2006 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.

December

Opinion #	Requestor	Summary
05-095	The Honorable William H. Fralin, Jr. Member, House of Delegates	Section 63.2-905 does not mandate that mental health services be provided; rather it defines term foster care services. Comprehensive Services Act addresses requirements for provision of services, which incorporates definition of foster care services. Act mandates provision of such foster care services by state and locality to prevent foster care placements when child is abused and neglected or child is in need of services. Statutory and constitutional provisions require that CSA-mandated mental health services be provided to eligible children in need of such services without their parents having to relinquish custody to local social services agencies.

06-052	The Honorable Gabriel A. Morgan Sheriff of the City of Newport News The Honorable B.J. Roberts Sherif of the City of Hampton	Inmates' canteen fund may be used to make direct or indirect payments to faith-based organizations when such organizations provide rehabilitation services, education programs, and counseling; when requested by inmate, organization may provide spiritual guidance, including Bibles and other religious materials.

06-077	The Honorable Harry B. Blevins Member, Senate of Virginia	No direct obligation for contractor to provide certification regarding prior criminal convictions for employees; award of contract subject to employees providing such certification. Local school board must require certification prior to award of covered contract to meet mandate of statute. Direct contact with students limited to contractor and employees making certification. Contractor's employees added during contract period must provide certifications prior to direct contact with students. Local school board should rely on definition of ‘services' in Virginia Public Procurement Act in determining scope of responsibilities under § 22.1-296.1(C). Natural or non-natural person is ‘contractor' within meaning of § 22.1-296.1. Anyone having knowledge of materially false certification may report information to local school board, local law enforcement authorities, or appropriate Commonwealth's attorney for prosecution; may also report to respective licensing agency. Whether certain crime involves moral turpitude depends on facts and nature of crime; crimes involving dishonesty do involve moral turpitude.

06-088	The Honorable John R. Newhart Sheriff, City of Chesapeake	Authority for sheriff to place prisoner on home/electronic incarceration while prisoner is serving mandatory minimum sentence.

November

Opinion #	Requestor	Summary
06-056	The Honorable John R. Doyle, III Commonwealth's Attorney for the City of Norfolk	Green-tinted vacant light on taxicab would not specifically violate § 46.2-1021; however, Department of State Police has authority to regulate use of such lights. Department's interpretation is entitled to due deference.

06-083	Colonel W.S. (Steve) Flaherty Superintendent, Department of State Police	Authority for Superintendent of State Police, with Governor's approval, to design and adopt distinctive commemorative badge to be worn by Department of State Police officers.

06-074	The Honorable Robert G. Marshall Member, House of Delegates	Where public hearing is held prior to RPA designation, failure to notify affected landowners does not invalidate designation, give affected landowners any legal recourse, or bar subsequent RPA designations for property of landowners who did not receive prior notification. Landowner who does not receive notice of future proposed designations has right to appeal.

06-055	The Honorable L. Scott Lingamfelter Member, House of Delegates	Section 15.2-2260(B) applies to preliminary subdivision plats not to final subdivision plats, site plans, or plans of development. Requirement that person desiring to subdivide tract of land must submit proposed subdivision plat to local subdivision agent for approval. Authority for local governing body to enact subdivision ordinance providing for submission of preliminary subdivision plats for tentative approval. Local subdivision agents must approve subdivision plats within imposed time constraints, which are applicable to locality and may not be delegated to other agencies. No obligation for water and sanitation authority to comply with § 15.2-2259. Locality must enact subdivision ordinance that includes reasonable provisions for drainage and flood control; may include requirement that subdivision plats be submitted for approval to authority created to provide sewage disposal and stormwater control prior to submission to locality.

06-068	The Honorable Riley E. Ingram Member, House of Delegates	No authority for school board to accept gift of construction services; may accept gift of services pursuant to Virginia State Government Volunteers Act and may impose reasonable conditions to make gift acceptable to board. Virginia Public Procurement Act does not apply to donation of services.

06-096	Mr. David K. Paylor, Director Dept. of Environmental Quality	No authority for State Water Control Board to impose limitations on thermal effluent involved in discharges by Dominion Nuclear North Anna, LLC, from North Anna Power Station reactors.

October

Opinion #	Requestor	Summary
06-048	The Honorable Jean R. Jensen Secretary, State Board of Elections	General registrar may not deny application for voter registration or cancel voter registration of member of armed forces of United States solely because service-member files certificate of legal residence listing his residence in another state pursuant to 50 U.S.C. app. § 571. General registrar may request documentation to confirm restoration of voting rights to person previously convicted of felony.

06-066	The Honorable Ingrid H. Morroy Arlington Co. Commissioner of Revenue	Distributions from IRAs, 401Ks, and similar retirement plans are considered income for purposes of determining eligibility for exemption or deferral of taxes on property.

06-080	The Honorable Stephen D. Newman Member, Senate of Virginia	Filing of site plan of develop-ment does not create vested property interest in land use classification; such filing does not preclude subsequent amendments to current zoning ordinance. Legal analysis is limited to issue of zoning; issues related to state and federal fair housing statutes are not addressed.

06-063	The Honorable H. Morgan Griffith Member, House of Delegates	Virginia Freedom of Information Act, which prohibits use by incarcerated individuals, is not applicable to patients in state mental health institutions and individuals committed to Virginia Center for Behavioral Rehabilitation under Civil Commitment of Sexually Violent Predators Act.

06-070	The Honorable Octavia Johnson Sheriff of the City of Roanoke	When requested by outside law enforcement agency, sheriff's office personnel lawfully may inspect incoming and outgoing inmate mail to determine whether corres-pondence discusses, or is being used in furtherance of, criminal activities; personnel may censor discussions of criminal activities in such correspondence or any correspondence used in furtherance of criminal activities.

06-037	The Honorable John S. Reid Member, House of Delegates	Optometry practice may not be conducted in kiosk type setting, medical doctor's office, or other locations that require person to use same ‘common door' to exit building or structure occupied by practice as that required to exit commercial or mercantile establishment onto exterior sidewalk or public way or into common areas of enclosed shopping mall. Section 54.1-3205.1 does not limit or qualify § 54.1-3205(D).

06-078	The Honorable Kenneth Cooper Alexander Member, House of Delegates	Publicly funded animal shelters or "pounds” may not euthanize dogs based solely upon breed.

06-060	The Honorable Christopher K. Peace Member, House of Delegates	Water authority created pursuant to Act is public body and municipal corporation, and funds it receives from rates and fees generally may be considered ‘public funds.' Sovereign immunity applies to water authority's governmental functions, may waive such immunity only when expressly authorized by statute. Immunity does not apply to proprietary functions. Water authority may make payments on claims related to its proprietary functions, but not claims related to its governmental functions.

September

Opinion #	Requestor	Summary
06-003	The Honorable Stephen D. Newman Member, Senate of Virginia The Honorable David B. Albo Member, House of Delegates The Honorable Kathy J. Byron Member, House of Delegates The Honorable John A. Cosgrove Member House of Delegates The Honorable Robert G. Marshall Member, House of Delegates	Passage of marriage amendment will not affect current legal rights of unmarried persons involving contracts, wills, advance medical directives, shared equity agreements, or group accident and sickness insurance policies, or alter any other rights that do not ‘approximate the design, qualities, significance, or effects of marriage” or create "the rights, benefits, obligations, qualities, or effects of marriage.' Passage of amendment will not modify application and enforcement of Virginia's domestic violence laws.

06-058	The Honorable Jean R. Jensen Secretary, State Board of Elections	Constitution requires local electoral board, where feasible, to appoint officers of election representing two dominant political parties; when it is not feasible, board may appoint nonpartisan officers.

August

Opinion #	Requestor	Summary
04-085	Colonel W. Steven Flaherty Superintendent, Department of State Police	Chapters 981 and 1021 of 2003 Acts of Assembly and authority granted to Superintendent of Department of State Police under Chapter 2 of Title 52, §§ 52-12 through 52-15, may be read in harmony to certain extent; however, ultimate control over Virginia Criminal Information Network must remain with Superintendent. Federal regula-tions require Superintendent to retain control over Network.

06-054	Mr. Ronald S. Hallman	Exemption for fire-fighting equipment from general highway size limitations; no exemption for such equipment from general highway weight limitations established for bridges and prescribed and posted by Commonwealth Transportation Commissioner.

06-046	The Honorable Phillip P. Puckett Member, Senate of Virginia	Private, nonprofit institutions of higher education, such as Appalachian School of Law, may require criminal background searches as condition of employment; may request that candidates for admission consent to criminal background search as condition of matriculation.

06-036	The Honorable Wyatt L. Overton Commissioner of the Revenue for Prince Edward County	Vehicles titled to car dealership and available for sale constitute inventory stock on hand and must be taxed as merchants' capital.

06-045	The Honorable M. Kirkland Cox Member, House of Delegates	Federal Communications Commission regulations preempt direct or indirect regulation of placement of satellite antenna dishes by General Assembly, unless regulations have reasonable and clearly defined health, safety, or aesthetic objective and do not operate to impose unreasonable limitations on, or prevent, reception of satellite delivered signals by receive-only antennas or impose costs on users of such antennas that are excessive in light of equipment purchase and installation costs.

06-064	The Honorable Frank W. Wagner Member, Senate of Virginia	Natural gas company may enter onto landowner's property where such landowner has not responded to notices given by company, provided company complies with notice require-ments for right of entry.

July

Opinion #	Requestor	Summary
06-049	The Honorable Calvin C. Massie, Jr. Commissioner of the Revenue, Campbell County	Commissioner of revenue prohibited from issuing local business license to applicant who is not legally present in the United States; may issue business license to applicant holding permanent resident card. Commissioner must verify identity and residency status of all business license applicants as part of application process.

June

Opinion #	Requestor	Summary
06-044	The Honorable William J. Howell Speaker of the House of Delegates The Honorable Thomas K. Norment, Jr. Member, Senate of Virginia	Constitution imposes clear and certain duty solely upon General Assembly to make appropriations; no funds are to be paid out of state treasury unless appropriated by law by General Assembly. It is question of fact whether conditions exist constituting emergency under Emergency Services and Disaster Law of 2000, and it is within authority of Governor to make such determination. When emergency exists, no express authority under Constitution for Governor to expend state funds when no appropriations exist. While Governor has certain implied executive power, such authority cannot overcome sole and specific express grant of spending authority to legislature. To prevent constitutional crisis, it is critical that legislature enact 2006-2008 biennial budget or enact short-term legislation authorizing ongoing spending for state services and obligations.

06-018	The Honorable John S. Reid Member, House of Delegates	Addition of § 23-9.2:3(D) proposed by Senate Bill 677 in 2006 Session of General Assembly, if enacted into law, would require Commonwealth to comply with 8 U.S.C. § 1623. Such compliance could be achieved only by extending in-state tuition rates to all enrollees, regardless of residency status.

05-075	The Honorable David B. Albo Member, House of Delegates	Wine Franchise or Beer Franchise Act compels winery or brewery to honor distributor appointments made by prior authorized representative unless winery or brewery provides notice of intent to terminate agreement with distributor and good cause exists. Whether notice was provided and good cause exists are factual determinations for Virginia Alcoholic Beverage Control Board. Authorized representative cannot avoid application of either Act by requiring waiver from distributor because Franchise Acts prohibit such waivers. Execution and filing of Attachments A and B and exchange of purchase orders and invoices between authorized representatives and distributors do not constitute ‘written agreement[] of definite duration' pursuant to Beverage Control Act. Attorney General declines to render opinion regarding whether specific contract provision or contemplated termination violates Wine or Beer Franchise Act or whether winery or brewery that fails to offer appointed distributors written agreements of definite duration falls outside purview of respective Act.

06-032	The Honorable Thomas K. Norment, Jr. Member, Senate of Virginia The Honorable Christopher K. Peace Member, House of Deletates	Development with declaration recorded after January 1, 1959, is subject to Virginia Property Owners' Association Act; such development may, pursuant to § 55-508(A)(6), amend its declaration by two-thirds vote of owners to apply Act to development when declaration is silent regarding amendment or amendment is made in accordance with declaration.

06-039	Mr. Roger W. Mullins Tazewell County Attorney	Board of supervisors of county having county administrator form of government may designate agent other than planning commission to approve preliminary and final subdivision plats

06-041	The Honorable Phillip A. Hamilton Member, House of Delegates	Both city charter and general laws of Commonwealth require city of Newport News to have actuarially sound retirement system for its employees.

06-050	The Honorable Kenneth R. Melvin Member, House of Delegates	Circuit court may hold court in another judicial circuit only when all parties to action agree.

May

Opinion #	Requestor	Summary
06-038	The Honorable Rex A. Davis, Clerk Circuit Court for the city of Newport News	Section 8.01-456 does not apply to discharge of judgment where creditor refuses to accept payment or to satisfaction of general district court judgment that is not docketed in circuit court.

06-029	The Honorable Judy S. Crook Commissioner of the Revenue for Franklin County	Transmittal of electronic data containing information to abate erroneous assessments for real estate and personal property does not satisfy requirement that copy be certified to treasurer; such transmittal constitutes sufficient notice that roll-back taxes are due.

April

Opinion #	Requestor	Summary
06-019	The Honorable Robert S. Bloxom Secretary of Agriculture and Forestry	Authority for Virginia Alcoholic Beverage Control Board to issue wholesale wine license to cooperative wholesaler; license is not prohibited provided cooperative wholesaler is not ‘owned, in whole or in part, by any manufacturer of alcoholic beverages, any subsidiary or affiliate of such manufacturer or any person under common control with such manufacturer. Decision regarding what constitutes ‘common control' is factual determination for Board. Act does not prohibit farm winery from leasing portion of its premises or from leasing equipment to such wholesaler for use in its business or from employing same persons as wholesaler. Statutes and regulations that apply to other wholesalers also apply to cooperative wholesalers composed of persons associated with farm wineries.

04-091	The Honorable Lon E. Farris Judge, Thirty-First Judicial Circuit of Virginia	Initial appeal of district court order of civil commitment to circuit court for trial de novo is appeal of right granted and governed by statute. Person aggrieved by decision of circuit court from initial commitment hearing may appeal to Virginia Supreme Court. No affirmative duty for circuit court judge to inform individual of right to appeal; judge must appoint attorney for appeal to Virginia Supreme Court if individual does not have private counsel.

06-022	Mr. Stanley K. Bowker Executive Secretary, Virginia Racing Commission	Act requires Colonial Downs to designate sufficient non-smoking areas to meet customer demand in VIP dining rooms of its satellite wagering facilities.

06-034	John T. Casteen, III President, University of Virginia	No authority granted to University of Virginia's Board of Visitors to require that minimum or living wage be paid by private contractors and vendors to their employees. Virginia Public Procurement Act does not authorize requirement of living wage in public procurement process.

March

Opinion #	Requestor	Summary
06-014	The Honorable Jeffrey M. Frederick Member, House of Delegates	Authority for county board of supervisors to alter boundaries of voting precincts at any time other than within sixty days before any general election.

06-005	The Honorable Roy F. Evans, Jr. Commonwealth's Attorney for Smyth County	No authority for regional jail officers to execute criminal warrants in regional jail; such officers are vested with limited authority and powers of conservators of peace.

05-086	The Honorable Paul M. Metzger Spotsylvania County Circuit Court Clerk	Absent explicit statutory scheme outlining procedures required for electronic filing of documents or legislative enactment to contrary, clerk of circuit court has discretion to establish such procedures, including decision regarding persons with whom he must enter into agreements for such filings.

February

Opinion #	Requestor	Summary
05-093	The Honorable James M. Shuler Member, House of Delegates	No conflict between § 18.2-119 and §§ 24.2-307, 24.2-310(B), and 24.2-310.1; individual prohibited from entering school property may enter portion of school property designated as polling place solely for purpose of casting his vote.

06-008	The Honorable Ray S. Campbell, Jr. Caroline Court Circuit Court Clerk	Clerk of court of record may not record certified copy of instrument previously recorded in his court although copy contains additional exhibits or modification or change to legal description of real property conveyed.

05-094	The Honorable Robert G. Marshall Member, House of Delegates	Executive Order is permissible to extent Governor is ensuring that laws are faithfully being executed, addition of sexual orientation as protected employment class within state government was intended to, and in fact did, alter public policy of Commonwealth. Changing public policy of Commonwealth is within purview of General Assembly and, therefore, beyond scope of executive authority and is unconstitutional.

January

Opinion #	Requestor	Summary
05-071	The Honorable Robert G. Marshall Member, House of Delegates	No statute directly addresses statutory authority allowing homebuilders to maintain majority control of property owners' association until construction of community property is completed and transferred to association. Any recourse that association may have regarding defective community property is private cause of action.

05-076	The Honorable John M. O'Bannon, III, M.D. Member, House of Delegates	Licensed optometrist, whose practice is not controlled or influenced by agent or employee of commercial or mercantile establishment, may be employed by independent ophthalmology practice, which has direct access to commercial or mercantile establishment and sells eye glasses or contact lenses ancillary to its practice, provided that majority of beneficial ownership of practice is owned by ophthalmologic practice and/or one or more ophthalmologists.

05-078	The Honorable R. Creigh Deeds Member, Senate of Virginia	Governing boards of Virginia's public colleges and universities may not impose general prohibition on carrying of concealed weapons by permitted individuals. Pursuant to specific grants of statutory authority, however, colleges and universities may regulate conduct of students and employees to prohibit them from carrying concealed weapons on campus.

05-079	Mr. C. Dean Foster, Jr. Scott County Attorney	Certain landowner appears to be developer with speculative interest for assessment by localities of portion of cost of including roadway in state secondary highway system; governing body of county must obtain written declarations of acquiescence in such assessment from owners of at least seventy-five percent of platted parcels of land abutting upon street. To extent of whether landowner is developer is question of fact, Attorney General does not issue opinions regarding questions of fact.

05-081	Mr. Mark B. Taylor Spotsylvania County Attorney	Interpretation of ‘abutting property owners' in Virginia Water and Waste Authorities Act requires some relationship constituting physical connection between assessed property and financed improvement; abutting property owners are not necessarily limited to owners of property with fee simple frontage on improvement.

05-082	The Honorable Robert D. Orrock Member, House of Delegates	Locality's approval of preliminary subdivision plat expires after one year when subdivider or developer either fails to submit final plat of property or portion of property within one year of approval, or such longer period prescribed by local ordinance, or diligently pursue approval of final subdivision plat.

05-091	Mr. G. W. Thomas, Jr. Chairman, Electoral Board Ms. Dorothy B. Dockery Secretary, Electoral Board City of Richmond	No exemption for Virginia Office for Protection and Advocacy from limitation on access to polling place; representatives of Office may not enter into polling place on Election Day without express, written permission of appropriate local electoral board.

05-092	The Honorable Harvey B. Morgan Member, House of Delegates	Funds placed in certain 1989 trust are subject to law in effect in 1989 and are exempt in calculating available resources under Virginia Medicaid Program. Funds placed in certain 2005 trust are exempt in calculating available resources under Program, provided that funds transferred to trust do not exceed value of funeral services and supplies purchased by person designated in preneed agreement as trustor.

06-002	The Honorable John H. Chichester Member, Senate of Virginia	Atlantic States Marine Fisheries Commission's Menhaden Management Board exceeded adaptive management authority when adopting menhaden cap in Addendum II because (1) cap is wholly new management measure, which cannot be implemented by addendum; (2) when Atlantic menhaden stocks have been declared "healthy," cap or quota cannot be imposed unless menhaden are found to be overfished; and (3) Atlantic Menhaden Fishery Management Plan does not include prerequisite management measure that can be varied by imposition of cap through addendum. Should General Assembly decline to adopt menhaden cap, Commonwealth would not be out of compliance with Plan because Commission failed to follow required procedures.

Jason S. Miyares Attorney General of Virginia