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Official Opinions

 

August 2010 Opinions
Please click on Opinion number to view entire opinion.

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

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

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

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

 

Opinion # Requestor Summary
10-068 The Honorable Barbara J. Gaden,
Judge, Richmond District Court
A district court may, pursuant to § 8.01-271.1, impose a pre-filing review requirement if such a sanction is appropriate.  Furthermore, a district court has the inherent authority to limit or prevent an attorney or a litigant from practicing before it in the event the court determines, after a hearing, that the attorney or litigant has engaged in the unauthorized practice of law or otherwise has engaged in unprofessional or unethical conduct.
10-069 The Honorable Dennis S. Proffitt,
Sheriff, Chesterfield County
A verbal order to take a defendant who has been sentenced to incarceration into custody is a binding order upon the sheriff’s office, and the sheriff’s office is generally shielded from liability when it   takes persons into custody pursuant to such orders.
10-074 The Honorable Albert C. Pollard, Jr.
Member, House of Delegates
The Department of Conservation and Recreation may regulate swimming in public parks, natural preserves, and other areas over which the Department exercises supervisory authority, but lacks the authority to regulate swimming in other waters.
10-071 Kevin J. Burke, Esquire
Fauquier County Attorney

The infrequent use of a "farm building or structure" to host a concert, dance or other social gathering does not constitute a change in occupancy classification and, therefore, does notrequire the owner to obtain an occupancy permit for the new uses.

10-038

The Honorable Calvin C. Massie, Jr.
Commissioner of the Revenue
Campbell County

Liability for payment of BPOL taxes always lies with the persons engaged in businesses, professions, or occupations upon which localities levy such taxes, and not with their customers. Additionally, absent an express statutory authorization such as that applying to motor vehicle dealers, no business may pass through to its customers by way of a surcharge the BPOL taxes attributable to the gross receipts generated by sales to those customers without the surcharge also being included in the gross receipts of the business and subjected to the BPOL tax.

10-067 The Honorable Robert G. Marshall
Member, House of Delegates
A local governmental entity is never categorically compelled to prohibit holiday displays, including those incorporating recognizably religious symbols, because governments enjoy considerable discretion in accommodating the religious expression of their citizens and employees and in their own recognition of traditional seasonal holidays. Moreover, displays depicting the birth of Jesus Christ are permissible provided the government ensures appropriate content and context.
10-012

The Honorable Robert G. Marshall
Member, House of Delegates

(Note:  An identical letter was issued to Senator Ralph K. Smith in response to a similar opinion request.)

The Commonwealth has the authority to promulgate regulations for facilities in which first trimester abortions are performed as well as for providers of first trimester abortions, so long as the regulations adhere to constitutional limitations.
10-012

The Honorable Ralph K. Smith
Member, Senate or Virginia

(Note: An identical letter was issued to Delegate Robert G. Marshall in response to a similar opinon request.)

The Commonwealth has the authority to promulgate regulations for facilities in which first trimester abortions are performed as well as for providers of first trimester abortions, so long as the regulations adhere to constitutional limitations.
10-039 The Honorable Frank M. Ruff, Jr.
Member Senate of Virginia
Firefighters who are employees of the Commonwealth are not covered under the Line of Duty Act, § 9.1-400 et seq., unless they are members of a fire company or department or rescue squad that has been recognized by an ordinance or a resolution of the governing body of a Virginia county, city, or town as an integral part of the official safety program of such county, city, or town.
10-057 The Honorable Francis X. O'Leary
Treasurer, Arlington County
Localities may use neither a bright line test, a totality of the circumstances review, nor a federal disability guideline to determine whether a taxpayer is "permanently and totally disabled." A locality, however, may employ a federal disability guideline in determining the maximum income level for tax relief eligibility, and considering such a guideline would not be irrational. Finally, the criteria used by a locality must be set forth in the text of an ordinance.
10-063 The Honorable Scott A. Surovell
Member, House of Delegates

Clerks of Court may install recording systems into a Circuit Court, General District Court, and/or Juvenile and Domestic Relations Court and require such systems to be on at all times court is in session, and Clerks may charge a fee for access to such recordings provided that confidentiality is maintained for all proceedings as required by the Code of Virginia or other orders of the Court.

10-072 The Honorable Barbara J. Comstock Member, House of Delegates

A county may require residents to give up their private trash collection service and join the service provided by the county provided that the statutory notice, hearing and waiting period requirements are met, or 55 percent of the affected property owners petition the governing body to take over the collection service. Also, a county may, but is not required to, allow residents to opt out of the public trash collection service and maintain a parallel private collection service.