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.

November

Opinion #	Requestor	Summary
02-069	The Honorable John M. O'Bannon, III Member, House of Delegates	Authority of Governor to suspend licensure requirements of health professionals, enforce quarantines, and control and allocate services and resources under federal and state emergency services programs in response to state of emergency. Requirement that Commonwealth provide just compensation for taking of private resources.

02-088	The Honorable Richard H. Black Member, House of Delegates The Honorable Thomas Davis Rust Member, House of Delegates	Church property, which is in process of being developed for its intended use and is being used for certain church-related activities, may be tax exempt. Determination depends on question of fact reserved for local commissioner of revenue or other appropriate taxing official.

02-089	The Honorable Vincent F. Callahan, Jr. Member, House of Delegates	Fairfax County School Board has no authority to add sexual orientation as category in its nondiscrimination policy, absent enabling legislation.

02-094	The Honorable William J. Howell Member, House of Delegates	Allowance of credit against individual and corporate income tax in amount equal to 50% of fair market value of land or interest in land donated for conservation purposes. Donor of land or interest in land may transfer tax credit to other taxpayers to make full use of credit. Meaning of ‘taxpayer' for purposes of Act.

02-099	The Honorable Harry B. Blevins Member, Senate of Virginia	Authority for Chesapeake School Board, based on population count, to increase annual salary of its members to maximum paid to city council members, and annual salary of its chairman to maximum paid to city mayor, upon passage of motion in 2003 approving specific salaries of $25,000 and $27,000, respectively. July 1, 2004, is earliest date that such salary increases may be effective.

02-105	The Honorable Harry B. Blevins Member, Senate of Virginia	Authority for Department of Corrections to employ prisoners to perform roofing work on buildings located on prison grounds; no requirement to procure such services under Acts competitive sealed bidding procedures.

02-118	Ms. Sharon E. Pandak County Attorney for Prince William County	Processing fee authorized by ordinance to be collected by clerk on convicted individuals admitted into county, city, or regional jails is reserved solely for use by local sheriff's office, even though county or city may participate in regional jail.

02-140	The Honorable Clarence E. Phillips Member, House of Delegates	Authority may pledge funds as collateral for line of credit or loan or grant funds to Dickenson County Industrial Development Authority for purchase of machinery and tools or real estate of medical facility, which qualifies as ‘authority facility' under Act, provided contemplated use of funds furthers public purpose of Authority; may not make pledge, loan or grant to IDA to fund operating expenses of medical facility.

October

Opinion #	Requestor	Summary
02-052	Mr. W. Leslie Kilduff, Jr., County Attorney for Northumberland Co.	Amendments to Chesapeake Bay Preservation Area Designation and Management Regulations, allowing encroachments into 100-buffer areas for agricultural and silvicultural activities conducted in accordance with best management practices related to improving water quality and protecting Chesapeake Bay and its tributaries, do not violate Equal Protection Clause of U.S. Constitution. Such practices.

02-076	The Honorable Michael P. McWeeny Judge, Nineteenth Judicial Circuit of Virginia	Circuit court clerk may not accept and hold equity interest in Virginia stock corporation operated by commissioner of accounts, subject to direction of court, when transfer is not part of case or controversy properly before court, without improperly assuming legislative function.

02-082	The Honorable Marsha L. Garst Commonwealth's Attorney for the City of Harrisonburg	Law-enforcement officer conducting lawful stop to investigate alleged criminal activity may not arrest for obstruction of justice suspect who refuses to identify himself to officer. Depending on circumstances, suspect may be detained for purpose of determining his identity.

02-085	The Honorable Charles L. Campbell Commissioner of the Revenue for Page County	Authority for local governing body to increase minimum acreage for land classified for open-space use for purpose of special land use taxation; no statutory authority for such increase for land classified for agricultural, horticultural or forest use.

02-091	The Honorable Molly Joseph Ward Treasurer for the City of Hampton Mr. A. Paul Burton City Attorney for the City of Hampton	Amended ordinance establishing Elizabeth Lake Estates Service District does not specify Elizabeth Lake Estates Civic Association as entity to develop plan for services to be rendered in service district, receive funds, or provide services; provides for tax levy to be set annually as part of budget process with other tax rates. Amended ordinance does not create long-term unconditional debt obligation, in violation of Constitution, and does not delegate legislative authority of city council.

02-102	The Honorable J. Dean Lewis Judge, Fifteenth District Juvenile and Domestic Relations Court	Statutory authorization for juvenile court to dispose of charges of unlawful possession of alcohol by juveniles.

September

Opinion #	Requestor	Summary
02-066	The Hon. Edward Semonian, Clerk Circuit Court of the City of Alexandria	Clerk may authorize minister or other clergy to perform marriages upon production before circuit court of proof of ordination or licensure, without personally appearing before clerk. Issuance of order authorizing minister or other clergy to perform marriages is discretionary; clerk may compel personal appearance as condition of such order.

02-074	The Honorable Richard H. Black Member, House of Delegates	Department of Conservation and Recreation has no authority to issue regulation prohibiting, within state parks, carrying of concealed handguns by valid permit holders.

02-055	The Honorable John R. Newhart Sheriff for the City of Chesapeake	Sheriff is appropriate official to determine reasonableness of levying distress warrant for delinquent taxes and holding public sale of property, proceeds from which will not satisfy secured interests or unpaid taxes. Meaning of ‘priority' as term relates to payment of sale proceeds toward satisfaction of delinquent taxes or secured interests. Secured party with lien on distressed property must receive notice of distress sale.

02-077	Mr. William G. O'Brien, Chairman, Board of Directors, Virginia Resources Authority	Inclusion of Virginia Resources Authority in Commerce and Trace Secretariat is for state government organizational purposes; does not alter independent nature of Authority to govern its affairs according to enabling statutes. Board of Directors has exclusive power over personnel policies of Authority, with exception of appointment of Executive Director.

August

Opinion #	Requestor	Summary
02-035	The Honorable Mitchell Van Yahres Member, House of Delegates	Transference of authority for teacher licensure from Board of Education to independent licensure board is inconsistent with constitutional mandate charging Board with general supervision of Commonwealth's school system.

02-047	The Honorable J. Dean Lewis Judge, Fifteenth District Juvenile and Domestic Relations Court	Juvenile court laws do not allow juvenile court judge to temporarily detain juvenile, pending disposition hearing, who was not detained prior to adjudication hearing at which he was determined delinquent.

02-062	The Honorable Terrie L. Suit Member, House of Delegates	2002 amendment providing that any residential cooperative association under Act shall not be considered business for state and local tax purposes and that tangible personal property of association shall be entitled to exemption from personal property tax on household goods is not declaratory of law existing prior to July 1, 2002, effective date of legislation, and is not retroactive in its application.

02-063	The Honorable William G. Barkley Judge, Albemarle General District Ct.	Special justice, appointed to preside over commitment proceedings involving persons alleged to mentally retarded or mentally ill and in need of hospitalization, may represent individuals in commitment hearings held within judicial circuit of such justice.

02-065	The Honorable Clarence E. Phillips Member, House of Delegates	E-911 personnel may access criminal justice information generated by VCIN/NCIC terminals per statutorily authorized agreement with local sheriff's office, subject to requirements of State Police. Absent specific statutory authorization, sheriff may not enter into agreement binding his successors in office.

02-081	Mr. Thomas J. McCarthy, Jr. County Attorney for Pulaski Co.	Locality may issue more than one vehicle license free of charge to former volunteer rescue squad and fire department members meeting statutory length-of-service requirements; may not issue more than one such license, or additional licenses at discounted rate, to active members.

02-084	The Honorable Fenton L. Bland, Jr. Member, House of Delegates	Hospital authority, organized as political subdivision, may sell its assets to for-profit corporation upon approval by circuit court of authority's dissolution.

02-057	The Honorable J. Curtis Fruit Clerk, Circuit Court of Virginia Beach	Recordation tax should be collected on deeds of trust where federal government is guarantor or beneficiary.

July

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.

June

Opinion #	Requestor	Summary
02-041	The Honorable John T. Frey Clerk of the Fairfax County Circuit Court	Clerk should assess recordation tax on Security Instrument drawn under Islamic law based on original acquisition balance as defined in instrument and assess separate fees for Assignment Agreement, since document effects two transactions of equal dignity.

02-050	The Honorable Harry J. Parrish Member, House of Delegates	Governor has power to direct State Board of Elections to reduce amounts it reimburses localities for salaries of electoral board members and general registrars in order to achieve legislatively mandated budget cuts.

02-053	The Honorable Clifton A. Woodrum Member, House of Delegates	Virginia Code § 63.1-248.3.A(12) imposes a duty on volunteer and professional Boy Scout leaders, who have reason to suspect that a child has been abused or neglected, to report the matter to the Department of Social Services.

02-061	The Honorable C.W. Jackson Sheriff for Westmoreland County	Northern Neck Regional Jail Board has no independent authority to pay bonuses to its employees. Instead, the Board has the authority to request the participating localities of regional jail to adopt ordinance providing for payment of bonuses to employees of Northern Neck Regional Jail.

May

Opinion #	Requestor	Summary
01-026	Mr. James E. Barnett County Attorney for York County	Constitutionality of local ordinance limiting time period within which political signs advocating particular candidate or political party may be displayed on private property, either before or after primary or general election, must be determined on case-by-case basis.

02-045	The Honorable John T. Frey Clerk of the Circuit Court of Fairfax County	Clerk of court should collect $10 assessment fee on every deed recorded on or after May 1, 2002, on which state recordation tax is levied. Deed of correction is not subject to $10 fee. Fee is collected only in jurisdiction where instrument is first recorded and is not collected for recordation of same deed for real estate that is located in more than one jurisdiction. Deeds of release and deeds of partition are not subject to state recordation tax or $10 assessment fee. Assessment by circuit court clerk of $10 fee for recordation of deed of easement, deed of dedication or deed of subdivision depends on clerk's current treatment of such deeds for state recordation tax purposes.

02-032	The Honorable Molly Joseph Ward Treasurer for the City of Hampton	Ordinance directing City of Hampton to turn over to Elizabeth Lake Estates Civic Association tax revenue collected in service district is unconstitutional. City's delegation of its legislative authority to Association is unconstitutional. Tax imposed by ordinance is unenforceable.

02-031	The Honorable Gordon F. Saunders Commonwealth's Attorney for Rockbridge County & the City of Lexington	Attorney General declines to render opinion regarding whether operation of Free Spin machines under described circumstances constitutes illegal gambling.

02-005	The Honorable Ward L. Armstrong Member, House of Delegates	Disclosure by spouse abuse shelter to law-enforcement officials of presence of resident under described circumstances.

02-044	The Honorable Christopher B. Saxman Member, House of Delegates	Department of Taxation has authority to promulgate guideline definition of term "contractor" that clarifies and explains which businesses are included in "contractor" classification for purpose of determining applicable maximum BPOL tax rate, provided language is not inconsistent with Commonwealth's license tax laws.

02-034	The Honorable Tom Bolvin Member, House of Delegates	The Workforce Investment Act precludes the General Assembly from directing the Governor to reallocate Unobligated WIA Funds to a community college located within the same geographic area from which the funds were obtained. Consistent with the historical practices of prior Attorneys General, the Attorney General is unable to comment on any actions colleges may take to seek reallocation of such funds.

02-040	The Honorable Joel C. Cunningham Judge, General District Court of Halifax County	Order of remittance does not serve as satisfaction of judgment in general district court; does act as satisfaction of judgment entered on previously forfeited bond under applicable statutes pertaining to judgments filed in circuit courts.

April

Opinion #	Requestor	Summary
01-108	The Honorable J. Dean Lewis Judge, Fifteenth District Juvenile and Domestic Relations Court	Decisions of Court of Appeals of Virginia in Commonwealth ex rel. May v. Walker and Mahoney v. Mahoney overrule decision in Avery v. Commonwealth, Department of Social Services, which allows bifurcated appeal in case of father found guilty of civil contempt for failure to pay court-ordered child support. Party in civil contempt proceeding initiated in juvenile court must post appeal bond within 30 days, in amount of support arrearage, in order to perfect appeal to circuit court for trial de novo.

02-029	The Honorable Kenneth R. Plum Member, House of Delegates	General Assembly would need to enact legislation authorizing Fairfax County to amend its human rights ordinance to prohibit discrimination based on sexual orientation.

00-011	The Honorable Thomas D. Horne Judge, Twentieth Judicial Circuit	Commissioner of accounts is not permitted access to criminal history records of delinquent fiduciaries through Virginia Criminal Information Network, unless such records are released pursuant to circuit court order or rule.

01-118	Mr. Michael M. Collins County Attorney for Alleghany County	Determination regarding whether locality may impose flat tax on itinerant merchants and peddlers without violating Commerce Clause depends on resolution of questions of fact that may establish genuine administrative burden experienced by locality. Attorney General traditionally has declined to render official opinions when request involves question of fact rather than one of law.

02-004	The Honorable Clifford R. Weckstein Judge, Twenty-Third Judicial Circuit	Court reporting services associated with criminal litigation proceedings are exempt from competitive process requirements of Public Procurement Act. Provision of such services lies within sound discretion of court

00-060	The Honorable Ronald S. Hallman City Attorney for the City of Chesapeake	Virginia locality may adopt proffer policy that considers adequate public facilities requirement before applications may be approved for rezoning

02-007	The Honorable Norman deV. Morrison Judge, Clarke County General District Court	Impoundment provisions are applicable to arrest for driving during suspension period, provided driver's suspension or revocation resulted from DUI conviction.

01-111	The Honorable Robert G. Marshall Member, House of Delegates	Act does not address question whether developer of retirement community, which controls homeowners' association of development, may establish budget for association that is not based on fact. Developer must provide to potential buyers disclosure statement reflecting financial status of association. Developer may retain control of association and bill homeowners for association expenses, provided developer retains ownership of majority of lots constituting development.

01-060	The Honorable Marilyn L. Wilson Clerk, Circuit Court of Amelia County	Notary public commissioned by State of Maryland is not authorized to notarize in Commonwealth documents for recordation in Virginia circuit court clerk's office.

02-012	The Honorable M. Kirkland Cox Member, House of Delegates	Colonial Heights police department is responsible for transporting arrestee to regional jail. Once at regional jail, jail superintendent is responsible for conveying prisoners to and from court. City council may adopt ordinance requiring sheriff to perform extra transport duties and may compensate sheriff accordingly. Prisoners awaiting further criminal proceedings at courthouse are within control of sheriff, who is responsible for returning them to jail superintendent for transport to regional jail at conclusion of day's hearings. If it is necessary for prisoner to remain for further court proceedings within same day, prisoner should be kept in courthouse holding cell until proceedings are concluded and then released to jail superintendent for transport to regional jail.

01-062	Colonel W. Gerald Massengill Superintendent, Department of State Police	Department of State Police is authorized to provide mental health information maintained in Central Criminal Records Exchange to Federal Bureau of Investigation for use in National Instant Criminal Background Check System Index.

02-019	The Honorable Kenneth R. Melvin Member, House of Delegates	Compensation received by standing trustee in Chapter 13 bankruptcy for performance of his administrative duties associated with such bankruptcy is subject to local business license taxation.

01-121	The Honorable Barbara O. Carraway Treasurer for the City of Chesapeake	Local elected constitutional officer is "unit of local government" falling within definition of "agency" under Act. Act's definition of "agency" includes local constitutional officer.

01-119	The Honorable William W. Davenport Commonwealth's Attorney for Chesterfield County	Requirement that law-enforcement agency enter into Virginia Criminal Information Network certain information contained on warrant or capias received by agency is directory in nature, and does not otherwise violate affected individual's constitutional rights.

01-068	The Honorable John R. Newhart Sheriff for the City of Chesapeake	Propriety of actions of sheriff's office with regard to storage of personal property removed from residential premises pursuant to unlawful detainer or ejectment.

02-026	The Honorable Judy L. Worthington Clerk of the Circuit Court of Chesterfield County	Automated case management systems maintained by clerk of circuit court, whether storage media is on or off premises, are records of clerk's office under custody of such clerk. Access to such system lies within sound discretion of clerk.

02-013	The Honorable Kathy J. Byron Member, House of Delegates	Water authority may include fee for connecting to water system constructed by authority as proportionate part of its construction costs. Statutory use of "shall" appears to be advisory or directory in nature, and permits authority to review periodically and adjust amount of connection fees, as necessary.

01-105	The Honorable Clarence E. Phillips Member, House of Delegates	Industrial development authorities may use design-build contracts for construction of "authority facilities" or "facilities," as defined in Industrial Development and Revenue Bond Act, without having to engage in competitive bidding and without having to involve Design-Build/Construction Management Review Board.

01-123	Mr. W. Forrest Matthews, Jr. Director, Virginia Retirement System	Appropriation Act provides no authorization for payment of administrative expenses incurred by Virginia Retirement System in oversight of deferred compensation plan; no statutory authorization for Retirement System to charge and recover administrative costs from Department of Accounts. Retirement System may not recover its administrative expenses from employees who participate in cash match plan, but may bill participating employers for expenses. No authority for Retirement System to charge and collect administrative fee from participants of optional retirement plan for political appointees or recover such costs from institutions of higher education. Attorney General is unable to comment regarding method and source by which Virginia Retirement System may recover costs incurred and associated with administration of VolSAP when Fund assets are insufficient, or on action Retirement System should take for optional retirement plan for school superintendents should General Assembly deny request for general fund appropriation.

01-128	The Honorable Terrie L. Suit Member, House of Delegates	Mortgage broker may not provide compensated services in same real estate sales transaction in which affiliated real estate broker is providing compensated services. Term "partner" encompasses limited partner in mortgage broker that is organized as limited partnership.

March

Opinion #	Requestor	Summary
01-077	The Honorable Carol W. Black Clerk, Circuit Court of Bedford County	Statutory requirement that social security or other control numbers appearing on marriage licenses not be disclosed applies retroactively to licenses filed on and after July 1, 1997. Attorney General declines to comment on practicability of devising method by which marriage licenses processed and imaged since 1997 may be changed to comply with statutory nondisclosure requirements.
01-085	Mr. Henry A. Thompson, Sr. County Attorney for Sussex County	Governance of biosolids activities within Commonwealth resides with Department of Health. Local ordinance requiring applicant to obtain conditional use permit before applying or storing biosolids in locality is preempted by comprehensive state program regulating biosolids use.
01-114	The Honorable Robert J. Deeds Sheriff for Williamsburg-James City County	Sheriff maintains custody of individual transported to medical facility for emergency medical evaluation and treatment until individual is delivered to temporary detention facility upon final execution of order.
01-096	Mr. William C. Shelton Director, Department of Housing and Community Development	Municipality has no authority to enforce Statewide Fire Prevention Code on state property if agreement has not been entered into with State Fire Marshall, or Director of Department of Housing and Community Development, for enforcement of Code. Localities have no authority to enforce Building Code against Commonwealth through their building inspectors.
01-125	The Honorable James L. Williams Treasurer for the City of Portsmouth	Statute of limitations for collection of all local taxes, including food and beverage taxes, begins to run on December 31 of year to which tax is attributable, i.e., year for which tax was assessed.
01-065	The Honorable John R. Newhart Sheriff for the City of Chesapeake	Sheriff is chief law-enforcement officer of office of sheriff for purposes of issuing concealed weapons permits to retired deputies.
02-024	The Honorable Ryan T. McDougle Member, House of Delegates	No constitutional prohibition against member of House of Delegates serving as temporary assistant Commonwealth's attorney.
02-006	The Honorable Thomas C. Wright, Jr. Member, House of Delegates	Cigarette manufacturer's sweepstakes promotion at retail establishment is prohibited.
01-115	The Honorable Geraldine M. Whiting Commissioner of the Revenue for Arlington County	Treasurer may not demand payment of business, professional and occupational license taxes that have not been assessed. Taxpayer is under no obligation to remit such tax payments until they are assessed and due. To extent confidential tax information maintained by commissioner of revenue needs to be obtained by treasurer or bank acting as depository, dissemination of otherwise confidential taxpayer information is allowable.
01-094	Mr. David W. Rowan Town Attorney for the Town of Onancock	Town may appropriate public funds to support local business and civic association's annual Regatta, but may not contribute in-kind services of town employees to assist in setting up Regatta and loan of town-owned equipment. No statute requires town to obtain and examine governing documents of organizations to which it makes contributions. Association is not "public body" under Act; documents of Association are not subject to Act's public records disclosure requirements. Attorney General declines to comment regarding obligation of town manager to take action in response to citizen complaint regarding alleged improper action by town council or mayor. Authority of town to make cash contribution to Central Accomack Little League.

February

Opinion #	Requestor	Summary
01-067	The Honorable William D. Heatwole Judge, General District Court for the Twenty-Fifth District	Advanced legal fees remain property of judgment debtor. Judgment creditor may garnish unearned advance fees paid by judgment debtor to attorney. Potential judgment creditor may attach such funds.

01-112	The Honorable Charles E. Poston Judge, Fourth Judicial Circuit	Substitute judge may be designated to serve as district judge only when chief district judge has determined that another full-time district judge or retired judge is not reasonably available. Substitute judge not so appointed should not be called upon by hospital seeking judicial consent for medical treatment of minor.

01-124	The Honorable Judy S. Crook Commissioner of the Revenue for Franklin County	Splitting off of smaller parcels from large tract does not make such tract ineligible for land use assessment and taxation. Question whether taxpayer made material misstatement of facts in revalidation application or that material change in facts has occurred is decision to be made by commissioner of revenue based on all relevant facts. Use of statutory procedures to correct erroneous assessments. No authority for local governing body to determine if property qualifies for special land use assessment and taxation in individual case.

02-002	The Honorable Robert G. Marshall Member, House of Delegates	Records' custodian has discretion to determine whether to release to minor's parent library records for purpose of identifying books checked out by minor that are overdue.

02-016	The Honorable Paula N. Wyatt Sheriff for the City of Hopewell	Local sheriff is not required to provide more than one deputy sheriff to general district court for courtroom security in absence of order stating that particular case presents substantial security risk.

01-098	The Honorable W.B. Keister Member, House of Delegates	City of Radford may amend its Code to provide for $200 fine for violating portion of ordinance concerning permit parking.

January

Opinion #	Requestor	Summary
00-044	Mr. William J. McGhee Town Attorney for the Town of Christiansburg	Act prohibits collection by agency of personal information that is secret; permits installation of surveillance cameras and audio monitoring equipment in and on premises of recreation center, provided notices advising of such surveillance are clearly visible.

02-001	The Honorable M. Kirkland Cox Member, House of Delegates	Proposed amendment requesting increase in appropriation for secure confinement does not constitute special legislation and favors no specific organization that provides enhanced faith-based services to inmates or is controlled by church or sectarian society.

02-003	Ms. Phyllis C. Katz County Attorney for New Kent Co.	Treasurer is not required to relinquish his office when involuntarily recalled to active military duty. No statute prevents treasurer from continuing to oversee and manage his office via use of Internet, or in person during evening hours and weekends when he is physically present in county. Treasurer may continue to receive compensation for performing duties of his office while involuntarily recalled to active duty.

00-082	Mr. B. James Jefferson County Attorney for Franklin Co.	Planning commission of Franklin County may not review for compliance with comprehensive plan existing locations of telecommunications towers in areas of county not subject to zoning. Such review may be undertaken only when application for telecommunications is made with county.

01-129	Mr. William H. Leighty, Director Virginia Retirement System	Time spent as local elected official does not constitute time spent employed by locality and is not time purchasable as prior service credit.

01-099	The Honorable M. Kirkland Cox Member, House of Delegates	Boat registered in Virginia county but normally garaged, docked, or parked in North Carolina has acquired taxable situs in both states. No statute requires county to refund or reduce payment of taxes on boat.

99-117	Mr. Larry W. Davis County Attorney for Albemarle Co.	Determination whether property of Christian Aid Mission may be classified as tax exempt rests within judgment of commissioner of revenue, after careful consideration of attendant facts. Unused and undeveloped parcels are subject to real estate taxation while they remain as such. Any portion of such land used by other entities may be exempt if activities of using entities are charitable, religious or educational. Rent paid by using entity considered source of revenue or profit to Mission is taxable.

01-086	The Honorable K. Mike Fleenor Jr. Commonwealth's Attorney for Pulaski Co.	Pharmacist, prior to filling prescription, may obtain fingerprint from customer as proof of identification, provided pharmacist returns or destroys print within 21 days of transaction's completion or termination; may provide to law-enforcement officials fingerprint of any customer suspected of prescription fraud.

Jason S. Miyares Attorney General of Virginia