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Official Opinions

 

July 2013 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.  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.

 

Opinion #

Requestor

Summary

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

11-136

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

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

12-044

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

Jack G. Travelstead, Commissioner
Virginia Marine Resources Commission

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

11-110

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

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

12-063

The Honorable Christopher K. Peace
Member, House of Delegates

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

12-076

The Honorable Michael F.A. Morehart
State Inspector General

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

12-089

The Honorable R. Steven Landes
Member, House of Delegates

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

13-042

The Honorable Michael W. Taylor
Sheriff, Pittsylvania County

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

13-058

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

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

13-036

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

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

12-100

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

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

12-105

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

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

12-084

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

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

12-065

The Honorable William O. Watson
Sheriff, City of Portsmouth

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

12-014

The Honorable Scott A. Surovell
Member, House of Delegates

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

11-093

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

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