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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.

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.