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Official Opinions

 

July 2002 Opinions

Please click on Opinion number to view entire opinion.

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.