise violate affected individual’s constitutional rights.
     
01-068 The Honorable John R. Newhart
Sheriff for the City of Chesapeake
Propriety of actions of sheriff’s office with regard to storage of personal property removed from residential premises pursuant to unlawful detainer or ejectment.
     
02-026 The Honorable Judy L. Worthington
Clerk of the Circuit Court of Chesterfield County
Automated case management systems maintained by clerk of circuit court, whether storage media is on or off premises, are records of clerk’s office under custody of such clerk. Access to such system lies within sound discretion of clerk.
     
02-013 The Honorable Kathy J. Byron
Member, House of Delegates
Water authority may include fee for connecting to water system constructed by authority as proportionate part of its construction costs. Statutory use of "shall" appears to be advisory or directory in nature, and permits authority to review periodically and adjust amount of connection fees, as necessary.
     
01-105 The Honorable Clarence E. Phillips
Member, House of Delegates
Industrial development authorities may use design-build contracts for construction of "authority facilities" or "facilities," as defined in Industrial Development and Revenue Bond Act, without having to engage in competitive bidding and without having to involve Design-Build/Construction Management Review Board.
     
01-123 Mr. W. Forrest Matthews, Jr.
Director, Virginia Retirement System
Appropriation Act provides no authorization for payment of administrative expenses incurred by Virginia Retirement System in oversight of deferred compensation plan; no statutory authorization for Retirement System to charge and recover administrative costs from Department of Accounts. Retirement System may not recover its administrative expenses from employees who participate in cash match plan, but may bill participating employers for expenses. No authority for Retirement System to charge and collect administrative fee from participants of optional retirement plan for political appointees or recover such costs from institutions of higher education. Attorney General is unable to comment regarding method and source by which Virginia Retirement System may recover costs incurred and associated with administration of VolSAP when Fund assets are insufficient, or on action Retirement System should take for optional retirement plan for school superintendents should General Assembly deny request for general fund appropriation.
     
01-128

The Honorable Terrie L. Suit
Member, House of Delegates

Mortgage broker may not provide compensated services in same real estate sales transaction in which affiliated real estate broker is providing compensated services. Term "partner" encompasses limited partner in mortgage broker that is organized as limited partnership.

     

{tab March}

Opinion # Requestor Summary
01-077 The Honorable Carol W. Black
Clerk, Circuit Court of Bedford County
Statutory requirement that social security or other control numbers appearing on marriage licenses not be disclosed applies retroactively to licenses filed on and after July 1, 1997. Attorney General declines to comment on practicability of devising method by which marriage licenses processed and imaged since 1997 may be changed to comply with statutory nondisclosure requirements.
01-085 Mr. Henry A. Thompson, Sr.
County Attorney for Sussex County
Governance of biosolids activities within Commonwealth resides with Department of Health. Local ordinance requiring applicant to obtain conditional use permit before applying or storing biosolids in locality is preempted by comprehensive state program regulating biosolids use.
01-114 The Honorable Robert J. Deeds
Sheriff for Williamsburg-James City County
Sheriff maintains custody of individual transported to medical facility for emergency medical evaluation and treatment until individual is delivered to temporary detention facility upon final execution of order.
01-096 Mr. William C. Shelton
Director, Department of Housing and Community Development
Municipality has no authority to enforce Statewide Fire Prevention Code on state property if agreement has not been entered into with State Fire Marshall, or Director of Department of Housing and Community Development, for enforcement of Code. Localities have no authority to enforce Building Code against Commonwealth through their building inspectors.
01-125 The Honorable James L. Williams
Treasurer for the City of Portsmouth
Statute of limitations for collection of all local taxes, including food and beverage taxes, begins to run on December 31 of year to which tax is attributable, i.e., year for which tax was assessed.
01-065 The Honorable John R. Newhart
Sheriff for the City of Chesapeake
Sheriff is chief law-enforcement officer of office of sheriff for purposes of issuing concealed weapons permits to retired deputies.
02-024 The Honorable Ryan T. McDougle
Member, House of Delegates

No constitutional prohibition against member of House of Delegates serving as temporary assistant Commonwealth’s attorney.

02-006 The Honorable Thomas C. Wright, Jr.
Member, House of Delegates
Cigarette manufacturer’s sweepstakes promotion at retail establishment is prohibited.

01-115

The Honorable Geraldine M. Whiting
Commissioner of the Revenue for Arlington County

Treasurer may not demand payment of business, professional and occupational license taxes that have not been assessed. Taxpayer is under no obligation to remit such tax payments until they are assessed and due. To extent confidential tax information maintained by commissioner of revenue needs to be obtained by treasurer or bank acting as depository, dissemination of otherwise confidential taxpayer information is allowable.

01-094 Mr. David W. Rowan
Town Attorney for the Town of Onancock
Town may appropriate public funds to support local business and civic association’s annual Regatta, but may not contribute in-kind services of town employees to assist in setting up Regatta and loan of town-owned equipment. No statute requires town to obtain and examine governing documents of organizations to which it makes contributions. Association is not "public body" under Act; documents of Association are not subject to Act’s public records disclosure requirements. Attorney General declines to comment regarding obligation of town manager to take action in response to citizen complaint regarding alleged improper action by town council or mayor. Authority of town to make cash contribution to Central Accomack Little League.

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Opinion # Requestor Summary
01-067

The Honorable William D. Heatwole
Judge, General District Court for the Twenty-Fifth District

Advanced legal fees remain property of judgment debtor. Judgment creditor may garnish unearned advance fees paid by judgment debtor to attorney. Potential judgment creditor may attach such funds.
     
01-112

The Honorable Charles E. Poston
Judge, Fourth Judicial Circuit

Substitute judge may be designated to serve as district judge only when chief district judge has determined that another full-time district judge or retired judge is not reasonably available. Substitute judge not so appointed should not be called upon by hospital seeking judicial consent for medical treatment of minor.
     
01-124

The Honorable Judy S. Crook
Commissioner of the Revenue for Franklin County

Splitting off of smaller parcels from large tract does not make such tract ineligible for land use assessment and taxation. Question whether taxpayer made material misstatement of facts in revalidation application or that material change in facts has occurred is decision to be made by commissioner of revenue based on all relevant facts. Use of statutory procedures to correct erroneous assessments. No authority for local governing body to determine if property qualifies for special land use assessment and taxation in individual case.
     
02-002 The Honorable Robert G. Marshall
Member, House of Delegates
Records’ custodian has discretion to determine whether to release to minor’s parent library records for purpose of identifying books checked out by minor that are overdue.
     
02-016 The Honorable Paula N. Wyatt
Sheriff for the City of Hopewell
Local sheriff is not required to provide more than one deputy sheriff to general district court for courtroom security in absence of order stating that particular case presents substantial security risk.
     
01-098

The Honorable W.B. Keister
Member, House of Delegates

City of Radford may amend its Code to provide for $200 fine for violating portion of ordinance concerning permit parking.
     

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Opinion # Requestor Summary
00-044 Mr. William J. McGhee
Town Attorney for the
Town of Christiansburg
Act prohibits collection by agency of personal information that is secret; permits installation of surveillance cameras and audio monitoring equipment in and on premises of recreation center, provided notices advising of such surveillance are clearly visible.
     
02-001 The Honorable M. Kirkland Cox
Member, House of Delegates
Proposed amendment requesting increase in appropriation for secure confinement does not constitute special legislation and favors no specific organization that provides enhanced faith-based services to inmates or is controlled by church or sectarian society.
     
02-003 Ms. Phyllis C. Katz
County Attorney for New Kent Co.
Treasurer is not required to relinquish his office when involuntarily recalled to active military duty. No statute prevents treasurer from continuing to oversee and manage his office via use of Internet, or in person during evening hours and weekends when he is physically present in county. Treasurer may continue to receive compensation for performing duties of his office while involuntarily recalled to active duty.
     
00-082 Mr. B. James Jefferson
County Attorney for Franklin Co.
Planning commission of Franklin County may not review for compliance with comprehensive plan existing locations of telecommunications towers in areas of county not subject to zoning. Such review may be undertaken only when application for telecommunications is made with county.
     
01-129 Mr. William H. Leighty, Director
Virginia Retirement System
Time spent as local elected official does not constitute time spent employed by locality and is not time purchasable as prior service credit.
     
01-099 The Honorable M. Kirkland Cox
Member, House of Delegates
Boat registered in Virginia county but normally garaged, docked, or parked in North Carolina has acquired taxable situs in both states. No statute requires county to refund or reduce payment of taxes on boat.
     
99-117 Mr. Larry W. Davis
County Attorney for Albemarle Co.
Determination whether property of Christian Aid Mission may be classified as tax exempt rests within judgment of commissioner of revenue, after careful consideration of attendant facts. Unused and undeveloped parcels are subject to real estate taxation while they remain as such. Any portion of such land used by other entities may be exempt if activities of using entities are charitable, religious or educational. Rent paid by using entity considered source of revenue or profit to Mission is taxable.
     
01-086 The Honorable K. Mike Fleenor Jr.
Commonwealth’s Attorney for
Pulaski Co.
Pharmacist, prior to filling prescription, may obtain fingerprint from customer as proof of identification, provided pharmacist returns or destroys print within 21 days of transaction’s completion or termination; may provide to law-enforcement officials fingerprint of any customer suspected of prescription fraud.
     

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