§§ 59.1-1 through 59.1-9.

Repealed by Acts 1976, c. 10.

§ 59.1-9.1. Short title.

This chapter may be known and cited as the "Virginia Antitrust Act."

(1974, c. 545.)

Law review. - For note, "Minimum Fee Schedules - The Battle and the War: Goldfarb at the Fourth Circuit," see 60 Va. L. Rev. 1415 (1974).

For article on injuries to business under the Virginia Conspiracy Act, see 38 Wash. & Lee L. Rev. 377 (1981).

For article, "Provider-Sponsored Alternative Health Care Delivery Systems: Reducing Antitrust Liability After Maricopa," see 19 U. Rich. L. Rev. 207 (1985).

For article addressing legislative developments and enforcement activities, and antitrust decisions of the United States Supreme Court, the Fourth Circuit Court of Appeals, and state and federal courts of Virginia from 1991 to 1992, see "Antitrust and Trade Regulation," 26 U. Rich. L. Rev. 591 (1992).

For article, "Bank Mergers and the Antitrust Laws: The Case for Dual State and Federal Enforcement," see 36 Wm. & Mary L. Rev. 95 (1994).

For an article, "Antitrust and Trade Regulation Law," see 32 U. Rich. L. Rev. 973 (1998).

For an article, "Preserving Competition: Economic Analysis, Legal Standards, and Microsoft," see 8 Geo. Mason L. Rev. 1 (1999).

For a symposium, "Convergence: The Future of Technology & Competition Policy," see 8 Geo. Mason L. Rev. 619 (2000).

For an article, "The Impact of Convergence and the Gramm-Leach-Bliley Act on the Insurance Industry," see 8 Geo. Mason L. Rev. 623 (2000).

For an article, "The Cable Open Access Debate: The Case for a Wholesale Market," see 8 Geo. Mason L. Rev. 653 (2000).

For an article, "Technology and Bank Competition Policy," see 8 Geo. Mason L. Rev. 721 (2000).

For an article, "Harmonizing Regulation By Promoting Facilities-Based Competition," see 8 Geo. Mason L. Rev. 729 (2000).

For a comment, "Cable Open Access: The FCC Should Establish a National Policy of Staying Out of the Way of Broadband Competition," see 8 Geo. Mason L. Rev. 749 (2000).

For an article, "Non-regulation of Advanced Internet Services," see 8 Geo. Mason L. Rev. 681 (2000).

For 2000 survey of Virginia antitrust and trade regulation law, see 34 U. Rich. L. Rev. 647 (2000).

For article, "Antitrust and Trade Regulation," see 35 U. Rich. L. Rev. 453 (2001).

For essay, "Non-Competition Agreements in Virginia in the Aftermath of Home Paramount Pest Control v. Shaffer ," see 47 U. Rich. L. Rev. 457 (2012).

Michie's Jurisprudence. - For related discussion, see 13A M.J. Monopolies and Restraints of Trade, §§ 1, 8, 10.

Applied in Anglin v. Blue Shield, 510 F. Supp. 75 (W.D. Va. 1981); Sun Publishing Co. v. Mecklenburg News, Inc., 594 F. Supp. 1512 (E.D. Va. 1984); Oksanen v. Page Mem. Hosp., 945 F.2d 696 (4th Cir. 1991).

§ 59.1-9.2. Purpose of chapter.

The purpose of this chapter is to promote the free market system in the economy of this Commonwealth by prohibiting restraints of trade and monopolistic practices that act or tend to act to decrease competition. This chapter shall be construed in accordance with the legislative purpose to implement fully the Commonwealth's police power to regulate commerce.

(1974, c. 545.)

§ 59.1-9.3. Definitions.

When used in this chapter:

1. The term "person" includes, unless the context otherwise requires, any natural person, any trust or association of persons, formal or otherwise, or any corporation, partnership, company, or other legal or commercial entity.
2. The terms "trade or commerce," "trade," and "commerce," include all economic activity involving or relating to any commodity, service or business activity.
3. The term "commodity" includes any kind of real or personal property.
4. The term "service" includes any activity that is performed in whole or in part for the purpose of financial gain, including but not limited to personal service, rental, leasing or licensing for use.

   (1974, c. 545.)

§ 59.1-9.4. Certain activities not prohibited.

1. No provision of this chapter shall be construed to make illegal:
   1. The activities of any labor or professional organization or of individual members thereof that are directed solely to labor or professional objectives legitimate under the laws of the Commonwealth or the United States.
   2. The activities of any agricultural or horticultural cooperative organization, or of individual members thereof, to the extent necessary to achieve the aims of the enacted laws of either the Commonwealth or the United States.
   3. The bona fide religious and charitable activities of any nonprofit corporation, trust or organization established exclusively for religious or charitable purposes.
2. Nothing contained in this chapter shall make unlawful conduct that is authorized, regulated or approved (i) by a statute of the Commonwealth or (ii) by an administrative or constitutionally established agency of the Commonwealth or of the United States having jurisdiction of the subject matter and having authority to consider the anticompetitive effect, if any, of such conduct. Nothing in this subsection shall be construed to alter or terminate any other applicable limitation, exemption or exclusion.

   (1974, c. 545; 1979, c. 640; 2018, c. 574.)

The 2018 amendments. - The 2018 amendment by c. 574 redesignated subsections, subdivisions and clauses throughout; deleted former subdivision (a)(4), which read: "The activities of any nonprofit hospital, or of any officer, director or employee thereof, that are directed to a reduction in services or an improvement in the quality of services to the extent that any such reduction or improvement will reduce, stabilize or limit cost increases"; and made minor stylistic changes.

Law review. - For note, "Minimum Fee Schedules - The Battle and the War: Goldfarb at the Fourth Circuit," see 60 Va. L. Rev. 1415 (1974). For survey of developments in Virginia administrative law for the year 1973-1974, see 60 Va. L. Rev. 1446 (1974). For article discussing due-on-sale clauses in home-purchasing contracts, see 16 U. Rich. L. Rev. 35 (1982). For article on immunity of local governments and their officials from the federal antitrust laws, see 16 U. Rich. L. Rev. 705 (1982).

CIRCUIT COURT OPINIONS

State action doctrine inapplicable. - City's demurrer to a county water authority's complaint alleging monopolization and attempted monopolization in violation of the Virginia Antitrust Act was overruled because the state action doctrine did not immunize the city from liability under the Act; nothing in the statutory provisions the parties cited authorized the city to engage in anti-competitive behavior in the provision of municipal utility services in a neighboring municipality, without first obtaining the consent of the neighboring municipality. Fairfax County Water Auth. v. City of Falls Church, 78 Va. Cir. 177, 2009 Va. Cir. LEXIS 17 (Fairfax County 2009).

§ 59.1-9.5. Contracts, etc., in restraint of trade unlawful.

Every contract, combination or conspiracy in restraint of trade or commerce of this Commonwealth is unlawful.

(1974, c. 545.)

Law review. - For survey of developments in Virginia administrative law for the year 1973-1974, see 60 Va. L. Rev. 1446 (1974).

§ 59.1-9.6. Monopolies unlawful.

Every conspiracy, combination, or attempt to monopolize, or monopolization of, trade or commerce of this Commonwealth is unlawful.

(1974, c. 545.)

Law review. - For survey of developments in Virginia administrative law for the year 1973-1974, see 60 Va. L. Rev. 1446 (1974).

§ 59.1-9.7. Discriminatory practices unlawful; proof; payment or acceptance of certain commissions, etc., unlawful.

1. It is unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities or services of like grade and quality, where either or any of the purchasers involved in such commerce are in competition, where such commodities or services are sold for use, consumption or resale within the Commonwealth and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them; provided, that nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale or delivery resulting from the different methods or quantities in which such commodities or services are to such purchasers sold or delivered; and provided further, that nothing herein contained shall prevent persons engaged in selling commodities or services in commerce from selecting their own customers in bona fide transactions and not in restraint of trade; and provided further, that nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as, but not limited to, actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.
2. Upon proof being made, at any suit on a complaint under this section, that there has been discrimination in price or services or facilities furnished or in payment for services or facilities to be rendered, the burden of rebutting the prima facie case thus made by showing justification shall be upon the person charged with a violation of this section; provided, however, that nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.
3. It is unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for and not exceeding the actual cost of such services rendered in connection with the sale or purchase of goods, wares or merchandise.
4. It is unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale or offering for sale of any products, commodities or services manufactured, sold or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products, commodities or services.
5. It is unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.
6. It is unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price that is prohibited by this section.

   (1974, c. 545.)

Michie's Jurisprudence. - For related discussion, see 3A M.J. Bribery, § 3.

§ 59.1-9.8. Forum; restraining orders and injunctions; penalties.

Actions and proceedings for violations of this chapter shall be brought in the circuit courts of this Commonwealth. Those courts may issue temporary restraining orders and injunctions to prevent and restrain violations of this chapter, and may award the damages and impose the civil penalties provided herein. They may also grant mandatory injunctions reasonably necessary to eliminate violations of this chapter.

(1974, c. 545.)

Michie's Jurisprudence. - For related discussion, see 10A M.J. Injunctions, § 88.

§ 59.1-9.9. Venue.

The venue for all actions and proceedings for violations of this chapter shall be as specified below in this section.

The circuit court of the county or city wherein any defendant: (i) resides; or (ii) regularly or systematically conducts affairs or business activity; or (iii) has property that may be affected by the action or proceeding. Provided, however, that if said defendant does not, as specified in (i), (ii) and (iii) above, reside in, conduct affairs or business activity in, or have such property in the Commonwealth, then the action or proceeding may be brought in the circuit court of the county or city in which the registered office of said defendant is located or wherein the alleged violation occurred.

(1974, c. 545; 1975, c. 289.)

Law review. - For survey of Virginia law on practice and pleading for the year 1974-1975, see 61 Va. L. Rev. 1799 (1975).

§ 59.1-9.10. Investigation by Attorney General of suspected violations; civil investigative demand to witnesses; access to business records, etc.

1. Whenever it shall appear to the Attorney General, either upon complaint or otherwise, that any person has engaged in, or is engaging in, or is about to engage in any act or practice prohibited by this chapter, the Attorney General may in his discretion either require or permit such person to file with him a statement in writing or otherwise, under oath, as to all facts and circumstances concerning the subject matter. The Attorney General may also require such other data and information as he may deem relevant to the subject matter of an investigation of a possible violation of this chapter and may make such special and independent investigations as he may deem necessary in connection with such matter.
2. In connection with any such investigation, the Attorney General, or his designee, is empowered to issue a civil investigative demand to witnesses by which he may (i) compel the attendance of such witnesses; (ii) examine such witnesses under oath before himself or a court of record; (iii) subject to subsection C, require the production of any books or papers that he deems relevant or material to the inquiry; and (iv) issue written interrogatories to be answered by the witness served or, if the witness served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the witness. The above investigative powers shall not abate or terminate by reason of any action or proceeding brought by the Attorney General under this chapter. When documentary material is demanded by a civil investigative demand, said demand shall not: (1) contain any requirement that would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this Commonwealth; or (2) require the disclosure of any documentary material that would be privileged, or production of which for any other reason would not be required by a subpoena duces tecum issued by a court of the Commonwealth.
3. Where the information requested pursuant to a civil investigative demand may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based therein, and the burden of deriving or ascertaining the answer is substantially the same for the Attorney General as for the party from whom such information is requested, it is sufficient for that party to specify the records from which the answer may be derived or ascertained and to afford the Attorney General, or other individuals properly designated by the Attorney General, reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. Further, the Attorney General is hereby authorized, and may so elect, to require the production pursuant to this section, of documentary material before or after the taking of any testimony of the person summoned pursuant to a civil investigative demand, in which event, said documentary matter shall be made available for inspection and copying during normal business hours at the principal place of business of the person served, or at such other time and place, as may be agreed upon by the person served and the Attorney General.
4. Any civil investigative demand issued by the Attorney General shall contain the following information:
   1. The statute and section hereof, the alleged violation of which is under investigation and the subject matter of the investigation.
   2. The date and place at which time the person is required to appear to produce documentary material in his possession, custody or control in the office of the Attorney General located in Richmond, Virginia. Such date shall not be less than twenty days from the date of the civil investigative demand.
   3. Where documentary material is required to be produced, the same shall be described by class so as to clearly indicate the material demanded.
5. Service of civil investigative demand of the Attorney General as provided herein may be made by:
   1. Delivery of a duly executed copy thereof to the person served, or if a person is not a natural person, to the principal place of business of the person to be served, or
   2. Mailing by certified mail, return receipt requested, a duly executed copy thereof addressed to the person to be served at his principal place of business in the Commonwealth, or if said person has no place of business in the Commonwealth, to his principal office.
6. Within twenty days after the service of any such demand upon any person or enterprise, or at any time before the return date specified in the demand, whichever period is shorter, such party may file, in the Circuit Court of the City of Richmond and serve upon the Attorney General a petition for an order of such court modifying or setting aside such demand. The time allowed for compliance with the demand in whole or in part as deemed proper and ordered by the court shall not run during the pendency of such petition in the court. Such petition shall specify each ground upon which the petitioner relies in seeking such relief, and may be based upon any failure of such demand to comply with the provisions of this chapter or upon any constitutional or other legal right or privilege of such party. The provisions of this subsection shall be the exclusive means for a witness summoned pursuant to a civil investigative demand under this section to challenge a civil investigative demand issued pursuant to subsection B.
7. The examination of all witnesses under this section shall be conducted by the Attorney General, or his designee, before an officer authorized to administer oaths in this Commonwealth. The testimony shall be taken stenographically or by a sound recording device and shall be transcribed.
8. Any person required to testify or to submit documentary evidence shall be entitled, on payment of lawfully prescribed cost, to procure a copy of any document produced by such person and of his own testimony as stenographically reported or, in the case of depositions, as reduced to writing by or under the direction of a person taking the deposition. Any party compelled to testify or to produce documentary evidence may be accompanied and advised by counsel, but counsel may not, as a matter of right, otherwise participate in the investigation.
9. All persons served with a civil investigative demand by the Attorney General under this chapter, other than any person or persons whose conduct or practices are being investigated or any officer, director or person in the employ of such person under investigation, shall be paid the same fees and mileage as paid witnesses in the courts of this Commonwealth. No person shall be excused from attending such inquiry pursuant to the mandate of a civil investigative demand, or from producing a paper or from being examined or required to answer questions on the ground of failure to tender or pay a witness fee or mileage unless demand therefor is made at the time testimony is about to be taken and as a condition precedent to offering such production or testimony and unless payment thereof is not thereupon made.
10. Any natural person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry or to produce documentary evidence, if in his power to do so, in obedience of a civil investigative demand or lawful request of the Attorney General or those properly authorized by the Attorney General, pursuant to this section, shall be guilty of a misdemeanor and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not more than $5,000, or by imprisonment in jail for not more than one year, or both such fine and imprisonment.

    Any natural person who commits perjury or false swearing or contempt in answering, or failing to answer, or in producing evidence or failing to do so in accordance with a civil investigative demand or lawful request by the Attorney General, pursuant to this section, shall be guilty of a misdemeanor and upon conviction therefor by a court of competent jurisdiction shall be punished by a fine of not more than $5,000, or by imprisonment in jail for not more than one year, or both such fine and imprisonment.

11. In any investigation brought by the Attorney General pursuant to this chapter, no individual shall be excused from attending, testifying or producing documentary material, objects or intangible things in obedience to a civil investigative demand or under order of the court on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to any penalty, but no testimony or other information compelled either by the Attorney General or under order of the court, or any information directly or indirectly derived from such testimony or other information, may be used against the individual or witness in any criminal case. However, he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing evidence or failing to do so in accordance with the order of the Attorney General or the court. If an individual refuses to testify or produce evidence after being granted immunity from prosecution and after being ordered to testify or produce evidence as aforesaid, he may be adjudged in civil contempt by a court of competent jurisdiction and committed to the county jail until such time as he purges himself of contempt by testifying, producing evidence or presenting a written statement as ordered. The foregoing shall not prevent the Attorney General from instituting other appropriate contempt proceedings against any person who violates any of the above provisions.
12. It shall be the duty of all public officials, both state and local, their deputies, assistants, clerks, subordinates or employees, and all other persons to render and furnish to the Attorney General, his deputy or other designated representative, when so requested, all information and assistance in their possession or within their power. Any officer participating in such inquiry and any person examined as a witness upon such inquiry who shall disclose to any such person other than the Attorney General the name of any witness examined or any other information obtained upon such inquiry, except as so directed by the Attorney General, shall be guilty of a misdemeanor and subject to the sanctions prescribed in subsection J. Such inquiry may upon written authorization of the Attorney General be made public.
13. The Attorney General may promulgate rules and regulations to implement and carry out the provisions of this section.
14. It shall be the duty of the Attorney General, or his designees, to maintain the secrecy of all evidence, testimony, documents or other results of such investigations. Violation of this subsection shall be a misdemeanor. Nothing herein contained shall be construed to prevent (i) the disclosure of any such investigative evidence by the Attorney General in his discretion to any federal or state law-enforcement authority that has restrictions governing confidentiality similar to those contained in this subsection or (ii) the presentation and disclosure of any such investigative evidence by the Attorney General, in his discretion, in any action or proceeding brought by the Attorney General under this chapter.

    (1974, c. 545; 1982, c. 285; 2000, c. 755.)

Cross references. - As to civil investigative demands in cases involving assertions of patent infringement, see § 59.1-215.3 .

The 2000 amendments. - The 2000 amendment by c. 755 redesignated former subsections a through n as present subsections A through N, and former subdivisions (d) (1) through (d) (3) as present subdivisions D 1 through D 3, and redesignated former subdivisions (e) (1) and (e) (2) as present subdivisions E 1 and E 2, in subsection B, substituted "C" for "(c) of this section" in the first sentence, and made minor stylistic changes in subsection B and subdivision E 2, at the end of subsection F, substituted "B" for "(b)," in subsection L, substituted "J" for "(j)," and in subsection N, added the language beginning "or (ii) the presentation" and ending "under this chapter."

Law review. - For survey of developments in Virginia administrative law for the year 1973-1974, see 60 Va. L. Rev. 1446 (1974).

CIRCUIT COURT OPINIONS

Construction. - Attorney General has a statutorily imposed duty under subsection N of § 59.1-9.10 to maintain the secrecy of all evidence obtained, but the statute also clearly gives the Attorney General discretion to share any such information with any federal or state law-enforcement authority that has restrictions governing confidentiality similar to those contained in this subsection. Commonwealth v. Nexus Servs., 102 Va. Cir. 458, 2018 Va. Cir. LEXIS 2473 (Richmond Aug. 7, 2018).

Subsection N permits the Attorney General to forward the collected information in his discretion, the court has no authority to override or limit that statute, and the law clearly provided the Attorney General the right to seek the information sought in the civil investigative demand in this case; the Attorney General needed the information to conduct its investigation and names and contact information of individuals who dealt with the business and/or are connected to the bond holders, was pertinent. Commonwealth v. Nexus Servs., 102 Va. Cir. 458, 2018 Va. Cir. LEXIS 2473 (Richmond Aug. 7, 2018).

§ 59.1-9.11. Penalty for flagrant violations.

In any action or proceeding brought under § 59.1-9.15 (a) the court may assess for the benefit of the Commonwealth a civil penalty of not more than $100,000 for each willful or flagrant violation of this chapter. No civil penalty shall be imposed in connection with any violation for which any fine or penalty is imposed pursuant to federal law.

(1974, c. 545.)

Law review. - For survey of developments in Virginia administrative law for the year 1973-1974, see 60 Va. L. Rev. 1446 (1974).

§ 59.1-9.12. Personal suit for injunction or actual damages.

1. Any person threatened with injury or damage to his business or property by reason of a violation of this chapter may institute an action or proceeding for injunctive relief when and under the same conditions and principles as injunctive relief is granted in other cases.
2. Any person injured in his business or property by reason of a violation of this chapter may recover the actual damages sustained, and, as determined by the court, the costs of suit and reasonable attorney's fees. If the trier of facts finds that the violation is willful or flagrant, it may increase damages to an amount not in excess of three times the actual damages sustained.

   (1974, c. 545.)

Law review. - For survey of developments in Virginia administrative law for the year 1973-1974, see 60 Va. L. Rev. 1446 (1974). For article on injuries to business under the Virginia Conspiracy Act, see 38 Wash. & Lee L. Rev. 377 (1981). For survey of antitrust law in Virginia for 1989, see 23 U. Rich. L. Rev. 455 (1989).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 33 Writs and Injunctions. § 33.02 Injunctions. Friend.

Michie's Jurisprudence. - For related discussion, see 5A M.J. Costs, § 3; 13A M.J. Monopolies and Restraints of Trade, § 14.

Applied in Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332 (E.D. Va. 1987).

§ 59.1-9.13. Effect of conviction in other proceedings.

A final judgment or decree to the effect that a defendant has violated this chapter, other than a consent judgment or decree entered before any testimony has been taken, in an action or proceeding brought under § 59.1-9.15 (a) is prima facie evidence against that defendant in any other action or proceeding against him brought under § 59.1-9.12 or § 59.1-9.15 (b) as to all matters with respect to which the judgment or decree would be an estoppel between the parties thereto.

(1974, c. 545.)

§ 59.1-9.14. Limitation of actions.

1. An action under § 59.1-9.15 (a) to recover a civil penalty is barred if it is not commenced within four years after the cause of action accrues.
2. An action under § 59.1-9.12 (b) or § 59.1-9.15 (b) to recover damages is barred if it is not commenced within four years after the cause of action accrues, or within one year after the conclusion of any action or proceeding under § 59.1-9.15 (a) commenced within or before that time based in whole or in part on any matter complained of in the action for damages, whichever is later. (1974, c. 545.)

Applied in Net Realty Holding Trust v. Franconia Properties, Inc., 544 F. Supp. 759 (E.D. Va. 1982).

§ 59.1-9.15. Actions on behalf of Commonwealth or localities; injunctive relief; damages.

1. The Attorney General on behalf of the Commonwealth, or the attorney for the Commonwealth or county attorney on behalf of a county, or the city attorney on behalf of a city, or the town attorney on behalf of a town may institute actions and proceedings for injunctive relief and civil penalties for violations of this chapter. In any such action or proceeding in which the plaintiff substantially prevails, the court may award the cost of suit, including a reasonable attorney's fee, to such plaintiff.
2. The Commonwealth, a political subdivision thereof, or any public agency injured in its business or property by reason of a violation of this chapter, may recover the actual damages sustained, reasonable attorney's fees and the costs of suit. If the trier of facts finds that the violation is willful or flagrant, it may increase damages to an amount not in excess of three times the actual damages sustained.
3. The Attorney General in acting under subsection (a) or (b) of this section may also bring such action on behalf of any political subdivision of the Commonwealth, provided that the Attorney General shall notify each such subdivision of the pendency of the action and give such subdivision the option of exclusion from the action.
4. The Attorney General may bring a civil action to recover damages and secure other relief as provided by this chapter as parens patriae respecting injury to the general economy of the Commonwealth.

   (1974, c. 545; 1982, c. 60; 1988, c. 589.)

Law review. - For survey of developments in Virginia administrative law for the year 1973-1974, see 60 Va. L. Rev. 1446 (1974).

For article, "Federalism and the Indirect Purchaser Mess," see 11 Geo. Mason L. Rev. 157 (2002).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 5 Parties. § 5.02 Competency. Bryson.

Michie's Jurisprudence. - For related discussion, see 5A M.J. Costs, § 3.

§ 59.1-9.16. Remedies cumulative.

The remedies in this chapter are cumulative.

(1974, c. 545.)

§ 59.1-9.17. Construction of chapter.

This chapter shall be applied and construed to effectuate its general purposes in harmony with judicial interpretation of comparable federal statutory provisions.

(1974, c. 545.)

Law review. - For article, "Bank Mergers and the Antitrust Laws: The Case for Dual State and Federal Enforcement," see 36 Wm. & Mary L. Rev. 95 (1994).

For an article, "Preserving Competition: Economic Analysis, Legal Standards, and Microsoft," see 8 Geo. Mason L. Rev. 1 (1999).

Applied in Net Realty Holding Trust v. Franconia Properties, Inc., 544 F. Supp. 759 (E.D. Va. 1982); Satellite Television & Associated Resources v. Continental Cablevision of Va., Inc., 714 F.2d 351 (4th Cir. 1983); Stephen Jay Photography, Ltd. v. Olan Mills, Inc., 903 F.2d 988 (4th Cir. 1990); Levine v. McLeskey, 881 F. Supp. 1030 (E.D. Va. 1995).

§ 59.1-9.18.

Repealed by Acts 2015, c. 709, cl. 2.

Editor's note. - Former § 59.1-9.18 , pertaining to severability, derived from 1974, c. 545.

§§ 59.1-10 through 59.1-21.

Repealed by Acts 1984, c. 582.

§ 59.1-21.1. Citation of chapter.

This chapter shall be known, and may be cited, as the "Virginia Home Solicitation Sales Act."

(1970, c. 668.)

Law review. - For survey of recent legislation on commerce - home solicitation sales, see 5 U. Rich. L. Rev. 187 (1970). For survey of Virginia commercial law for the year 1969-1970, see 56 Va. L. Rev. 1387 (1970). For article, "Uniform Consumer Credit Code - A Prospect for Consumer Credit Reform in Virginia," see 28 Wash. & Lee L. Rev. 75 (1971). For survey of Virginia commercial law for the year 1971-1972, see 58 Va. L. Rev. 1183 (1972). For survey of Virginia commercial law for the year 1972-1973, see 59 Va. L. Rev. 1426 (1973). For survey of Virginia commercial law for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, §§ 2, 95.

§ 59.1-21.2. Definitions.

1. "Home solicitation sale" means:
   1. A consumer sale or lease of goods or services in which the seller or a person acting for him engages (i) in a personal solicitation of the sale or lease or (ii) in a solicitation of the sale or lease by telephonic or other electronic means at any residence other than that of the seller; and
   2. The buyer's agreement or offer to purchase or lease is there given to the seller or a person acting for him.
2. 1. "Home solicitation sale" shall not mean a consumer sale or lease of farm equipment. B. 1.  "Home solicitation sale" shall not mean a consumer sale or lease of farm equipment.
   2. It does not include cash sales of less than twenty-five dollars, a sale or lease made pursuant to a preexisting revolving charge account, or a sale or lease made pursuant to prior negotiations between the parties.
3. As used in this chapter, "goods" means tangible personal property and also includes a merchandise certificate whereby a writing is issued by the seller which is not redeemable in cash and is usable in lieu of cash in exchange for goods or services; "seller" means seller or lessor and "buyer" means buyer or lessee.

   (1970, c. 668; 1972, c. 448; 1975, c. 217; 1986, c. 577.)

Law review. - For survey of Virginia commercial law for the year 1971-1972, see 58 Va. L. Rev. 1183 (1972). For survey of Virginia commercial law for the year 1974-1975, see 61 Va. L. Rev. 1668 (1975).

CIRCUIT COURT OPINIONS

"Home Solicitation Sale." - Defendant's demurrer was sustained because plaintiff did not state sufficient facts to support a violation of the Virginia Home Solicitation Sales Act because she failed to sufficiently allege a home solicitation sale as defendant came to plaintiff's residence at her request to conduct home repair services; and her complaint failed to allege that she agreed to purchase services from defendant when its representative first visited her at her home because the contract for specific services was typed, indicating that it likely was not completed at the time of the initial visit, and the contract was dated almost two months before plaintiff's dated signature, further proof that she probably did not execute the agreement during the home visit. Theuer v. Norfolk Air Heating & Cooling, Inc.,, 2020 Va. Cir. LEXIS 190 (Norfolk Oct. 7, 2020).

§ 59.1-21.3. Cancellation of sale.

1. Except as provided in subsection (5), in addition to any right otherwise to revoke an offer, the buyer has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase which complies with § 59.1-21.4 .
2. Cancellation occurs when the buyer gives written notice of cancellation to the seller at the address stated in the agreement or offer to purchase.
3. Notice of cancellation, if given by mail, is given when it is deposited in a mailbox properly addressed and postage prepaid.
4. Notice of cancellation given by the buyer need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale.
5. The buyer may not cancel a home solicitation sale if the buyer requests the seller to provide goods or services without delay because of an emergency, and
   1. The seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notice of cancellation, and
   2. In the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer, and
   3. The buyer's emergency request is in a dated writing personally signed by the buyer and which expressly states that the buyer understands that he is waiving his right to cancel the sale under the provisions of this act.
6. Except as provided in subsection (5), any waiver or modification of a buyer's right to cancel is void and of no effect. In the event the seller obtains from the buyer a waiver or modification of his right to cancel, the buyer's right to cancel shall commence on the first business day following his learning that the waiver or modification is void and of no effect.

   (1970, c. 668; 1972, c. 448.)

Law review. - For survey of Virginia commercial law for the year 1971-1972, see 58 Va. L. Rev. 1183 (1972).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 7.

§ 59.1-21.4. Receipt or written agreement.

1. In a home solicitation sale, unless the buyer requests the seller to provide goods or services without delay in an emergency, the seller must present to the buyer a fully completed receipt if it is a cash or credit card sale or obtain the buyer's signature to a written agreement or offer to purchase, in the case of a credit sale, which designates as the date of the transaction the date on which the buyer actually makes payment in whole or in part or signs, and which contains a statement of the buyer's rights and a notice of cancellation which comply with subsection (2). The seller shall also furnish the buyer with a copy of any contract pertaining to a home solicitation sale at the time of its execution.
2. The statement shall
   1. Appear on the front side of the receipt or contract, or immediately above the buyer's signature, in bold face type of a minimum size of ten points under the conspicuous caption: "BUYER'S RIGHT TO CANCEL," and
   2. Read as either of the following:
      1. "If this agreement was solicited at a residence and you do not want the goods or services, you, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right.
      2. In the form and content of any similar notice requirement for home solicitation sales under federal law; provided that such requirement contains at least the information required in (i) of this subsection and, further provided, that nothing in such notice is in conflict with the provisions of this chapter. Any statement or notice form presented to a buyer prior to the effective date of an amendment to this section shall be deemed sufficient if it satisfied the requirements of this section in effect at the time the statement or notice was presented.
3. Except as otherwise provided in this section until the seller has complied with this section the buyer may cancel the home solicitation sale by notifying the seller in any manner and by any means of his intention to cancel.
4. A home solicitation sale shall be deemed to be in compliance with notice requirements of this section if (a) the buyer may at any time (i) cancel the order, or (ii) refuse to accept delivery of the goods without any obligation to pay for them, or (iii) return the goods to the seller and receive a full refund for any amount the buyer has paid; and (b) the buyer's right to cancel the order, refuse delivery or return the goods, together with the name and address of either the selling company or the salesperson, is clearly and conspicuously set forth on the face or reverse side of the sales receipt or contract in a size larger than that used in the body of the receipt or contract.
5. Any statement or notice form satisfying the requirements of this section as in effect prior to July 1, 1975, may be used until January 1, 1977.

   (1970, c. 668; 1972, c. 448; 1973, c. 147; 1975, c. 217.)

Notice of Cancellation

...................................................................... (Date of Transaction) To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram to . . . . . . . . . . . . . . . . . . . . . . . . . . . ., at .................... (name of seller) (address of seller's place of business) not later than midnight of . . . . . . . . . . . . . . . . . . . . . . . . . . ..

(Date)

I hereby cancel this transaction .................... (Date) .................... "; or (Buyer's signature)

§ 59.1-21.5. Tender of payments to buyer.

1. Except as provided in this section, within ten days after a home solicitation sale has been canceled or an offer to purchase revoked the seller must tender to the buyer any payments made by the buyer and any note or other evidence of indebtedness.
2. If the down payment includes goods traded in, the goods must be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods as provided by this section, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement.
3. Until the seller has complied with the obligations imposed by this section, the buyer may retain possession of goods delivered to him by the seller and has a lien on the goods in his possession or control for any recovery to which he is entitled.

   (1970, c. 668; 1972, c. 448; 1973, c. 147.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 18 Enforcement of Judgments and Decrees. § 18.04 Equity. Bryson.

§ 59.1-21.6. Tender of goods to seller.

1. Except as provided by the provisions of § 59.1-21.5 (3) , within a reasonable time after a home solicitation sale has been canceled or an offer to purchase revoked, the buyer upon demand must tender to the seller any goods delivered by the seller pursuant to the sale but he is not obligated to tender at any place other than his residence. If the seller fails to demand possession of goods within twenty days after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them.
2. The buyer has a duty to take reasonable care of the goods in his possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller's risk.
3. If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller is entitled to no compensation.

   (1970, c. 668; 1973, c. 147.)

§ 59.1-21.7. Cancellation of contract when seller has misrepresented nature or purpose of transaction.

Notwithstanding any other provision of law, if at the time of a home solicitation a seller or his agent should fail to immediately identify himself as a seller or lessor, or should he represent or imply that his purpose at the time of solicitation is anything other than selling or leasing if that is not substantially true, the buyer shall have a total of thirty days to cancel any home solicitation sales contract there entered into in the same manner and to the same extent as otherwise provided by this chapter; provided that the goods or merchandise are made available for the seller's repossession and are tendered back to the seller in substantially as good condition as when received by the buyer.

(1972, c. 448; 2001, c. 402.)

The 2001 amendments. - The 2001 amendment by c. 402 substituted "provision" for "provisions," and substituted "imply" for "infer."

Law review. - For survey of Virginia commercial law for the year 1971-1972, see 58 Va. L. Rev. 1183 (1972).

§ 59.1-21.7:1. Enforcement; penalties.

Any violation of the provisions of this chapter shall constitute a prohibited practice pursuant to the provisions of § 59.1-200 and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act of 1977, Chapter 17 (§ 59.1-196 et seq.) of this title.

(1987, cc. 462, 464.)

CIRCUIT COURT OPINIONS

Demurrer sustained. - Homeowners did not allege facts, which if true, supported a claim of violation of the Virginia Consumer Protection Act because the fact that the contractor orally agreed to provide a scope of work and did not do so was not a misrepresentation constituting actionable fraud in the inducement to enter into the agreement. Jenkins Servs., LLC v. Martin, 95 Va. Cir. 5, 2016 Va. Cir. LEXIS 241 (Westmoreland County Feb. 5, 2016).

§ 59.1-21.8. Short title.

This chapter may be cited as the "Virginia Petroleum Products Franchise Act."

(1973, c. 423.)

The numbers of §§ 59.1-21.8 through 59.1-21.18 were assigned by the Virginia Code Commission, the numbers in the 1973 act having been 59.1-21.7 through 59.1-21.17 .

Law review. - For survey of Virginia law on business associations for the year 1972-1973, see 59 Va. L. Rev. 1412 (1973).

For article, "Antitrust and Trade Regulation," see 35 U. Rich. L. Rev. 453 (2001).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 128.

§ 59.1-21.9. Findings of General Assembly.

The General Assembly finds and declares that since the distribution and sales through franchise arrangements of petroleum products in the Commonwealth of Virginia vitally affect the economy of the Commonwealth, the public interest, welfare, and transportation, and since the preservation of the rights, responsibilities, and independence of the small businesses in the Commonwealth is essential to economic vitality, it is necessary to define the relationships and responsibilities of the parties to certain agreements pertaining thereto. Consistent with these findings and declarations, the provisions of § 59.1-21.15:2 , which do not relate to the termination or nonrenewal of petroleum franchises governed by federal law, advance the interests of the Commonwealth, and its citizens, by facilitating the purchase of retail service stations by their occupying lessee-franchisees, thereby insuring the motoring public greater access to service stations and petroleum products and furthering a more dynamic and full-service-oriented retail marketplace, while also considering the interests of the franchisor and, if applicable, the property owner, with regard to such service station premises.

(1973, c. 423; 1990, c. 907; 2014, c. 222.)

The 2014 amendments. - The 2014 amendment by c. 222 added the last sentence.

§ 59.1-21.10. Definitions.

As used in this chapter, the following terms shall have the following meanings unless the context requires otherwise:

"Dealer" means any person who purchases motor fuel for sale to the general public for ultimate consumption. "Dealer" shall not mean any person, including any affiliate of such person, who (i) purchases motor fuel for sale, consignment, or distribution to another; (ii) receives motor fuel on consignment for consignment or distribution to his own motor fuel accounts or to accounts of his supplier; or (iii) who is an employee of, or merely serves as a common carrier providing transportation service, for such person.

"Designated family member" means the adult spouse, adult child or stepchild, or adult brother or sister of the dealer who is designated in the franchise agreement as the successor to the dealer's interest under the agreement and who shall become the dealer upon the completion of the succession.

"Franchise" or "franchise agreement" means any agreement, express or implied, between a refiner and a dealer under which a refiner authorizes or permits a dealer to use, in connection with the sale, consignment, or distribution of motor fuel, a trademark which is owned or controlled by such refiner. "Franchise" or "franchise agreement" shall also mean any agreement, express or implied, under which a dealer is granted the right to occupy leased marketing premises, which premises are to be employed in connection with the sale, consignment, or distribution of motor fuel under a trademark which is owned or controlled by such refiner.

"Franchise fee" means any fee or charge that a dealer is required to pay or agrees to pay for the right to enter into a franchise agreement or to become a dealer at the premises to which the franchise agreement relates. The term "franchise fee" shall not include reasonable actual costs and expenses incurred by the refiner in effecting the assignment, transfer, or sale.

"Franchisor" means a refiner who authorizes or permits, under a franchise, a dealer to use a trademark in connection with the sale, consignment, or distribution of motor fuel.

"Jobber/distributor" means any person, including any affiliate of such person, who (i) purchases motor fuel for sale, consignment, or distribution to another; or (ii) receives motor fuel on consignment for consignment or distribution to his own motor fuel accounts or to accounts of his supplier, but shall not include a person who is an employee of, or merely serves as a common carrier providing transportation service for, such supplier.

"Newly remodeled facility" means a retail outlet, marketing premises, or leased marketing premises which, within an 18-month period, has been rebuilt, renovated, or reconstructed at a cost of (i) for facilities remodeled before January 1, 2004, a minimum of $560,000; or (ii) for facilities remodeled on or after January 1, 2004, a minimum of $560,000 plus an amount reflecting the annual rate of inflation, such amount to be calculated on January 1 of each year by the Commissioner of the Department of Agriculture and Consumer Services by referring to the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics.

"Operation of a retail outlet" means the ownership or option to buy a properly zoned parcel of property for which a permit to build a retail outlet has been granted.

"Petroleum products" or "motor fuel" means gasoline and diesel fuel of a type distributed for use as a fuel in self-propelled vehicles designed primarily for use on public streets, roads, and highways.

"Profit" means the net gain, for income tax purposes, realized by the dealer upon the assignment, transfer, or sale of the franchise agreement.

"Refiner" means any person engaged in the refining of crude oil to produce motor fuel and includes any affiliate of such person.

"Retail" means the sale of petroleum products for purposes other than resale.

"Retail outlet," "marketing premises," or "leased marketing premises" means the premises at which petroleum products are sold to the general public.

"Trial franchise" means the same as provided in the Petroleum Marketing Practices Act (15 U.S.C. § 2803 et seq.).

(1973, c. 423; 1979, c. 306; 1990, c. 907; 2003, c. 410; 2005, c. 839; 2012, c. 351.)

The 2003 amendments. - The 2003 amendment by c. 410, in the definition of "Newly remodeled facility," substituted "18" for "eighteen," and substituted clauses (i) and (ii) for "$350,000 or more."

The 2005 amendments. - The 2005 amendment by c. 839, effective October 1, 2005, deleted the definition of "Person."

The 2012 amendments. - The 2012 amendment by c. 351 added the paragraph defining "Jobber/distributor."

Applied in Frank Shop, Inc. v. Crown Cent. Petroleum Corp., 261 Va. 169 , 540 S.E.2d 897, 2001 Va. LEXIS 17 (2001).

§ 59.1-21.11. Required provisions pertaining to agreements between refiners and dealers.

Every agreement between a refiner and a dealer shall be subject to the following provisions, whether or not expressly set forth therein:

1. The dealer shall not be required to keep his retail outlet open for business for more than sixteen consecutive hours per day, nor more than six days per week. This subdivision shall not be construed to prevent any retail outlet being open when required to be open to conform to any local, state or federal law or regulation, nor shall this subdivision be construed to prevent any retail outlet from being open for business for more than sixteen consecutive hours per day or more than six days per week when the dealer determines that market conditions warrant such operation.  This subdivision shall not apply to retail outlets which participate in the travel services signing program of the Virginia Department of Transportation.
2. The right of either party to trial by jury or to the interposition of counterclaims or cross claims shall not be waived.
3. In the absence of any express agreement, the dealer shall not be required to participate financially in the use of any premium, coupon, give-away, or rebate in the operation of a retail outlet.  The refiner may require the dealer to distribute to customers premiums, coupons, or give-aways which are furnished to the dealer at the expense of the refiner.
4. No agreement or franchise subject to the provisions of this chapter shall limit, restrict, or impair the number of retail outlets which an individual dealer may operate for the same refiner, nor may any agreement or franchise establish working hours for the dealer. However, an agreement or franchise may require the dealer to be involved in the operation of the business of the dealer's retail outlet or retail outlets for not more than an average of sixty hours per month. Notwithstanding the provisions of this subdivision, a refiner may impose a requirement in a trial franchise only, that a dealer be on the marketing premises of the dealer's retail outlet or retail outlets for a reasonable number of hours per week not to exceed twenty hours per week.
5. No transfer or assignment of a franchise by a dealer to a qualified transferee or assignee shall be unreasonably disapproved by the refiner.  A refiner shall have forty-five days, after the date of submission by a proposed transferee or assignee of all personal and financial information required by the refiner's reasonable and uniform standards, within which to notify a dealer in writing that a proposed transferee or assignee meets or fails to meet the refiner's reasonable and uniform qualifications.  If the proposed transferee or assignee fails to meet the refiner's reasonable and normal qualifications, the notice to the dealer shall state with specificity the reasons for such failure.
6. The term of the initial agreement between the refiner and the dealer relating to specific marketing premises shall not be less than one year; the term of all subsequent agreements between the refiner and the dealer, relating to the same marketing premises, shall not be for less than three years. The rental provisions in any such agreement or franchise shall be based on commercially fair and reasonable standards, uniformly applied to all similarly situated dealers of the same refiner in the same geographic area.
7. A refiner may require a dealer to pay a fee or charge for the privilege of honoring a credit card issued by the refiner and used by customers of the dealer in purchasing at retail products and services at retail outlets which bear the brand name or trademark of the refiner only if such refiner has deducted the cost of extending retail credit from the tankwagon price charged dealers, has notified the dealer in writing of such deduction and such fee is a part of a program designed (i) to induce retail purchases for cash or (ii) to separate the cost of extending retail credit from the tankwagon price paid by the dealer. The amount of any such fee or charge shall be directly related to the actual cost incurred by the refiner in the extension of retail credit. Notwithstanding the provisions of subsection A of § 59.1-21.12 , any refiner who violates the provisions of this subdivision shall be civilly liable for damages in treble the amount of the damages sustained by the complaining party as a result of the violation.
8. A dealer shall have the right, effective upon his death, permanent and total disability, or retirement, to have his interests under a franchise agreement with a refiner assigned to a designated family member who has been approved by the refiner in accordance with the refiner's reasonable and uniform standards for personal and financial condition unless the refiner shows that the designated family member no longer meets the reasonable and uniform standards at the time of the previous approval. All franchise agreements shall contain a provision identifying the designated family member who is entitled to succeed to the interests of the dealer under the agreement upon his death, permanent and total disability, or retirement.  The foregoing shall not prohibit a refiner from requiring that the designated family member accept a trial franchise within twenty-one days of the dealer's death, permanent and total disability, or retirement and that the designated family member attend a training program offered by the refiner.

   A dealer and the refiner may mutually agree to change the designated family member entitled to succeed to the dealer's interests under a franchise agreement. The designated family member shall provide, upon the request of the refiner, personal and financial information that is reasonably necessary to determine whether the succession should be honored. The refiner shall not be obligated to accept a designated family member under this subdivision who does not meet the reasonable and uniform standards uniformly imposed by the refiner; however, any refusal to accept the designated family member as a successor dealer shall be given by the refiner in writing to the dealer, not later than ninety days after the date of the designation of the designated family member by the dealer, and shall state with specificity the reasons for such refusal.

9. 1. No refiner shall condition approval of an assignment, transfer, sale, or renewal of a franchise agreement on the payment by the dealer, or the proposed successor dealer, of a franchise fee or penalty unless the assignment, transfer, or sale is of a franchise agreement covering a new or newly remodeled facility.
   2. A refiner may require a dealer to pay a franchise fee or penalty, as hereinafter provided, upon the assignment, transfer, or sale of a franchise agreement covering a new facility within the first three years of the initial term of the franchise agreement, or upon the assignment, transfer or sale of a franchise agreement covering a newly remodeled facility within the first three years after the completion of the remodeling:
      1. An amount not to exceed sixty percent of the profit realized by the dealer if the assignment, transfer, or sale takes place within the first twelve-month period.
      2. An amount not to exceed twenty-five percent of the profit realized by the dealer if the assignment, transfer, or sale takes place within the second twelve-month period.
      3. An amount not to exceed ten percent of the profit realized by the dealer if the assignment, transfer, or sale takes place within the third twelve-month period.
   3. Nothing in this section shall authorize a refiner to impose a franchise fee or penalty upon an assignment, transfer, or sale to a family member pursuant to subdivision 8 of this section.
   4. In the case of a new facility, a franchise fee may be charged at the time the first franchise agreement is entered into.
10. Any provision in any agreement or franchise purporting to waive any right or remedy under this chapter or any applicable provisions of the Petroleum Marketing Practices Act (15 U.S.C. § 2802 et seq.) shall be null and void.

    (1973, c. 423; 1979, c. 306; 1982, c. 350; 1985, c. 498; 1987, c. 535; 1990, c. 907; 1991, c. 199.)

§ 59.1-21.11:1. Waiver of constitutional rights prohibited.

Any provision in any agreement or franchise subject to the provisions of this chapter purporting to waive or to directly or indirectly limit the constitutional rights of a dealer (i) to petition any governmental authority or body or (ii) lawfully to seek or oppose any governmental or regulatory action with respect to any matter, notwithstanding any contrary position taken by the franchisor thereon, shall be null and void.

(1994, c. 170.)

§ 59.1-21.12. Civil action for violation of chapter.

1. Any person who violates any provision of this chapter shall be civilly liable for liquidated damages of $10,000 and reasonable attorney's fees, plus provable damages caused as a result of such violation, and be subject to such other remedies, legal or equitable, including injunctive relief, as may be available to the party damaged by such violation. Such action shall be brought in the circuit court of the jurisdiction wherein the franchised premises are located. For the purposes of subdivisions 5 and 9 of § 59.1-21.11 , a proposed transferee, assignee, or designated family member who is not approved as a dealer by a refiner shall have legal standing to challenge a refiner's compliance with the provisions of this section relating to assignment.
2. No action may be brought under the provisions of this chapter for a cause of action which arises more than two years prior to the date on which such action is brought.

   (1973, c. 423; 1990, c. 907; 2003, c. 410.)

The 2003 amendments. - The 2003 amendment by c. 410 substituted "$10,000" for "$2,500."

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 14 Costs. § 14.02 Items Included. Bryson.

§ 59.1-21.13. Obligation of refiner to repurchase upon termination, etc., of agreement.

In the event of any termination, cancellation, or failure to renew whether by mutual agreement or otherwise, a refiner shall make or cause to be made a good faith offer to repurchase from the dealer, his heirs, successors, and assigns, at the current wholesale prices any and all merchantable products purchased by such dealer from the refiner; provided, that in such event the refiner shall have the right to apply the proceeds against any existing indebtedness owed to him by the dealer; and provided further, that such repurchase obligation is conditioned upon there being no other claims or liens against such products by or on behalf of other creditors of the dealer.

(1973, c. 423; 1979, c. 306; 1990, c. 907.)

§ 59.1-21.14. Producer or refiner not to terminate, etc., agreement without notice and reasonable cause; nonrenewal by franchisor.

1. A producer or refiner shall not terminate, cancel, or fail to renew a petroleum products franchise unless he furnishes prior written notification pursuant to this paragraph to each dealer affected thereby. Such notification shall contain a statement of intention to terminate, cancel, or not renew with the reasons therefor; the date on which such action shall take effect; and shall be sent to such dealer by certified mail not less than sixty days prior to the date on which such petroleum products franchise will be terminated, canceled, or not renewed. In circumstances where it would not be reasonable to provide advance notice of sixty days, the producer or refiner shall provide notice at the earliest date as is reasonably practicable. Termination, cancellation, or failure to renew shall be effective immediately upon notice given by certified mail to the dealer at his last known address in situations involving:
   1. Failure of the dealer to open for business during reasonable business hours for five consecutive days, or
   2. Criminal conduct or violations of law by the dealer involving moral turpitude, or
   3. Bankruptcy, an assignment for the benefit of creditors by the dealer, or a petition for reorganization by the dealer, or
   4. Condemnation or other taking of the premises, in whole or in part, pursuant to the power of eminent domain, or
   5. Mutual agreement of the parties to terminate the franchise, or
   6. Death, incapacity, or permanent and total disability of the dealer.
2. A producer or refiner shall not terminate, cancel, or fail to renew, a petroleum products franchise, except for reasonable cause.
3. Reasonable cause shall include, but not be limited to:
   1. A failure of the dealer to comply substantially with the express provisions of such petroleum products franchise, or
   2. A failure of the dealer to act in good faith in carrying out the terms of such petroleum products franchise, and federal and state laws, which shall include, but not be limited to:
      1. Adulteration of the producer's or refiner's products, or
      2. Misbranding of gasoline, or
      3. Misleading or deceiving consumers, or
      4. Trademark violations, or
      5. False or deceptive representations to the producer or refiner, or
   3. Receipt and documentation by the supplier of repeated customer complaints uncorrected by the dealer within a reasonable time, or
   4. A total withdrawal by the producer or refiner from the sale of motor fuels in commerce for sale in the county, city or standard statistical metropolitan area in which the franchise is situated, or
   5. The occurrence of any of the situations set out in subsection A hereof, not requiring sixty days' notice.
4. A franchisor may elect not to renew a franchise which involves the lease by the franchisor to the franchisee of premises, in the event the franchisor:
   1. Sells or leases such premises to other than a subsidiary or affiliate of the franchisor for any use; or
   2. Sells or leases such premises to a subsidiary or affiliate of the franchisor, except such subsidiary or affiliate shall not use such premises for the retail sale of motor fuels; or
   3. Converts such premises to a use other than the retail sale of motor fuels; or
   4. Has leased such premises from a person not the franchisee and such lease is terminated, canceled or not renewed; or
   5. Determines, in the case of any retail service station opened after July 1, 1979, under a franchise term of at least three years, in good faith and in the normal course of business that renewal of the petroleum products franchise is likely to be uneconomical to the producer or refiner despite any reasonable changes or reasonable additions to the provisions of the franchise which may be acceptable to the dealer.
5. The provisions of this section shall apply to any petroleum products franchise entered into or renewed on and after July 1, 1976.

   (1973, c. 423; 1976, c. 645; 1979, c. 306; 1997, c. 801.)

Editor's note. - Acts 1997, c. 801, cl. 2, provides: "That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created."

§ 59.1-21.15. Disclosures to be made by refiner before conclusion of agreement.

A refiner shall disclose to any prospective dealer the following information, before any franchise agreement is concluded:

1. The gallonage volume history, if any, of the location under negotiation for and during the three-year period immediately past or for the entire period which the location has been supplied by the refiner, whichever is shorter.
2. The name and last known address of the previous dealer or dealers for the last three years, or for and during the entire period which the location has been supplied by the refiner, whichever is shorter.
3. Any legally binding commitments for the sale, demolition, or other disposition of the location.
4. The training programs, if any, and the specific goods and services the refiner will provide for and to the dealer.
5. Full disclosure of any and all obligations which will be required of the dealer.
6. Full disclosure of all restrictions on the sale, transfer, and termination of the agreement.

   (1973, c. 423; 1979, c. 306; 1990, c. 907.)

§ 59.1-21.15:1. Continued rights of dealers upon sale or assignment of franchise agreement.

Any franchise between a dealer and a refiner located in Planning District 8 in effect on or after January 1, 2008, which franchise is sold or assigned to a third party shall require such acquiring third party, and its successors, assigns, affiliates and subsidiaries, to comply with, provide, grant, and make available to the dealer and to any successor of the dealer any and all rights, privileges, or protections provided for in this chapter and required of or enforceable against the assigning refiner-franchisor except for such sale or assignment. With respect to the requirements of § 59.1-21.16:2 , the one and one-half mile restriction shall only apply to a franchise location which is sold or assigned on or after January 1, 2008.

(2008, c. 837.)

§ 59.1-21.15:2. Franchisor's obligation to offer leased marketing premises to occupying dealer.

1. As used in this section, unless the context requires otherwise:

   "Bona fide offer" means an offer by the franchisor to the dealer that approximates the fair market value of the leased marketing premises under an objectively reasonable analysis, and:

   1. In the case of the franchisor offering to the dealer a right of first refusal regarding an offer to purchase the marketing premises that has been made to the franchisor by a third party regarding the leased marketing premises, the offer made by such third party shall be a bona fide offer acceptable to the franchisor, and may not be an offer that has been unfairly or improperly established by either the franchisor or the third party offer; or
   2. In the case of service station premises that the franchisor leases from a third party, and providing the lease allows the assignment of such lease by the franchisor, the franchisor's lease rights in the station premises shall be transferred or assigned to the dealer, with the franchisor making a bona fide offer with regard to the sale of structures located on the station's premises, including all pumps, dispensers, storage tanks, piping, and all other equipment located upon the premises necessary for the continued operation of a service station.

      If the leased marketing premises occupied by a dealer are to be part of a sale of multiple properties owned or controlled by the franchisor, a bona fide offer shall reasonably allocate a portion of the total price for the multiple properties intended to be sold to the leased marketing premises occupied by the dealer in order to allow the dealer to exercise the dealer's right of first refusal regarding the leased marketing premises occupied by the dealer. In making such allocation, the purpose shall be to determine the fair market value of the leased marketing premises under an objectively reasonable analysis.

      A bona fide offer shall (i) include the sale of all structures located on the leased marketing premises, including all pumps, dispensers, storage tanks, piping, and all other equipment located upon the premises necessary for the continued operation of a service station if the dealer exercises the dealer's right to buy; (ii) not include a requirement that the dealer enter into a supply agreement with the selling franchisor or with any other party and, to the extent that a bona fide offer acceptable to the franchisor from a third party contains such a supply agreement, it shall not be applicable to the dealer; and (iii) not, unless freely negotiated by the dealer, release the continuing obligations of the franchisor with regard to any environmental obligations regarding the service station premises nor require the dealer to assume such obligations of the franchisor with regard to the dealer's purchase of the premises or acquisition of the franchisor's rights in the premises. In conjunction with the dealer's acquisition of the rights of the franchisor in the leased marketing premises, such environmental tests, surveys, and other due diligence investigations shall be conducted as are customary in such transactions.

      "Leased marketing premises" means marketing premises owned, leased, or controlled by a franchisor and that the dealer is authorized or permitted, under the petroleum franchise, to employ, to occupy, or both in connection with the sale, consignment, or distribution of petroleum products.

      "Supply agreement" means an agreement, oral or written, under which a party is to supply, and a dealer is required to buy, petroleum products.

2. In the case of leased marketing premises owned by a franchisor, or in which a franchisor owns a leasehold interest, which premises are occupied by a dealer, the franchisor shall not sell, transfer, or assign to another person the franchisor's interest in the premises unless the franchisor has first either made a bona fide offer to sell, transfer, or assign to the dealer the franchisor's interest in the premises, other than signs displaying the refiner's insignia and any other trademarked, service marked, copyrighted, or patented items of the franchisor, or, if applicable, offered to the dealer a right of first refusal of any bona fide offer acceptable to the franchisor made by another person to acquire the franchisor's interest in the premises.
3. Nothing in this section shall be deemed to require a franchisor to continue an existing franchise relationship, or to renew a franchise relationship, if not otherwise required by federal law.
4. Nothing in this section shall be deemed to require a franchisor to continue to supply petroleum products to a dealer if the dealer exercises its right to acquire the interests of the franchisor in the premises.
5. The bona fide offer required to be made to the dealer by the franchisor shall:
   1. Be in writing;
   2. Set forth fully and completely all terms and conditions of the offer being made by the franchisor;
   3. In the case of a bona fide offer being made by a third party to acquire the interests of the franchisor in the property, which offer is acceptable to the franchisor, also contain a full copy of the proposal of the third party, or the contract or its equivalent between the franchisor and the third party if such a contract exists, to include all schedules, attachments, addenda, or their equivalent; and
   4. In the case of leased marketing premises that the franchisor leases from a third party or parties, also contain a full copy of the underlying lease, including all schedules, attachments, addenda, or their equivalent.
6. After receipt of the bona fide offer from the franchisor, the dealer shall have a period of not less than 60 days within which to exercise the dealer's rights as established under this section, which exercise shall be effective upon delivering written notice of such exercise to the franchisor. After exercise of the dealer's rights, the closing on, and transfer of, the leased marketing premises shall occur (i) within 60 days after the dealer's exercise of such rights or (ii) on or before the closing date established within the bona fide offer regarding which the dealer has exercised the dealer's right of first refusal under this section, whichever date occurs later.
7. The provisions of this section shall apply only to the sale, assignment, or transfer of a franchisor's interest in or to any leased marketing premises located only in Planning District 8, and shall not apply to leased marketing premises owned or controlled by a jobber/distributor.

   (2014, c. 222.)

§ 59.1-21.16. Authority of Attorney General under § 59.1-68.2 not limited.

Nothing in this chapter shall be construed as limiting the authority of the Attorney General under the provisions of § 59.1-68.2 .

(1973, c. 423.)

§ 59.1-21.16:1.

Expired.

Editor's note. - This section was enacted by Acts 1978, c. 822, and expired by its own terms March 1, 1979.

§ 59.1-21.16:2. Operation of retail outlet by refiner; apportionment of fuels during periods of shortage; rules and regulations.

1. After July 1, 1979, no refiner of petroleum products shall operate any major brand, secondary brand, or unbranded retail outlet in the Commonwealth of Virginia with company personnel, a parent company, or under a contract with any person, firm, or corporation, managing a service station on a fee arrangement with the refiner; however, such refiner may operate such retail outlet with the aforesaid personnel, parent, person, firm, or corporation if such outlet is located not less than one and one-half miles from the nearest retail outlet operated by any dealer or jobber/distributor, as measured by the most direct surface transportation route from the gas pump at the refiner's facility that is nearest a gas pump at the dealer's or jobber/distributor's facility; and provided, that once in operation, no refiner shall be required to change or cease operation of any retail outlet by the provisions of this section.

   During the period July 1, 1990, through June 30, 1991, no refiner may construct and operate with company personnel as defined in this section any new major brand, secondary brand, or unbranded retail outlet in the Commonwealth of Virginia, except on any property purchased or under option to purchase by March 1, 1990.

2. Every refiner of petroleum products shall apportion all gasoline and diesel fuel among their purchasers during periods of shortages on an equitable basis.
3. No new lease, lease renewal, new supply contract, or new supply contract renewal under this chapter shall impose purchase or sales quotas.
4. The provisions of this section shall not be applicable to retail outlets operated by producers or refiners on July 1, 1979.

   (1979, c. 306; 1984, c. 720; 1990, c. 907; 1995, c. 664; 2003, c. 410; 2012, c. 351.)

The 2003 amendments. - The 2003 amendment by c. 410, in subsection A, deleted "as measured by the most direct surface transportation route" following "one and one-half miles," and inserted "as measured by the most direct surface transportation route from the gas pump at the refiner's facility that is nearest a gas pump at the dealer's facility."

The 2012 amendments. - The 2012 amendment by c. 351 deleted former subsection D, which read "The Commissioner of Agriculture and Consumer Services shall adopt regulations (i) defining the circumstances under which a refiner may temporarily operate a previously dealer-operated retail outlet; (ii) providing for the rebuilding or relocation of retail outlets which were producer or refiner operated on July 1, 1979; (iii) requiring each refiner to file a list of retail outlets operated by such refiner and to keep such listing current; (iv) requiring each franchise dealer to file a listing of any retail outlets operated by such franchise dealer, and to keep such list current"; and redesignated former subsection E as D.

§ 59.1-21.17. Effective date of chapter.

The provisions of this chapter shall be applicable to franchise agreements entered into on and after July 1, 1973.

(1973, c. 423.)

§ 59.1-21.18.

Repealed by Acts 2015, c. 709, cl. 2.

Editor's note. - Former § 59.1-21.18 , pertaining to severability, derived from 1973, c. 423.

§ 59.1-21.18:1. Exclusions.

Franchise agreements subject to the provisions of this chapter shall not be subject to any requirement contained within Chapter 8 (§ 13.1-557 et seq.) of Title 13.1.

(1978, c. 670.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1978 act having been 59.1-21.19 .

§ 59.1-21.18:2. Definitions.

As used in this chapter, unless the context requires otherwise, the following terms and phrases shall have the following meanings:

1. "Petroleum products" shall mean kerosene and number one and two heating oils;
2. "Supplier" shall mean any person, partnership, company, corporation or association engaged in the refining and subsequent sale of petroleum products to any distributor in the Commonwealth;
3. "Distributor" shall mean any distributor, wholesaler, jobber, consignee or commission agent who purchases or otherwise acquires possession of or an interest in petroleum products under a contract of supply in the Commonwealth from a supplier for redistribution or wholesale sale;
4. "Monthly allocation" shall mean the monthly amount of petroleum products sold or otherwise supplied to a distributor under applicable U.S. Department of Energy regulations and rules, or which the supplier may otherwise be allocating to its distributors;
5. "To discontinue" shall mean the failure or refusal to sell a monthly allocation as defined herein to a distributor for a period of six consecutive months unless such failure or refusal is the direct and proximate result of force majeure;
6. "To reduce" shall mean the failure or refusal of a supplier to deliver at least seventy-five per centum of a monthly allocation to a distributor for a period of two consecutive months unless such failure or refusal is the direct and proximate result of an allocation percentage factor applied by the supplier to all its distributors or force majeure;
7. "Force majeure" means an act of God or any other cause not reasonably within the control of the supplier.

   (1980, c. 457.)

§ 59.1-21.18:3. Prohibited acts.

Except in the event of failure by any distributor in the Commonwealth to comply with the material requirements imposed upon him by a contract or agreement with the supplier, other than a failure caused by force majeure; or except as may be required by an agency of the federal or state government responsible for regulating allocations of petroleum products; or except as provided in § 59.1-21.18:4 , it shall be unlawful for any supplier:

1. To discontinue monthly allocations of petroleum products to a distributor, his successors in interest or qualified assigns provided that such successors in interest or qualified assigns meet the supplier's usual contract acceptance criteria; or
2. To reduce monthly allocations of petroleum products to a Virginia distributor, his successors in interest or qualified assigns provided that such successors in interest or qualified assigns meet the supplier's usual contract acceptance criteria.

   (1980, c. 457.)

§ 59.1-21.18:4. Exemptions under chapter.

A supplier shall be authorized to reduce or discontinue monthly allocations of petroleum products with any Virginia distributor if the supplier:

1. Furnishes the distributor with an alternative source of monthly allocations of petroleum products of equal type, grade, quantity and equivalent delivery location; or
2. Agrees to supply the distributor with monthly allocations of petroleum products for a period of twelve months and furnishes the distributor and the Governor of the Commonwealth with written notice of its intention to discontinue or reduce such allocations at least twelve months in advance of such discontinuance or reduction.

   (1980, c. 457.)

§§ 59.1-21.19 through 59.1-21.28.

Repealed by Acts 2010, c. 794, cl. 11, effective October 1, 2010.

Editor's note. - This chapter was repealed by Acts 2010, c. 794, cl. 11, and recodified as Chapter 5 ( § 6.2-500 et seq.) of Title 6.2, effective October 1, 2010.

Former § 59.1-21.21 was repealed by Acts 1977, c. 589.

§§ 59.1-22 through 59.1-41.

Repealed by Acts 1974, c. 545.

Cross references. - For present provisions as to regulation of trusts and monopolies, see the Virginia Antitrust Act ( § 59.1-9.1 et seq.).

§ 59.1-41.1. "Owner" defined.

As used in this chapter, "owner" means the person who owns the sounds fixed in any master phonograph record, master disc, master tape, master film or other device used for reproducing recorded sounds on phonograph records, discs, tapes, films, videocassettes, or other articles now known or later developed on which sound is recorded and from which the transferred sounds are directly or indirectly derived, or the person who owns the rights to record or authorize the recording of a live performance.

(1972, c. 618; 1989, c. 240.)

Law review. - For note, "Goldstein v. California and the Protection of Sound Recordings: Arming the States for Battle with the Pirates," see 31 Wash. & Lee L. Rev. 604 (1974).

Michie's Jurisprudence. - For related discussion, see 17 M.J. Statutes, § 35.

§ 59.1-41.2. Recording of live concerts or recorded sounds and distribution, etc., of such recordings unlawful in certain circumstances.

It shall be unlawful for any person to:

1. Knowingly transfer or cause to be transferred, directly or indirectly by any means, any sounds at a live concert or any sounds recorded on a phonograph record, disc, wire, tape, film, videocassette, or other article now known or later developed on which sounds are recorded, with the intent to sell, rent or cause to be sold or rented, or to be used for profit through public performance, such article on which sounds are so transferred, without consent of the owner; or
2. For commercial advantage or private financial gain, manufacture, distribute, transport or wholesale, or cause to be manufactured, distributed, transported or sold as wholesale, or possess for such purposes any article with the knowledge that the sounds are so transferred, without consent of the owner.

   This section shall not apply to any person engaged in radio or television broadcasting who transfers, or causes to be transferred, any such sounds other than from the sound track of a motion picture intended for, or in connection with broadcast or telecast transmission or related uses, or for archival purposes.

   (1972, c. 618; 1989, c. 240.)

Law review. - For article, "Copyright Liability for Audio Home Recording: Dispelling the Betamax Myth," see 68 Va. L. Rev. 1505 (1982).

§ 59.1-41.3. Selling or renting, etc., of certain recorded devices unlawful.

It shall be unlawful for any person to knowingly sell, rent, cause to be sold or rented, or possess for the purpose of selling or renting any recorded device that has been produced, manufactured, distributed, or acquired in violation of any provision of this chapter.

(1972, c. 618; 1989, c. 240.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Indictments, Informations, and Presentments, § 59; 17 M.J. Statutes, § 35.

§ 59.1-41.4. Recorded devices to show true name of manufacturer.

Ninety days after July 1, 1972, every recorded device sold, rented or transferred or possessed for the purpose of sale, rental or transfer by any manufacturer, distributor, or wholesale or retail merchant shall contain on its packaging the true name and address of the manufacturer. The term "manufacturer" shall not include the manufacturer of the cartridge or casing itself. The term "recorded device" means the tangible medium upon which sounds or images are recorded or otherwise stored, and includes any phonograph record, disc, wire, tape, videocassette, film or other medium now known or later developed on which sounds or images are recorded or otherwise stored.

(1972, c. 618; 1989, c. 240.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Indictments, Informations, and Presentments, § 59; 17 M.J. Statutes, § 35.

§ 59.1-41.5. Confiscation of nonconforming recorded devices.

Ninety days after July 1, 1972, it shall be the duty of all law-enforcement officers, upon discovery, to confiscate all recorded devices that do not conform to the provisions of § 59.1-41.4 . The nonconforming recorded devices shall be delivered to the attorney for the Commonwealth of the county in which the confiscation was made. The attorney for the Commonwealth by court order may give the same to a charitable or educational organization. The provisions of this section shall apply to any nonconforming recorded device, regardless of the requirement in § 59.1-41.3 of knowledge or intent of a retail seller.

(1972, c. 618.)

§ 59.1-41.6. Penalties for violation of chapter.

Violations of this chapter are punishable as follows:

1. Except as otherwise provided in this section, any person convicted of an offense under this chapter is guilty of a Class 1 misdemeanor.
2. Any person convicted of an offense involving at least 100 unlawful sound recordings or twenty unlawful audio visual recordings during any 180-day period is guilty of a felony punishable by a term of imprisonment of not less than one nor more than two years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than twelve months and a fine of not more than $5,000, either or both;
3. Any person convicted of an offense involving at least 1,000 unlawful sound recordings or 65 unlawful audio visual recordings during any 180-day period is guilty of a felony punishable by a term of imprisonment of not less than one nor more than three years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than twelve months and a fine of not more than $100,000, either or both; and
4. Any second or subsequent felony offense under this chapter shall be punishable by a term of imprisonment of not less than one nor more than three years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than twelve months and a fine of not more than $100,000, either or both.
5. Upon conviction of a person of any offense under this chapter, the court in its judgment of conviction may order the forfeiture and destruction or other disposition of all infringing recordings and of all implements, devices and equipment used by the person in the manufacture of the infringing recordings.

   (1972, c. 618; 1989, c. 240; 2007, c. 805.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2007 amendments. - The 2007 amendment by c. 805 added the exception to the beginning of subdivision 1; in subdivisions 2 and 3, inserted "person convicted of an," and substituted "is guilty of a felony" for "shall be"; in subdivision 5, substituted "Upon conviction of a person" for "If a person is convicted" and "by the person" for "or intended to be used"; and made minor stylistic changes.

§§ 59.1-42 through 59.1-68.1.

Repealed by Acts 1975, c. 589.

Cross references. - For new provisions covering the subject matter of the repealed sections, see §§ 18.2-214 through 18.2-246 .

§ 59.1-68.2. Authority of Attorney General.

Notwithstanding any other provisions of the law to the contrary, the Attorney General may investigate and bring an action in the name of the Commonwealth to enjoin any violation of Chapters 2.1 (§ 59.1-21.1 et seq.) through 3.1 (§ 59.1-41.1 et seq.) and of Article 8 (§ 18.2-214 et seq.), Chapter 6 of Title 18.2.

(1970, c. 780; 1973, c. 537; 1975, c. 43; 1984, c. 582.)

Law review. - For survey of Virginia commercial law for the year 1969-1970, see 56 Va. L. Rev. 1387 (1970).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 5 Parties. § 5.02 Competency. Bryson.

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 2.

§ 59.1-68.3. Action for damages or penalty for violation of Article 8, Chapter 6 of Title 18.2 or Chapter 2.1 of Title 59.1; attorney's fees.

Any person who suffers loss as the result of a violation of Article 8 (§ 18.2-214 et seq.), Chapter 6 of Title 18.2 or Chapter 2.1 (§ 59.1-21.1 et seq.) of Title 59.1 shall be entitled to bring an individual action to recover damages, or $100, whichever is greater. Certified copies of the transcript and exhibits in evidence in any final proceeding in which the Attorney General has obtained a permanent injunction for a violation of Article 8, Chapter 6 of Title 18.2 or Chapter 2.1 of Title 59.1 shall be admissible in evidence in any action brought pursuant to this section by any person claiming damage as a result of the enjoined conduct. Notwithstanding any other provision of law to the contrary, in addition to the damages recovered by the aggrieved party, such person may be awarded reasonable attorney's fees.

(1973, c. 537; 1975, c. 43; 1976, c. 87.)

Law review. - For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 14 Costs. § 14.02 Items Included. Bryson.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Actions, § 5; 3C M.J. Commercial Law, § 36.

§ 59.1-68.4. Suits by attorneys for the Commonwealth and city and county attorneys.

Notwithstanding any other provisions of the law to the contrary, any attorney for the Commonwealth, or the attorney for any city or county, may investigate and cause to be brought suit in the name of the Commonwealth, or of the county or city, to enjoin any violation of Chapter 2.1 (§ 59.1-21.1 et seq.) of this title and of Article 8 (§ 18.2-214 et seq.), Chapter 6 of Title 18.2. The court having jurisdiction may enjoin such violations notwithstanding the existence of an adequate remedy at law. In any action under this section, it shall not be necessary that damages be alleged or proved.

(1974, c. 644; 1975, c. 43.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1974 act having been 15.1-23.4.

Law review. - For survey of developments in Virginia commercial law for the year 1973-1974, see 60 Va. L. Rev. 1475 (1974).

§ 59.1-68.5. Further provisions as to actions for violation of Article 8, Chapter 6 of Title 18.2.

Any person who suffers loss as the result of a violation of Article 8 (§ 18.2-214 et seq.), Chapter 6 of Title 18.2 shall be entitled to bring an individual action to recover damages, or $100, whichever is greater. Certified copies of the transcript and exhibits in evidence in any final proceeding in which the Commonwealth, or a county or city has obtained a permanent injunction for a violation of Article 8, Chapter 6 of Title 18.2 shall be admissible in evidence in any action brought pursuant to this section by any person claiming damage as a result of the enjoined conduct. Notwithstanding any other provision of law to the contrary, in addition to the damages recovered by the aggrieved party, such person may be awarded reasonable attorney's fees.

(1974, c. 644; 1975, c. 43.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1974 act having been 15.1-23.5.

Law review. - For survey of developments in Virginia commercial law for the year 1973-1974, see 60 Va. L. Rev. 1475 (1974).

Applied in Physicians Comm. for Responsible Med. v. General Mills, Inc., 283 Fed. Appx. 139, 2008 U.S. App. LEXIS 13020 (4th Cir. June 19, 2008).

§ 59.1-68.6. Definitions.

As used in this chapter, unless the text indicates otherwise:

1. "Person" means any individual, firm, partnership or corporation;
2. "Governmental units" means all state agencies and all political subdivisions or agencies thereof;
3. "Bid" means any submission of a price, whether written or oral, for any goods, services or construction to be provided.

   (1980, c. 471.)

Cross references. - As to this section and the requirements for prequalification of prospective contractors under the Virginia Public Procurement Act, see § 2.2-4317 .

Law review. - For article on injuries to business under the Virginia Conspiracy Act, see 38 Wash. & Lee L. Rev. 377 (1981).

§ 59.1-68.7. Combinations to rig bids.

1. Any combination, conspiracy or agreement to intentionally rig, alter or otherwise manipulate, or to cause to be rigged, altered or otherwise manipulated any bid submitted to the Commonwealth of Virginia or any governmental unit for the purpose of allocating purchases or sales to or among persons, raising or otherwise fixing the prices of the goods or services, or excluding other persons from dealing with the Commonwealth or any other governmental unit shall be unlawful.
2. Any person violating this section shall be guilty of a Class 6 felony.

   (1980, c. 471.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .

§ 59.1-68.8. Enforcement.

The Attorney General of Virginia, with respect to state agencies only, shall have concurrent power and authority to investigate and prosecute any violation of § 59.1-68.7 . In addition, the attorneys for the Commonwealth of the several counties and cities shall retain the power and authority to prosecute any and all violations of § 59.1-68.7 occurring within their jurisdiction.

(1980, c. 471.)

§ 59.1-69. Certificate required of person transacting business under assumed name.

1. As used in this chapter, unless the context requires a different meaning: "Commission" means the State Corporation Commission. "Person" has the meaning prescribed in § 1-230 .
2. No person shall conduct or transact business in the Commonwealth under any assumed or fictitious name unless such person files in the office of the clerk of the Commission a certificate of assumed or fictitious name.
3. No person shall use an assumed or fictitious name in the conduct of the person's business to intentionally misrepresent the geographic origin or location of the person.

   (Code 1950, § 59-169; 1968, c. 439; 1987, c. 702; 1995, c. 168; 1996, c. 904; 2017, c. 594.)

Editor's note. - Acts 2017, c. 594, cl. 2, as amended by Acts 2018, c. 251, cl. 1, provides "That the provisions of this act shall become effective on January 1, 2020."

Acts 2017, c. 594, cl. 3 provides: "That the provisions of this act (i) shall be applied prospectively only; (ii) shall not affect the validity of any filing made, or other action taken, prior to the effective date of this act with respect to a fictitious or assumed name certificate; and (iii) shall not be construed to require any person who was in compliance with applicable laws regarding fictitious or assumed name certificates prior to the effective date of this act to take any action to comply with the requirements of this act."

The 2017 amendments. - The 2017 amendment by c. 594, effective January 1, 2020, rewrote the section. For applicability, see Editor's note.

Law review. - For overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.07 Specific Types of Parties - Various Actions. Friend.

Virginia Forms (Matthew Bender). No. 11-1115 Certificate of Fictitious Name of Corporation, et seq.; No. 12-106 Certificate of Fictitious Name, etc.

Michie's Jurisprudence. - For related discussion, see 4B M.J. Corporations, § 37; 12A M.J. Limited Liability Companies, § 5; 13B M.J. Names, § 5; 14A M.J. Partnerships, § 5; 15 M.J. Recording Acts, § 6; 18 M.J. Traders Act and Trading Under Assumed Name, §§ 1-4 .

§ 59.1-70. Filing a certificate with State Corporation Commission; fee.

1. The certificate of assumed or fictitious name shall be on a form prescribed by the Commission that sets forth the following:
   1. The name of the person who will be conducting business under the assumed or fictitious name;
   2. The assumed or fictitious name of the business;
   3. Whether the person who will be conducting business under the assumed or fictitious name is an individual or, if not, the type of legal or commercial entity of the person;
   4. If the person who will be conducting business under the assumed or fictitious name is an individual, the post office address of the individual's office or residence, which shall include a street address, city or town, state, and zip code;
   5. If the person who will be conducting business under the assumed or fictitious name is a domestic or foreign corporation, limited liability company, business trust, or limited partnership authorized by the Commission to transact business in the Commonwealth, the identification number issued by the Commission to the person;
   6. If the person who will be conducting business under the assumed or fictitious name is a domestic or foreign partnership that has filed with the Commission a statement of partnership authority or a statement of registration as a registered limited liability partnership that has not been canceled, the identification number issued by the Commission to the partnership;
   7. If the person who will be conducting business under the assumed or fictitious name is not subject to subdivision 4, 5, or 6, the post office address of the person's principal place of business, which shall include a street address, city or town, state, and zip code; and
   8. The printed name and title of the individual signing the certificate of assumed or fictitious name.
2. The certificate of assumed or fictitious name shall be signed by (i) the individual who will be conducting business under the assumed or fictitious name or (ii) an authorized representative of the person who will be conducting business under the assumed or fictitious name when the person is not an individual.
3. The clerk of the Commission shall charge a fee of $10 for the filing of a certificate of assumed or fictitious name.

   (Code 1950, § 59-170; 1968, c. 439; 1976, c. 79; 1981, c. 519; 1984, c. 771; 1987, c. 702; 1991, c. 439; 1995, c. 168; 2017, c. 594.)

Editor's note. - Acts 2017, c. 594, cl. 2, as amended by Acts 2018, c. 251, cl. 1, provides: "That the provisions of this act shall become effective on January 1, 2020."

Acts 2017, c. 594, cl. 3 provides: "That the provisions of this act (i) shall be applied prospectively only; (ii) shall not affect the validity of any filing made, or other action taken, prior to the effective date of this act with respect to a fictitious or assumed name certificate; and (iii) shall not be construed to require any person who was in compliance with applicable laws regarding fictitious or assumed name certificates prior to the effective date of this act to take any action to comply with the requirements of this act."

The 2017 amendments. - The 2017 amendment by c. 594, effective January 1, 2020, rewrote the section. For applicability, see Editor's note.

§ 59.1-70.1. Certificate of release.

1. When a person is no longer conducting business in the Commonwealth under an assumed or fictitious name on file with the clerk of the Commission, the name may be released by filing a certificate of release of an assumed or fictitious name in the office of the clerk of the Commission that is signed (i) by the individual who conducted business under the assumed or fictitious name, (ii) on behalf of the person who conducted business under the assumed or fictitious name when the person is not an individual, (iii) by a court-appointed fiduciary of the person, or (iv) by the person's successor in interest when the person is not an individual.
2. When a person is no longer conducting business in the Commonwealth under an assumed or fictitious name on file with a circuit court, the name may be released by filing a certificate of release of an assumed or fictitious name with the clerk of the court that is signed and acknowledged by the person, a court-appointed fiduciary of the person, or, when the person is not an individual, the person's successor in interest.
3. The certificate of release of an assumed or fictitious name shall be on a form prescribed by the Commission. The fee to file a certificate of release of an assumed or fictitious name with the clerk of the Commission or with the clerk of the court shall be $10.

   (2017, c. 594.)

Editor's note. - Acts 2017, c. 594, cl. 2, as amended by Acts 2018, c. 251, cl. 1, provides: "That the provisions of this act shall become effective on January 1, 2020."

Acts 2017, c. 594, cl. 3 provides: "That the provisions of this act (i) shall be applied prospectively only; (ii) shall not affect the validity of any filing made, or other action taken, prior to the effective date of this act with respect to a fictitious or assumed name certificate; and (iii) shall not be construed to require any person who was in compliance with applicable laws regarding fictitious or assumed name certificates prior to the effective date of this act to take any action to comply with the requirements of this act."

§§ 59.1-71, 59.1-72.

Repealed by Acts 2002, c. 267, effective July 1, 2002.

§ 59.1-73.

Repealed by Acts 1994, c. 432.

§ 59.1-74. Recordation of certificate and registration of names.

1. The clerk of the court with whom a certificate of assumed or fictitious name is filed shall keep a book in which all certificates of assumed or fictitious name and certificates of release of an assumed or fictitious name are recorded, with their date of record, and shall keep a register in which shall be entered in alphabetical order the name under which every business is conducted and the names of every person owning the business.
2. No license shall be issued by a commissioner of the revenue until a certificate of assumed or fictitious name has been made and filed (i) in the office of the clerk of the Commission or (ii) prior to January 1, 2020, in the office of the clerk of the court, and evidence of the filing has been provided to the commissioner of the revenue by the person conducting business under the assumed or fictitious name.

   (Code 1950, § 59-174; 1968, c. 439; 1975, c. 230; 1983, c. 103; 1992, c. 784; 2002, c. 267; 2017, c. 594; 2019, c. 464.)

Editor's note. - Acts 2017, c. 594, cl. 2, as amended by Acts 2018, c. 251, cl. 1, provides: "That the provisions of this act shall become effective on January 1, 2020."

Acts 2017, c. 594, cl. 3 provides: "That the provisions of this act (i) shall be applied prospectively only; (ii) shall not affect the validity of any filing made, or other action taken, prior to the effective date of this act with respect to a fictitious or assumed name certificate; and (iii) shall not be construed to require any person who was in compliance with applicable laws regarding fictitious or assumed name certificates prior to the effective date of this act to take any action to comply with the requirements of this act."

The 2002 amendments. - The 2002 amendment by c. 267 deleted "the name of the statutory agent" following "business is conducted" in the first sentence.

The 2017 amendments. - The 2017 amendment by c. 594, effective January 1, 2020, rewrote the section. For applicability, see Editor's note.

The 2019 amendments. - The 2019 amendment by c. 464, effective March 18, 2019, substituted "January 1, 2020" for "May 1, 2019" in subsection B.

Research References. - Virginia Forms (Matthew Bender). No. 11-1115 Certificate of Fictitious Name of Corporation, etc. No. 12-106 Certificate of Fictitious Name, etc.

§ 59.1-75. Penalty for violation.

Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding $2,500 or by confinement in jail for not more than one year, or both.

(Code 1950, § 59-175; 1968, c. 439; 1991, c. 710.)

§ 59.1-75.1. Penalty for signing false certificate.

1. It is unlawful for any person to sign a certificate the person knows is false in any material respect with intent that the certificate be delivered to the Commission for filing.
2. Any person who violates the provisions of this section is guilty of a Class 1 misdemeanor.

   (2017, c. 594.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 2017, c. 594, cl. 2, as amended by Acts 2018, c. 251, cl. 1, provides: "That the provisions of this act shall become effective on January 1, 2020."

Acts 2017, c. 594, cl. 3 provides: "That the provisions of this act (i) shall be applied prospectively only; (ii) shall not affect the validity of any filing made, or other action taken, prior to the effective date of this act with respect to a fictitious or assumed name certificate; and (iii) shall not be construed to require any person who was in compliance with applicable laws regarding fictitious or assumed name certificates prior to the effective date of this act to take any action to comply with the requirements of this act."

§ 59.1-76. Effect of failure to file certificate on right of action.

The failure of any person or corporation to comply with the provisions of this chapter shall not prevent a recovery by or against such person or corporation, in any of the courts in this Commonwealth on any cause of action heretofore or hereafter arising, but no action shall be maintained in any of the courts in this Commonwealth by any such person, corporation or his or its assignee or successor in title unless and until the certificate required by this chapter has been filed.

(Code 1950, § 59-176; 1968, c. 439.)

Michie's Jurisprudence. - For related discussion, see 4B M.J. Corporations, § 297; 12A M.J. Limited Liability Companies, § 5; 13B M.J. Names, § 5; 14A M.J. Partnerships, § 5; 18 M.J. Trading Under Assumed Name, § 6.

§§ 59.1-77 through 59.1-92.

Repealed by Acts 1998, c. 819.

Cross references. - For the Virginia Trademark and Service Mark Act, see now § 59.1-92.1 et seq.

§ 59.1-92.1. Short title.

This chapter shall be known as the "Virginia Trademark and Service Mark Act (1998)."

(1998, c. 819.)

Law review. - For an article, "Technology and the Law," see 32 U. Rich. L. Rev. 1383 (1998).

Michie's Jurisprudence. - For related discussion, see 18 M.J. Trademarks, Trade Names and Unfair Competition, § 3.

§ 59.1-92.2. Definitions.

As used in this chapter, the following words shall have the following meanings:

"Abandoned" means either (i) the discontinuance of use of a mark with intent not to resume such use (intent not to resume may be inferred from circumstances, i.e., nonuse for three consecutive years shall constitute prima facie evidence of abandonment) or (ii) any course of conduct of the owner, including acts of omission as well as commission, which causes the mark to lose its significance as a mark.

"Applicant" means any person filing an application for registration of a mark under this chapter, and the legal representatives, successors, or assigns of such person.

"Commission" means the State Corporation Commission.

"Mark" means any trademark or service mark registered in the Commonwealth or the United States Patent and Trademark Office, or entitled to registration under this chapter, whether registered or not.

"Registrant" means any person to whom the registration of a mark under this chapter or prior law is issued, and the legal representatives, successors, or assigns of such person.

"Service mark" means any word, name, symbol, or device or any combination thereof used by a person to identify and distinguish the services of such person from the services of others.

"Trade name" means any name used by a person to identify a business or enterprise.

"Trademark" means any word, name, symbol, or device or any combination thereof used by a person to identify and distinguish the goods of such person from those manufactured or sold by others.

"Use" means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For the purposes of this chapter, a mark shall be deemed to be in use (i) on goods when it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and the goods are possessed in the Commonwealth or sold or otherwise distributed in commerce in the Commonwealth, and (ii) in connection with services when it is used or displayed in the course of selling or providing services in the Commonwealth, or advertising descriptive of services available within the Commonwealth that is communicated within or into the Commonwealth.

(1998, c. 819; 2008, cc. 759, 800; 2011, c. 801.)

The 2008 amendments. - The 2008 amendments by cc. 759 and 800 are identical, and inserted "registered in the Commonwealth or the United States Patent and Trademark Office, or" in the definition of "Mark"; and substituted "the Commonwealth" for "this Commonwealth" four times in the definition of "Use."

The 2011 amendments. - The 2011 amendment by c. 801, in the definition for "Use," inserted "possessed in the Commonwealth or" in clause (i).

§ 59.1-92.3. Registrability.

A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it consists of or comprises:

1. Any immoral, deceptive or scandalous matter;
2. Any matter which may falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute;
3. The flag or coat of arms or other insignia of the United States, or of any state or municipality, or of any foreign nation, or any simulation thereof;
4. The name, signature or portrait identifying a particular living individual, except by the individual's written consent;
5. A mark which (i) when used on or in connection with the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them; (ii) when used on or in connection with the goods or services of the applicant, is primarily geographically descriptive or deceptively misdescriptive of them; or (iii) is primarily merely a surname; however, nothing in this subdivision shall prevent the registration of a mark used by the applicant which has become distinctive in this Commonwealth of the applicant's goods or services. The Commission may accept as prima facie evidence that the mark has become distinctive, as used on or in connection with the applicant's goods or services, proof of continuous use thereof as a mark by the applicant in this Commonwealth for the five years before the date of the application for registration; or
6. A mark which so resembles a mark registered in this Commonwealth or a trademark, service mark or trade name previously used in this Commonwealth by another and not abandoned, as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion or mistake, or to deceive.

   (1998, c. 819.)

§ 59.1-92.4. Application for registration.

Subject to the limitations set forth in this chapter, any person who uses a mark may file with the Commission, in a manner complying with the requirements of the Commission, an application for registration of that mark setting forth, but not limited to, the following information:

1. The name and business address of the person applying for such registration; and, if a corporation, limited liability company, partnership, limited liability partnership, or any other legal entity, the state or other jurisdiction of incorporation, formation, or organization, as the case may be;
2. The goods or services on or in connection with which the mark is used and the manner in which the mark is used on or in connection with such goods or services and the class in which such goods or services fall;
3. The date when the mark was first used anywhere and the date when it was first used in this Commonwealth by the applicant or a predecessor in interest; and
4. A statement that the applicant is the owner of the mark, that the mark is in use in this Commonwealth, and that, to the knowledge of the person verifying the application, no other person has registered the mark in this Commonwealth, or has the right to use such mark in this Commonwealth either in the identical form thereof or in such near resemblance thereto as to be likely, when applied to the goods or services of such other person, to cause confusion or mistake, or to deceive.

   The Commission may also require that a drawing of the mark, complying with such requirements as the Commission may specify, accompany the application.

   The application shall be signed and verified (by oath, affirmation or declaration subject to perjury laws) by the applicant or by a person authorized by the applicant to make the application.

   The application shall be accompanied by a specimen showing the mark as actually used.

   The application shall be accompanied by a nonrefundable application fee.

   (1998, c. 819.)

Editor's note. - Acts 1998, c. 819, cl. 4, provides: "That the provisions of this act apply prospectively to all causes of action accruing on or after July 1, 1998, but shall not affect any application for trademark or service mark filed before July 1, 1998, and then pending with the State Corporation Commission."

§ 59.1-92.5. Filing of applications.

1. Upon the filing of an application for registration and payment of the application fee, the Commission shall cause the application to be examined for conformity with this chapter.
2. The applicant shall provide any additional relevant information requested by the Commission, including a description of a design mark, and may make, or authorize the Commission to make, such amendments to the application as may be reasonably requested by the Commission or deemed by the applicant to be advisable to respond to any rejection or objection.
3. The Commission may require the applicant to disclaim any unregistrable component of a mark otherwise registrable, and an applicant may voluntarily disclaim any component of a mark sought to be registered. No disclaimer shall prejudice or affect the applicant's or registrant's common law rights then existing or thereafter arising in the disclaimed matter, or the applicant's or registrant's rights of registration on another application if the disclaimed matter is or has become distinctive of the applicant's or registrant's goods or services.
4. Amendments to the application may be made by the Commission with the applicant's consent.
5. If the applicant is found not to be entitled to registration, the Commission shall notify the applicant thereof in writing and of the reasons therefor. The applicant shall have ninety days from the date of the Commission's notice to make a bona fide reply, or to amend the application, in which event the application shall then be reexamined. This procedure may be repeated until (i) the Commission finally refuses registration of the mark or (ii) the applicant fails to reply or amend within the specified period, whereupon the request for registration shall be deemed to have been finally refused.

   (1998, c. 819.)

§ 59.1-92.6. Certificate of registration.

Upon compliance by the applicant with the requirements of this chapter, the Commission shall cause a certificate of registration to be issued and delivered to the applicant. The certificate shall show (i) the name and business address of the registrant and, if a corporation, limited liability company, partnership, limited liability partnership, or any other legal entity, the state or other jurisdiction of incorporation, formation, or organization, as the case may be; (ii) the date claimed for the first use of the mark anywhere and the date claimed for the first use of the mark in this Commonwealth; (iii) the class of goods or services and a description of the goods or services on or in connection with which the mark is used; (iv) a reproduction of the mark; and (v) the registration date and the term of the registration.

Any certificate of registration issued by the Commission under the provisions hereof or a copy thereof duly certified by the clerk of the Commission shall be prima facie evidence of the registrant's ownership of the mark, and of the registrant's exclusive right to use the registered mark within the Commonwealth on or in connection with the goods or services specified in the certificate, and shall be admissible in evidence as competent and sufficient proof of the registration of such mark in any actions or judicial proceedings in any court of this Commonwealth.

(1998, c. 819.)

§ 59.1-92.7. Duration and renewal.

A registration of a mark hereunder shall be effective for a term of five years from the date of registration and, upon application filed within six months prior to the expiration of such term, in a manner complying with the requirements of the Commission, the registration may be renewed for a like term from the end of the expiring term. A renewal fee shall accompany the application for renewal of the registration.

A registration may be renewed for successive periods of five years in like manner.

Any registration in force on the date on which this chapter becomes effective shall continue in full force and effect for the unexpired term thereof and may be renewed for five years by filing with the Commission, within six months prior to the expiration of the registration, an application for renewal complying with the requirements of the Commission and paying the aforementioned renewal fee therefor.

All applications for renewal under this chapter, whether of registrations made under this chapter or of registrations effected under any prior law, shall include a verified statement that the mark has been and is still in use and include a specimen showing actual use of the mark on or in connection with the goods or services.

(1998, c. 819.)

§ 59.1-92.8. Assignments and changes of name.

1. Any mark and its registration hereunder shall be assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark. Assignment shall be by instruments in writing duly executed and may be filed with the Commission upon the payment of a fee. The Commission shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last renewal thereof. An assignment of any registration under this chapter shall be void as against any subsequent purchaser for valuable consideration without notice, unless it is filed with the Commission within three months after the date of the assignment or prior to such subsequent purchase.
2. Any applicant effecting a change of name may file a certificate of name change with the Commission upon the payment of a fee. The Commission shall prescribe the form and content of such certificate. If the Commission issues a registration based on such applicant's request for registration, the registration shall be issued in the new name of the applicant.
3. Any registrant effecting a change of name may file a certificate of name change with the Commission upon the payment of a fee. The Commission shall prescribe the form and content of such certificate. The Commission shall issue in the new name of the registrant a new certificate of registration for the remainder of the term of the registration or last renewal thereof.
4. A photocopy of any instrument referred to in this section shall be accepted for filing if it is certified by any of the parties thereto, or their successors, to be a true and correct copy of the original.

   (1998, c. 819.)

§ 59.1-92.9. Records.

The Commission shall keep for public examination a record of all marks registered or renewed under this chapter, as well as a record of all documents filed pursuant to § 59.1-92.8 .

(1998, c. 819.)

§ 59.1-92.10. Cancellation.

1. The Commission shall cancel, in whole or in part:
   1. Any registration concerning which the Commission receives a voluntary request for cancellation thereof from the registrant or the assignee of record;
   2. Any registration granted under this chapter or prior law and not renewed in accordance with the provisions hereof; or
   3. Any registration concerning which the Commission finds on its own motion, or on petition of any person who alleges that he is or will be damaged by such registration, that:
      1. The registered mark has been abandoned;
      2. The registrant is not the owner of the mark;
      3. The registration was granted as a result of a clerical error;
      4. The registration was obtained fraudulently;
      5. The mark is or has become the generic name for the goods or services, or a portion thereof, for which it has been registered; or
      6. There is a substantial likelihood of confusion with a mark or trade name previously used in this Commonwealth by another and not abandoned.
2. The Commission may also cause a partial cancellation of a registration by requiring the registrant to amend the registration to adopt a narrower identification of goods or services than is identified in the original certificate.
3. Before the Commission cancels or partially cancels any registration under subdivision A 3, the Commission shall give reasonable notice and an opportunity to be heard to the registrant and to other persons known to have or claim an interest in the mark.

   (1998, c. 819.)

§ 59.1-92.11. Classification.

The Commission shall by regulation establish a classification of goods and services for convenience of the administration of this chapter, but not to limit or extend the applicant's or registrant's rights, and a single application for registration of a mark may include any or all goods upon which, or services in connection with which, the mark is actually being used indicating the appropriate class or classes of goods or services. When a single application includes goods or services which fall within multiple classes, the Commission may require payment of a fee for each class. To the extent practical, the classification of goods and services should conform to the classification adopted by the United States Patent and Trademark Office.

(1998, c. 819.)

§ 59.1-92.12. Infringement.

Subject to the provisions of § 59.1-92.15 , any person who (i) uses in a manner likely to cause a consumer confusion, mistake, or deception as to the source or origin of any goods or services, without the consent of the owner of a registered mark, any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of such goods or services or (ii) reproduces, counterfeits, copies or colorably imitates a registered mark and applies such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, advertisements, or any item intended to be used in a manner likely to cause a consumer confusion, mistake, or deception as to the source or origin of any goods or services in connection with the sale, offering for sale, distribution, or advertising of such goods or services shall be liable in a civil action by the owner of a registered mark for any and all of the remedies provided in § 59.1-92.13 , except that under this subdivision the owner shall not be entitled to recover profits, damages, or attorney fees unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.

(1998, c. 819; 2008, cc. 759, 800; 2011, c. 801.)

The 2008 amendments. - The 2008 amendments by cc. 759 and 800 are identical, and rewrote subdivision 1, which read: "Uses in this Commonwealth without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this chapter or prior law in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source or origin of such goods or services; or"; and in subdivision 2, substituted "advertisements, or any item intended to be used in a manner likely to cause a consumer confusion, mistake, or deception as to the source or origin of any goods or services in connection with the sale, offering for sale, distribution, or advertising of such goods or services" for "or advertisements, intended to be used in this Commonwealth in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive."

The 2011 amendments. - The 2011 amendment by c. 801 twice substituted "owner of a registered mark" for "registrant," substituted "the owner shall not be entitled" for "the registrant shall not be entitled" and "attorney fees" for "attorneys' fees" and made minor stylistic changes.

§ 59.1-92.13. Remedies and penalties.

1. Any owner of a registered mark in force and effect may proceed by suit in a court of competent jurisdiction to enjoin violations of § 59.1-92.12 , seek such other remedies as are set forth herein, or both. Any court of competent jurisdiction may grant such injunctions as may by the court be deemed just and reasonable to restrain such violations, and may require any defendant to pay to such owner all profits derived from and/or all damages suffered by reason of such violations. The court shall also order that any material that violates § 59.1-92.12 that is in the possession or under the control of any defendant in such case be destroyed or delivered to an officer of the court or to the owner for destruction, or alternatively disposed of in another manner with the written consent of the owner of the registered mark. The court, in its discretion upon consideration of the circumstances of the case, may award reasonable attorney fees to the prevailing party.
2. Any person who:
   1. Knowingly and intentionally violates the provisions of § 59.1-92.12 is guilty of a Class 1 misdemeanor and, upon a second or subsequent conviction, is guilty of a Class 6 felony.
   2. Knowingly and intentionally violates the provisions of § 59.1-92.12 and possesses 100 or more identical counterfeit registered marks or possesses counterfeit items valued at $200 or more, is guilty of a Class 6 felony.
3. Property subject to lawful seizure by any officer charged with enforcing this chapter shall include any article bearing or consisting of a counterfeit mark used in violation of this chapter, any property used in the substantial connection with or intended for use in the course of a violation of this chapter, or any interest or profits substantially connected to a violation of this chapter. Forfeiture, seizure, and disposition of such property shall be in accordance with Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2.
4. In any proceeding under this chapter, any certificate of registration issued by the Commonwealth or the United States Patent and Trademark Office shall be prima facie evidence of the facts stated therein.
5. In any criminal proceeding under subsection B, upon motion of the Commonwealth the court shall order any material that violates § 59.1-92.12 that is in the possession or under the control of any defendant or law-enforcement officer be destroyed or delivered to an officer of the court or to the owner of the registered mark for destruction, or alternatively disposed of in another manner with the written consent of the owner of the registered mark. (1998, c. 819; 2008, cc. 759, 800; 2011, c. 801.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 . As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2008 amendments. - The 2008 amendments by cc. 759 and 800 are identical, and in subsection A, substituted "court shall also" for "court may also" near the beginning and inserted "or alternatively disposed of in another manner with the written consent of the registrant" near the end of the third sentence and made a minor stylistic change; inserted the subdivision B 1 designation; substituted "is guilty" for "shall be guilty" twice and substituted "Class 1 misdemeanor" for "Class 2 misdemeanor" in subdivision B 1; added subdivision B 2 and subsections C and D.

The 2011 amendments. - The 2011 amendment by c. 801, in subsection A, substituted "owner" for "registrant" throughout, in the first sentence, inserted "registered," deleted "and/or " following " § 59.1-92.12 " and added "or both," in the third sentence, added "of the registered mark," and in the last sentence, substituted "attorney fees" for "attorneys' fees"; and added subsection E.

Michie's Jurisprudence. - For related discussion, see 18 M.J. Trademarks, Trade Names and Unfair Competition, § 5.

§ 59.1-92.14. Service on out-of-state registrants.

In any action brought against a nonresident registrant, service may be effected upon the clerk of the Commission as agent for service of the registrant in accordance with the procedures established in § 12.1-19.1 .

(1998, c. 819.)

§ 59.1-92.15. Common law rights.

Nothing herein shall adversely affect the rights or the enforcement of common-law rights in marks.

(1998, c. 819.)

§ 59.1-92.16. Fees.

The Commission shall by regulation prescribe the fees payable for the various application and filing fees and for related services. Unless specified by the Commission, the fees payable herein are not refundable.

(1998, c. 819.)

§ 59.1-92.17. Commission may consider final judgments.

In any proceeding before the Commission involving the right to registration, or the cancellation of registration, in whole or in part, the final judgment of a court of record involving the right to use the mark, in whole or in part, may be offered in evidence to the Commission or filed with the Commission by any party to the registration or cancellation proceeding before the Commission. The Commission may consider the judgment of the court in determining what action it should take with respect to the registration or cancellation involved.

(1998, c. 819.)

§ 59.1-92.18. Appeals from final action of Commission.

From any final action of the Commission under the provisions of this chapter an appeal shall lie of right to the Supreme Court in accordance with the provisions of §§ 12.1-39 , 12.1-40 and 12.1-41 .

(1998, c. 819.)

§ 59.1-92.19. Regulations and forms.

1. The Commission shall have authority from time to time to make, amend, and rescind such regulations as may be necessary to carry out the provisions of this chapter, including regulations and forms governing applications, registrations, assignments, renewals, and fees, and defining technical and trade terms used in this chapter insofar as such definitions are not inconsistent with the provisions of this chapter. For the purpose of regulations and forms, the Commission may classify persons and matters within its jurisdiction and prescribe different requirements for different classes.
2. All such regulations and forms shall be made available for distribution at the office of the Commission.
3. No provision of this chapter imposing any liability shall apply to any act done or omitted in conformity with any regulation of the Commission, notwithstanding that such regulation may, after such act or omission, be amended, rescinded, or found for any reason to be invalid.

   (1998, c. 819.)

§ 59.1-92.20. Fees to cover expense of regulation.

The fees paid into the state treasury under this chapter, except for fees and funds collected for the Literary Fund, shall be deposited into a special fund and specifically accounted for and used by the Commission to defray the costs of supervising, implementing, and administering the provisions of this chapter, Chapters 5 (§ 13.1-501 et seq.) and 8 (§ 13.1-557 et seq.) of Title 13.1, and Chapter 7 (§ 59.1-93 et seq.) of this title. Included in the Commission's costs shall be a reasonable margin in the nature of a reserve fund. All excesses of fees collected exceeding these costs shall revert to the general fund.

(1998, c. 819.)

§ 59.1-92.21. Olympic symbols.

1. Without the permission of the United States Olympic Committee, a person shall not, for the purpose of trade, to induce the sale of goods or services, or to promote a theatrical exhibition, athletic performance, or competition, use:
   1. The symbol of the International Olympic Committee, consisting of five interlocking rings;
   2. The emblem of the United States Olympic Committee, consisting of an escutcheon having a blue chief and vertically extending red and white bars on the base with five interlocking rings displayed on the chief;
   3. A trademark, trade name, sign, symbol, or insignia falsely representing association with or authorization by the International Olympic Committee or the United States Olympic Committee; or
   4. The words "Olympic," "Olympiad," or "Citius Altius Fortius" or a combination or simulation of those words that tends to cause confusion or mistake, to deceive, or to suggest falsely a connection with the United States Olympic Committee or an Olympic activity.
2. Any person who actually used the emblem described in subdivision A 2, or the words, or any combination thereof, described in subdivision A 4, for any lawful purpose prior to September 21, 1950, shall not be prohibited by this section from continuing such lawful use for the same purpose and for the same goods or services. In addition, any person who actually used, or whose assignor actually used, any other trademark, trade name, sign, symbol, or insignia described in subdivisions A 3 and A 4 for any lawful purpose prior to September 21, 1950, shall not be prohibited by this section from continuing such lawful use for the same purpose and for the same goods or services.
3. On violation of subsection A, the United States Olympic Committee is entitled to the remedies available to a registrant on infringement of a mark registered under this chapter.

   (1998, c. 819.)

§ 59.1-92.22. Use of name, logo, or symbol of a bank, trust company, savings institution, or credit union.

Any bank, trust company, savings institution, or credit union whose name, logo, or symbol, or any combination thereof, or any name, logo, or symbol, or any combination thereof that is deceptively similar thereto, is used by a person in a manner prohibited by §§ 6.2-941 , 6.2-1043 , 6.2-1105 , and 6.2-1307 , is entitled to the remedies that are available to a registrant under subsection A of § 59.1-92.13 .

(2005, c. 240.)

Editor's note. - In this section, " §§ 6.2-941 , 6.2-1043 , 6.2-1105 , and 6.2-1307 " was substituted for " §§ 6.1-119.1, 6.1-194.93:1, and 6.1-225.65," effective October 1, 2010, to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

§ 59.1-93. "Person" defined.

The word "person" as used in this chapter shall mean an individual, firm or corporation.

(Code 1950, § 59-190; 1968, c. 439.)

Michie's Jurisprudence. - For related discussion, see 18 M.J. Trademarks, Trade Names and Unfair Competition, § 3.

§ 59.1-94. Filing and publication of description of names, marks or devices.

Any person engaged in manufacturing, bottling or selling soda waters, mineral or aerated waters, cider, ginger ale, milk, cream, ice cream, soft drinks or other beverages, or medicines, medical preparations, perfumery, oils, compounds or mixtures, in bottles, siphons, tins, crates or kegs, with his or its name or other marks or devices branded, stamped, engraved, etched, blown, impressed or otherwise produced upon such bottles, siphons, siphon heads, tins, crates, or kegs, or the boxes used by him, or any person engaged in the business of regularly supplying clean laundered garments, towels, table or bed linens or other such articles with his or its name or other marks or devices woven, impressed or produced thereon, and who periodically exchanges such clean articles for soiled articles, may file in the office of the clerk of the circuit court in which his principal office of business is situated, or if such person shall manufacture, supply or bottle out of this Commonwealth, then in any county or city in this Commonwealth, and also in the office of the State Corporation Commission, a description of the name or names or marks or devices so used by him and cause such description to be printed once in each week, for three weeks successively, in a newspaper published in the county or city in which such description may have been filed as aforesaid, and if there be no newspaper published in the county or city in which such description has been filed, then in the newspaper published nearest to that county or city, and he shall thereupon be deemed the proprietor of such name, mark or device, and of every vessel or receptacle or clean laundered or soiled articles mentioned herein upon which it may be branded, stamped, engraved, etched, blown, impressed, woven or otherwise produced.

(Code 1950, § 59-191; 1958, c. 579; 1968, c. 439; 2002, c. 858.)

The 2002 amendments. - The 2002 amendment by c. 858 substituted "circuit court" for "county or corporation court," deleted "or in the clerk's office of the Chancery Court of the City of Richmond, if such principal office of business is situated in such city" following "situated," inserted "or city" following "in any county," and substituted "county or city" for "county or corporation" three times.

§ 59.1-95. Certified copy as evidence; fees of the State Corporation Commission.

A certified copy of the description of the names, marks or devices referred to in this chapter, and filed with the State Corporation Commission, shall be prima facie evidence of the ownership of such bottles, siphons, boxes, crates, tins, kegs or clean laundered or soiled articles mentioned in this chapter in the trial of any case arising under the provisions of this chapter. For filing such paper or giving such copy, the State Corporation Commission may make a reasonable charge not exceeding five dollars.

(Code 1950, § 59-192; 1958, c. 579; 1968, c. 439.)

§ 59.1-95.1. Fees to cover expense of regulation.

The fees paid into the state treasury under this chapter, except for fees and funds collected for the Literary Fund, shall be deposited into a special fund and specifically accounted for and used by the State Corporation Commission to defray the costs of supervising, implementing, and administering the provisions of Chapters 5 (§ 13.1-501 et seq.) and 8 (§ 13.1-557 et seq.) of Title 13.1, and Chapters 6.1 (§ 59.1-92.1 et seq.) and 7 (§ 59.1-93 et seq.) of this title. Included in the Commission's costs shall be a reasonable margin in the nature of a reserve fund. All excesses of fees collected exceeding these costs shall revert to the general fund.

(1987, c. 434.)

Cross references. - For control share acquisitions, see § 13.1-728.1 et seq.

§ 59.1-96. Offenses and punishments.

It shall be unlawful for any person to fill with soda waters, mineral or aerated waters, cider, ginger ale, milk, or soft drinks, or other beverages or with medicine, medical preparations, perfumery, oils, compounds or mixtures, any bottle, box, crate, tin or keg so marked or distinguished as provided in § 59.1-94 with or by any name, mark or device, of which a description shall have been filed and published, as provided in such section, or to deface, erase, obliterate, cover up or otherwise remove, or conceal, any such name, mark or device thereon, or to sell, buy, give, take, receive, or otherwise dispose of or traffic in the same without the written consent of, or unless the same shall have been purchased by an agreement in writing from, the person whose mark or device shall be or shall have been in or upon the bottle, siphon, siphon head, crate, tin or keg so filled, trafficked in, used or handled as aforesaid. It shall also be unlawful for any person to sell, buy, rent, or otherwise traffic in any clean laundered or soiled articles mentioned in this chapter so marked or designated as provided in § 59.1-94 with or by any name, mark or device, of which a description shall have been filed and published, as provided in such section, or to deface, erase, obliterate, cover up or otherwise remove or conceal, any such name, mark or device thereon, or to sell, buy, give, take, receive or otherwise dispose of or traffic in the same without the written consent of, or unless the same shall have been purchased by an agreement in writing from, the person whose mark or device shall be or shall have been in or upon any such clean laundered or soiled article. Any person offending against the provisions of this section shall be deemed guilty of a misdemeanor, and shall be punished for the first offense by imprisonment for not less than ten days, nor more than one year, or by a fine of $5, and in addition thereto fifty cents for each and every such bottle, box, siphon, siphon head, crate, tin, or keg, sold, disposed of, received, bought or trafficked in, or by both such fine and imprisonment, and for each subsequent offense by imprisonment for not less than twenty days nor more than one year, or by a fine of not less than $50, and in addition thereto $1 for each and every bottle, box, siphon, crate, tin or keg filled, sold, used, disposed of, received, bought or trafficked in, or by both such fine and imprisonment, in the discretion of the judge or jury before whom the offense shall be tried; provided that in the case of any person offending against the provisions of this section relating to clean laundered or soiled articles such fine for the first offense shall be not less than $25 nor more than $200 and for each subsequent offense, the fine shall be not less than $50 nor more than $400.

(Code 1950, § 59-193; 1958, c. 579; 1968, c. 439.)

§ 59.1-97. Presumptive evidence of unlawful use and trafficking in marked containers and other articles.

The use by any person other than the person whose device, name or mark shall be or shall have been upon the same without such written consent as aforesaid, of any such marked or distinguished bottle, box, siphon, siphon heads, crate, tin or keg, and filed and published as aforesaid, for the sale therein of soda water, mineral or aerated waters, cider, ginger ale, milk, cream, soft drinks or other beverages, or of any articles of merchandise, medicines, medical preparations, perfumery, oils, compounds, mixtures or preparations, or for the furnishing of such or similar beverages to customers, or the receiving, buying, selling, using, disposing of or trafficking in any such bottles, boxes, siphons, siphon heads, crates, tins or kegs by any person other than the person having his name, mark or device thereon, or the having by any junk dealer, or dealers in secondhand articles, venders of bottles, etc., possession of any such bottles, boxes, siphons, siphon heads, crates, tins, or kegs, and description of the marks, names or devices whereon shall have been so filed and published, as aforesaid, or any such use of such device, name or mark distinguishing any clean laundered or soiled article mentioned in this chapter or any such receiving, buying, selling, using, disposing of or trafficking in any such article by any person other than the person having his name, mark or device thereon, or such having by any such junk dealer or other secondhand dealers possession of any such article and description of the marks, names or devices whereon shall have been so filed and published, as aforesaid, shall be presumptive evidence of the unlawful use and purchase of and trafficking in such bottles, siphons, boxes, siphon heads, crates, tins, kegs, or clean laundered or soiled article mentioned in this chapter.

(Code 1950, § 59-194; 1958, c. 579; 1968, c. 439.)

§ 59.1-98. Procedure when violation charged; awarding possession of property to owner.

Whenever any person mentioned in § 59.1-94 or his agent shall make oath before any magistrate, or other officer empowered to issue criminal warrants, that he has reason to believe, and does believe, that within the city, town or county served by such magistrate or other officer, any of his bottles, boxes, siphons, siphon heads, crates, tins, kegs, or clean laundered or soiled articles mentioned in this chapter a description of the names, marks or devices whereon has been filed and published as aforesaid, are being unlawfully used or filled or had, by any person manufacturing or selling soda, mineral or aerated waters, cider, ginger ale, milk, cream, soft drinks or other beverages or medicines, medical preparations, perfumery, oils, compounds or mixtures, or that any junk dealer or dealer in secondhand articles, vendor of bottles, or any other person has any such bottles, boxes, siphons, siphon heads, crates, tins, kegs or clean laundered or soiled articles mentioned in this chapter in his possession or secreted in any place, the magistrate or other officer, before whom such oath is made must thereupon issue a search warrant to discover and obtain the same, and may also issue his warrant stating the offense charged, and cause to be brought before any general district court having jurisdiction the person in whose possession such bottles, boxes, siphons, siphon heads, crates, tins, kegs or clean laundered or soiled articles mentioned in this chapter may be found, and shall then inquire into the circumstances of such possession and if such general district court finds such person has been guilty of a violation of § 59.1-96 , it must impose the punishment therein prescribed, and it shall award possession of the property taken upon such warrant to the owner thereof.

(Code 1950, § 59-195; 1958, c. 579; 1968, c. 439; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "magistrate" for "Justice of the peace" twice, substituted "general district" for "county or municipal" twice, and substituted "served by such magistrate" for "of such justice of the peace" following "town or county."

§ 59.1-99. Right of appeal; commitment to jail; return and filing of papers.

Any person convicted under the provisions of § 59.1-98 shall have the right of appeal from the decision of such court not of record to the circuit, corporation or hustings court, and shall, unless let to bail, be committed to jail, until next term of such court of record, and the witnesses shall be recognized to appear at the same time. The judge of the court not of record shall return and file all of the papers in each case with the clerk of the court of record.

(Code 1950, § 59-196; 1968, c. 439.)

§ 59.1-100. Trial on appeal.

The appeal shall be tried without formal pleadings in writing, and the accused shall be entitled to trial by jury in the same manner as if he had been indicted for the offense in such court.

(Code 1950, § 59-197; 1968, c. 439.)

§ 59.1-101. Requiring or accepting deposit upon property not deemed a sale thereof.

The requiring, taking or accepting of any deposit, for any purpose, upon any bottle, siphon, siphon head, crate, tin, keg, freezer, can, spoon, block, mould, tray, pan, brick, pail, tub, refrigerator box, cutlery, glass, china, chair, table, sign or clean laundered or soiled article mentioned in this chapter shall not be deemed or constitute a sale of such property, either optional or otherwise in any proceeding under this chapter.

(Code 1950, § 59-198; 1958, c. 579; 1968, c. 439.)

§ 59.1-102. Records; previous filing and publishing of names, marks, etc.

The Secretary of the Commonwealth shall deliver the records of his office relating to names, marks and devices on such property as is mentioned in § 59.1-94 to the State Corporation Commission. No person who has filed prior to July 1, 1948, in the proper offices, a description of the name or names, marks or devices upon such property and has caused the same to be published according to the law existing at the time of such filing and publication, shall be required to again file and publish such description to be entitled to the benefits of this chapter.

(Code 1950, § 59-199; 1968, c. 439.)

§§ 59.1-102.1 through 59.1-102.7.

Repealed by Acts 1974, c. 233.

§ 59.1-103. Persons engaged in lumbering or rafting on certain waters may adopt mark of designation.

It shall be lawful for any person at any time engaged in lumbering or rafting in any manner upon the Elizabeth River in the Commonwealth of Virginia, or on any of its tributaries, or in the Albemarle and Chesapeake Canal or in the Dismal Swamp Canal or in any river or creek lying within the boundaries of this Commonwealth and connecting with either of such canals or upon the Chesapeake Bay, to adopt a mark of designation wherewith to stamp or mark all sawlogs, piles, hewn timber or square timber put or intended to be put by him in any of such streams to be floated and rafted on the same. Such mark may be either in letters, figures, words, names or other devices at the discretion of the person adopting it.

A statement of the mark so adopted with a certificate appended that the same has been adopted as the mark of designation aforesaid, signed by the person adopting the same, shall be furnished to the clerk of the circuit court of the county or corporation court of the city where such person is doing business and has his principal office.

No person shall be entitled to adopt more than one of any of the respective kinds of marks or stamps aforesaid as his mark of designation, but any such person shall not be prohibited from using any other mark in addition to such mark of designation for distinguishing different kinds or lots of timber obtained from different localities, if it does not interfere with the mark of designation of any other person.

(Code 1950, § 59-200; 1968, c. 439.)

§ 59.1-104.

Repealed by Acts 1994, c. 432.

§ 59.1-105. Certificate as evidence of right to use marks.

Any certificate of such mark of designation shall be prima facie evidence of the right of the person filing the same to use the mark or marks mentioned therein.

(Code 1950, § 59-202; 1968, c. 439.)

§ 59.1-106. Sale of unclaimed timber, etc., found adrift; disposition of proceeds.

Any person, except the owner thereof, taking up and securing any sawlog, pile, hewn timber or square timber detached from any raft and found adrift or aground on any of the waters or streams mentioned in § 59.1-103 , shall promptly report such fact to the owner thereof, or shall lodge a list containing a description of the quantity, quality, and marks, if any, of such timber with a magistrate serving the jurisdiction where such timber was so found and secured, which magistrate shall promptly advertise the same for five consecutive days in a newspaper published in the City of Norfolk. If such timber shall not be claimed by the owner thereof within thirty days after such publication it shall be lawful for the magistrate to order the sale thereof at public auction by an officer after giving five days' notice of the time, place, and terms of such sale by not less than six handbills posted in the most public places in the vicinity where the same was found and within the county wherein the magistrate serves. Out of the proceeds of such sale the magistrate, after paying the expenses of the advertisement and handbills, together with all the other costs of such proceeding at law, shall pay to the person or persons who found and secured the timber ten cents for each piece thereof so taken and secured, and the residue of such proceeds of sale shall be paid into the state treasury for the benefit of the Commonwealth.

(Code 1950, § 59-203; 1968, c. 439; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "magistrate" for "justice of the peace" three times throughout the section, substituted "magistrate serving the jurisdiction" for "justice of the peace living nearest to the place" in the first sentence and "magistrate serves" for "justice of the peace may reside" in the second sentence.

§ 59.1-107. Fraudulent use of mark or claim of ownership; defacement of mark, etc.; destruction or conversion of timber, etc.

If any person shall fraudulently or willfully use any such registered mark, or shall fraudulently claim to be the owner of any such marked sawlog, pile, square or hewn timber found or being in any of the aforesaid streams or waters, whether floating or aground or tied up to any wharf or other object, either as part of a raft or not, or shall take and carry away any such marked sawlog, pile or piece of square or hewn timber without the authority of the owner thereof, or shall willfully deface or obliterate any such mark, name, figure, letter, or other designation thereon, or shall fraudulently saw, split, consume, destroy, or injure any such marked sawlog, pile, square or hewn timber or shall without the consent of the owner thereof sell or convert the same to his own use unless it shall have been duly forfeited according to the provisions of this chapter or according to other provisions of law, he shall for every such offense upon conviction be confined in jail not less than sixty days and not exceeding twelve months.

(Code 1950, § 59-204; 1968, c. 439.)

§ 59.1-108. Who are timber dealers.

Every person, firm or corporation dealing in logs or timber in any form to be floated on the streams of this Commonwealth shall be called and known as timber dealers, and as such may adopt a brand or trademark in the manner and with the effect hereinafter provided.

(Code 1950, § 59-205; 1968, c. 439.)

§ 59.1-109. Timber dealer may adopt brand or trademark; recordation.

Every such dealer desiring to adopt a brand or trademark who has not heretofore adopted one may do so by the execution and acknowledgement, as deeds are required to be acknowledged, of a writing substantially in form and effect as follows: "Notice is hereby given that I (or we or the undersigned company, as the case may be) have (or has) adopted the following brand or trademark to be used in my (or our or its) business as a timber dealer (or dealers, as the case may be), to wit: (Here insert the word, letter or letters, or figures, or device or devices adopted.) "Given under my (or our or its) hand and seal this . . . . . . . . . . day of . . . . . . . . . ., two thousand ..................................... ....................................................................(Seal.)"

Such writing may be proved as deeds are proved in this Commonwealth and shall be recorded in the office of the clerk of the circuit court of the county in which the principal office or place of business of such timber dealer may be and of such other counties as such dealer may do business in. Nothing in this section shall be construed to prevent any person who has heretofore used any particular brand from adopting the same as his trademark, and when he shall have adopted it as his trademark as provided in this section it shall apply to the trees and timber heretofore marked with such brand as well as to such as may be hereafter so marked.

(Code 1950, § 59-206; 1968, c. 439.)

§ 59.1-110. Using recorded brand or trademark without authority.

Every brand or trademark so adopted shall, from the date of its recordation be the exclusive brand or trademark of the person, firm or corporation adopting it, and any other person, firm or corporation knowingly using or attempting to use the same, without authority in writing from the owner thereof, shall be guilty of a misdemeanor and fined for each offense in so using the same not less than $20 nor more than $200, and shall be liable to the owner of such brand or trademark for all the damages sustained by such owner by reason of such unauthorized use.

(Code 1950, § 59-207; 1968, c. 439.)

§ 59.1-111. Unauthorized use of dealer's branding iron, or defacing, etc., marks made by it.

Every timber dealer may have a branding iron or hammer with which to impress such brand or trademark on a log, tree or other timber; and any person who shall use such branding iron or hammer or have or use one of like form and making the same brand or trademark, or who shall intentionally and without authority in writing remove, deface, or obliterate or destroy such brand or trademark when once impressed or placed on a log, tree or other timber shall be guilty of a felony, and for each offense shall be confined in the penitentiary not less than one nor more than three years.

(Code 1950, § 59-208; 1968, c. 439.)

§ 59.1-112. Fraudulently impressing brand on timber.

If any person shall knowingly or fraudulently impress or place such brand or trademark on any log, tree or other timber not his own he shall be guilty of a misdemeanor and fined for each offense not less than $10 nor more than $100 and confined in jail not less than ten nor more than twenty days.

(Code 1950, § 59-209; 1968, c. 439.)

§ 59.1-113. Effect of impressing brand on tree, etc.

The placing or impressing such brand or trademark on a log, tree or other marketable timber shall be deemed to be a change of ownership and possession.

(Code 1950, § 59-210; 1968, c. 439.)

§ 59.1-114. Unlawful cutting down, possessing or converting branded timber.

Any person who shall cut down a tree or shall knowingly have in his possession a log or other timber that has been so branded, without the written consent of its owner, and claiming it as his own, or who shall convert it to his own use or offer to sell same, shall be guilty of a felony and punished by confinement in the penitentiary for not less than one nor more than two years for each offense, unless the defendant in such case show a bona fide adverse claim or color of title to the timber or logs in question obtained before such branding.

(Code 1950, § 59-211; 1968, c. 439.)

§ 59.1-115. Sheriff's sale of unbranded timber; recovery by owner; disposition of proceeds.

Every person who shall take, catch, hold or have in his possession any log or other marketable timber, not branded as aforesaid, without the written consent of the owner thereof, shall within ten days after catching, taking up, or getting possession of the same, as aforesaid, report the same in writing to the county clerk of the county in which such person resides, and thirty days after such report is received the sheriff of such county shall sell the same publicly at the courthouse door on the first day of a circuit court in the county, of which notice shall be given by the sheriff for at least ten days by written or printed notices posted at the front door of such courthouse or near thereto and at one or more public places in the county. Any person owning such log or timber may, however, recover the same, by satisfying the sheriff that he is entitled to it, or by action of detinue, as provided by law. Such sale shall be made for cash, and the proceeds when collected, after paying the expenses of sale, including a fee of twenty-five cents for each log or piece of timber so sold, shall be paid to the treasurer of the county for the benefit of the public schools of the district in which the party reporting the same shall at that time reside. Any person failing to report to such clerk, as aforesaid, or to turn over the log or other timber to the sheriff, or any sheriff failing or refusing to advertise and sell such log or timber, as aforesaid, shall be guilty of a misdemeanor, and fined not less than $10 nor more than $100 for each offense.

(Code 1950, § 59-212; 1968, c. 439.)

§ 59.1-116.

Repealed by Acts 1994, c. 432.

§ 59.1-116.1. Definitions.

As used in this article, unless the context requires a different meaning:

"Authorized scrap metal purchaser" has the same meaning as provided for the term "scrap metal purchaser " in § 59.1-136.1 .

"Authorized scrap seller" means any licensed plumber, electrical contractor, HVAC contractor, or building and construction contractor.

"Building material" means any secondhand heating or plumbing fixture or supplies, electric fixtures, or any wiring, gas fixtures or appliances, water faucets, pipes, locks, or any other secondhand fixtures of any kind or description used in the construction of a building.

"Junk dealer" means a person who regularly engages in the business of purchasing, acquiring, or canvassing secondhand building material, including all nonferrous scrap metal, proprietary articles, or both, for the purpose of resale and has conducted transactions involving, or has offered for sale, more than 600 pounds combined weight of secondhand building material or enters into more than 26 combined transactions annually. "Junk dealer" does not include a "scrap metal purchaser" as defined in § 59.1-136.1 .

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, or other private commercial entity.

"Regularly engaged" with respect to purchasing or acquiring secondhand building material means having conducted transactions involving, or having offered for sale, more than 600 pounds combined weight of secondhand building material or enters into more than 26 combined transactions annually.

(2011, c. 836; 2013, c. 414.)

The 2013 amendments. - The 2013 amendment by c. 414 substituted "purchaser" for "processor" twice in the paragraph defining "Authorized scrap metal purchaser," and in the paragraph defining "Junk dealer."

Michie's Jurisprudence. - For related discussion, see 8B M.J. Fixtures, § 14.

§ 59.1-117. Permit required for trading in secondhand building fixtures.

Except as otherwise provided in this chapter, no person shall offer for sale or acquire any secondhand heating or plumbing fixtures or supplies, electric fixtures or any wiring, gas fixtures or appliances, water faucets, pipes, locks, bathtubs, gutters, downspouts, or other secondhand fixtures of whatever kind or description pertaining to a building or structure, without first obtaining a permit for the sale or acquisition of the same from the chief of police of the city or town or the sheriff of the county in which such property is offered for sale or acquisition.

(Code 1950, § 59-145; 1968, c. 439; 2010, c. 805; 2011, c. 836; 2013, c. 414.)

The 2010 amendments. - The 2010 amendment by c. 805 inserted "gutters, downspouts."

The 2011 amendments. - The 2011 amendment by c. 836 deleted "firm or corporation" following "no person," substituted "acquire" for "sell" and inserted "any" preceding "wiring," inserted "or structure" and "or acquisition."

The 2013 amendments. - The 2013 amendment by c. 414 added "or acquisition" at the end.

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 2.

§ 59.1-118. Permit issued by chief of police or sheriff; revocation.

The chief of police of a city or the sheriff of a county may issue, to persons regularly engaged in the business of collecting secondhand building materials for resale, a semiannual or annual permit covering all sales and acquisitions made by such persons. The chief of police or sheriff may refuse to issue a permit, and may revoke any permit issued, to any person convicted of a felony or crime of moral turpitude within the three years prior to the request for the permit. The applicant shall file with the chief of police or sheriff, or his designee, an application form that shall include the applicant's full name, address, age, sex, and fingerprints; the name, address, and telephone number of the applicant's employer, if any; and the location of the applicant's place of business. A permit shall be valid for one year from the date of issuance and may be renewed in the same manner as such permit was initially obtained. A fee of not more than $50 may be charged annually for the issuance of the permit.

(Code 1950, § 59-146; 1968, c. 439; 2011, c. 836.)

The 2011 amendments. - The 2011 amendment by c. 836, in the first sentence, inserted "building" and "and acquisitions"; in the second sentence, substituted "convicted of a felony or crime of moral turpitude within three years prior to the request for the permit" for "convicted of stealing or receiving stolen goods"; added the third and fourth sentences; and rewrote the last sentence, which read: "No charge shall be made for any such permit."

§ 59.1-119. Who deemed a dealer.

Every person who is regularly engaged in the purchasing or acquiring of secondhand building material of the kind mentioned in § 59.1-117 for the purpose of resale or installation on the property of another shall be deemed a dealer within the meaning of the provisions of this article.

(Code 1950, § 59-147; 1968, c. 439; 2011, c. 836.)

The 2011 amendments. - The 2011 amendment by c. 836 substituted "who purchases secondhand property" for "who is regularly engaged in the purchasing or acquiring of secondhand building material."

§ 59.1-119.1. Dealer required to show permit and identification.

Every dealer making a sale or purchase of a secondhand fixture pursuant to the provisions of this article shall first display the permit required by § 59.1-117 and also display positive photo identification to the purchaser or seller of such fixture.

(1992, c. 25.)

§ 59.1-120. Recordkeeping requirements.

1. At the time of purchasing, collecting, receiving, or acquiring a secondhand building fixture, the dealer shall be required to provide:
   1. The date and time of the secondhand building fixture's acquisition; and
   2. The address from which the property was acquired and, if available, a driver's license or other form of government identification to include the name and date of birth of the person from whom the material was collected.
2. Every dealer shall keep at his place of business a permanently bound book or ledger in which shall be legibly written with ink in English at the time of each transaction in the course of the dealer's transaction involving a secondhand building fixture that is collected, received, acquired, or purchased by the dealer. Such account shall set forth:
   1. A complete and accurate description of the secondhand building fixture that is the subject of the transaction;
   2. All information prescribed in subsection A regarding location and, if available, the name and date of birth of the person with whom the dealer conducts the transaction;
   3. The license number of the automobile or other vehicle in which the secondhand building fixture was delivered or received; and
   4. The number of the permit issued pursuant to § 59.1-118 by the chief of police of the city or town, or the sheriff of the county, in which the transaction involving a secondhand building fixture occurred.
3. Records required by subsection B shall be maintained by the dealer at its normal place of business or at another readily accessible and secure location for a period of 24 months.

   (Code 1950, § 59-148; 1968, c. 439; 2010, c. 805; 2011, c. 836.)

The 2010 amendments. - The 2010 amendment by c. 805 designated previously existing provisions as subsection B and added subsection A; in subsection B, substituted "ledger" for "books," and "purchase and sale" for "purchase and/or sale" in the first sentence, substituted "and other information prescribed in subdivision A 1 regarding" for "residence and description of" and inserted "the time and date of the transaction" in the second sentence, and added the last sentence.

The 2011 amendments. - The 2011 amendment by c. 836 rewrote the section.

§ 59.1-121. Reports to be made to chief of police or sheriff.

Every junk dealer selling or acquiring secondhand building materials of the kind mentioned in § 59.1-117 , including persons regularly engaged in the business of collecting or acquiring secondhand building materials for the purpose of resale to a scrap metal purchaser, shall deliver:

1. If the purchase, acquisition, or receipt of the secondhand building fixture occurred in a city or town, to the chief of police of the city or town in which such goods were bought, collected, or received, every day except Sunday before noon, on blank forms to be prescribed and furnished by the chief of police of such city or town:
   1. A legible and accurate description of every secondhand building fixture purchased, acquired, or received by him during the next preceding business day;
   2. The date and time of the secondhand building fixture's acquisition;
   3. If the person is a dealer, the number of his permit issued pursuant to § 59.1-118 ;
   4. The license number of any automobile or other vehicle in which the secondhand building fixture was collected or received;
   5. If available, the name and date of birth of the person with whom the dealer conducted the transaction; and
   6. If the person is a dealer, a reference to the volume and number of the page where the original entry required by subsection B of § 59.1-120 is made; or
2. If the purchase, acquisition, or receipt of the secondhand building fixture occurred in a county, the same information required by subdivision 1 shall be furnished to the sheriff of the county in which such goods were bought, collected, or received not later than midday of the Saturday following the purchase or receipt of such goods, but the sheriff shall not be required to prepare or furnish blank forms for such reports for use in the county, and the dealer may submit any report which fairly conforms to the requirements of subdivision 1.

   (Code 1950, § 59-149; 1968, c. 439; 1972, c. 598; 2010, c. 805; 2011, c. 836; 2013, c. 414.)

The 2010 amendments. - The 2010 amendment by c. 805 added subsection B.

The 2011 amendments. - The 2011 amendment by c. 836 rewrote the section.

The 2013 amendments. - The 2013 amendment by c. 414 substituted "scrap metal purchaser" for "scrap metal processor" in the introductory paragraph.

§ 59.1-122. Books and places of business open to inspection.

The books required by this article to be kept, and the places of business of all persons engaged in the acquiring, selling, receiving, or purchasing of the articles mentioned in § 59.1-117 , shall at all reasonable times be open to the inspection of any police officer, sheriff, or deputy of the county, city, or town in which such place of business is located.

(Code 1950, § 59-150; 1968, c. 439; 2011, c. 836.)

The 2011 amendments. - The 2011 amendment by c. 836 substituted "persons engaged in the acquiring, selling, receiving, or purchasing" for "persons engaged in the sale, receiving, or purchasing."

§ 59.1-123. Exemptions from article.

The provisions of this article shall not apply to:

1. The sale of secondhand material mentioned in § 59.1-117 taken from premises occupied by the owner, when sold by such owner on the premises, or the sale of such articles when purchased from a public utility corporation at its place of business or a governmental agency;
2. Scrap metal purchasers as provided in Article 4 (§ 59.1-136.1 et seq.);
3. Authorized scrap sellers;
4. Public utilities;
5. Public transportation companies;
6. Peddlers permitted under § 59.1-118 ;
7. Industrial and manufacturing companies;
8. Marine, automobile, and aircraft salvage and wrecking companies;
9. Governmental entities; or
10. The donation of secondhand material mentioned in § 59.1-117 by the material's owner or the owner's contractor or subcontractor to a nonprofit corporation as defined in § 501(c)(3) of the U.S. Internal Revenue Code or the sale of such donated material by such a nonprofit corporation. (Code 1950, § 59-151; 1968, c. 439; 2007, c. 917; 2011, c. 836; 2013, c. 414; 2015, c. 626.)

The 2007 amendments. - The 2007 amendment by c. 917 rewrote the section.

The 2011 amendments. - The 2011 amendment by c. 836, in subdivision 1, substituted "material" for "materials" and "utility" for "utilities"; and added subdivisions 3 through 9 and made a related change.

The 2013 amendments. - The 2013 amendment by c. 414 substituted "purchasers" for "processors" in subdivision 2; and substituted "Peddlers permitted under § 59.1-118 " for "Licensed peddlers and brokers" in subdivision 6.

The 2015 amendments. - The 2015 amendment by c. 626 added subdivision 10 and made related changes.

§ 59.1-124. Penalty for violation.

Any person who violates this article shall be guilty of a Class 3 misdemeanor. A person convicted of a second or subsequent offense under this article is guilty of a Class 1 misdemeanor.

(Code 1950, § 59-152; 1968, c. 439; 1972, c. 598; 1988, c. 765; 2010, c. 805.)

Cross references. - As to punishment for Class 1 and Class 3 misdemeanors, see § 18.2-11 .

The 2010 amendments. - The 2010 amendment by c. 805 rewrote the section.

§ 59.1-125. When unlawful to buy.

It shall be unlawful for any person, firm or corporation to barter, purchase, exchange, or buy from any person whomsoever, except plumbers, the owner of buildings from which the material is taken, railroad, coal mining, industrial, manufacturing and public utility companies, or the authorized agents of such companies, lawful owners and junk dealers, licensed in this Commonwealth, any secondhand steel, copper, copper wire, aluminum, aluminum wire, brass, brass bearings or fittings, electric light or gas fixtures, locks or other builders hardware, plumbing fixtures, bell or bell fixtures, lead or brass water pipes or any part of such fixtures or pipes, or any wire, cable, lead, solder, copper, iron or brass used by or belonging to a railroad, telephone, telegraph, coal mining, industrial, manufacturing or public utility company; provided that this section shall not apply to any person, firm or corporation which shall barter, purchase, exchange, buy or accept any secondhand grooved or figure-eight copper trolley wire, bare or insulated heavy stranded copper or aluminum feeder wire, high voltage copper or aluminum transmission wire, or bare or insulated mining machine copper cables, but § 59.1-128 shall be applicable thereto.

(Code 1950, § 59-153; 1958, c. 614; 1968, c. 439; 2011, c. 836.)

The 2011 amendments. - The 2011 amendment by c. 836 substituted "or buy from any person" for "buy or accept from any person" in the beginning.

§ 59.1-126. Receipt or bill of sale to be taken by buyer; sales procedures.

Any person buying, at public or private sale, any such secondhand articles as are mentioned in § 59.1-125 , except those excepted in said section, shall:

1. Take from the seller a properly dated written receipt or bill of sale signed by such seller which shall therein state specifically the seller's address, business, social security number, vehicle license number, and place of residence. If a seller of such articles be not personally known to the buyer or if the seller be unable to write his name, such seller shall produce an adult witness personally known to the buyer to identify the seller and also to sign such receipt or bill of sale as witness, the latter also stating therein his full name, occupation and place of residence. Such receipt or bill of sale shall specifically set forth, by accurate description giving the character, kind, quality, weight, length or size, and other detailed description sufficient to accurately identify the same, each of such articles so purchased and shall be retained by the buyer at his place of business for a period of six months after such purchase; and
2. Make any payment for such articles purchased of $1,000 or more in the form of a check.

   (Code 1950, § 59-154; 1958, c. 614; 1968, c. 439; 2011, c. 80.)

The 2011 amendments. - The 2011 amendment by c. 80 subdivided the existing provisions of the section, creating the introductory language and adding the subdivision 1 designation; and added subdivision 2.

§ 59.1-127. Violation of § 59.1-125 or § 59.1-126 a misdemeanor; revocation of dealer's license.

Any person violating any of the provisions of § 59.1-125 or § 59.1-126 shall be guilty of a misdemeanor.

(Code 1950, § 59-155; 1958, c. 614; 1968, c. 439; 1972, c. 598; 1988, c. 765.)

§ 59.1-128. When unlawful to buy, exchange, etc., secondhand copper or aluminum wire.

It shall be unlawful for any person, firm or corporation to barter, purchase, exchange, buy or accept from any person whomsoever, except the manufacturer thereof or his authorized agent, railroad, coal mining, industrial, manufacturing and public utility companies, or the authorized agents of such companies, governmental agencies, and licensed junk dealers, licensed scrap metal dealers, licensed electrical contractors and licensed merchants, any secondhand grooved or figure-eight copper trolley wire, bare or insulated heavy stranded copper or aluminum feeder wire, high voltage copper or aluminum transmission wire, or bare or insulated mining machine copper cables.

(Code 1950, § 59-155.1; 1958, c. 614; 1968, c. 439.)

§ 59.1-129. Requirements when articles mentioned in § 59.1-128 are bought, exchanged, etc.

1. Any person, firm or corporation which shall barter, purchase, exchange, buy or accept any of the articles mentioned in § 59.1-128 , shall comply with the provisions of § 59.1-126 and shall, in addition, tag each lot of said articles with the name of the seller and the date of receipt and shall retain each such lot in his possession so tagged for 30 days in such manner that its separate identity shall be preserved; provided that the requirements of this section for tagging said articles and retaining them in possession shall not be applicable if the receipt or bill of sale required by § 59.1-126 shall contain an authorization naming the agent who delivers the articles and signed by an officer, or by the proprietor, of the manufacturer, or coal mining, industrial, manufacturing, public utility company, governmental agency, licensed junk dealer, licensed scrap metal dealer, licensed electrical contractor or licensed merchant, giving such authorization.
2. Notwithstanding anything in subsection A to the contrary, the provisions of this article shall not apply to scrap metal processors as provided in Article 4 (§ 59.1-136.1 et seq.). (Code 1950, § 59-155.2; 1958, c. 614; 1968, c. 439; 2007, c. 917.)

The 2007 amendments. - The 2007 amendment by c. 917 designated the existing provisions as subsection A; substituted "30 days" for "thirty days" in subsection A; and added subsection B.

§ 59.1-130. Punishment for violation of § 59.1-128 or § 59.1-129.

Any person violating any of the provisions of § 59.1-128 or § 59.1-129 shall be confined in the penitentiary not less than one year nor more than two years, or in the discretion of the court or the jury trying the case, shall be fined not less than $100 nor more than $1,000, or confined in jail for any term not exceeding twelve months, or both. Possession of secondhand articles in violation of the provisions of the above sections shall be prima facie evidence of guilt.

(Code 1950, § 59-155.3; 1958, c. 614; 1968, c. 439; 1972, c. 598; 1988, c. 765.)

§ 59.1-131. When watch deemed secondhand.

A watch shall be deemed to be secondhand if

1. As a whole or the case thereof or the movement shall have been previously sold to or acquired by any person who bought or acquired the same for his use or the use of another, but not for resale; or
2. Its case serial numbers or movement numbers or other distinguishing numbers or identification marks shall be erased, defaced, removed, altered or covered.

   (Code 1950, § 59-156; 1968, c. 439.)

§ 59.1-132. Tag to be affixed to watch.

Any person, firm, partnership, association or corporation engaged in the business of buying or selling watches, or any agent or servant thereof, who may sell or exchange, or offer for sale or exchange, expose for sale or exchange, possess with the intent to sell or exchange, or display with the intent to sell or exchange any secondhand watch, shall affix and keep affixed to the same a tag with the words "secondhand" clearly and legibly written or printed thereon, and the tag shall be so placed that the words "secondhand" shall be in plain sight at all times.

(Code 1950, § 59-157; 1968, c. 439.)

§ 59.1-133. Invoice to be furnished to purchaser.

Any person, firm, partnership, association or corporation engaged in the business of buying or selling watches, or any agent or servant thereof, who may sell a secondhand watch or in any other way pass title thereto shall deliver to the vendee a written invoice bearing the words "secondhand watch" in bold letters, larger than any of the other written matter upon such invoice. Such invoice shall further set forth the name and address of the vendor, the name and address of the vendee, the date of the sale, the name of the watch or its maker, and the serial numbers (if any), and any other distinguishing numbers or identification marks upon its case and movements. If the serial numbers or other distinguishing numbers or identification marks shall have been erased, defaced, removed, altered or covered, such invoice shall so state. The vendor shall keep on file a duplicate of such invoice for at least five years from the date of the sale thereof, which shall be open to inspection during all business hours by the law-enforcement officers of the county or city in which the vendor is engaged in business.

(Code 1950, § 59-158; 1968, c. 439.)

§ 59.1-134. Advertisement or display.

Any person, firm, partnership, association or corporation, or any agent or servant thereof, who advertises or displays in any manner a secondhand watch for sale or exchange shall state clearly in such advertisement or display that the watch is a secondhand watch.

(Code 1950, § 59-159; 1968, c. 439.)

§ 59.1-135. Penalty for violation.

Any person, firm, partnership, association or corporation, or any agent or servant thereof, who shall violate any of the provisions of this article shall be guilty of a misdemeanor and shall be punished by a fine not to exceed the sum of $500 or by imprisonment not to exceed ninety days, or both.

(Code 1950, § 59-160; 1968, c. 439.)

§ 59.1-136. Pawnbrokers' auction sales exempted.

The provisions of this article shall not apply to pawnbrokers' auction sales of unredeemed pledges when public notice of the fact that watches are rebuilt or are secondhand is given prior to the sale.

(Code 1950, § 59-161; 1968, c. 439.)

§ 59.1-136.1. Definitions.

For the purpose of this article:

"Authorized scrap seller" means licensed plumbers, electricians, HVAC contractors, building and construction contractors, demolition contractors, construction and demolition debris contractors, public utilities, transportation companies, industrial and manufacturing companies, marine, automobile, and aircraft salvage and wrecking companies, and government entities.

"Broker" means any person or his authorized agent who negotiates, purchases, sells, or offers for sale any scrap metal either directly or through an authorized agent without obtaining title to or ownership of the scrap metal.

"Ferrous scrap" means any scrap metal consisting primarily of iron, steel, or both, but excluding any scrap metal consisting primarily of stainless steel. Ferrous scrap includes large manufactured articles such as automobile bodies that may contain other substances to be removed and sorted during normal operations of scrap metal processors.

"Metal article" means any manufactured item, consisting of metal, that is usable for its originally intended purpose without processing, repairs, or alteration and that is not otherwise excluded by the definitions in this section. Examples include, without limitation, railings, copper or aluminum wire, copper pipe and tubing, plumbing fixtures, copper and aluminum gutters, copper and aluminum downspouts, and cast-iron radiators.

"Nonferrous scrap" means any scrap metal consisting primarily of (i) stainless steel or (ii) any metal other than iron or steel. Nonferrous scrap does not include aluminum beverage cans; postconsumer household items such as pots, pans, barbecue grills, and lawn chairs; used flashing removed during building renovation or demolition; or small quantities of nonferrous metals contained in large manufactured articles, such as automobile bodies and appliances.

"Proprietary article" means (i) any metal article stamped, engraved, stenciled, or otherwise marked so as to identify it as being or having been the property of a governmental entity or public utility or transportation, shipbuilding, ship repair, mining, or manufacturing company; (ii) any hard drawn copper electrical conductor, cable, or wire that is three-eighths of one inch or greater in diameter, stranded or solid; (iii) any aluminum conductor, cable, or wire three quarters of one inch or greater in diameter, stranded or solid; (iv) stainless steel beer kegs; (v) any catalytic converter from a motor vehicle exhaust system that has been detached from a motor vehicle; (vi) any telecommunications cable that is one-half of one inch or greater in diameter and that contains 50 or more individual strands of solid, insulated, color-coded copper wire, including such telecommunication cable that has been unsheathed or burned; (vii) any manhole cover; (viii) any bronze or copper cemetery plaque, urn, or marker; (ix) aluminum bleacher seats or guardrails; or (x) any mining cable that is one-half inch or greater in diameter and is composed of one or more stranded copper conductors and stamped, engraved, stenciled, or otherwise marked with "Mine Safety and Health Administration" or "MSHA."

"Scrap metal" means any manufactured item or article consisting of or containing metal; any metal removed from or obtained by cutting, demolishing, or disassembling any building, structure, manufactured item, or article; and any other metal that is no longer used for its original purpose and that can be processed for reuse in mills, foundries, and other manufacturing facilities.

"Scrap metal processor" means a business entity in good standing authorized to conduct business in the Commonwealth that regularly utilizes machinery and equipment at one or more established locations in the normal course of business for processing and manufacturing scrap metal into prepared grades for sale as raw material to mills, foundries, and other manufacturing facilities.

"Scrap metal purchaser" means any person or business, other than an authorized scrap seller or a broker buying or selling processed scrap metal, who purchases scrap metal either directly or through an authorized agent in excess of $20,000 during any 12-month period.

(2007, c. 917; 2009, c. 657; 2010, c. 805; 2012, c. 449; 2013, c. 414.)

The 2009 amendments. - The 2009 amendment by c. 657 added clause (v) to the end of the definition of "Proprietary article" and made related changes.

The 2010 amendments. - The 2010 amendment by c. 805, in the definition of "metal article," inserted "copper and aluminum gutters, copper and aluminum downspouts"; and in the definition of "nonferrous scrap," substituted "used flashing" for "used items such as wire flashing, gutters, and downspouts."

The 2012 amendments. - The 2012 amendment by c. 449 added clause (vi) to the end of the definition of "Proprietary article" and made related changes.

The 2013 amendments. - The 2013 amendment by c. 414 substituted "Purchasers" for "Processors" in the Article head; added the paragraphs defining "Broker" and "Scrap metal purchaser"; in definition of "Authorized scrap seller," deleted "licensed peddlers and brokers" following "transportation companies"; in the paragraph defining "Metal article," deleted "manhole covers" following "without limitation" and "bronze cemetery plaques, urns, and markers" preceding "plumbing fixtures"; added clause (vii) through (x) in the paragraph defining "Proprietary article," and made a minor stylistic change.

§ 59.1-136.2. Purchases of ferrous scrap.

Except as provided in § 59.1-136.4 , scrap metal processors may purchase ferrous scrap directly from any person.

(2007, c. 917.)

§ 59.1-136.3. Purchases of nonferrous scrap, metal articles, and proprietary articles.

1. Except as provided in § 59.1-136.4 , scrap metal purchasers may purchase nonferrous scrap, metal articles, and proprietary articles from any person who is not an authorized scrap seller or the authorized agent and employee of an authorized scrap seller only in accordance with the following requirements and procedures:
   1. At the time of sale, the seller of any nonferrous scrap, metal article, or proprietary article shall provide a driver's license or other government-issued current photographic identification including the seller's full name, current address, date of birth, and social security or other recognized identification number; and
   2. The scrap metal purchaser shall record the seller's identification information, as well as the time and date of the transaction, the license number of the seller's vehicle, and a description of the items received from the seller, in a permanent ledger maintained at the scrap metal purchaser's place of business. The ledger shall be made available upon request to any law-enforcement official, conservator of the peace, or special conservator of the peace appointed pursuant to § 19.2-13 , in the performance of his duties who presents his credentials at the scrap metal purchaser's normal business location during regular business hours. Records required by this subdivision shall be maintained by the scrap metal dealer at its normal place of business or at another readily accessible and secure location for at least five years.
2. Upon compliance with the other requirements of this section and § 59.1-136.4 , a scrap metal purchaser may purchase proprietary articles from a person who is not an authorized scrap seller or the authorized agent and employee of an authorized scrap seller if the scrap metal purchaser complies with one of the following:
   1. The scrap metal purchaser receives from the person seeking to sell the proprietary articles documentation, such as a bill of sale, receipt, letter of authorization, or similar evidence, establishing that the person lawfully possesses the proprietary articles to be sold; or
   2. The scrap metal purchaser shall document a diligent inquiry into whether the person selling or delivering the same has a legal right to do so, and, after purchasing a proprietary article from a person without obtaining the documentation described in subdivision 1, shall submit a report to the local sheriff's department or the chief of police of the locality, by the close of the following business day, describing the proprietary article and including a copy of the seller's identifying information, and hold the proprietary article for not less than 15 days following purchase.
3. The scrap metal purchaser shall take a photographic or video image of all proprietary articles purchased from anyone other than an authorized scrap seller. Such image shall be of sufficient quality so as to reasonably identify the subject of the image and shall be maintained by the scrap metal purchaser no less than 30 days from the date the image is taken. Any image taken and maintained in accordance with this subdivision shall be made available upon the request of any law-enforcement officer conducting official law-enforcement business.
4. The scrap metal purchaser may purchase nonferrous scrap, metal articles, and proprietary articles directly from an authorized scrap seller and from the authorized agent or employee of an authorized scrap seller.

   (2007, c. 917; 2013, c. 414.)

The 2013 amendments. - The 2013 amendment by c. 414 substituted "purchasers" for "processors" and "purchaser's" for "processor's" throughout the section; in subdivision B 2, deleted "police or" preceding "sheriff's department," and inserted "or the chief of police of the locality"; added subsection C and redesignated former subsection C as D; and substituted "The scrap metal purchaser" for "Scrap metal processors" in subsection D.

§ 59.1-136.4. Purchases of materials from minors.

Scrap metal processors shall not purchase ferrous scrap, nonferrous scrap, metal articles, proprietary articles, or other scrap metal from any person under the age of 18 years.

(2007, c. 917.)

§ 59.1-136.5. Reports of purchases by scrap metal purchasers.

If requested by the chief law-enforcement officer of the locality in which the scrap metal purchaser conducts business, every scrap metal purchaser conducting business in the locality shall furnish to the chief law-enforcement officer of the locality in which the scrap metal purchaser conducts business a report of all of the scrap metal purchaser's purchases of nonferrous scrap, metal articles, and proprietary articles, excluding aluminum cans and interior household items. Each report shall (i) be submitted on the next business day following the date of a purchase; (ii) include the seller's name, date of birth, identification number, address, height, and weight and the license number of any motor vehicle in which the goods or things were delivered; and (iii) be submitted in an electronic format if required by the locality in which the scrap metal purchaser conducts business. The form of the report shall be prescribed by the Virginia State Police.

(2007, c. 917; 2013, c. 414.)

The 2013 amendments. - The 2013 amendment by c. 414 substituted "purchaser" for "processor" and "purchaser's" for "processor's" throughout the section; deleted "of police or other" preceding "law-enforcement" in two places, and inserted "of the locality in which the scrap metal purchaser conducts business" in the first sentence, deleted "provided that if the locality requires that reports be submitted in electronic format, scrap metal processors shall be given a period of not more than one year following the locality's adoption of such a requirement to implement the requirement" at the end and added the last sentence.

§ 59.1-136.6. Penalties.

1. Any scrap metal purchaser who negligently violates any provisions of this article may be assessed a civil penalty not to exceed $7,500 for each violation. Any attorney for the county, city, or town in which an alleged violation of this article occurred may bring a civil action to recover such a civil penalty. The civil penalty shall be paid into the local treasury.
2. Any scrap metal purchaser who knowingly violates any provisions of this article is guilty of a Class 1 misdemeanor.

   (2007, c. 917; 2013, c. 414.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2013 amendments. - The 2013 amendment by c. 414 substituted "purchaser" for "processor" in subsections A and B; and substituted "is guilty" for "shall be guilty" in subsection B.

§ 59.1-136.7. Exemption.

Nothing in this article shall apply to the purchase, sale or disposal of any material that is used in the provision of health care by any professional who is licensed, certified or registered to practice by a board within the Department of Health Professions under Title 54.1.

(2007, c. 917.)

§ 59.1-137. Definition.

Whenever used in this chapter:

"Explosives" means any chemical compound, mechanical mixture or device the primary or common purpose of which is to function by explosion. The term includes, but is not limited to dynamite and other high explosives, black blasting powder, pellet powder, initiating explosives, blasting caps, electric blasting caps, detonators, safety fuse, fuse igniters, fuse lighters, squibs, cordeau detonant fuse, instantaneous fuse, detonating cord, igniter cord, igniters and those materials included in the list published annually in the Federal Register by the Department of the Treasury pursuant to the Organized Crime Control Act of 1970 (18 U.S.C. § 841 et seq.).

(Code 1950, § 59-222; 1960, c. 578; 1968, c. 439; 1976, c. 250.)

Cross references. - As to transporting hazardous materials, see § 10.1-1450 et seq.

§ 59.1-138. Record of sales required; signing by purchasers; sales to persons under eighteen prohibited.

1. Any person selling any explosives covered by this chapter shall keep a record of all such explosives sold, showing the kind and quantity sold, the name and address of the purchaser, and the date of each sale. The person selling such explosives shall also require any person purchasing such explosives to sign such record at the time of such purchase.
2. No person shall sell, deliver, give away, or otherwise dispose of any explosives to any individual under eighteen years of age, whether such individual is acting for himself, herself, or for any other person.

   (Code 1950, § 59-223; 1960, c. 578; 1968, c. 439; 1972, c. 824.)

§ 59.1-139. Persons possessing explosives to give notice of theft.

Any person having in his possession any explosives covered by this chapter shall immediately notify the sheriff of the county or the police officials of the city in which any such explosives are being stored or used in the event that any such explosives are stolen.

(Code 1950, § 59-224; 1960, c. 578; 1968, c. 439.)

§ 59.1-140. Effect of chapter upon municipal regulation.

Nothing contained in this chapter shall:

Affect any existing ordinance, rule or regulation of any city or municipality in this Commonwealth that is not less restrictive than this chapter; or affect, modify or limit the power of such cities or municipalities to make ordinances, rules or regulations not less restrictive than this chapter, governing the storage, possession, sale and use of explosives within their respective corporate limits.

(Code 1950, § 59-225; 1960, c. 578; 1968, c. 439.)

§ 59.1-141. Penalty.

Any person who violates any provision of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, be punished accordingly.

(Code 1950, § 59-226; 1960, c. 578; 1968, c. 439.)

§§ 59.1-142 through 59.1-148.

Repealed by Acts 2002, c. 856.

Cross references. - For current provision authorizing localities to provide for the issuance of permits for the display of fireworks, see § 15.2-974 . For current provisions relating to fireworks, see the Virginia Statewide Fire Prevention Code, § 27-94 et seq.

§§ 59.1-148.1, 59.1-148.2.

Repealed by Acts 2004, c. 929.

§ 59.1-148.3. Purchase of handguns or other weapons of certain officers.

1. The Department of State Police, the Department of Wildlife Resources, the Virginia Alcoholic Beverage Control Authority, the Virginia Lottery, the Marine Resources Commission, the Capitol Police, the Department of Conservation and Recreation, the Department of Forestry, any sheriff, any regional jail board or authority, and any local police department may allow any full-time sworn law-enforcement officer, deputy, or regional jail officer, a local fire department may allow any full-time sworn fire marshal, the Department of Motor Vehicles may allow any law-enforcement officer, any institution of higher learning named in § 23.1-1100 may allow any campus police officer appointed pursuant to Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1, retiring on or after July 1, 1991, and the Department of Corrections may allow any employee with internal investigations authority designated by the Department of Corrections pursuant to subdivision 11 of § 53.1-10 who retires (i) after at least 10 years of service, (ii) at 70 years of age or older, or (iii) as a result of a service-incurred disability or who is receiving long-term disability payments for a service-incurred disability with no expectation of returning to the employment where he incurred the disability to purchase the service handgun issued or previously issued to him by the agency or institution at a price of $1. If the previously issued weapon is no longer available, a weapon of like kind may be substituted for that weapon. This privilege shall also extend to any former Superintendent of the Department of State Police who leaves service after a minimum of five years. This privilege shall also extend to any person listed in this subsection who is eligible for retirement with at least 10 years of service who resigns on or after July 1, 1991, in good standing from one of the agencies listed in this section to accept a position covered by the Virginia Retirement System. Other weapons issued by the agencies listed in this subsection for personal duty use of an officer may, with approval of the agency head, be sold to the officer subject to the qualifications of this section at a fair market price determined as in subsection B, so long as the weapon is a type and configuration that can be purchased at a regular hardware or sporting goods store by a private citizen without restrictions other than the instant background check.
2. The agencies listed in subsection A may allow any full-time sworn law-enforcement officer who retires with five or more years of service, but less than 10, to purchase the service handgun issued to him by the agency at a price equivalent to the weapon's fair market value on the date of the officer's retirement. Any full-time sworn law-enforcement officer employed by any of the agencies listed in subsection A who is retired for disability as a result of a nonservice-incurred disability may purchase the service handgun issued to him by the agency at a price equivalent to the weapon's fair market value on the date of the officer's retirement. Determinations of fair market value may be made by reference to a recognized pricing guide.
3. The agencies listed in subsection A may allow the immediate survivor of any full-time sworn law-enforcement officer (i) who is killed in the line of duty or (ii) who dies in service and has at least 10 years of service to purchase the service handgun issued to the officer by the agency at a price of $1.
4. The governing board of any institution of higher learning named in § 23.1-1100 may allow any campus police officer appointed pursuant to Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1 who retires on or after July 1, 1991, to purchase the service handgun issued to him at a price equivalent to the weapon's fair market value on the date of the officer's retirement. Determinations of fair market value may be made by reference to a recognized pricing guide.
5. Any officer who at the time of his retirement is a full-time sworn law-enforcement officer with a state agency listed in subsection A, when the agency allows purchases of service handguns, and who retires after 10 years of state service, even if a portion of his service was with another state agency, may purchase the service handgun issued to him by the agency from which he retires at a price of $1.
6. The sheriff of Hanover County may allow any auxiliary or volunteer deputy sheriff with a minimum of 10 years of service, upon leaving office, to purchase for $1 the service handgun issued to him.
7. Any sheriff or local police department may allow any auxiliary law-enforcement officer with more than 10 years of service to purchase the service handgun issued to him by the agency at a price that is equivalent to or less than the weapon's fair market value on the date of purchase by the officer.
8. The agencies listed in subsection A may allow any full-time sworn law-enforcement officer currently employed by the agency to purchase his service handgun, with the approval of the chief law-enforcement officer of the agency, at a fair market price. This subsection shall only apply when the agency has purchased new service handguns for its officers, and the handgun subject to the sale is no longer used by the agency or officer in the course of duty.

   (1989, c. 175; 1990, c. 359; 1991, c. 389; 1992, cc. 63, 83, 195; 1996, c. 50; 1998, c. 173; 1999, c. 312; 2000, c. 391; 2002, c. 25; 2003, c. 106; 2004, c. 136; 2005, c. 168; 2006, c. 185; 2007, c. 813; 2009, cc. 289, 412; 2010, cc. 590, 864; 2011, c. 628; 2012, c. 218; 2013, c. 62; 2014, c. 225; 2015, cc. 38, 730; 2016, cc. 196, 210, 215; 2019, c. 608; 2020, c. 958.)

Editor's note. - Acts 2007, c. 813, cl. 2, provides: "That the provisions of this act shall not affect the powers of any locality with respect to any ordinance, resolution or bylaw validly adopted and not repealed or rescinded prior to July 1, 2007."

Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

Acts 2016, c. 41, cl. 1 provides: "Any conservation police officer who (i) has at least 20 years of service as a conservation police officer, (ii) was a full-time sworn conservation police officer immediately prior to January 1, 2016, and (iii) was transitioned to a civilian position on January 1, 2016, by the Department of Game and Inland Fisheries shall be considered a retired law-enforcement officer for the purposes of §§ 9.1-1000 , 18.2-308 , 18.2-308 .03, and 59.1-148.3 ."

At the direction of the Virginia Code Commission, "23.1-1100" was substituted for "23-14" in subsections A and D; "Article 3 ( § 23.1-809 et seq.) of Chapter 8 of Title 23.1" was substituted for "Chapter 17 ( § 23-232 et seq.) of Title 23" in subsections A and D to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

The 2000 amendments. - The 2000 amendment by c. 391 substituted "officer, deputy, or any former Superintendent of the Department of State Police who leaves service after a minimum of five years" for "officer or deputy" in subsection A.

The 2002 amendments. - The 2002 amendment by c. 25, in subsection A, inserted "any regional jail board or authority" and substituted "or regional jail officer" for "or any former Superintendent of the Department of State Police who leaves service after a minimum of five years" in the first sentence, and inserted the present second sentence.

The 2003 amendments. - The 2003 amendment by c. 106 substituted "20" for "twenty" and "$1" for "one dollar" throughout the section; in subsection G, substituted "15" for "fifteen"; and added subsection H.

The 2004 amendments. - The 2004 amendment by c. 136 inserted "the Department of Conservation and Recreation, the Department of Forestry" following "the Capitol Police" in the first sentence of subsection A.

The 2005 amendments. - The 2005 amendment by c. 168 added subsection I.

The 2006 amendments. - The 2006 amendment by c. 185, in subsection F, deleted "The Department of State Police may allow" at the beginning, inserted "with a state agency listed in subsection A," substituted "agency from which he retires" for "Department," and made minor stylistic changes.

The 2007 amendments. - The 2007 amendment by c. 813 substituted "Hanover County" for "any county with a population between 63,000 and 65,000" in subsection G.

The 2009 amendments. - The 2009 amendment by c. 289 inserted "or who is receiving long-term disability payments for a service-incurred disability with no expectation of returning to the employment where he incurred the disability" in the first sentence of subsection A.

The 2009 amendment by c. 412 inserted "the State Lottery Department" preceding "the Marine Resources Commission" in the first sentence of subsection A.

The 2010 amendments. - The 2010 amendment by c. 590, in subsection A, in the first sentence, inserted the clause (i) and (iii) designators and inserted clause (ii).

The 2010 amendment by c. 864 inserted the third sentence in subsection A.

The 2011 amendments. - The 2011 amendment by c. 628, in subsection A, in the first sentence, inserted "or previously issued" in clause (iii), and added the second sentence.

The 2012 amendments. - The 2012 amendment by c. 218, throughout the section, substituted "15 years" for "20 years" and "listed in subsection A" for "listed above"; substituted "listed above in this subsection" for "listed above" in the next-to-last sentence of subsection A; deleted subsection E, which formerly read: "The Department of State Police may allow any full-time sworn state police law-enforcement officer who retires as a result of a service-incurred disability and who was on disability leave at the time the Department issued 10-mm semiautomatic handguns to its officers to purchase one of the 10-mm semiautomatic handguns used by the Department of State Police at a price of $1"; redesignated former subsections F through I as subsections E through H; and inserted "when the agency allows purchases of service handguns" in subsection E.

The 2013 amendments. - The 2013 amendment by c. 62, substituted "10 years of service" for "15 years of service" throughout the section; deleted "after at least 10 years of service" at the end of clause (ii) of the first sentence of subsection A; substituted "listed in this section" for "listed above" in the fourth sentence of subsection A; and substituted "5 or more years of service, but less than 10" for "10 or more years of service, but less than 15" in the first sentence of subsection B.

The 2014 amendments. - The 2014 amendment by c. 225 substituted "Virginia Lottery" for "State Lottery Department" in the first sentence of subsection A.

The 2015 amendments. - The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical and substituted "Virginia Alcoholic Beverage Control Authority" for "Department of Alcoholic Beverage Control" in subsection A.

The 2016 amendments. - The 2016 amendments by cc. 196 and 215 are identical, and in subsection A, substituted "agencies listed in this subsection" for "Department of State Police," and "agency head" for "Superintendent" in the last sentence; and made minor stylistic changes. In addition c. 210 inserted "and the Department of Corrections may allow any employee with internal investigations authority designated by the Department of Corrections pursuant to subdivision 11 of § 53.1-10 " in subsection A; and made minor stylistic changes.

The 2016 amendment by c. 210 inserted "and the Department of Corrections may allow any employee with internal investigations authority designated by the Department of Corrections pursuant to subdivision 11 of § 53.1-10 " in subsection A and made related and stylistic changes.

The 2019 amendments. - The 2019 amendment by c. 608 deleted "in accordance with written authorization or approval from the local governing body" preceding "may allow" in subsection G.

The 2020 amendments. - The 2020 amendment by c. 958 substituted "Department of Wildlife Resources" for "Department of Game and Inland Fisheries" in subsection A in the first sentence.

§ 59.1-148.4. Sale of firearms by law-enforcement agencies prohibited; exception.

A law-enforcement agency of this Commonwealth shall not sell or trade any firearm owned and used or otherwise lawfully in its possession except (i) to another law-enforcement agency of the Commonwealth, (ii) to a licensed firearms dealer, (iii) to the persons as provided in § 59.1-148.3 or (iv) as authorized by a court in accordance with § 19.2-386.29 .

(1994, c. 467; 2004, c. 995.)

The 2004 amendments. - The 2004 amendment by c. 995 substituted "19.2-386.29" for "18.2-310" in clause (iv).

§ 59.1-149. Definitions.

As used in this chapter:

"Commissioner" means the Commissioner of Agriculture and Consumer Services or his designated representative.

"Gasoline" shall be construed to include naphtha, benzine and other like liquids and fluids derived from petroleum or other sources and used, or intended to be used, for power purposes, except kerosene.

"Lubricating oil" means lubricating oils used in internal combustion engines.

"Motor fuel" means any liquid or gaseous matter used for the generation of power in an internal combustion engine.

(Code 1950, § 59-41; 1968, c. 439; 1992, c. 885; 2009, c. 650.)

The 2009 amendments. - The 2009 amendment by c. 650 substituted "or gaseous matter used for the generation of power in an internal combustion engine" for "product for the generation of power in an internal combustion or turbine engine and includes, but is not necessarily limited to, gasoline, diesel fuel, and gasoline alcohol blends" in the definition of "Motor fuel."

§ 59.1-150. Motor fuel subject to inspection and testing.

All motor fuel used, intended to be used, sold or offered for sale or distribution in this Commonwealth, shall be subject to inspection and testing for (i) the purpose of preventing adulteration, misbranding, deception or fraud in the sale thereof or (ii) for any other purpose of assuring compliance with any requirement of this chapter or regulation adopted thereunder.

(Code 1950, § 59-42; 1968, c. 439; 1992, c. 885.)

§ 59.1-151. Statements to be filed by manufacturers, wholesalers and jobbers.

All manufacturers, wholesalers, and jobbers, before selling or offering for sale in this Commonwealth any motor fuel for the purposes above defined, shall file with the Commissioner a statement that they desire to do business in this Commonwealth, and furnish the brand name, trade name, or trademark of the motor fuel which they desire to sell.

(Code 1950, § 59-43; 1968, c. 439; 1992, c. 885; 2009, c. 650.)

The 2009 amendments. - The 2009 amendment by c. 650 substituted "motor fuel" for "gasoline."

§ 59.1-152. Collection and analysis of samples.

The Commissioner shall have power at all times and at all places to have collected samples for inspection and testing of any motor fuel or lubricating oil for the purposes specified in § 59.1-150 and for the purpose of determining whether such motor fuel or lubricating oil is in violation of this chapter or regulation thereunder.

(Code 1950, § 59-44; 1968, c. 439; 1992, c. 885.)

§ 59.1-153. Methods of making inspection.

In making any inspection and test of a motor fuel or lubricating oil under this chapter, the Commissioner shall follow the specifications for the inspection and testing of that motor fuel or for the lubricating oil established by ASTM International, formerly the American Society for Testing and Materials, and incorporated into the ASTM specifications for motor fuels, which are adopted by the National Conference on Weights and Measures and published by the National Institute of Standards and Technology in Handbook 130, "Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality," as the same now are or may be hereafter amended. For purposes of this section, such specifications shall apply to methods of inspection and testing only, and shall not apply to methods of sale, including automatic temperature compensation. For cause after an informational proceeding under § 2.2-4007.01 , such specifications may be amended by the Board of Agriculture and Consumer Services.

(Code 1950, § 59-45; 1968, c. 439; 1992, c. 885; 2007, cc. 873, 916; 2009, c. 650.)

The 2007 amendments. - The 2007 amendments by cc. 873 and 916 are identical, and substituted "2.2-4007.01" for "2.2-4007."

The 2009 amendments. - The 2009 amendment by c. 650, in the first sentence, inserted "ASTM International, formerly" and "and incorporated into the ASTM specifications ... Areas of Legal Metrology and Engine Fuel Quality" and inserted the present next-to-last sentence.

§ 59.1-154. Inspection and testing under supervision of Commissioner.

Inspection and testing of such motor fuel or lubricating oil shall be under the direction of the Commissioner.

(Code 1950, § 59-46; 1968, c. 439; 1992, c. 885.)

§ 59.1-155. Prohibiting sale of defective motor fuel.

The Commissioner may prohibit the sale of motor fuel that does not meet the specifications as provided in this chapter or regulations adopted thereunder.

(Code 1950, § 59-47; 1968, c. 439; 1992, c. 885; 2009, c. 650.)

The 2009 amendments. - The 2009 amendment by c. 650 substituted "motor fuel" for "gasoline."

§ 59.1-155.1. Engine coolant and antifreeze bittering agent; penalty.

1. Any engine coolant or antifreeze manufactured after January 1, 2011, and sold within the Commonwealth that contains more than 10 percent ethylene glycol shall include not less than 30 parts per million and not more than 50 parts per million denatonium benzoate as a bittering agent in order to render the coolant or antifreeze unpalatable.
2. A manufacturer, processor, distributor, recycler or seller of an engine coolant or antifreeze that is required to contain an aversive agent under subsection A shall not be liable to any person for any personal injury, death, property damage, damage to the environment (including natural resources), or economic loss that results from the inclusion of denatonium benzoate in any engine coolant or antifreeze, provided that the inclusion of denatonium benzoate is present in concentrations mandated by subsection A. The limitation on liability does not apply to a particular liability to the extent that the cause of such liability is unrelated to the inclusion of denatonium benzoate in any engine coolant or antifreeze.
3. The provisions of this section shall not apply to (i) the sale of a motor vehicle that contains engine coolant or antifreeze, (ii) a wholesale container of engine coolant or antifreeze designed to contain 55 gallons or more of engine coolant or antifreeze, or (iii) engine coolant or antifreeze reformulated through on site recycling.
4. Any person violating any provision of this section shall be assessed a civil penalty of up to $100 per violation. Each day of violation shall constitute a separate offense.
5. This section shall not apply to engine coolant or antifreeze that is purchased pursuant to military specifications.

   (2009, c. 681.)

Editor's note. - Acts 2009, c. 681, cl. 2, provides: "That the provisions of this act shall become effective on January 1, 2011."

Law review. - For annual survey article, "Animal Law," see 44 U. Rich. L. Rev. 185 (2009).

§ 59.1-156. Rules and regulations.

1. The Board of Agriculture and Consumer Services may make all necessary rules and regulations for (i) the inspection and testing of motor fuel and lubricating oil; (ii) assuring that motor fuels dispensed in this Commonwealth comply with any oxygenation requirement specified by the federal Clean Air Act or any other federal environmental requirement pertaining to motor fuels; and (iii) the enforcement of this chapter.
2. Oxygenated gasoline regulations pursuant to clause (ii) of subsection A may be adopted, amended or repealed without observing the requirements of the Administrative Process Act (§ 2.2-4000 et seq.) and shall, unless a later effective date is specified in the regulation, amendment or repeal, take effect upon adoption by the Board of Agriculture and Consumer Services and filing with the Registrar of Regulations.
3. No agency of the Commonwealth may enforce the provisions of "Regulations Governing the Oxygenation of Gasoline" (2 VAC 5-480-10 et seq.), or any successor regulation, requiring the use or sale of oxygenated gasoline, unless, and only to the extent, the regulation is required by federal law or regulation. For purposes of this subsection "oxygenated gasoline" shall have the same meaning as "Gasoline-Oxygenate Blend" as defined in Handbook 130 published by the National Institute of Standards and Technology.

   (Code 1950, § 59-48; 1968, c. 439; 1992, c. 885; 1996, cc. 638, 1012; 2009, c. 650.)

Cross references. - As to exemptions, generally, to the Administrative Process Act, see § 2.2-4002 .

The 2009 amendments. - The 2009 amendment by c. 650 substituted "shall have the same meaning as 'Gasoline-Oxygenate Blend' as defined in Handbook 130 published by the National Institute of Standards and Technology" for "means gasoline that contains a minimum of 2.7 percent oxygen by weight" in the last sentence of subsection C.

§ 59.1-157. Complaints to Commissioner.

The Commissioner shall investigate complaints made to him concerning alleged violations of the provisions of this chapter or regulation adopted thereunder, and shall, upon his own initiative, conduct such investigations as he deems appropriate and advisable.

(Code 1950, § 59-50; 1968, c. 439; 1992, c. 885.)

§§ 59.1-158 through 59.1-161.

Repealed by Acts 1992, c. 885.

§ 59.1-162. Cooperation by state agencies.

The Commonwealth Transportation Board and the Department of Motor Vehicles are authorized to cooperate, as directed by the Governor, with the Commissioner of Agriculture and Consumer Services in carrying out the provisions of this chapter.

(Code 1950, § 59-55; 1968, c. 439.)

§ 59.1-162.1. Direct fueling of commercial vehicles authorized; conditions.

Notwithstanding any other provision of law, the dispensing of diesel fuel from a tank vehicle into the fuel tank of any highway vehicle on the premises of a commercial, industrial, governmental or manufacturing establishment is permitted, provided the following conditions are met:

1. The highway vehicle is used in connection with the business or function of the establishment;
2. The owner or operator of the tank vehicle complies with all requirements pertaining to the collection and payment of taxes on diesel fuel pursuant to Title 58.1 and fees pursuant to Title 62.1;
3. The owner or operator of the tank vehicle complies with all requirements pertaining to Chapter 56 (§ 3.2-5600 et seq.) of Title 3.2;
4. Each delivery shall be metered and recorded and the customer shall be provided an invoice or delivery ticket plainly indicating the quantity of fuel dispensed, the price per gallon, the amount of tax and the total price of the fuel dispensed;
5. The tank vehicle is designed, equipped and operated to prevent spills during fueling operations and to minimize spillage in the event of operator error or equipment malfunction;
6. The owner of the tank vehicle has established and maintains in place a contingency plan for the cleanup of spills occurring during fueling operations, and the operator has been trained in the prevention of spills, and containment of spills should they occur, and in compliance with such spill plan; and
7. The owner is licensed in Virginia as a distributor.

   (2000, c. 943.)

Editor's note. - At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to Acts 2008, c. 860.

Acts 2000, c. 943, cl. 2 provides: "That the provisions of this act shall become effective January 1, 2001."

§ 59.1-163. Penalty for violation.

Any person selling any motor fuel or lubricating oil which does not comply with the specifications provided in this chapter, or violating any of the provisions of the chapter, shall be guilty of a Class 1 misdemeanor. Any dealer in any motor fuel who receives motor fuel meeting the requirements of this chapter and who thereafter adulterates any such motor fuel or mixes it with inferior motor fuel, so that the resulting product does not meet the requirements of this chapter, shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 59-56; 1968, c. 439; 1992, c. 885; 2009, c. 650.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2009 amendments. - The 2009 amendment by c. 650 deleted "firm or corporation" following "any person" in the first sentence and substituted "motor fuel" for "gasoline" in the last sentence.

§ 59.1-164. Duty of attorney for the Commonwealth.

It shall be the duty of the attorney for the Commonwealth of the respective cities and counties to prosecute all violations of the provisions of this chapter, when certified to him by the Commissioner.

(Code 1950, § 59-57; 1968, c. 439.)

§ 59.1-165. Chemical analysis as evidence.

A certificate of analysis of any motor fuel or lubricating oils shall be admitted into evidence in any case relating to such motor fuel or lubricating oil that involves an alleged violation of this chapter or regulation adopted thereunder, provided that the requirements of subsection A of § 19.2-187.1 have been satisfied and the accused has not objected to the admission of the certificate pursuant to subsection B of § 19.2-187.1 .

(Code 1950, § 59-58; 1968, c. 439; 1972, c. 741; 1992, c. 885; 2010, c. 152.)

The 2010 amendments. - The 2010 amendment by c. 152 substituted "provided that the requirements of subsection A of § 19.2-187.1 have been satisfied and the accused has not objected to the admission of the certificate pursuant to subsection B of § 19.2-187.1 " for "if the certificate of analysis complies with requirements of §§ 19.2-187 and 19.2-187.01 " at the end.

§ 59.1-166. Enforcement by Commissioner.

It shall be the duty of the Commissioner to enforce the provisions of this chapter.

(Code 1950, § 59-59; 1968, c. 439; 1992, c. 885.)

§ 59.1-167. Conflicting local laws and ordinances prohibited.

Cities, towns, counties and other political subdivisions of this Commonwealth are prohibited from passing any laws or ordinances relating to the inspection and testing of motor fuel and lubricating oil as defined in § 59.1-149 inconsistent with the provisions of this chapter.

(Code 1950, § 59-60; 1968, c. 439; 1992, c. 885.)

§ 59.1-167.1. Labeling of motor fuels; notification to reseller.

1. Every dispensing device used in the retail sale of any motor fuel shall identify the motor fuel and be labeled in accordance with Section 3 of the Uniform Fuels and Automotive Lubricants Regulation published by the National Institute of Standards and Technology in Handbook 130, titled "Uniform Laws and Regulations in the Areas of Legal Metrology and Fuel Quality," as the same now are or may be hereafter amended, unless the Board of Agriculture and Consumer Services, by regulation, amends or rejects identification or labeling requirements established in such publication.
2. Every person delivering gasoline at wholesale to a reseller which contains one percent or more of ethanol or methanol shall provide a written manifest or invoice which conspicuously identifies the gasoline containing one percent or more of ethanol or methanol, and the percentage of ethanol or methanol contained therein. The Board of Agriculture and Consumer Services may, by regulation, establish what additional disclosure shall be made about a motor fuel by a person delivering the motor fuel at wholesale to a retailer, so that the retailer may comply with the requirements of subsection A.

   (1986, c. 197; 1992, c. 885; 2019, c. 756.)

The 2019 amendments. - The 2019 amendment by c. 756 rewrote subsection A, which read: "Every dispensing device used in the retail sale of any motor fuel shall be plainly and conspicuously labeled with: 1. The brand name, trademark or trade name of the motor fuel it contains; 2. The grade, blend or mixture of the motor fuel it contains; 3. The octane or cetane rating of the motor fuel it contains; and 4. If the product contains one percent or more ethanol or methanol, information identifying the kind of alcohol and the percentage of each at the time of blending, in letters not less than one inch in height"; and in subsection B, deleted "of this section" at the end.

§ 59.1-167.2. Civil penalties.

1. In addition to the penalties prescribed in § 59.1-163 , any person violating any provision of this chapter or regulation adopted thereunder may be assessed a civil penalty by the Board in an amount not to exceed $1,000 per violation. In determining the amount of any civil penalty, the Board shall give due consideration to (i) the history of previous violations of the person; (ii) the seriousness of the violation; and (iii) the demonstrated good faith of the person charged in attempting to achieve compliance with the chapter or regulation adopted thereunder after notification of the violation.
2. Civil penalties assessed under this section shall be paid into the Weights and Measures Fund as established by § 3.2-5628. The Commissioner shall prescribe procedures for payment of uncontested penalties. The procedure shall include provisions for a person to consent to abatement of the alleged violation and pay a penalty or negotiated sum in lieu of such penalty without admission of civil liability arising from such alleged violation.
3. Final orders may be recorded, enforced and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner. Such orders may be appealed in accordance with provisions of the Administrative Process Act (§ 2.2-4000 et seq.). (1992, c. 885.)

Editor's note. - At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to Acts 2008, c. 860.

§ 59.1-167.3. Delegation of authority.

The Board may delegate any authority vested in it under this chapter, except the adoption of regulations, to the Commissioner.

(1992, c. 885.)

§§ 59.1-168 through 59.1-176.

Repealed by Acts 1972, c. 237.

Cross references. - For current provisions as to regulation of boilers and pressure vessels, see § 40.1-51.5 et seq.

For current provisions as to standards pertaining to existing installations, see § 40.1-51.7 .

§§ 59.1-177 through 59.1-188.1.

Repealed by Acts 1983, c. 209.

§ 59.1-189. Labels and stamps required.

No storage batteries intended for use in connection in any manner with the operation of any machine, motor, radio or any mechanical device or in connection with the production of any artificial light shall be sold or offered for sale in this Commonwealth unless there is affixed to such batteries a label or stamp showing, or the seller of such batteries has available for customer inspection documentation that shows the name and address of the manufacturer, date on which the manufacture of such battery was completed, the size of the container and whether the container is made of rubber or a composition, the number and thickness of plates in each cell, the name of the material used as a filler for the grids in the plate, and the kind of woods or other materials used as separators between the plates.

(Code 1950, § 59-162; 1968, c. 439; 1990, c. 592.)

§ 59.1-190. Rebuilt batteries.

To every storage battery which has been rebuilt and offered for sale in this Commonwealth, there shall be, in addition to the label or stamp required by § 59.1-189 , permanently affixed to the container and above label or stamp required by § 59.1-189 , the word "rebuilt," together with the name and address of the person, firm or corporation rebuilding such battery.

(Code 1950, § 59-163; 1968, c. 439.)

§ 59.1-191. Penalty for violation.

Any person, firm or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $250, or punished by imprisonment in jail for not more than six months or by both fine and imprisonment.

(Code 1950, § 59-164; 1968, c. 439.)

§ 59.1-192. "Person" defined.

As used in this chapter the term "person" shall mean any individual, partnership, corporation, or other firm or association.

(Code 1950, § 59-165; 1968, c. 439.)

§ 59.1-193. Record to be kept by purchaser of livestock delivered by motor vehicle.

It shall be unlawful for any dealer in or slaughterer of livestock to purchase any cattle, sheep, swine or other livestock from any person who is not personally known by the purchaser and who delivers such livestock to the purchaser by means of a motor truck or other motor vehicle, unless such purchaser shall first record the name and address of the person from whom such purchase is made, the date of the purchase, the license plate numbers of such truck or vehicle, the state where the same is registered, and a general description of the livestock purchased, including the kind purchased, whether cattle, sheep, swine or other livestock, the number purchased and the approximate weight of the livestock in each lot purchased.

(Code 1950, § 59-166; 1968, c. 439.)

§ 59.1-194. Record available for inspection.

The purchaser shall keep such record for a period of at least six months from the date of purchase. Every such purchaser shall also keep such record available for inspection by the law-enforcement officers of the Commonwealth and the counties, cities and towns thereof, and shall exhibit it to such officers upon their lawful demand.

(Code 1950, § 59-167; 1968, c. 429.)

§ 59.1-195. Penalty for violation.

Any person who shall violate any provision of this chapter shall be guilty of a misdemeanor, and upon conviction thereof shall be punished, for each offense, by a fine of not less than $10 nor more than $100.

(Code 1950, § 59-168; 1968, c. 439.)

§ 59.1-196. Title.

This chapter may be cited as the Virginia Consumer Protection Act of 1977.

(1977, c. 635.)

Cross references. - As to conflicts between this Act and the Uniform Computer Information Transactions Act, see § 59.1-501.5 .

For provision that violations of Article 7 ( §§ 32.1-212 et seq.) of Chapter 6 of Title 32.1, relating to bedding and upholstered furniture, constitute a prohibited practice under § 59.1-200 and are subject to the enforcement provisions of §§ 59.1-196 et seq., see § 32.1-226 .

Law review. - For survey of Virginia commercial law for the year 1978-1979, see 66 Va. L. Rev. 217 (1980).

For 2000 survey of Virginia antitrust and trade regulation law, see 34 U. Rich. L. Rev. 647 (2000).

For article, "Antitrust and Trade Regulation," see 35 U. Rich. L. Rev. 453 (2001). For article, "Property Law," see 35 U. Rich. L. Rev. 777 (2001).

For symposium, "The Boundaries of Copyright and Trademark/Consumer Protection Law: Trademarks and the Boundary of the Firm," see 51 Wm. and Mary L. Rev. 345 (2009).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 1 Extra-Judicial Procedures. § 1.02 Self Help. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 29 Consumer Actions and Products Liability. § 29.03 Statutory Consumer Actions, etc. Friend.

Virginia Forms (Matthew Bender). No. 8A-425 Notice of Mandatory Warranty Registration Card.

Michie's Jurisprudence. - For related discussion, see 12A M.J. Limitation of Actions, § 24.

§ 59.1-197. Intent.

It is the intent of the General Assembly that this chapter shall be applied as remedial legislation to promote fair and ethical standards of dealings between suppliers and the consuming public.

(1977, c. 635.)

§ 59.1-198. Definitions.

As used in this chapter:

"Business opportunity" means the sale of any products, equipment, supplies or services which are sold to an individual for the purpose of enabling such individual to start a business to be operated out of his residence, but does not include a business opportunity which is subject to the Business Opportunity Sales Act, Chapter 21 (§ 59.1-262 et seq.) of this title.

"Children's product" means a consumer product designed or intended primarily for children 12 years of age or younger. In determining whether a consumer product is primarily intended for a child 12 years of age or younger, the following factors shall be considered:

1. A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable;
2. Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger;
3. Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger; and
4. The Age Determination Guidelines issued by the staff of the Consumer Products Safety Commission in September 2002, and any successor to such guidelines.

   "Consumer transaction" means:

   1. The advertisement, sale, lease, license or offering for sale, lease or license, of goods or services to be used primarily for personal, family or household purposes;

   2. Transactions involving the advertisement, offer or sale to an individual of a business opportunity that requires both his expenditure of money or property and his personal services on a continuing basis and in which he has not been previously engaged;

   3. Transactions involving the advertisement, offer or sale to an individual of goods or services relating to the individual's finding or obtaining employment;

   4. A layaway agreement, whereby part or all of the price of goods is payable in one or more payments subsequent to the making of the layaway agreement and the supplier retains possession of the goods and bears the risk of their loss or damage until the goods are paid in full according to the layaway agreement;

5. Transactions involving the advertisement, sale, lease, or license, or the offering for sale, lease or license, of goods or services to a church or other religious body; and
6. Transactions involving the advertisement of legal services that contain information about the results of a state or federal survey, inspection, or investigation of a nursing home or certified nursing facility as described in subsection E of § 32.1-126 . "Cure offer" means a written offer of one or more things of value, including but not limited to the payment of money, that is made by a supplier and that is delivered to a person claiming to have suffered a loss as a result of a consumer transaction or to the attorney for such person. A cure offer shall be reasonably calculated to remedy a loss claimed by the person and it shall include a minimum additional amount equaling 10 percent of the value of the cure offer or $500, whichever is greater, as compensation for inconvenience, any attorney's or other fees, expenses, or other costs of any kind that such person may incur in relation to such loss; provided, however that the minimum additional amount need not exceed $4,000. "Defective drywall" means drywall, or similar building material composed of dried gypsum-based plaster, that (i) as a result of containing the same or greater levels of strontium sulfide that has been found in drywall manufactured in the People's Republic of China and imported into the United States between 2004 and 2007 is capable, when exposed to heat, humidity, or both, of releasing sulfur dioxide, hydrogen sulfide, carbon disulfide, or other sulfur compounds into the air or (ii) has been designated by the U.S. Consumer Product Safety Commission as a product with a product defect that constitutes a substantial product hazard within the meaning of § 15(a)(2) of the Consumer Product Safety Act (15 U.S.C. § 2064 (a)(2)). "Goods" means all real, personal or mixed property, tangible or intangible. For purposes of this chapter, intangible property includes but shall not be limited to "computer information" and "informational rights" in computer information as defined in § 59.1-501.2 . "Person" means any natural person, corporation, trust, partnership, association and any other legal entity. "Services" includes but shall not be limited to (i) work performed in the business or occupation of the supplier, (ii) work performed for the supplier by an agent whose charges or costs for such work are transferred by the supplier to the consumer or purchaser as an element of the consumer transaction, or (iii) the subject of an "access contract" as defined in § 59.1-501.2 . "Supplier" means a seller, lessor, licensor, or professional who advertises, solicits, or engages in consumer transactions, or a manufacturer, distributor, or licensor who advertises and sells, leases, or licenses goods or services to be resold, leased, or sublicensed by other persons in consumer transactions. (1977, c. 635; 1981, c. 205; 1987, c. 464; 1988, c. 485; 1992, c. 278; 2001, cc. 741, 762; 2004, cc. 41, 90; 2009, cc. 359, 700; 2010, c. 143; 2011, c. 615; 2019, cc. 291, 292.)

The 2001 amendments. - The 2001 amendment by c. 741 substituted "license or offering for sale, lease or license" for "or offering for sale, or lease" in subdivision 1 of the paragraph defining "Consumer transaction"; added the last sentence in the paragraph defining "Goods"; in the paragraph defining "Services," substituted "(i) work" for "work (i)," substituted "(ii) work" for "or (ii)," and inserted "or (iii) the subject of an 'access contract' as defined in § 59.1-501.2 "; and in the paragraph defining "Supplier," substituted "lessor or licensor" for "or lessor," substituted "distributor or licensor" for "or distributor," substituted "leases or licenses" for "or leases," and substituted "leased or sublicensed" for "or leased."

The 2001 amendment by c. 762 also added the last sentence in the paragraph defining "Goods."

The 2004 amendments. - The 2004 amendment by cc. 41 and 90 are identical, and added the paragraph defining "Cure offer."

The 2009 amendments. - The 2009 amendments by cc. 359 and 700 are identical, and inserted the definition of "Children's product."

The 2010 amendments. - The 2010 amendment by c. 143, in the definition of "Consumer transaction," added subdivision 5 and made related changes.

The 2011 amendments. - The 2011 amendment by c. 615, effective March 25, 2011, and applicable to consumer transactions occurring on or after that date, added the definition for "Defective drywall."

The 2019 amendments. - The 2019 amendments by cc. 291 and 292 are identical, and added subdivision 6 in the definition of "Consumer transaction"; in the definition for "Supplier," inserted "or professional"; and made stylistic changes.

Law review. - For annual survey article discussing antitrust and trade regulation law, see 38 U. Rich. L. Rev. 39 (2003).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 3.

§ 59.1-199. Exclusions.

Nothing in this chapter shall apply to:

1. Any aspect of a consumer transaction which aspect is authorized under laws or regulations of this Commonwealth or the United States, or the formal advisory opinions of any regulatory body or official of this Commonwealth or the United States.
2. Acts done by the publisher, owner, agent or employee of a newspaper, periodical, or radio or television station, or other advertising media such as outdoor advertising and advertising agencies, in the publication or dissemination of an advertisement in violation of § 59.1-200 , unless it be proved that such person knew that the advertisement was of a character prohibited by § 59.1-200 .
3. Those aspects of a consumer transaction which are regulated by the Federal Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq.
4. Banks, savings institutions, credit unions, small loan companies, public service corporations, mortgage lenders as defined in § 6.2-1600 , broker-dealers as defined in § 13.1-501 , gas suppliers as defined in subsection E of § 56-235.8, and insurance companies regulated and supervised by the State Corporation Commission or a comparable federal regulating body.
5. Any aspect of a consumer transaction which is subject to the Virginia Residential Landlord and Tenant Act (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, unless the act or practice of a landlord constitutes a misrepresentation or fraudulent act or practice under § 59.1-200 .
6. Real estate licensees who are licensed under Chapter 21 (§ 54.1-2100 et seq.) of Title 54.1. (1977, c. 635; 1987, c. 464; 1994, c. 400; 1995, c. 703; 1996, cc. 61, 77, 179; 1999, c. 494; 2000, cc. 691, 706.)

Editor's note. - Acts 1999, c. 494, cl. 3 which had provided that the provisions of c. 494 would expire July 1, 2000, was repealed by Acts 2000, cc. 691 and 706, cl. 3.

In subsection D, " § 6.2-1600 " was substituted for " § 6.1-409," effective October 1, 2010, to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "the Virginia Residential Landlord and Tenant Act ( § 55.1-1200 et seq.) or Chapter 14 ( § 55.1-1400 et seq.) of Title 55.1" for "the Landlord and Tenant Act, Chapter 13 ( § 55-217 et seq.) of Title 55 or the Virginia Residential Landlord and Tenant Act, Chapter 13.2 ( § 55-248.2 et seq.) of Title 55."

§ 59.1-200. Prohibited practices.

1. The following fraudulent acts or practices committed by a supplier in connection with a consumer transaction are hereby declared unlawful:
   1. Misrepresenting goods or services as those of another;
   2. Misrepresenting the source, sponsorship, approval, or certification of goods or services;
   3. Misrepresenting the affiliation, connection, or association of the supplier, or of the goods or services, with another;
   4. Misrepresenting geographic origin in connection with goods or services;
   5. Misrepresenting that goods or services have certain quantities, characteristics, ingredients, uses, or benefits;
   6. Misrepresenting that goods or services are of a particular standard, quality, grade, style, or model;
   7. Advertising or offering for sale goods that are used, secondhand, repossessed, defective, blemished, deteriorated, or reconditioned, or that are "seconds," irregulars, imperfects, or "not first class," without clearly and unequivocally indicating in the advertisement or offer for sale that the goods are used, secondhand, repossessed, defective, blemished, deteriorated, reconditioned, or are "seconds," irregulars, imperfects or "not first class";
   8. Advertising goods or services with intent not to sell them as advertised, or with intent not to sell at the price or upon the terms advertised. In any action brought under this subdivision, the refusal by any person, or any employee, agent, or servant thereof, to sell any goods or services advertised or offered for sale at the price or upon the terms advertised or offered, shall be prima facie evidence of a violation of this subdivision. This paragraph shall not apply when it is clearly and conspicuously stated in the advertisement or offer by which such goods or services are advertised or offered for sale, that the supplier or offeror has a limited quantity or amount of such goods or services for sale, and the supplier or offeror at the time of such advertisement or offer did in fact have or reasonably expected to have at least such quantity or amount for sale;
   9. Making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions;
   10. Misrepresenting that repairs, alterations, modifications, or services have been performed or parts installed;
   11. Misrepresenting by the use of any written or documentary material that appears to be an invoice or bill for merchandise or services previously ordered;
   12. Notwithstanding any other provision of law, using in any manner the words "wholesale," "wholesaler," "factory," or "manufacturer" in the supplier's name, or to describe the nature of the supplier's business, unless the supplier is actually engaged primarily in selling at wholesale or in manufacturing the goods or services advertised or offered for sale;
   13. Using in any contract or lease any liquidated damage clause, penalty clause, or waiver of defense, or attempting to collect any liquidated damages or penalties under any clause, waiver, damages, or penalties that are void or unenforceable under any otherwise applicable laws of the Commonwealth, or under federal statutes or regulations; 13a. Failing to provide to a consumer, or failing to use or include in any written document or material provided to or executed by a consumer, in connection with a consumer transaction any statement, disclosure, notice, or other information however characterized when the supplier is required by 16 C.F.R. Part 433 to so provide, use, or include the statement, disclosure, notice, or other information in connection with the consumer transaction;
   14. Using any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction;
   15. Violating any provision of § 3.2-6509, 3.2-6512, 3.2-6513, 3.2-6513.1, 3.2-6514, 3.2-6515, 3.2-6516, or 3.2-6519 is a violation of this chapter;
   16. Failing to disclose all conditions, charges, or fees relating to:
       1. The return of goods for refund, exchange, or credit. Such disclosure shall be by means of a sign attached to the goods, or placed in a conspicuous public area of the premises of the supplier, so as to be readily noticeable and readable by the person obtaining the goods from the supplier. If the supplier does not permit a refund, exchange, or credit for return, he shall so state on a similar sign. The provisions of this subdivision shall not apply to any retail merchant who has a policy of providing, for a period of not less than 20 days after date of purchase, a cash refund or credit to the purchaser's credit card account for the return of defective, unused, or undamaged merchandise upon presentation of proof of purchase. In the case of merchandise paid for by check, the purchase shall be treated as a cash purchase and any refund may be delayed for a period of 10 banking days to allow for the check to clear. This subdivision does not apply to sale merchandise that is obviously distressed, out of date, post season, or otherwise reduced for clearance; nor does this subdivision apply to special order purchases where the purchaser has requested the supplier to order merchandise of a specific or unusual size, color, or brand not ordinarily carried in the store or the store's catalog; nor shall this subdivision apply in connection with a transaction for the sale or lease of motor vehicles, farm tractors, or motorcycles as defined in § 46.2-100 ;
       2. A layaway agreement. Such disclosure shall be furnished to the consumer (i) in writing at the time of the layaway agreement, or (ii) by means of a sign placed in a conspicuous public area of the premises of the supplier, so as to be readily noticeable and readable by the consumer, or (iii) on the bill of sale. Disclosure shall include the conditions, charges, or fees in the event that a consumer breaches the agreement; 16a. Failing to provide written notice to a consumer of an existing open-end credit balance in excess of $5 (i) on an account maintained by the supplier and (ii) resulting from such consumer's overpayment on such account. Suppliers shall give consumers written notice of such credit balances within 60 days of receiving overpayments. If the credit balance information is incorporated into statements of account furnished consumers by suppliers within such 60-day period, no separate or additional notice is required;
   17. If a supplier enters into a written agreement with a consumer to resolve a dispute that arises in connection with a consumer transaction, failing to adhere to the terms and conditions of such an agreement;
   18. Violating any provision of the Virginia Health Club Act, Chapter 24 (§ 59.1-294 et seq.);
   19. Violating any provision of the Virginia Home Solicitation Sales Act, Chapter 2.1 (§ 59.1-21.1 et seq.);
   20. Violating any provision of the Automobile Repair Facilities Act, Chapter 17.1 (§ 59.1-207.1 et seq.);
   21. Violating any provision of the Virginia Lease-Purchase Agreement Act, Chapter 17.4 (§ 59.1-207.17 et seq.);
   22. Violating any provision of the Prizes and Gifts Act, Chapter 31 (§ 59.1-415 et seq.);
   23. Violating any provision of the Virginia Public Telephone Information Act, Chapter 32 (§ 59.1-424 et seq.);
   24. Violating any provision of § 54.1-1505 ;
   25. Violating any provision of the Motor Vehicle Manufacturers' Warranty Adjustment Act, Chapter 17.6 (§ 59.1-207.34 et seq.);
   26. Violating any provision of § 3.2-5627, relating to the pricing of merchandise;
   27. Violating any provision of the Pay-Per-Call Services Act, Chapter 33 (§ 59.1-429 et seq.);
   28. Violating any provision of the Extended Service Contract Act, Chapter 34 (§ 59.1-435 et seq.);
   29. Violating any provision of the Virginia Membership Camping Act, Chapter 25 (§ 59.1-311 et seq.);
   30. Violating any provision of the Comparison Price Advertising Act, Chapter 17.7 (§ 59.1-207.40 et seq.);
   31. Violating any provision of the Virginia Travel Club Act, Chapter 36 (§ 59.1-445 et seq.);
   32. Violating any provision of §§ 46.2-1231 and 46.2-1233.1 ;
   33. Violating any provision of Chapter 40 (§ 54.1-4000 et seq.) of Title 54.1;
   34. Violating any provision of Chapter 10.1 (§ 58.1-1031 et seq.) of Title 58.1;
   35. Using the consumer's social security number as the consumer's account number with the supplier, if the consumer has requested in writing that the supplier use an alternate number not associated with the consumer's social security number;
   36. Violating any provision of Chapter 18 (§ 6.2-1800 et seq.) of Title 6.2;
   37. Violating any provision of § 8.01-40.2 ;
   38. Violating any provision of Article 7 (§ 32.1-212 et seq.) of Chapter 6 of Title 32.1;
   39. Violating any provision of Chapter 34.1 (§ 59.1-441.1 et seq.);
   40. Violating any provision of Chapter 20 (§ 6.2-2000 et seq.) of Title 6.2;
   41. Violating any provision of the Virginia Post-Disaster Anti-Price Gouging Act, Chapter 46 (§ 59.1-525 et seq.);
   42. Violating any provision of Chapter 47 (§ 59.1-530 et seq.);
   43. Violating any provision of § 59.1-443.2 ;
   44. Violating any provision of Chapter 48 (§ 59.1-533 et seq.);
   45. Violating any provision of Chapter 25 (§ 6.2-2500 et seq.) of Title 6.2;
   46. Violating the provisions of clause (i) of subsection B of § 54.1-1115 ;
   47. Violating any provision of § 18.2-239 ;
   48. Violating any provision of Chapter 26 (§ 59.1-336 et seq.);
   49. Selling, offering for sale, or manufacturing for sale a children's product the supplier knows or has reason to know was recalled by the U.S. Consumer Product Safety Commission. There is a rebuttable presumption that a supplier has reason to know a children's product was recalled if notice of the recall has been posted continuously at least 30 days before the sale, offer for sale, or manufacturing for sale on the website of the U.S. Consumer Product Safety Commission. This prohibition does not apply to children's products that are used, secondhand or "seconds";
   50. Violating any provision of Chapter 44.1 (§ 59.1-518.1 et seq.);
   51. Violating any provision of Chapter 22 (§ 6.2-2200 et seq.) of Title 6.2;
   52. Violating any provision of § 8.2-317.1 ;
   53. Violating subsection A of § 9.1-149.1 ;
   54. Selling, offering for sale, or using in the construction, remodeling, or repair of any residential dwelling in the Commonwealth, any drywall that the supplier knows or has reason to know is defective drywall. This subdivision shall not apply to the sale or offering for sale of any building or structure in which defective drywall has been permanently installed or affixed;
   55. Engaging in fraudulent or improper or dishonest conduct as defined in § 54.1-1118 while engaged in a transaction that was initiated (i) during a declared state of emergency as defined in § 44-146.16 or (ii) to repair damage resulting from the event that prompted the declaration of a state of emergency, regardless of whether the supplier is licensed as a contractor in the Commonwealth pursuant to Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1;
   56. Violating any provision of Chapter 33.1 (§ 59.1-434.1 et seq.);
   57. Violating any provision of § 18.2-178 , 18.2-178 .1, or 18.2-200.1 ;
   58. Violating any provision of Chapter 17.8 (§ 59.1-207.45 et seq.);
   59. Violating any provision of subsection E of § 32.1-126 ;
   60. Violating any provision of § 54.1-111 relating to the unlicensed practice of a profession licensed under Chapter 11 (§ 54.1-1100 et seq.) or Chapter 21 (§ 54.1-2100 et seq.) of Title 54.1;
   61. Violating any provision of § 2.2-2001.5 ;
   62. Violating any provision of Chapter 5.2 (§ 54.1-526 et seq.) of Title 54.1;
   63. Violating any provision of § 6.2-312 ;
   64. Violating any provision of Chapter 20.1 (§ 6.2-2026 et seq.) of Title 6.2;
   65. Violating any provision of Chapter 26 (§ 6.2-2600 et seq.) of Title 6.2; and
   66. Violating any provision of Chapter 54 (§ 59.1-586 et seq.).
2. Nothing in this section shall be construed to invalidate or make unenforceable any contract or lease solely by reason of the failure of such contract or lease to comply with any other law of the Commonwealth or any federal statute or regulation, to the extent such other law, statute, or regulation provides that a violation of such law, statute, or regulation shall not invalidate or make unenforceable such contract or lease.

   (1977, c. 635; 1979, c. 304; 1981, c. 205; 1983, c. 173; 1986, c. 432; 1987, cc. 462 to 464; 1988, cc. 24, 534; 1989, cc. 689, 703; 1990, c. 584; 1991, cc. 300, 605, 608, 630, 654; 1992, cc. 278, 545, 768; 1993, cc. 455, 760; 1994, cc. 261, 400, 655; 1995, c. 10; 1998, c. 848; 2000, cc. 880, 901; 2002, cc. 217, 897; 2003, cc. 800, 1003; 2004, cc. 784, 790, 798, 817; 2005, cc. 269, 303, 640, 861; 2006, c. 399; 2008, cc. 294, 791, 842; 2009, cc. 321, 359, 376, 699, 700; 2010, cc. 477, 713; 2011, c. 615; 2014, cc. 396, 459; 2016, c. 591; 2017, cc. 11, 16, 727; 2018, cc. 299, 704; 2019, cc. 291, 292, 521; 2020, cc. 412, 438, 481, 785, 1198, 1215, 1250, 1258; 2021, Sp. Sess. I, c. 485.)

Cross references. - For provision that violations of Article 7 ( §§ 32.1-212 et seq.) of Chapter 6 of Title 32.1, relating to bedding and upholstered furniture, constitute a prohibited practice under § 59.1-200 and are subject to the enforcement provisions of §§ 59.1-196 et seq., see § 32.1-226 .

As to investigating and restraining prohibited acts, related to qualified education loans, see §§ 6.2-2620 , 6.2-2621 .

Editor's note. - Acts 2003, c. 1003, cl. 2, provides: "That the Board of Health shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."

Acts 2003, c. 1003, cl. 3, provides: "That, in promulgating the regulations required by the second enactment clause, the Board of Health shall review the fees being charged for the services delivered by the Department of Health pursuant to Article 7 ( § 32.1-212 et seq.) of Chapter 6 of Title 32.1 as such services and fees were in effect prior to July 1, 2003, and shall revise such fees, as appropriate, consistent with the level of services required by this act."

At the direction of the Virginia Code Commission, subdivision A 48 as added by Acts 2009, cc. 359 and 700 was renumbered as subdivision A 49. Subdivision A 48 as added by Acts 2009, c. 699 was renumbered as subdivision A 50. Also, Title 3.2 references were substituted for Title 3.1 references to conform to Acts 2008, c. 860.

At the direction of the Virginia Code Commission, subdivision A 51 as added by Acts 2010, c. 713, was renumbered as subdivision A 52. Title 6.1 references were changed to Title 6.2 references, effective October 1, 2010, to conform to recodification of Title 6.1 by Acts 2010, c. 794.

Acts 2017, c. 727, cl. 5 provides: "That the provisions of this act shall become effective on January 1, 2018."

Acts 2018, c. 704, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2019."

At the direction of the Virginia Code Commission, "( § 54.1-526 et seq.)" was substituted for "( § 54.1-519 et seq.)" in subdivision A 62 to conform to the renumbering of §§ 54.1-519 through 54.1-525, as added by Acts 2020, c. 481, to §§ 54.1-526 through 54.1-542 .

Acts 2020, c. 481, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 785, cl. 2 provides: "That the provisions of the first enactment of this act shall become effective on July 1, 2021."

Acts 2020, c. 785, cl. 3 provides: "That the State Corporation Commission shall establish a procedure, to be in effect by March 1, 2021, for any person to apply, prior to July 1, 2021, for a license to be issued pursuant to Chapter 20.1 ( § 6.2-2026 et seq.) of Title 6.2 of the Code of Virginia, as created by this act, when such chapter becomes effective. In addition, upon the effective date of the first enactment of this act, July 1, 2021, the State Corporation Commission shall monitor settlements by all licensees, specifically looking at the number of settlements made pursuant to this act, the fees charged pursuant to § 6.2-2041 of the Code of Virginia, as created by this act, and the principal amount to be paid by the consumer to satisfy the debt, and shall report to the Chairs of the House Committee on Labor and Commerce and the Senate Committee on Commerce and Labor by December 1 of each year 2023, 2024, 2025."

Acts 2020, c. 785, cl. 4 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 1198 and 1250, cl. 2 provides: "That the provisions of the first enactment of this act shall become effective on July 1, 2021."

Acts 2020, cc. 1215 and 1258, cl. 5 provides: "That the provisions of the first and second enactments of this act shall become effective on January 1, 2021, except that the database required by § 6.2-1810 of the Code of Virginia, as amended by this act, shall be modified to accommodate the provisions of this first enactment of this act by January 1, 2022."

The 2000 amendments. - The 2000 amendments by cc. 880 and 901 are identical, and deleted "and" at the end of subdivision A 32, and added "and" to subdivision A 33, and added subdivision A 34.

The 2002 amendments. - The 2002 amendment by c. 217 deleted "and" at the end of subdivision A 33, added "and" at the end of subdivision A 34, and added subdivision A 35.

The 2002 amendment by c. 897 deleted "and" at the end of subdivision A 33, added "and" at the end of subdivision A 34, and added subdivision A 36.

The 2003 amendments. - The 2003 amendment by c. 800 substituted "20" for "twenty" and "10" for "ten" in paragraph a of subdivision A 16, substituted "$5" for "five dollars," "60" for "sixty" and "60-day" for "sixty-day" in subdivision A 16a, deleted "and" at the end of subdivision A 35, added "and" at the end of subdivision A 36, and added subdivision A 37.

The 2003 amendment by c. 1003, substituted "that" for "which" in subdivisions A 7, A 11, A 13 and A 17 and in paragraph a of subdivision A 16; in subdivision A 13, substituted "the Commonwealth" for "this Commonwealth"; in paragraph a of subdivision A 16, substituted "20" for "twenty" and "10" for "ten"; in subdivision A 16 a, substituted "$5" for "five dollars," and twice substituted "60" for "sixty"; deleted "and" at the end of subdivision A 35; inserted "and" at the end of subdivision A 36; and added present subdivision A 38.

The 2004 amendments. - The 2004 amendment by c. 784 deleted "and" at the end of subdivision A 37; added "; and" at the end of subdivision A 38; and added subdivision A 39.

The 2004 amendment by c. 790 deleted "and" at the end of subdivision A 38; added "; and" at the end of subdivision A 39; and added subdivision A 40.

The 2004 amendments by cc. 798 and 817 are identical, and deleted "and" at the end of subdivision A 39; added "; and" at the end of subdivision A 40; and added subdivision A 41.

The 2005 amendments. - The 2005 amendments by cc. 269 and 303 are identical, and added subdivision A 42 and made minor stylistic changes.

The 2005 amendment by c. 640 inserted subdivision A 43 and made minor stylistic changes.

The 2005 amendment by c. 861 inserted subdivision A 44 and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 399, effective January 1, 2007, added subdivision A 45 and made related changes.

The 2008 amendments. - The 2008 amendment by c. 294 added subdivision A 46; and made related changes.

The 2008 amendments by cc. 791 and 842 are identical, and added subdivision A 47 and made related changes.

The 2009 amendments. - The 2009 amendments by cc. 321 and 376 are identical, and added subdivision A 48 and made a related change.

The 2009 amendments by cc. 359 and 700 are identical, and added subdivision A 49 and made a related change.

The 2009 amendment by c. 699 added subdivision A 50 and made related changes.

The 2010 amendments. - The 2010 amendment by c. 477, effective October 1, 2010, added subdivision A 51 and made related changes.

The 2010 amendment by c. 713 added subdivision A 51 and made related changes.

The 2011 amendments. - The 2011 amendment by c. 615, effective March 25, 2011, and applicable to consumer transactions occurring on or after that date, added subdivision A 53 and made a related change.

The 2014 amendments. - The 2014 amendment by c. 396 added subdivision A 53, redesignated former subdivision A 53 as A 54, and made related changes.

The 2014 amendment by c. 459 substituted "Club" for "Spa" in subdivision A 18.

The 2016 amendments. - The 2016 amendment by c. 591 added subdivision A 13a.

The 2017 amendments. - The 2017 amendments by cc. 11 and 16 are identical, added subdivision A 55 and made minor stylistic changes throughout.

The 2017 amendment by c. 727, effective January 1, 2018, added subdivision A 56 and made minor stylistic changes.

The 2018 amendments. - The 2018 amendment by c. 299 added subdivision A 57 and made related changes.

The 2018 amendment by c. 704, effective January 1, 2019, added subdivision A 58 and made related changes.

The 2019 amendments. - The 2019 amendments by cc. 291 and 292 are identical, and added subdivision A 59 and made related changes.

The 2019 amendment by c. 521 added subdivision A 60; and made related changes.

The 2020 amendments. - The 2020 amendment by c. 412 rewrote subdivision A 15, which read: "Violating any provision of § 3.2-6512, 3.2-6513, or 3.2-6516, relating to the sale of certain animals by pet dealers which is described in such sections, is a violation of this chapter."

The 2020 amendment by c. 438 added subdivision A 61 and made stylistic changes.

The 2020 amendment by c. 481 added subdivision A 61, which was subsequently redesignated as A 62 by the Virginia Code Commission, and made related changes.

The 2020 amendment by c. 785, effective July 1, 2021, added subdivision A 61, which was subsequently redesignated as A 64 by the Virginia Code Commission, and made related changes.

The 2020 amendments by cc. 1198 and 1250, effective July 1, 2021, are identical, and added subdivision A 61, which was subsequently redesignated as A 65 by the Virginia Code Commission, and made related changes.

The 2020 amendments by cc. 1215 and 1258, effective January 1, 2021, are identical, and added subdivision A 61, which was subsequently redesignated as A 63 by the Virginia Code Commission, and made related changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 485, effective July 1, 2021, added subdivision A 66 and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 2; 4A M.J. Contracts, § 44.

§ 59.1-200.1. Prohibited practices; foreclosure rescue.

1. In addition to the provisions of § 59.1-200 , the following fraudulent acts or practices committed by a supplier, as defined in § 59.1-198 , in a consumer transaction involving residential real property owned and occupied as the primary dwelling unit of the owner, are prohibited:
   1. The supplier of service to avoid or prevent foreclosure charges or receives a fee (i) prior to the full and complete performance of the services it has agreed to perform, if the transaction does not involve the sale or transfer of residential real property, or (ii) prior to the settlement on the sale or transfer of residential real property, if the transaction involves the sale or transfer of such residential real property;
   2. The supplier of such services (i) fails to make payments under the mortgage or deed of trust that is a lien on such residential real property as the payments become due, where the supplier has agreed to do so, regardless of whether the purchaser is obligated on the loan, and (ii) applies rents received from such dwellings for his own use;
   3. The supplier of such services represents to the seller of such residential real property that the seller has an option to repurchase such residential real property, after the supplier of such services takes legal or equitable title to such residential real property, unless there is a written contract providing such option to repurchase on terms and at a price stated in such contract; or
   4. The supplier advertises or offers such services as are prohibited by this section.
2. This section shall not apply to any mortgage lender or servicer regularly engaged in making or servicing mortgage loans that is subject to the supervisory authority of the State Corporation Commission, a comparable regulatory authority of another state, or a federal banking agency.
3. In connection with any consumer transaction covered by subsection A, any provision in an agreement between the supplier of such services and the owner of such residential real property that requires the owner to submit to mandatory arbitration shall be null and void, and notwithstanding any such provisions, the owner of such residential real property shall have the rights and remedies under this chapter.

   (2008, c. 485; 2009, cc. 203, 272.)

The 2009 amendments. - The 2009 amendments by cc. 203 and 272 are identical, and rewrote subdivision A 1, which read: "The supplier of service to avoid or prevent foreclosure is to be paid a fee prior to the settlement on a sale of such residential real property, regardless of whether the fee is charged or collected as part of the transaction involving a sale of such residential real property"; and in subsection C, substituted "In connection with any consumer transaction covered by subsection A, any" for "Any" and "between the supplier of such services and" for "with."

CIRCUIT COURT OPINIONS

Allegations sufficient. - Individual's demurrer to the Attorney General's Virginia Consumer Protection Act, § 59.1-198 et seq., claims was denied as actions brought on behalf of the Commonwealth were intended to be broader in scope and remedy than private causes of action, and the complaint adequately alleged that the actions of the corporation were those of the individual, both directly and as an active participant in the corporation. Commonwealth ex rel. Herring v. Serv. Dogs by Warren Retrievers, Inc.,, 2021 Va. Cir. LEXIS 104 (Madison County Mar. 9, 2021).

§ 59.1-201. Civil investigative orders.

1. Whenever the attorney for the Commonwealth or the attorney for a county, city, or town has reasonable cause to believe that any person has engaged in, or is engaging in, or is about to engage in, any violation of § 59.1-200 or 59.1-200.1 , the attorney for the Commonwealth or the attorney for a county, city, or town if, after making a good faith effort to obtain such information, is unable to obtain the data and information necessary to determine whether such violation has occurred, or that it is impractical for him to do so, he may apply to the circuit court within whose jurisdiction the person having information resides, or has its principal place of business, for an investigative order requiring such person to furnish to the attorney for the Commonwealth or attorney for a county, city, or town such data and information as is relevant to the subject matter of the investigation.
2. The circuit courts are empowered to issue investigative orders, authorizing discovery by the same methods and procedures as set forth for civil actions in the Rules of the Supreme Court of Virginia, in connection with investigations of violations of § 59.1-200 or 59.1-200.1 by the attorney for the Commonwealth or the attorney for a county, city, or town. An application for an investigative order shall identify:
   1. The specific act or practice alleged to be in violation of § 59.1-200 or 59.1-200.1 ;
   2. The grounds which shall demonstrate reasonable cause to believe that a violation of § 59.1-200 or 59.1-200.1 may have occurred, may be occurring or may be about to occur;
   3. The category or class of data or information requested in the investigative order; and
   4. The reasons why the attorney for the Commonwealth or attorney for a county, city, or town is unable to obtain such data and information, or the reason why it is impractical to do so, without a court order.
3. Within 21 days after the service upon a person of an investigative order, or at any time before the return date specified in such order, whichever is later, such person may file a motion to modify or set aside such investigative order or to seek a protective order as provided by the Rules of the Supreme Court of Virginia. Such motion shall specify the grounds for modifying or setting aside the order, and may be based upon the failure of the application or the order to comply with the requirements of this section, or upon any constitutional or other legal basis or privilege of such person.
4. Where the information requested by an investigative order may be derived or ascertained from the business records of the person upon whom the order is served, or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the information is substantially the same for the attorney for the Commonwealth or attorney for a county, city, or town as for the person from whom such information is requested, it shall be sufficient for that person to specify the records from which the requested information may be derived or ascertained, and to afford the attorney for the Commonwealth or attorney for the county, city, or town reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries thereof.
5. It shall be the duty of the attorney for the Commonwealth or attorney for a county, city, or town, his assistants, employees and agents, to maintain the secrecy of all evidence, documents, data and information obtained through the use of investigative orders or obtained as a result of the voluntary act of the person under investigation and it shall be unlawful for any person participating in such investigations to disclose to any other person not participating in such investigation any information so obtained. Any person violating this subsection shall be guilty of a Class 2 misdemeanor and shall be punished in accordance with § 18.2-11 . Notwithstanding the foregoing, this section shall not preclude the presentation and disclosure of any information obtained pursuant to this section in any suit or action in any court of this Commonwealth wherein it is alleged that a violation of § 59.1-200 or 59.1-200.1 has occurred, is occurring or may occur, nor shall this section prevent the disclosure of any such information by the attorney for the Commonwealth or attorney for a county, city, or town to any federal or state law-enforcement authority that has restrictions governing confidentiality and the use of such information similar to those contained in this subsection; however, such disclosures may only be made as to information obtained after July 1, 1979.
6. Upon the failure of a person without lawful excuse to obey an investigative order under this section, the attorney for the Commonwealth or attorney for the county, city, or town may initiate contempt proceedings in the circuit court that issued the order to hold such person in contempt.
7. No information, facts or data obtained through an investigative order shall be admissible in any civil or criminal proceeding other than for the enforcement of this chapter and the remedies provided herein.

   (1977, c. 635; 1979, c. 493; 1982, c. 13; 1987, c. 464; 1995, c. 703; 2008, c. 485.)

The 2008 amendments. - The 2008 amendment by c. 485 inserted "or 59.1-200.1 " following " § 59.1-200 " throughout this section; and substituted "21 days" for "twenty-one days" in subsection C.

Law review. - For article, "Determining the Deception of Sexual Orientation Change Efforts," see 58 Wm. & Mary L. Rev. 641 (2016).

§ 59.1-201.1. Attorney General empowered to issue civil investigative demands.

Whenever the Attorney General has reasonable cause to believe that any person has engaged in, or is engaging in, or is about to engage in, any violation of this chapter, the Attorney General is empowered to issue a civil investigative demand. The provisions of § 59.1-9.10 shall apply mutatis mutandis to civil investigative demands issued pursuant to this section.

(1995, c. 703.)

§ 59.1-202. Assurances of voluntary compliance.

1. The Attorney General, the attorney for the Commonwealth, or the attorney for a county, city, or town may accept an assurance of voluntary compliance with this chapter from any person subject to the provisions of this chapter. Any such assurance shall be in writing and be filed with and be subject on petition to the approval of the appropriate circuit court. Such assurance of voluntary compliance shall not be considered an admission of guilt or a violation for any purpose. Such assurance of voluntary compliance may at any time be reopened by the Attorney General, or the attorney for the Commonwealth, or attorney for the county, city, or town respectively, for additional orders or decrees to enforce the assurance of voluntary compliance.
2. When an assurance is presented to the circuit court for approval, the Attorney General, the attorney for the Commonwealth, or the attorney for the appropriate county, city, or town shall file, in the form of a motion for judgment or complaint, the allegations which form the basis for the entry of the assurance. The assurance may provide by its terms for any relief which an appropriate circuit court could grant, including but not limited to restitution, arbitration of disputes between the supplier and its customers, investigative expenses, civil penalties and costs; provided, however, that nothing in this chapter shall be construed to authorize or require the Commonwealth, the Attorney General, an attorney for the Commonwealth or the attorney for any county, city or town to participate in arbitration of violations under this section.

   (1977, c. 635; 1981, c. 423; 1982, c. 13; 1988, c. 850.)

Applied in Physicians Comm. for Responsible Med. v. General Mills, Inc., 283 Fed. Appx. 139, 2008 U.S. App. LEXIS 13020 (4th Cir. June 19, 2008).

§ 59.1-203. Restraining prohibited acts.

1. Notwithstanding any other provisions of law to the contrary, the Attorney General, any attorney for the Commonwealth, or the attorney for any city, county, or town may cause an action to be brought in the appropriate circuit court in the name of the Commonwealth, or of the county, city, or town to enjoin any violation of § 59.1-200 or 59.1-200.1 . The circuit court having jurisdiction may enjoin such violations notwithstanding the existence of an adequate remedy at law. In any action under this section, it shall not be necessary that damages be proved.
2. Unless the Attorney General, any attorney for the Commonwealth, or the attorney for any county, city, or town determines that a person subject to the provisions of this chapter intends to depart from this Commonwealth or to remove his property herefrom, or to conceal himself or his property herein, or on a reasonable determination that irreparable harm may occur if immediate action is not taken, he shall, before initiating any legal proceedings as provided in this section, give notice in writing that such proceedings are contemplated, and allow such person a reasonable opportunity to appear before said attorney and show that a violation did not occur or execute an assurance of voluntary compliance, as provided in § 59.1-202 .
3. The circuit courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of § 59.1-200 or 59.1-200.1 .
4. The Commissioner of the Department of Agriculture and Consumer Services, or his duly authorized representative, shall have the power to inquire into possible violations of subdivisions A 18, 28, 29, 31, 39, and 41, as it relates to motor fuels, of § 59.1-200 and § 59.1-335.12 , and, if necessary, to request, but not to require, an appropriate legal official to bring an action to enjoin such violation. (1977, c. 635; 1982, c. 13; 1988, c. 485; 2008, c. 485; 2012, cc. 803, 835.)

Editor's note. - Acts 2012, cc. 803 and 835, cl. 16 provides: "That the Governor may transfer an appropriation or any portion thereof within a state agency established, abolished, or otherwise affected by the provisions of the 13th enactment of this act, or from one such agency to another, to support the changes in organization or responsibility resulting from or required by the provisions of the 13th enactment of this act, provided that any such transfer shall be limited to salary and fringe benefits for any personnel transferred and reasonable administrative overhead and costs."

The 2008 amendments. - The 2008 amendment by c. 485 inserted "or 59.1-200.1 " following " § 59.1-200 " throughout this section.

The 2012 amendments. - The 2012 amendments by cc. 803 and 835, cl. 13, are identical, and substituted "subdivisions A 18, 28, 29, 31, 39, and 41, as it relates to motor fuels, of § 59.1-200 and § 59.1-335.12 " for " § 59.1-200 or 59.1-200.1 " in subsection D.

§ 59.1-204. Individual action for damages or penalty.

1. Any person who suffers loss as the result of a violation of this chapter shall be entitled to initiate an action to recover actual damages, or $500, whichever is greater. If the trier of fact finds that the violation was willful, it may increase damages to an amount not exceeding three times the actual damages sustained, or $1,000, whichever is greater. Any person who accepts a cure offer under this chapter may not initiate or maintain any other or additional action based on any cause of action arising under any other statute or common law theory if such other action is substantially based on the same allegations of fact on which the action initiated under this chapter is based.
2. Notwithstanding any other provision of law to the contrary, in addition to any damages awarded, such person also may be awarded reasonable attorneys' fees and court costs.
3. No cure offer shall be admissible in any proceeding initiated under this section, unless the cure offer is delivered by a supplier to the person claiming loss or to any attorney representing such person, prior to the filing of the supplier's initial responsive pleading in such proceeding. If the cure offer is timely delivered by the supplier, then the supplier may introduce the cure offer into evidence at trial. The supplier shall not be liable for such person's attorneys' fees and court costs incurred following delivery of the cure offer unless the actual damages found to have been sustained and awarded, without consideration of attorneys' fees and court costs, exceed the value of the cure offer.
4. In any action which the parties desire to settle all matters in dispute, the question of whether the plaintiff shall be awarded reasonable attorneys' fees and court costs in accordance with subsections B and C may be tendered to the court for consideration of the amount of such an award, if any.

   (1977, c. 635; 1995, cc. 703, 726; 2004, cc. 41, 90; 2005, c. 250; 2006, c. 453.)

Cross references. - As to definition of cure offer, see § 59.1-198 .

The 2004 amendments. - The 2004 amendments by cc. 41 and 90 are nearly identical, and added subsection C. Subsection C is set out in the form above at the direction of the Virginia Code Commission.

The 2005 amendments. - The 2005 amendment by c. 250 added subsection D and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 453 added the last sentence in subsection A.

Law review. - For article, "Determining the Deception of Sexual Orientation Change Efforts," see 58 Wm. & Mary L. Rev. 641 (2016).

Michie's Jurisprudence. - For related discussion, see 5A M.J. Costs, § 3; 12A M.J. Loans, § 6.

§ 59.1-204.1. Tolling of limitation.

1. Any individual action pursuant to § 59.1-204 for which the right to bring such action first accrues on or after July 1, 1995, shall be commenced within two years after such accrual. The cause of action shall accrue as provided in § 8.01-230 .
2. When any of the authorized government agencies files suit under this chapter, the time during which such governmental suit and all appeals therefrom is pending shall not be counted as any part of the period within which an action under § 59.1-204 shall be brought. (1988, c. 241; 1995, cc. 703, 726.)

Michie's Jurisprudence. - For related discussion, see 12A M.J. Limitation of Actions, §§ 24, 35, 53.

§ 59.1-205. Additional relief.

The circuit court may make such additional orders or decrees as may be necessary to restore to any identifiable person any money or property, real, personal, or mixed, tangible or intangible, which may have been acquired from such person by means of any act or practice declared to be unlawful in § 59.1-200 or 59.1-200.1 , provided, that such person shall be identified by order of the court within 180 days from the date of the order permanently enjoining the unlawful act or practice.

(1977, c. 635; 2008, c. 485.)

The 2008 amendments. - The 2008 amendment by c. 485 inserted "or 59.1-200.1 " following " § 59.1-200 " near the end of this section.

§ 59.1-206. Civil penalties; attorney's fees.

1. In any action brought under this chapter, if the court finds that a person has willfully engaged in an act or practice in violation of § 59.1-200 or 59.1-200.1 , the Attorney General, the attorney for the Commonwealth, or the attorney for the county, city, or town may recover for the Literary Fund, upon petition to the court, a civil penalty of not more than $2,500 per violation. For purposes of this section, prima facie evidence of a willful violation may be shown when the Attorney General, the attorney for the Commonwealth, or the attorney for the county, city, or town notifies the alleged violator by certified mail that an act or practice is a violation of § 59.1-200 or 59.1-200.1 , and the alleged violator, after receipt of said notice, continues to engage in the act or practice.
2. Any person who willfully violates the terms of an assurance of voluntary compliance or an injunction issued under § 59.1-203 shall forfeit and pay to the Literary Fund a civil penalty of not more than $5,000 per violation. For purposes of this section, the circuit court issuing an injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the Attorney General, the attorney for the Commonwealth, or the attorney for the county, city, or town may petition for recovery of civil penalties.
3. In any action pursuant to subsection A or B and in addition to any other amount awarded, the Attorney General, the attorney for the Commonwealth, or the attorney for the county, city, or town may recover any applicable civil penalty or penalties, costs, reasonable expenses incurred by the state or local agency in investigating and preparing the case not to exceed $1,000 per violation, and attorney's fees. Such civil penalty or penalties, costs, reasonable expenses, and attorney's fees shall be paid into the general fund of the Commonwealth or of the county, city, or town which such attorney represented.
4. Nothing in this section shall be construed as limiting the power of the court to punish as contempt the violation of any order issued by the court, or as limiting the power of the court to enter other orders under § 59.1-203 or 59.1-205 .
5. The right of trial by jury as provided by law shall be preserved in actions brought under this section.

   (1977, c. 635; 1980, c. 171; 1982, c. 13; 1991, c. 156; 1995, c. 703; 2008, c. 485.)

The 2008 amendments. - The 2008 amendment by c. 485 inserted "or 59.1-200.1 " following " § 59.1-200 " in the first sentence in subsection A and made a minor stylistic change.

Applied in In re Fravel, 143 Bankr. 1001 (Bankr. E.D. Va. 1992); Physicians Comm. for Responsible Med. v. General Mills, Inc., 283 Fed. Appx. 139, 2008 U.S. App. LEXIS 13020 (4th Cir. June 19, 2008).

CIRCUIT COURT OPINIONS

Scope. - Individual's demurrer to the Attorney General's Virginia Consumer Protection Act, § 59.1-198 et seq., claims was denied as actions brought on behalf of the Commonwealth were intended to be broader in scope and remedy than private causes of action, and the complaint adequately alleged that the actions of the corporation were those of the individual, both directly and as an active participant in the corporation. Commonwealth ex rel. Herring v. Serv. Dogs by Warren Retrievers, Inc.,, 2021 Va. Cir. LEXIS 104 (Madison County Mar. 9, 2021).

Right to jury trial. - In the State's action defendants alleging violations of the Virginia Consumer Protection Act (VCPA) and the Virginia Solicitation of Contributions law, the court held that defendants were entitled to a jury on the issue of civil penalties under the (VCPA) because civil penalties required the possible assessment of monetary damages but not on the issues of injunctive relief, including restitution and attorney's fees. Commonwealth v. Serv. Dogs by Warren Retrievers, 101 Va. Cir. 275, 2019 Va. Cir. LEXIS 37 (Madison County Mar. 10, 2019).

In the State's action defendants alleging violations of the Virginia Consumer Protection Act (VCPA) and the Virginia Solicitation of Contributions law (VSOC), the court held that restitution and injunctive relief under the VCPA and VSOC was an equitable principle and defendant was not entitled to a jury trial on that issue. Commonwealth v. Serv. Dogs by Warren Retrievers, 101 Va. Cir. 275, 2019 Va. Cir. LEXIS 37 (Madison County Mar. 10, 2019).

Insurer not liable for attorney fees in absence of bad faith. - Homeowners who succeeded in obtaining a judgment by confession from an insurer who defaulted on their complaint alleging breach of contract and other matters in regard to the insurer's failure to pay more than the policy limits after their home was destroyed by fire were not entitled to attorney fees under either the Virginia Consumer Protection Act or § 38.2-209 because the insurer did not act in bad faith or committ fraud by paying just the policy limits, even though the homeowners were ultimately awarded a damage judgment against the insurer. Le Morzellec v. Loudoun Mut. Ins. Co.,, 2004 Va. Cir. LEXIS 218 (Fairfax County July 26, 2004).

§ 59.1-207. Unintentional violations.

In any case arising under this chapter, no liability shall be imposed upon a supplier who shows by a preponderance of the evidence that (i) the act or practice alleged to be in violation of § 59.1-200 or 59.1-200.1 was an act or practice of the manufacturer or distributor to the supplier over which the supplier had no control or (ii) the alleged violation resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid a violation; however, nothing in this section shall prevent the court from ordering restitution and payment of reasonable attorney's fees and court costs pursuant to § 59.1-204 B to individuals aggrieved as a result of an unintentional violation of this chapter.

(1977, c. 635; 1995, cc. 703, 726; 2008, c. 485.)

The 2008 amendments. - The 2008 amendment by c. 485 inserted "or 59.1-200.1 " following " § 59.1-200 " in clause (i).

§ 59.1-207.1. Title of chapter.

This chapter may be cited as the Automobile Repair Facilities Act.

(1979, c. 506.)

Law review. - For survey of Virginia commercial law for the year 1978-1979, see 66 Va. L. Rev. 217 (1980).

§ 59.1-207.2. Definitions.

As used in this chapter:

1. "Motor vehicle" shall mean every vehicle which is self-propelled or designed for self-propulsion and every vehicle drawn by or designed to be drawn by a motor vehicle and includes every device in, upon or by which any property is or can be transported or drawn upon a highway, whether or not required to be licensed by the Commonwealth, but shall not include devices moved by human or animal power or devices used exclusively upon stationary rails or tracks. Nor shall it include those parts of a manufactured home which do not affect the ability of the manufactured home to be safely upon a highway.
2. "Person" shall include any natural person, firm, partnership, association or corporation.
3. "Automobile repair facility" shall mean any person who for profit diagnoses or corrects malfunctions of, or damage to, a motor vehicle.

   (1979, c. 506; 1999, c. 77.)

§ 59.1-207.3. Written estimate for repair work required upon request; charge in excess of estimate; conditions; display of sign required; limitations on liability for delay; exception.

1. Upon request by a customer, prior to the commencement of any repair work on a motor vehicle for which a customer may be charged more than $25, every automobile repair facility doing business in the Commonwealth shall provide the customer a written statement of (i) the estimated cost of labor necessary to complete the work, (ii) the estimated cost of parts necessary to complete work, (iii) a description of the problem or work as described or authorized by the customer, and (iv) the estimated completion time. An automobile repair facility shall have no obligation to provide such written statements prior to 10:00 a.m. or after 4:00 p.m. during a working day.
2. Where a written estimate is requested, no repair work on the motor vehicle may be undertaken, other than such diagnostic work as may be necessary for the preparation of an estimate, until the written estimate has been provided the customer and the customer has authorized the work, either in writing or orally, and no charge for repair work in excess of the written estimate by more than 10 percent or, in the case of any motor vehicle which is at least 25 model years old, 20 percent or extension of the time for the work may be made unless the additional work represented by such excess charge or the time extension has been authorized, in writing or orally, by the customer.
3. An automobile repair facility may impose reasonable conditions for its obligations to provide written estimates to a customer, including the imposition of a reasonable fee for the preparation of a written estimate and related diagnostic work; provided that any such conditions shall be disclosed to the customer at the time of his request by writing or by sign conspicuously posted at the entrance of the automobile repair facility.

   Each automobile repair facility shall display in a conspicuous place at any point where vehicles are normally received for repairs, a sign which states that:

   1. The customer may receive a written estimate on request;
   2. No repair work charge may exceed the written estimate by more than 10 percent unless the additional work represented by the excess charge has been authorized by the customer;
   3. Any conditions imposed by the automobile repair facility in providing written estimates, such as the limited hours when written estimates will be prepared or the amount of the reasonable fee charged for preparing a written estimate and for related diagnostic work;
   4. The facility shall offer to return all replaced parts except warranty, core charge or trade-in parts required to be returned to a manufacturer or distributor; and
   5. Any complaints can be made to the Division of Consumer Counsel of the Department of Law.

      The sign heading "Customer Rights" shall be in letters at least one and one-half inches high and the remaining print shall be in letters at least one-fourth inch high with spacing between letters, words and lines so as to be clearly legible.

4. An automobile repair facility shall not be liable for breach of the written estimated completion date for a repair if the delay is occasioned by (i) an act of God or (ii) an unexpected shortage of labor or parts or (iii) other causes beyond the control of the automobile repair facility.
5. Nothing in this section shall require an automobile repair facility to give a written estimate if the facility is unwilling to perform the requested repair work.
6. The provisions of this section shall not apply to the repair of any motor vehicle which is any car listed in the Official Judging Manual of the Antique Automobile Club of America.

   (1979, c. 506; 1995, c. 110; 2012, cc. 803, 835.)

Editor's note. - Acts 2012, cc. 803 and 835, cl. 16 provides: "That the Governor may transfer an appropriation or any portion thereof within a state agency established, abolished, or otherwise affected by the provisions of the 13th enactment of this act, or from one such agency to another, to support the changes in organization or responsibility resulting from or required by the provisions of the 13th enactment of this act, provided that any such transfer shall be limited to salary and fringe benefits for any personnel transferred and reasonable administrative overhead and costs."

The 2012 amendments. - The 2012 amendments by cc. 803 and 835, cl. 13, are identical, and substituted "Division of Consumer Counsel of the Department of Law" for "Virginia Office of Consumer Affairs" in subdivision C 5; and made stylistic changes.

§ 59.1-207.4. Offer to return replaced parts required; customer's right to inspect parts.

An automobile repair facility shall offer at the time the repair work is authorized to return to the customer any parts which are removed from the motor vehicle and replaced during the process of repair; provided that any part which is required to be returned to a manufacturer or distributor under a warranty agreement, trade-in agreement or core charge agreement for a reconditioned part need not be returned to the customer. If the customer wishes the return of replaced parts subject to core charge or other trade-in agreements, customer agrees to pay the facility the additional core charge or other trade-in fee. The customer retains the right to inspect requested returned parts even if custody is refused.

(1979, c. 506.)

§ 59.1-207.5. Written invoice required upon completion of repair work.

Upon completion of any repair work on a motor vehicle, including work performed pursuant to any warranty, an automobile repair facility shall provide the customer a written invoice which clearly indicates the work performed and the charges for parts and labor, separately stated, and which separately identifies those parts provided under warranty and not under warranty, and identifies those parts, if any, which are used, rebuilt or reconditioned. The provisions of this section shall not apply to work performed which was done on an advertised single price basis.

(1979, c. 506.)

§ 59.1-207.5:1. Sale or installation of motor vehicle glass; prohibited conduct.

No person selling or engaged in the sale, installation, or replacement of motor vehicle glass shall advertise, promise to provide, or offer any coupon, credit, or rebate to pay all or part of an insurance deductible under a policy of motor vehicle insurance, as defined in § 38.2-124 , unless such person charges no more than the prevailing market rate for such services.

(2003, c. 707.)

§ 59.1-207.6. Enforcement; penalties.

Any violation of the provisions of this chapter shall constitute a prohibited practice pursuant to the provisions of § 59.1-200 and shall be subject to any and all of the enforcement provisions of Chapter 17 (§ 59.1-196 et seq.) of this title.

(1979, c. 506.)

§ 59.1-207.7. Definitions.

As used in this chapter unless the context requires otherwise:

"Agricultural equipment" shall mean any self-propelled vehicle designed primarily for and used in the occupation or business of farming.

"Consumer" shall mean a purchaser, other than for purposes of resale, of new agricultural equipment or any subsequent purchaser, other than for purpose of resale, to whom such equipment is transferred during the duration of a manufacturer's express written warranty applicable to such equipment.

(1984, c. 503.)

§ 59.1-207.8. Protection against defective agricultural equipment; applicability of chapter.

1. If agricultural equipment does not conform to all applicable express written warranties, and the consumer reports the nonconformity to the manufacturer, its agent, or its authorized dealer during the term of such express written warranties or during the period of one year following the date of original delivery of the equipment to the first consumer, whichever is the later date, the manufacturer, its agent, or its authorized dealers shall make such repairs as are necessary to conform the equipment to such express written warranties, notwithstanding the fact that such repairs are made after the expiration of such term or such one-year period.
2. If the manufacturer or its authorized dealers do not conform the equipment to any applicable express written warranty by repairing or correcting any defect or condition which substantially impairs the use and market value of the equipment to the consumer after a reasonable number of attempts, the manufacturer or its authorized dealer shall replace the equipment with comparable equipment acceptable to the consumer, charging the consumer only a reasonable allowance for the consumer's prior use of the equipment, or accept the return of the equipment from the consumer and refund to the consumer the cash purchase price, including sales tax, license fees, registration fees, and any similar governmental charges, less such a reasonable allowance for prior use. Refunds shall be made to the consumer and lien holder or holder of a security interest, if any, as their interests may appear.

   The reasonable allowance for prior use, which shall be no less than the fair rental value of the equipment, shall be the sum of (i) that amount attributable to use by the consumer or others prior to the consumer's first report of the nonconformity to the manufacturer or its authorized dealers, (ii) that amount attributable to use by the consumer or others during any period subsequent to such report when the vehicle is not out of service by reason of repair of the reported nonconformity, and (iii) that amount attributable to use by the consumer of equipment provided by the manufacturer or its authorized dealers while the equipment is out of service by reason of repair of the reported nonconformity.

3. For purposes of this chapter, it shall be presumed that a reasonable number of attempts have been undertaken to conform equipment to the applicable express written warranties if, within the express written warranty term or during the period of one year following the date of the original delivery of the equipment to the first consumer, whichever is the later date, (i) the same nonconformity has been subject to repair four or more times by the manufacturer or its authorized dealers, but such nonconformity continues to exist or (ii) the equipment is out of service by reason of repair for a cumulative total of 30 or more calendar days. However, those days shall not be counted when the consumer has been provided by the manufacturer or its authorized dealers with the use of other equipment which performs the same function or has been offered the use of such equipment.

   The term of an express written warranty, such one-year period, and such 30-day period shall be extended by any period of time during which repair services are not available to the consumer because of war, invasion, strike, fire, flood, or other natural disasters.

4. In no event shall the presumption provided in this section apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer and been offered an opportunity to cure the alleged defect. If the address of the manufacturer is not readily available to the consumer, such written notification shall be mailed to an authorized dealer. The authorized dealer shall upon receipt forward such notification to the manufacturer.
5. It shall be an affirmative defense to any claim under this chapter that (i) an alleged nonconformity does not substantially impair such use and market value or (ii) a nonconformity is the result of abuse or neglect, or of modifications or alterations of the equipment not authorized by the manufacturer.
6. Any action brought under this chapter shall be commenced within six months following (i) expiration of the express written warranty term or (ii) 18 months following the date of the original delivery of the equipment to the consumer, whichever is the later date.
7. This chapter shall apply to agricultural equipment sold after January 1, 1985.
8. Nothing in this chapter shall in any way limit or impair the rights or remedies which are otherwise available to a consumer under any other law.
9. Any consumer who suffers a loss by reason of a violation of any provision of this chapter may bring a civil action to enforce such provision.

   (1984, c. 503; 2019, c. 752.)

The 2019 amendments. - The 2019 amendment by c. 752, in subsections A and C, substituted "later" for "earlier"; and made stylistic changes.

§ 59.1-207.9. Short title.

This chapter may be cited as the Virginia Motor Vehicle Warranty Enforcement Act.

(1984, c. 773.)

The numbers of §§ 59.1-207.9 through 59.1-207.14 were assigned by the Virginia Code Commission, the numbers in the 1984 act having been 59.1-207.7 through 59.1-207.12 .

Law review. - For comment, "Virginia's Lemon Law: The Best Treatment for Car Owner's Canker," see 19 U. Rich. L. Rev. 405 (1985). For 1985 survey of Virginia commercial law, see 19 U. Rich. L. Rev. 717 (1985).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 132; 3C M.J. Commercial Law, § 13.

§ 59.1-207.10. Intent.

The General Assembly recognizes that a motor vehicle is a major consumer purchase, and there is no doubt that a defective motor vehicle creates a hardship for the consumer. It is the intent of the General Assembly that a good faith motor vehicle warranty complaint by a consumer should be resolved by the manufacturer, or its agent, within a specified period of time. It is further the intent of the General Assembly to provide the statutory procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the express warranty issued by the manufacturer. However, nothing in this chapter shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.

(1984, c. 773.)

Law review. - For comment, "Virginia's Lemon Law: The Best Treatment for Car Owner's Canker," see 19 U. Rich. L. Rev. 405 (1985).

§ 59.1-207.11. Definitions.

As used in this chapter, the following terms shall have the following meanings:

"Collateral charges" means any sales-related or lease-related charges including but not limited to sales tax, license fees, registration fees, title fees, finance charges and interest, transportation charges, dealer preparation charges or any other charges for service contracts, undercoating, rust proofing or installed options, not recoverable from a third party. If a refund involves a lease, "collateral charges" means, in addition to any of the above, capitalized cost reductions, credits and allowances for any trade-in vehicles, fees to another to obtain the lease, and insurance or other costs expended by the lessor for the benefit of the lessee.

"Comparable motor vehicle" means a motor vehicle that is identical or reasonably equivalent to the motor vehicle to be replaced, as the motor vehicle to be replaced existed at the time of purchase or lease with an offset from this value for a reasonable allowance for its use.

"Consumer" means the purchaser, other than for purposes of resale, or the lessee, of a motor vehicle used in substantial part for personal, family, or household purposes, and any person to whom such motor vehicle is transferred for the same purposes during the duration of any warranty applicable to such motor vehicle, and any other person entitled by the terms of such warranty to enforce the obligations of the warranty.

"Incidental damages" shall have the same meaning as provided in § 8.2-715 .

"Lemon law rights period" means the period ending eighteen months after the date of the original delivery to the consumer of a new motor vehicle. This shall be the period during which the consumer can report any nonconformity to the manufacturer and pursue any rights provided for under this chapter.

"Lien" means a security interest in a motor vehicle.

"Lienholder" means a person, partnership, association, corporation or entity with a security interest in a motor vehicle pursuant to a lien.

"Manufacturer" means a person, partnership, association, corporation or entity engaged in the business of manufacturing or assembling motor vehicles, or of distributing motor vehicles to motor vehicle dealers.

"Manufacturer's express warranty" means the written warranty, so labeled, of the manufacturer of a new automobile, including any terms or conditions precedent to the enforcement of obligations under that warranty.

"Motor vehicle" means only passenger cars, pickup or panel trucks, motorcycles, self-propelled motorized chassis of motor homes and mopeds as those terms are defined in § 46.2-100 and demonstrators or leased vehicles with which a warranty was issued.

"Motor vehicle dealer" shall have the same meaning as provided in § 46.2-1500 .

"Nonconformity" means a failure to conform with a warranty, a defect or a condition, including those that do not affect the driveability of the vehicle, which significantly impairs the use, market value, or safety of a motor vehicle.

"Notify" or "notification" means that the manufacturer shall be deemed to have been notified under this chapter if a written complaint of the defect or defects has been mailed to it or it has responded to the consumer in writing regarding a complaint, or a factory representative has either inspected the vehicle or met with the consumer or an authorized dealer regarding the nonconformity.

"Reasonable allowance for use" shall not exceed one-half of the amount allowed per mile by the Internal Revenue Service, as provided by regulation, revenue procedure, or revenue ruling promulgated pursuant to § 162 of the Internal Revenue Code, for use of a personal vehicle for business purposes, plus an amount to account for any loss to the fair market value of the vehicle resulting from damage beyond normal wear and tear, unless the damage resulted from nonconformity to any warranty.

"Serious safety defect" means a life-threatening malfunction or nonconformity that impedes the consumer's ability to control or operate the new motor vehicle for ordinary use or reasonable intended purposes or creates a risk of fire or explosion.

"Significant impairment" means to render the new motor vehicle unfit, unreliable or unsafe for ordinary use or reasonable intended purposes.

"Warranty" means any implied warranty or any written warranty of the manufacturer, or any affirmations of fact or promise made by the manufacturer in connection with the sale or lease of a motor vehicle that become part of the basis of the bargain. The term "warranty" pertains to the obligations of the manufacturer in relation to materials, workmanship, and fitness of a motor vehicle for ordinary use or reasonable intended purposes throughout the duration of the lemon law rights period as defined under this section.

(1984, c. 773; 1988, c. 603; 1990, c. 772; 1998, c. 671.)

§ 59.1-207.12. Conformity to all warranties.

If a new motor vehicle does not conform to all warranties, and the consumer reports the nonconformity to the manufacturer, its agents, or its authorized dealer during the manufacturer's warranty period, the manufacturer, its agent or its authorized dealer shall make such repairs as are necessary to conform the vehicle to such warranties, notwithstanding the fact that such repairs are made after the expiration of such manufacturer's warranty period.

(1984, c. 773; 1988, c. 603.)

§ 59.1-207.13. Nonconformity of motor vehicles.

1. If the manufacturer, its agents or authorized dealers do not conform the motor vehicle to any applicable warranty by repairing or correcting any defect or condition, including those that do not affect the driveability of the vehicle, which significantly impairs the use, market value, or safety of the motor vehicle to the consumer after a reasonable number of attempts during the lemon law rights period, the manufacturer shall:
   1. Replace the motor vehicle with a comparable motor vehicle acceptable to the consumer, or
   2. Accept return of the motor vehicle and refund to the consumer, lessor, and any lienholder as their interest may appear the full contract price, including all collateral charges, incidental damages, less a reasonable allowance for the consumer's use of the vehicle up to the date of the first notice of nonconformity that is given to the manufacturer, its agents or authorized dealer. Refunds or replacements shall be made to the consumer, lessor or lienholder, if any, as their interests may appear. The consumer shall have the unconditional right to choose a refund rather than a replacement vehicle and to drive the motor vehicle until he receives either the replacement vehicle or the refund. The subtraction of a reasonable allowance for use shall apply to either a replacement or refund of the motor vehicle. Mileage, expenses, and reasonable loss of use necessitated by attempts to conform such motor vehicle to the express warranty may be recovered by the consumer.

      A1. In the case of a replacement of or refund for a leased vehicle, in addition to any other damages provided in this chapter, the motor vehicle shall be returned to the manufacturer and the consumer's written lease shall be terminated by the lessor without penalty to the consumer. The lessor shall transfer title to the manufacturer as necessary to effectuate the consumer's rights pursuant to this chapter, whether the consumer chooses vehicle replacement or a refund.

2. It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to any warranty and that the motor vehicle is significantly impaired if during the period of eighteen months following the date of original delivery of the motor vehicle to the consumer either:
   1. The same nonconformity has been subject to repair three or more times by the manufacturer, its agents or its authorized dealers and the same nonconformity continues to exist;
   2. The nonconformity is a serious safety defect and has been subject to repair one or more times by the manufacturer, its agent or its authorized dealer and the same nonconformity continues to exist; or
   3. The motor vehicle is out of service due to repair for a cumulative total of thirty calendar days, unless such repairs could not be performed because of conditions beyond the control of the manufacturer, its agents or authorized dealers, including war, invasion, strike, fire, flood or other natural disasters.
3. The lemon law rights period shall be extended if the manufacturer has been notified but the nonconformity has not been effectively repaired by the manufacturer, or its agent, by the expiration of the lemon law rights period.
4. The manufacturer shall clearly and conspicuously disclose to the consumer, in the warranty or owner's manual, that written notification of the nonconformity to the manufacturer is required before the consumer may be eligible for a refund or replacement of the vehicle under this chapter. The manufacturer shall include with the warranty or owner's manual the name and address to which the consumer shall send such written notification.
5. It shall be the responsibility of the consumer, or his representative, prior to availing himself of the provisions of this section, to notify the manufacturer of the need for the correction or repair of the nonconformity, unless the manufacturer has been notified as defined in § 59.1-207.11 . If the manufacturer or factory representative has not been notified of the conditions set forth in subsection B of this section and any of the conditions set forth in subsection B of this section already exists, the manufacturer shall be given an additional opportunity, not to exceed fifteen days, to correct or repair the nonconformity. If notification shall be mailed to an authorized dealer, the authorized dealer shall upon receipt forward such notification to the manufacturer.
6. Nothing in this chapter shall be construed to limit or impair the rights and remedies of a consumer under any other law.
7. It is an affirmative defense to any claim under this chapter that:
   1. An alleged nonconformity does not significantly impair the use, market value, or safety of the motor vehicle; or
   2. A nonconformity is the result of abuse, neglect or unauthorized modification or alteration of a motor vehicle by a consumer.

      (1984, c. 773; 1987, c. 607; 1988, c. 603; 1990, c. 772; 1998, c. 671.)

Law review. - For comment, "Virginia's Lemon Law: The Best Treatment for Car Owner's Canker," see 19 U. Rich. L. Rev. 405 (1985).

§ 59.1-207.14. Action to enforce provisions of chapter.

Any consumer who suffers loss by reason of a violation of any provision of this chapter may bring a civil action to enforce such provision. Any consumer who is successful in such an action or any defendant in any frivolous action brought by a consumer shall recover reasonable attorney's fees, expert witness fees and court costs incurred by bringing such actions.

(1984, c. 773; 1988, c. 603.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 14 Costs. § 14.02 Items Included. Bryson.

§ 59.1-207.15. Informal dispute settlement procedure.

1. If a manufacturer provides an informal dispute settlement procedure, it shall be the consumer's choice whether or not to use it prior to availing himself of his rights under this chapter.
2. If a dispute settlement procedure is resorted to by the consumer and the decision is for a refund or a comparable motor vehicle, the manufacturer shall have forty days from its receipt of the consumer's acceptance of the decision or from the date of a court order to comply with the terms of the decision.
3. In any action brought because of the manufacturer's failure to comply with the decision, within the scope of the procedure's authority, rendered as a result of a dispute resolution proceeding or a court order, the court may triple the value of the award stipulated in the decision as provided for in this chapter, plus award other equitable relief the court deems appropriate, including additional attorney's fees.

   (1988, c. 603; 1990, c. 772.)

CIRCUIT COURT OPINIONS

Dispurte settlement procedure. - Company's plea in bar was sustained because a purchaser was advised of its "Dispute Settlement Board," but the letter the purchaser's attorney sent the company did not seek a resolution through that Board; rather, it was a notice of non-conformity, a claim for a full refund less an allowance for use, and a notice of intent to file suit if the company did not respond in ten days. Nikolov v. Ford Motor Co., 104 Va. Cir. 327, 2020 Va. Cir. LEXIS 67 (Norfolk Mar. 12, 2020).

Informal dispute settlement procedure under Virginia law need not be as detailed as 16 C.F.R. Part 703; however, at a minimum, it must have some agreed upon submission to the decision of a neutral person selected by the manufacturer. Nikolov v. Ford Motor Co., 104 Va. Cir. 327, 2020 Va. Cir. LEXIS 67 (Norfolk Mar. 12, 2020).

§ 59.1-207.16. Action to be brought within certain time.

Any action brought under this chapter shall be commenced within eighteen months following the date of original delivery of the motor vehicle to the consumer. However, any consumer whose good faith attempts to settle the dispute pursuant to the informal dispute settlement provisions of § 59.1-207.15 have not resulted in the satisfactory resolution of the matter shall have (i) twelve months from the date of the final action taken by the manufacturer in its dispute settlement procedure, if such procedure was resorted to within eighteen months of delivery, or (ii) the original eighteen-month period, whichever is longer, to file an action in the proper court.

(1988, c. 603; 1990, c. 772; 1999, c. 387.)

CIRCUIT COURT OPINIONS

Failure to properly notify. - Claim under Virginia Motor Vehicle Warranty Enforcement Act, § 59.1-207.9 et seq. was not timely filed, because car buyer failed to properly notify the corporation of alleged nonconformities as required; having the car repaired by a dealer and having the manufacturer reimburse the dealer was not proper notification. Kniska v. Subaru of Am., Inc., 62 Va. Cir. 23, 2003 Va. Cir. LEXIS 77 (Fairfax County 2003).

§ 59.1-207.16:1. Disclosure of returned vehicles; penalty.

1. If a motor vehicle that is returned to the manufacturer or distributor either under this chapter or by judgment, decree, or arbitration award in this or any other state and is then transferred by a manufacturer or distributor to a dealer, licensed under Chapter 15 (§ 46.2-1500 et seq.) of Title 46.2, in Virginia, the manufacturer or distributor shall disclose this information to the Virginia dealer.
2. If the returned vehicle is then made available for resale or for another lease, the manufacturer shall, prior to sale or lease, disclose in writing in a clear and conspicuous manner, on a separate piece of paper in ten-point capital type, to the Virginia dealer that this motor vehicle was returned to the manufacturer, distributor or factory branch, the nature of the defect which resulted in the return, and the condition of the motor vehicle at the time of transfer to the Virginia dealer. It shall be the responsibility of the dealer that receives this disclosure to give notice of its contents to any prospective purchaser or lessee prior to sale or lease, and to transfer the disclosure, or a copy thereof, to the next purchaser or lessee. A dealer's responsibility under this section shall cease upon the sale or lease of the affected motor vehicle to the first purchaser or lessee not for resale or lease.
3. Any manufacturer or distributor who violates this section of the Motor Vehicle Warranty Enforcement Act shall be guilty of a Class 3 misdemeanor.

   (1994, c. 578; 1998, c. 671.)

Cross references. - As to punishment for Class 3 misdemeanors, see § 18.2-11 .

§ 59.1-207.17. Title.

This chapter may be cited as the "Virginia Lease-Purchase Agreement Act."

(1988, c. 24.)

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 95.

CIRCUIT COURT OPINIONS

Applicability. - Although reference was made in an appliance lease-purchase agreement to a payment plan of 24 months, the "initial period" was the first month, so the agreement came under the Virginia Lease-Purchase Agreement Act and the tenant could recover at least $500 in damages as provided under the enforcement provisions of the Virginia Consumer Protection Act, § 59.1-207.27 . Washington v. Edwin C. Hall Assocs., 64 Va. Cir. 274, 2004 Va. Cir. LEXIS 51 (Roanoke 2004).

§ 59.1-207.18. Definitions.

As used in this chapter:

"Advertisement" means a commercial message in any medium that aids, promotes, or assists, directly or indirectly, a lease-purchase agreement.

"Cash price" means the price at which the lessor would have sold the property to the consumer for cash on the date of the lease-purchase agreement.

"Consumer" means a natural person who rents personal property under a lease-purchase agreement to be used primarily for personal, family or household purposes.

"Consummation" means the time a consumer becomes contractually obligated on a lease-purchase agreement.

"Lessor" means a person who regularly provides the use of property through lease-purchase agreements and to whom lease payments are initially payable on the face of the lease-purchase agreement.

"Lease-purchase agreement" means an agreement for the use of personal property by a natural person primarily for personal, family, or household purposes, for an initial period of four months or less that is automatically renewable with each payment after the initial period, but does not obligate or require the consumer to continue leasing or using the property beyond the initial period, and that permits the consumer to become the owner of the property.

(1988, c. 24.)

§ 59.1-207.19. Inapplicability of other laws; exempted transactions.

1. Lease-purchase agreements that comply with this chapter are not governed by the laws relating to:
   1. A home solicitation sale as defined in § 59.1-21.2 ;
   2. A transaction described in § 6.2-311 ; or
   3. A security interest as defined in subdivision (35) of § 8.1A-201 .
2. This chapter does not apply to the following:
   1. Lease-purchase agreements primarily for business, commercial, or agricultural purposes, or those made with governmental agencies or instrumentalities or with organizations;
   2. A lease of a safe deposit box;
   3. A lease or bailment of personal property which is incidental to the lease of real property, and which provides that the consumer has no option to purchase the leased property; or
   4. A lease of an automobile.

      (1988, c. 24; 2003, c. 353; 2010, c. 794.)

The 2003 amendments. - The 2003 amendment by c. 353, in subdivision A 3, substituted "subdivision (35) of § 8.1A-201 " for "subdivision (37) of § 8.1-201," and made a stylistic change.

The 2010 amendments. - The 2010 amendment by c. 794, effective October 1, 2010, rewrote subdivision A 2, which formerly read: "A consumer transaction as discussed in § 6.1-330.77; or."

§ 59.1-207.20. General requirements of disclosure.

1. The lessor shall disclose to the consumer the information required by this chapter. In a transaction involving more than one lessor, only one lessor need make the disclosures, but all lessors shall be bound by such disclosures.
2. The disclosures shall be made at or before consummation of the lease-purchase agreement.
3. The disclosures shall be made clearly and conspicuously in writing and a copy of the lease-purchase agreement provided to the consumer. The disclosures required under subsection A of § 59.1-207.19 shall be made on the face of the contract above the line for the consumer's signature.
4. If a disclosure becomes inaccurate as the result of any act, occurrence, or agreement by the consumer after delivery of the required disclosures, the resulting inaccuracy is not a violation of this chapter.

   (1988, c. 24.)

§ 59.1-207.21. Disclosures.

1. For each lease-purchase agreement, the lessor shall disclose in the agreement the following items, as applicable:
   1. The total number, total amount and timing of all payments necessary to acquire ownership of the property;
   2. A statement that the consumer will not own the property until the consumer has made the total payment necessary to acquire ownership;
   3. A statement that the consumer is responsible for the fair market value of the property if, and as of the time, it is lost, stolen, damaged, or destroyed;
   4. A brief description of the leased property, sufficient to identify the property to the consumer and the lessor, including an identification number, if applicable, and a statement indicating whether the property is new or used, but a statement that indicates new property is used is not a violation of this chapter;
   5. A brief description of any damages to the leased property;
   6. A statement of the cash price of the property. Where the agreement involves a lease of five or more items as a set, in one agreement, a statement of the aggregate cash price of all items shall satisfy this requirement;
   7. The total of initial payments paid or required at or before consummation of the agreement or delivery of the property, whichever is later;
   8. A statement that the total of payments does not include other charges, such as late payment, default, pickup, and reinstatement fees, which fees shall be separately disclosed in the contract;
   9. A statement clearly summarizing the terms of the consumer's option to purchase, including a statement that the consumer has the right to exercise an early purchase option and the price, formula or method for determining the price at which the property may be so purchased;
   10. A statement identifying the party responsible for maintaining or servicing the property while it is being leased, together with a description of that responsibility, and a statement that if any part of a manufacturer's express warranty covers the lease property at the time the consumer acquires ownership of the property, it shall be transferred to the consumer, if allowed by the terms of the warranty;
   11. The date of the transaction and the identities of the lessor and consumer;
   12. A statement that the consumer may terminate the agreement without penalty by voluntarily surrendering or returning the property in good repair upon expiration of any lease term along with any past due rental payments; and
   13. Notice of the right to reinstate an agreement as herein provided.
2. With respect to matters specifically governed by the Federal Consumer Credit Protection Act, compliance with such Act satisfies the requirements of this section.

   (1988, c. 24.)

§ 59.1-207.22. Prohibited practices.

A lease-purchase agreement may not contain:

1. A confession of judgment;
2. A negotiable instrument;
3. A security interest or any other claim of a property interest in any goods except those goods delivered by the lessor pursuant to the lease-purchase agreement;
4. A wage assignment;
5. A waiver by the consumer of claims or defenses; or
6. A provision authorizing the lessor or a person acting on the lessor's behalf to enter upon the consumer's premises or to commit any breach of the peace in the repossession of goods.

   (1988, c. 24.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 1 Extra-Judicial Procedures. § 1.03 Joint Action of Both Parties. Bryson.

§ 59.1-207.23. Reinstatement.

1. A consumer who fails to make a timely rental payment may reinstate the agreement, without losing any rights or options which exist under the agreement, by the payment of (i) all past due rental charges, (ii) if the property has been picked up, the reasonable costs of pickup and redelivery, and (iii) any applicable late fee, within five days of the renewal date if the consumer pays monthly, or within two days of the renewal date if the consumer pays more frequently than monthly.
2. In the case of a consumer who has paid less than two-thirds of the total of payments necessary to acquire ownership and where the consumer has returned or voluntarily surrendered the property, other than through judicial process, during the applicable reinstatement period set forth in subsection A of this section, the consumer may reinstate the agreement during a period of not less than twenty-one days after the date of the return of the property.
3. In the case of a consumer who has paid two-thirds or more of the total of payments necessary to acquire ownership, and where the consumer has returned or voluntarily surrendered the property, other than through judicial process, during the applicable period set forth in subsection A of this section, the consumer may reinstate the agreement during a period of not less than forty-five days after the date of the return of the property.
4. Nothing in this section shall prevent a lessor from attempting to repossess property during the reinstatement period, but such a repossession shall not affect the consumer's right to reinstate. Upon reinstatement, the lessor shall provide the consumer with the same property or substitute property of comparable quality and condition.

   (1988, c. 24.)

§ 59.1-207.24. Receipts and accounts.

A lessor shall provide the consumer a written receipt for each payment made by cash or money order.

(1988, c. 24.)

§ 59.1-207.25. Renegotiations and extensions.

1. A renegotiation shall occur when an existing lease-purchase agreement is satisfied and replaced by a new agreement undertaken by the same lessor and consumer. A renegotiation shall be considered a new agreement requiring new disclosures. However, events such as the following shall not be treated as renegotiations:
   1. The addition or return of property in a multiple-item agreement or the substitution of the lease property, if in either case the average payment allocable to a payment period is not changed by more than twenty-five percent;
   2. A deferral or extension of one or more periodic payments, or portions of a periodic payment;
   3. A reduction in charges in the lease or agreement; and
   4. A lease or agreement involved in a court proceeding.
2. No disclosures are required for any extension of a lease-purchase agreement.

   (1988, c. 24.)

§ 59.1-207.26. Advertising.

1. If an advertisement for a lease-purchase agreement refers to or states the dollar amount of any payment and the right to acquire ownership for any one specific item, the advertisement shall also clearly and conspicuously state the following items, as applicable:
   1. That the transaction advertised is a lease-purchase agreement;
   2. The total of payments necessary to acquire ownership; and
   3. That the consumer acquires no ownership rights if the total amount necessary to acquire ownership is not paid.
2. Any owner or personnel of any medium in which an advertisement appears or through which it is disseminated shall not be liable under this section.
3. The provisions of subsection A of this section shall not apply to an advertisement which does not refer to or state the amount of any payment, or which is published in the yellow pages of a telephone directory or in any similar directory of business.

   (1988, c. 24.)

§ 59.1-207.27. Enforcement; penalties.

Any violation of this chapter shall constitute a prohibited practice under the provisions of § 59.1-200 and shall be subject to any and all of the enforcement provisions of Chapter 17 (§ 59.1-196 et seq.) of this title.

(1988, c. 24.)

§ 59.1-207.28. Title of chapter.

This chapter shall be known and may be cited as the "Collision Damage Waiver Act."

(1988, c. 349.)

§ 59.1-207.29. Scope.

This chapter shall apply (i) to all persons in the business of leasing rental motor vehicles from locations in the Commonwealth under an agreement that imposes upon the lessee an obligation to pay for any damages caused to the leased vehicle and (ii) to all peer-to-peer vehicle sharing platforms in the Commonwealth facilitating peer-to-peer vehicle sharing under a vehicle sharing platform agreement that imposes upon the shared vehicle driver an obligation to pay for any damages caused to the shared vehicle. The provisions of this chapter apply solely to the collision damage waiver portion of the rental agreement or vehicle sharing platform agreement. The definitions in § 46.2-1408 apply, mutatis mutandis, to this section.

(1988, c. 349; 2020, c. 1266.)

The 2020 amendments. - The 2020 amendment by c. 1266, in the first sentence, added clause (ii); in the second sentence, added "or vehicle sharing platform agreement"; added the last sentence; and made a stylistic change.

§ 59.1-207.30. Definitions.

As used in this chapter, the following terms shall have the following meanings:

"Collision damage waiver" means any contract or contractual provision, whether separate from or a part of a motor vehicle rental agreement, whereby the lessor agrees, for a charge, to waive any and all claims against the lessee for any damages to the rental motor vehicle during the term of the rental agreement.

"Lessor" means any person or organization in the business of providing rental motor vehicles to the public.

"Lessee" means any person or organization obtaining the use of a rental motor vehicle from a lessor under the terms of a rental agreement.

"Rental agreement" means any written agreement setting forth the terms and conditions governing the use of the rental motor vehicle by the lessee.

"Rental motor vehicle" means a private passenger type vehicle or commercial type vehicle which, upon execution of a rental agreement, is made available to a lessee for its use.

(1988, c. 349.)

§ 59.1-207.31. Required notice.

1. The definitions in § 46.2-1408 apply, mutatis mutandis, to this section.
2. No lessor or peer-to-peer vehicle sharing platform shall sell or offer to sell to a lessee a collision damage waiver as a part of a rental agreement or vehicle sharing platform agreement unless the lessor or peer-to-peer vehicle sharing platform first provides the lessee or shared vehicle driver the following written notice:

   NOTICE: THIS CONTRACT OFFERS, FOR AN ADDITIONAL CHARGE, A COLLISION DAMAGE WAIVER TO COVER YOUR RESPONSIBILITY FOR DAMAGE TO THE VEHICLE. BEFORE DECIDING WHETHER TO PURCHASE THE COLLISION DAMAGE WAIVER, YOU MAY WISH TO DETERMINE WHETHER YOUR OWN VEHICLE INSURANCE AFFORDS YOU COVERAGE FOR DAMAGE TO THE RENTAL VEHICLE AND THE AMOUNT OF THE DEDUCTIBLE UNDER YOUR OWN INSURANCE COVERAGE. THE PURCHASE OF THIS COLLISION DAMAGE WAIVER IS NOT MANDATORY AND MAY BE WAIVED.

3. Such notice shall be made on the face of the rental agreement or vehicle sharing platform agreement either by stamp, label, or as part of the written contract, shall be set apart in boldface type and in no smaller print than 10-point type, and shall include a space for the lessee or shared vehicle driver, as defined in § 46.2-1408 , to acknowledge his receipt of the notice. (1988, c. 349; 2020, c. 1266.)

The 2020 amendments. - The 2020 amendment by c. 1266 added subsection A and redesignated accordingly; in subsection B, inserted "or peer-to-peer vehicle sharing platform" twice, "or vehicle sharing platform agreement" and "or shared vehicle driver"; in subsection C, inserted "or vehicle sharing platform agreement" and "or shared vehicle driver, as defined in § 46.2-1408 " and made stylistic changes.

§ 59.1-207.32. Prohibited exclusion.

No collision damage waiver subject to this chapter shall contain an exclusion from the waiver for damages caused by the ordinary negligence of the lessee or shared vehicle driver, as defined in § 46.2-1408 . Any such exclusion in violation of this section shall be void. This section shall not be deemed to prohibit an exclusion from the waiver for damages caused intentionally by the lessee or shared vehicle driver or as a result of his willful or wanton misconduct or gross negligence, driving while intoxicated or under the influence of any drug or alcohol, or damages caused while engaging in any speed contest.

(1988, c. 349; 2020, c. 1266.)

The 2020 amendments. - The 2020 amendment by c. 1266, in the first sentence, added "or shared vehicle driver, as defined in § 46.2-1408 " at the end; and in the last sentence, inserted "or shared vehicle driver."

§ 59.1-207.33. Enforcement; penalties.

Any violation of the provisions of this chapter shall constitute a prohibited practice pursuant to the provisions of § 59.1-200 and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act (§ 59.1-196 et seq.) of this title.

(1988, c. 349.)

§ 59.1-207.34. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Adjustment program" means any extended policy program under which a manufacturer undertakes to pay for all or any part of the cost of repairing, or to reimburse purchasers for all or any part of the cost of repairing, any condition that may substantially affect vehicle durability, reliability or performance, other than service provided under a safety or emission-related recall program. This term shall not include ad hoc adjustments made by a manufacturer on a case-by-case basis.

"Consumer" means the purchaser, other than for purposes of resale, or the lessee of a motor vehicle and shall also include any person to whom such motor vehicle is transferred and any other person entitled by the terms of adjustment program to enforce its obligations.

"Dealer" means any motor vehicle dealer as defined in § 46.2-1500 .

"Division" means the Division of Consumer Counsel in the Department of Law.

"Manufacturer" means any person, whether resident or nonresident, who manufactures, assembles, or imports motor vehicles for sale or distribution in this Commonwealth.

"Motor vehicle" means any motor vehicle as defined in § 46.2-100 , but shall not include any motorcycle or motor home.

(1991, c. 300; 2012, cc. 803, 835.)

Editor's note. - Acts 2012, cc. 803 and 835, cl. 16 provides: "That the Governor may transfer an appropriation or any portion thereof within a state agency established, abolished, or otherwise affected by the provisions of the 13th enactment of this act, or from one such agency to another, to support the changes in organization or responsibility resulting from or required by the provisions of the 13th enactment of this act, provided that any such transfer shall be limited to salary and fringe benefits for any personnel transferred and reasonable administrative overhead and costs."

The 2012 amendments. - The 2012 amendments by cc. 803 and 835, cl. 13, are identical, and deleted the definition of "Board," which read: "'Board' means the Board of Agriculture and Consumer Services."; and added the paragraph defining "Division."

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 13.

§ 59.1-207.35. Requirements of manufacturers.

Every manufacturer shall:

1. Inform a consumer of any adjustment program applicable to his motor vehicle and, upon request, furnish the consumer with any document issued by a manufacturer pertaining to any adjustment program or to any condition that may substantially affect vehicle durability, reliability or performance;
2. Notify, by first-class mail, all owners of motor vehicles eligible under any adjustment program of the condition giving rise to and the principal terms and conditions of such program within ninety days of the adoption of the program; and
3. Notify its dealers, in writing, of all the terms and conditions of any adjustment program within thirty days of its adoption.

   (1991, c. 300.)

§ 59.1-207.36. Required disclosures.

1. Every manufacturer or distributor, either directly or through its authorized agent, shall cause a notice to be given to the consumer which outlines the provisions of this chapter and the rights and remedies thereunder. The written notice shall state at minimum: "Sometimes (insert manufacturer's name) offers a special adjustment program to pay all or part of the cost of certain repairs beyond the terms of the warranty. Check with your dealer to determine whether any adjustment program is applicable to your motor vehicle."
2. Every dealer shall disclose to a consumer seeking repairs for a particular condition, the principal terms and conditions of any manufacturer's adjustment program covering such condition provided the dealer has been notified of the adjustment program pursuant to § 59.1-207.35 . (1991, c. 300.)

§ 59.1-207.37. Adjustment program reimbursement.

1. Every manufacturer who establishes any adjustment program shall implement and follow procedures to ensure reimbursement for each consumer eligible under any such program who incurred expenses for repair of the condition subject to the program prior to acquiring knowledge thereof.  Such reimbursement shall be consistent with the terms and conditions of the adjustment program.
2. Any claim for reimbursement pursuant to this section shall be made in writing to the manufacturer within two years of the date of the consumer's payment of repairs for the condition. The manufacturer shall notify the consumer in writing within twenty-one business days of receiving a claim for reimbursement whether the claim will be allowed or denied.  If the claim is denied, the specific reasons for such denial shall be stated in writing.

   (1991, c. 300.)

§ 59.1-207.38. Enforcement; penalties.

Any violation of the provisions of this chapter shall constitute a prohibited practice pursuant to the provisions of § 59.1-200 and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act (§ 59.1-196 et seq.) of this title. Notwithstanding any other provision to the contrary, it shall not be a violation of this chapter if the manufacturer within thirty days after the conclusion of the notice period required by subdivision 2 of § 59.1-207.35 , upon notice from a consumer of the consumer's eligibility under an adjustment program, repairs or causes to be repaired the consumer's motor vehicle in accordance with the terms and conditions of the adjustment program.

(1991, c. 300; 1996, c. 63.)

§ 59.1-207.39. Regulations.

The Division is authorized to promulgate reasonable regulations in order to implement the provisions of this chapter. These regulations shall be adopted, amended, or repealed in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).

(1991, c. 300; 2012, cc. 803, 835.)

Editor's note. - Acts 2012, cc. 803 and 835, cl. 16 provides: "That the Governor may transfer an appropriation or any portion thereof within a state agency established, abolished, or otherwise affected by the provisions of the 13th enactment of this act, or from one such agency to another, to support the changes in organization or responsibility resulting from or required by the provisions of the 13th enactment of this act, provided that any such transfer shall be limited to salary and fringe benefits for any personnel transferred and reasonable administrative overhead and costs."

The 2012 amendments. - The 2012 amendments by cc. 803 and 835, cl. 13, are identical, and substituted "Division" for "Board" near the beginning of the first sentence.

§ 59.1-207.40. Definitions.

In addition to the definitions listed in § 59.1-198 , as used in this chapter, the following terms shall have the following meanings:

"Former price" or "comparison price" means the direct or indirect comparison in any advertisement whether or not expressed wholly or in part in dollars, cents, fractions, or percentages, and whether or not such price is actually stated in the advertisement.

"Substantial sales" means a substantial aggregate volume of sales of identical or comparable goods or services at or above the advertised comparison price in the supplier's trade area.

(1992, c. 768.)

Research References. - The Law of Advertising (Matthew Bender). Rosden and Rosden.

§ 59.1-207.41. Advertising former price of goods or services.

No supplier shall in any manner knowingly advertise a former price of any goods or services unless:

1. Such former price is the price at or above which substantial sales were made in the recent regular course of business; or
2. Such former price was the price at which such goods or services or goods or services of substantially the same kind, quality, or quantity and with substantially the same service were openly and actively offered for sale for a reasonably substantial period of time in the recent regular course of business honestly, in good faith and not for the purpose of establishing a fictitious higher price on which a deceptive comparison might be based; or
3. Such former price is based on a markup that does not exceed the supplier's cost plus the usual and customary markup used by the supplier in the actual sale of such goods or services or goods or services of substantially the same kind, quality, or quantity and with substantially the same service, in the recent regular course of business; or
4. The date on which substantial sales were made, or the goods or services were openly and actively offered for sale for a reasonably substantial period of time at the former price is advertised in a clear and conspicuous manner.

   (1992, c. 768.)

§ 59.1-207.42. Advertising comparison price of goods or services.

No supplier shall in any manner knowingly advertise a comparison price which is based on another supplier's price unless:

1. The supplier can substantiate that the comparison price is the price offered for sale by another supplier in the regular course of business for goods or services of substantially the same kind and quality, and with substantially the same service in the defined trade area;
2. The trade area to which the advertisement refers is clearly defined and disclosed; and
3. A clear and conspicuous disclosure is made in the advertisement that the price used as a basis of comparison is another supplier's price, and not the supplier's own price.

   (1992, c. 768.)

§ 59.1-207.43. Use of certain terms in advertising former or comparison prices.

1. No supplier shall advertise a former or comparison price in terms of "market value," "valued at" or words of similar import unless such price is the price at which the goods or services, or goods or services of substantially the same kind, quality or quantity, are offered for sale by a reasonable number of suppliers in the supplier's trade area.
2. A supplier may advertise a former or comparison price in terms of "manufacturer's suggested price," "suggested retail price," "list price," or words of similar import provided that, with regard to such advertising, the use of the former or comparison price complies with 15 U.S.C. § 45 (a) (1) and the regulations of the Federal Trade Commission adopted thereunder.

   (1992, c. 768.)

§ 59.1-207.44. Enforcement; penalties.

Any violation of this chapter shall constitute a prohibited practice under the provisions of § 59.1-200 and shall be subject to the enforcement provisions of Chapter 17 (§ 59.1-196 et seq.). It shall be the responsibility of any supplier who uses a comparison price to be able to substantiate the basis for any price comparisons made by the supplier. Upon the request of the Attorney General, any attorney for the Commonwealth, or the attorney of any county, city, or town, a supplier shall provide documentation to substantiate the basis for any comparison price utilized by the supplier in any advertisement governed by this chapter. No provision of this chapter shall be construed to apply to any supplier whose advertising practices are governed by § 46.2-1581 .

(1992, c. 768; 2012, cc. 803, 835.)

Editor's note. - Acts 2012, cc. 803 and 835, cl. 16 provides: "That the Governor may transfer an appropriation or any portion thereof within a state agency established, abolished, or otherwise affected by the provisions of the 13th enactment of this act, or from one such agency to another, to support the changes in organization or responsibility resulting from or required by the provisions of the 13th enactment of this act, provided that any such transfer shall be limited to salary and fringe benefits for any personnel transferred and reasonable administrative overhead and costs."

The 2012 amendments. - The 2012 amendments by cc. 803 and 835, cl. 13, are identical, and deleted "of this title" at the end of the first sentence; and deleted "or the Commissioner of the Virginia Department of Agriculture and Consumer Services" following "city, or town" in the third sentence and made a related change.

§ 59.1-207.45. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Automatic renewal" means a plan or arrangement in which a paid subscription or purchasing agreement is automatically renewed at the end of a definite term for a subsequent term.

"Automatic renewal offer terms" means the following clear and conspicuous disclosures:

1. That the subscription or purchasing agreement will continue until the consumer cancels;
2. The description of the cancellation policy that applies to the offer;
3. The recurring charges that will be charged to the consumer's credit or debit card or payment account with a third party as part of the automatic renewal plan or arrangement and that the amount of the charge may change, if that is the case, and the amount to which the charge will change, if known;
4. The length of the automatic renewal term or that the service is continuous, unless the length of the term is chosen by the consumer; and
5. The minimum purchase obligation, if any. "Clear and conspicuous" or "clearly and conspicuously" means in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language. In the case of an audio disclosure, "clear and conspicuous" or "clearly and conspicuously" means in a volume and cadence sufficient to be readily audible and understandable. "Consumer" means any individual who seeks or acquires, by purchase or lease, any goods, services, money, or credit for personal, family, or household purposes. "Continuous service" means a plan or arrangement in which a subscription or purchasing agreement continues until the consumer cancels the service. "Supplier" has the same meaning ascribed thereto in § 59.1-198 . (2018, c. 704.)

Editor's note. - Acts 2018, c. 704, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2019."

§ 59.1-207.46. Making automatic renewal or continuous service offer to consumer; affirmative consent required; disclosures; prohibited conduct.

1. No supplier making an automatic renewal or continuous service offer to a consumer in the Commonwealth shall do any of the following:
   1. Fail to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner before the consumer becomes obligated on the automatic renewal or continuous service offer and in visual proximity, or in the case of an offer conveyed by voice, in temporal proximity, to the request for consent to the offer.
   2. Charge the consumer's credit or debit card or the consumer's account with a third party for an automatic renewal or continuous service without first obtaining the consumer's affirmative consent to the agreement containing the automatic renewal offer terms or continuous service offer terms.
   3. Fail to provide an acknowledgment that includes the automatic renewal or continuous service offer terms, cancellation policy, and information regarding how to cancel in a manner that is capable of being retained by the consumer. If the offer includes a free trial, the supplier shall also disclose in the acknowledgment how to cancel and allow the consumer to cancel before the consumer pays or becomes obligated to pay for the goods or services.
2. A supplier making automatic renewal or continuous service offers shall provide a toll-free telephone number, an electronic mail address, a postal address only when the supplier directly bills the consumer, or another cost-effective, timely, and easy-to-use mechanism for cancellation that shall be described in the acknowledgment specified in subdivision A 3.
3. In the case of a material change in the terms of the automatic renewal or continuous service offer that has been accepted by a consumer in the Commonwealth, the supplier shall provide the consumer with a clear and conspicuous notice of the material change and provide information regarding how to cancel in a manner that is capable of being retained by the consumer.
4. The requirements of this section shall apply only prior to the completion of the initial order for the automatic renewal or continuous service, except:
   1. The requirement in subdivision A 3 may be fulfilled after completion of the initial order; and
   2. The requirement in subsection C shall be fulfilled prior to implementation of the material change.

      (2018, c. 704.)

Editor's note. - Acts 2018, c. 704, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2019."

§ 59.1-207.47. When goods, wares, merchandise, or products deemed a gift.

In any case in which a supplier sends any goods, wares, merchandise, or products to a consumer under a continuous service agreement or automatic renewal of a purchase without first obtaining the consumer's affirmative consent as described in § 59.1-207.46 , the goods, wares, merchandise, or products shall for all purposes be deemed an unconditional gift to the consumer, who may use or dispose of the same in any manner he sees fit without any obligation whatsoever on the consumer's part to the supplier, including any obligation or responsibility for shipping any goods, wares, merchandise, or products to the supplier.

(2018, c. 704.)

Editor's note. - Acts 2018, c. 704, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2019."

§ 59.1-207.48. Exemptions.

This chapter shall not apply to:

1. Any service provided by a supplier or its affiliate where either the supplier or its affiliate is doing business pursuant to a franchise issued by a political subdivision of the Commonwealth or a license, franchise, certificate, or other authorization issued by the State Corporation Commission to a public service company or public utility pursuant to Title 56;
2. Any service provided by a supplier or its affiliate where either the supplier or its affiliate is regulated by the State Corporation Commission, the Federal Communications Commission, or the Federal Energy Regulatory Commission;
3. Alarm company operators that are regulated pursuant to § 15.2-911 ;
4. A bank, bank holding company, or the subsidiary or affiliate of either, or a credit union or other financial institution, licensed under federal or state law;
5. Any home protection company regulated by the State Corporation Commission pursuant to Chapter 26 (§ 38.2-2600 et seq.) of Title 38.2;
6. Any home service contract provider regulated by the Department of Agriculture and Consumer Services pursuant to Chapter 33.1 (§ 59.1-434.1 et seq.); or
7. Any health club registered pursuant to the Virginia Health Club Act (59.1-294 et seq.). (2018, c. 704.)

Editor's note. - Acts 2018, c. 704, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2019."

§ 59.1-207.49. Enforcement; penalties.

Any violation of this chapter shall constitute a prohibited practice under the provisions of § 59.1-200 and shall be subject to the enforcement provisions of the Virginia Consumer Protection Act (§ 59.1-196 et seq.). However, if a supplier makes a good faith effort to comply with the requirements of this chapter, the supplier shall not be subject to either a civil penalty under § 59.1-206 or damages under § 59.1-204 .

(2018, c. 704.)

Editor's note. - Acts 2018, c. 704, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2019."

§ 59.1-208. Definitions.

As used in this chapter, the following terms shall have the following meanings, unless a different meaning clearly appears from the context:

1. "Contract for invention development services" means a contract by which an invention developer undertakes invention development services for a customer.
2. "Customer" means any person, firm, partnership, corporation, or other entity that enters into a contract for invention development services with an invention developer.
3. "Invention development" means the evaluation, perfection, marketing, brokering, or promotion of an invention by an invention developer, including a patent search, preparation of a patent application, or any other act done by an invention developer for consideration toward the end of procuring or attempting to procure a license, buyer or patent for an invention, but shall not include those acts undertaken by attorneys in the practice of their profession, other persons duly registered to practice before the U.S. Patent and Trademark Office, or persons rendering services to such attorneys or registered persons.
4. "Invention developer" means any person, firm, partnership, corporation, and any agent, employee, officer, partner or independent contractor thereof, that advertises invention development services in media of general circulation or that contracts with customers procured as a result of such advertisement.
5. "Invention development service" means acts of invention development required or promised to be performed, or actually performed, or both, by an invention developer for a customer.
6. "Invention" means a discovery, process, machine, design, formulation, product, concept or idea or any combination thereof.

   (1977, c. 649.)

The numbers of §§ 59.1-208 through 59.1-215 were assigned by the Virginia Code Commission, the numbers in the 1977 act having been 59.1-196 through 59.1-203 .

Law review. - For survey of Virginia commercial law for the year 1976-1977, see 63 Va. L. Rev. 1377 (1977).

For an article, "State Street Bank in the Context of the Software Patent Saga," see 8 Geo. Mason L. Rev. 307 (1999).

§ 59.1-209. Contracting requirements.

1. Every contract for invention development services shall be in writing and shall be subject to the provisions of this chapter. A copy of the written contract shall be given to the customer at the time he signs the contract.
2. If it is the invention developer's normal practice to seek more than one contract in connection with an invention, or if the invention developer normally seeks to perform services in connection with an invention in more than one phase with the performance of each phase covered in one or more subsequent contracts, at the time the customer signs the first contract, the invention developer shall so state in writing and shall supply to the customer such writing together with a written summary of the developer's normal terms, if any, of such subsequent contracts, including the amount of the developer's normal fees or other consideration, if any, that may be required from the customer.
3. Notwithstanding any contractual provision to the contrary, no payment for invention development services shall be required, made or received until the expiration of a four-working-day period commencing on the date on which the customer receives a copy of the contract for invention development services signed by the invention developer. Delivery of a promissory note, check, bill of exchange or negotiable instrument of any kind to the invention developer or to a third party, irrespective of the date or dates appearing on such instrument, shall be deemed payment for the purpose of this section.
4. Until the payment specified in this section is made, the parties shall have the option to terminate the contract, which option may be exercised as follows: (i) the customer may exercise the option by refraining from making payment to the invention developer, (ii) the invention developer may exercise the option to terminate by giving to the customer a written notice of its exercise of the option, which written notice shall become effective upon receipt thereof by the customer.

   (1977, c. 649.)

§ 59.1-210. Standard provisions for cover notice.

Every contract for invention development services shall have a conspicuous and legible cover sheet attached with the following notice imprinted thereon in boldface type of not less than 10-point size:

1. "This contract between you and an invention developer is regulated by Chapter 18 (§ 59.1-208 et seq.) of Title 59.1. You are not permitted or required to make any payments under this contract until four working days after you sign this contract and receive a completed copy of it."
2. A statement that the contract is a fee-for-service contract and that the invention developer makes no guarantees as to the success of the invention.
3. Information as to how a customer who feels that his rights have been violated pursuant to this chapter may lodge a complaint with the Consumer Protection Division at the Office of the Attorney General, including the Division's telephone number and directions as to how to file an online consumer complaint.

   Such cover sheet shall contain only the notice required by this section.

   (1977, c. 649; 2014, c. 759.)

The 2014 amendments. - The 2014 amendment by c. 759, substituted "10-point" for "ten-point" in the introductory paragraph; designated the second paragraph as subdivision 1; and added subdivisions 2 and 3.

§ 59.1-211. Interest in inventions prohibited.

No invention developer shall acquire any interest, partial or whole, in the title to the customer's invention or patent rights, unless the invention developer contracts to manufacture the invention and acquires such interest for such purpose at or about the time the contract for manufacture is executed. Nothing in this section shall be construed to prohibit an invention developer from receiving a portion of any proceeds accruing to the customer as a result of performance of invention development services by the invention developer.

(1977, c. 649.)

§ 59.1-212. Reports to customer required.

With respect to every contract for invention development services, the invention developer shall deliver to the customer at the address specified in the contract at least at quarterly intervals throughout the term of the contract a written report which identifies the contract and which includes:

1. A full, clear and concise description of the services performed to the date of the report and of the services yet to be performed; and
2. A full accounting of the application of the proceeds of the fee referred to in subdivision 6 of § 59.1-213 to the date of the report; and
3. The name and address of each and every person, firm or corporation to whom the subject matter of the contract has been disclosed, the reason for each and every disclosure, and copies of all responses received as a result of such disclosures.

   (1977, c. 649.)

§ 59.1-213. Mandatory contract terms.

Every contract for invention development services shall set forth in boldface type of not less than ten-point size all of the following:

1. The terms and conditions of payment required by § 59.1-209 .
2. A full, clear and concise description of the specific acts or services that the invention developer undertakes to perform for the customer; and, to the extent that the description of the specific acts or services affords discretion in the invention developer as to what specific acts or services will be performed, the invention developer shall be deemed a fiduciary.
3. A statement as to whether the invention developer undertakes to construct, sell or distribute one or more prototypes, models or devices embodying the customer's invention.
4. The full name and principal place of business of the invention developer and the name and principal place of business of any parent, subsidiary or affiliated company that may engage in performing any of the invention development services.
5. The names and addresses of the persons and organizations, other than employees of the invention developer, that may perform any of the invention development services.
6. A statement of the fee charged, and the proposed specific application of the proceeds of such fee by the invention developer, including but not limited to the approximate portion that will be expended for services relating to patent matters, and all portions of the fee that represent sales commissions, incentive payments, finder's fees, or any amounts intended to compensate any agent, employee, salesman or other person for procuring the customer.
7. A statement as to whether the invention developer intends to expend more for the invention development services than the cash fee charged the customer.
8. If any oral or written representation of estimated or projected customer earnings is given by the invention developer, a statement of such projection or estimation and a description of the data upon which it is based.
9. A statement as to whether or not the invention developer or any officer thereof is licensed to practice law in any jurisdiction or is a registered patent agent with the United States Patent and Trademark Office.
10. The name and address of the custodian of all records and correspondence pertaining to the contracted for invention development services, and a statement that the invention developer is required to maintain all records and correspondence relating to performance of the invention development services for that customer for a period of not less than two years after expiration of the term of the contract for invention development services, which records and correspondence will be made available to the customer or his representative for review and copying at the customer's reasonable expense on the invention developer's premises during normal business hours upon seven days' written notice.
11. A statement setting forth a time schedule for performance of the invention development services, including an estimated date by which performance of the invention development services is expected to be completed.

    (1977, c. 649.)

§ 59.1-214. Remedies.

1. Any contract for invention development services which does not substantially comply with the applicable provisions of this chapter may be voidable at the option of the customer. Any contract for invention development services entered into in reliance upon any false, fraudulent or misleading information, representation, notice or advertisement of the invention developer may be voidable at the option of the customer. Any waiver by the customer of any of the provisions of this chapter shall be deemed contrary to public policy and shall be void and unenforceable.
2. In addition, any customer who has been injured by a violation of this chapter by an invention developer or by any false or fraudulent statement, representation or omission of material fact by an invention developer, or by failure of an invention developer to make all the disclosures required by this chapter, may recover in a civil action against the invention developer, in addition to reasonable costs and attorneys' fees, the greater of: (i) $1,000, or (ii) the amount of actual damages, if any, sustained by the customer.
3. For the purpose of this section, substantial violation of any provision of this chapter by an invention developer or execution by the customer of a contract for invention development services in reliance on any such false or fraudulent statements, representations, or material omissions shall establish a rebuttable presumption of injury.

   (1977, c. 649.)

§ 59.1-215. Enforcement; civil penalty; restraint of violations.

1. For the purpose of enforcing this chapter, the Attorney General is hereby authorized to conduct investigations and hold hearings and compel the attendance of witnesses and the production of accounts, books and documents by the issuance of subpoenas.
2. The Attorney General shall enforce the provisions of this chapter, and shall have the right to recover a civil penalty not to exceed $10,000 for each and every violation of any provisions of this chapter, and to seek equitable relief to restrain any such violation.

   (1977, c. 649; 2014, c. 759.)

The 2014 amendments. - The 2014 amendment by c. 759, in subsection B, substituted "not to exceed $10,000" for "of not to exceed $3,000."

§ 59.1-215.1. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Assertion of patent infringement" means (i) sending or delivering a demand letter to a target; (ii) threatening a target with litigation asserting, alleging, or claiming that the target has engaged in patent infringement; (iii) sending or delivering a demand letter to the customers of a target; or (iv) otherwise making claims or allegations, other than those made in litigation against a target, that a target has engaged in patent infringement or that a target should obtain a license to a patent in order to avoid litigation.

"Demand letter" means a letter, email, or other communication asserting, alleging, or claiming that the target has engaged in patent infringement, or that a target should obtain a license to a patent in order to avoid litigation, or any similar assertion.

"Patent infringement" means any conduct that constitutes infringement pursuant to applicable law, including 35 U.S.C. § 271, as amended.

"Target" means a person residing in, conducting substantial business in, or having its principal place of business in the Commonwealth and with respect to whom an assertion of patent infringement is made.

(2014, cc. 810, 819.)

Law review. - For article, "Patent Trolls and Preemption," see 101 Va. L. Rev. 1579 (2015).

§ 59.1-215.2. Bad faith assertions of patent infringement.

1. A person shall not make, in bad faith, an assertion of patent infringement.
2. The following shall constitute indicia that a person's assertion of patent infringement was made in bad faith:
   1. The demand letter does not contain:
      1. The number of the patent that is asserted, alleged, or claimed to have been infringed; or
      2. The name and address of the patent's owner or owners and assignee or assignees, if any.
   2. The person sends a demand letter to a target without first making a reasonable effort under the circumstances to conduct an analysis comparing the claims in the patent to the target's products, services, and technology, or to identify specific areas in which the products, services, or technology are covered by the claims in the patent.
   3. The demand letter does not identify specific areas in which the products, services, and technology are covered by the claims in the patent.
   4. The person offers to license the patent for an amount that is not based on a reasonable estimation of the value of a license to the patent.
   5. The person making an assertion of patent infringement acts in subjective bad faith, or a reasonable actor in the person's position would know or reasonably should know that such assertion is baseless.
   6. The assertion of patent infringement is deceptive, or the person threatens legal action that cannot legally be taken or that is not intended to be taken.
   7. The person or its subsidiaries or affiliates have previously filed or threatened to file one or more lawsuits based on the same or similar assertion of patent infringement, the person attempted to enforce the assertion of patent infringement in litigation, and a court found the assertion to be objectively baseless or imposed sanctions for the assertion.
   8. The patent alleged to be infringed was not in force at the time the allegedly infringing conduct occurred, or the patent claims alleged to be infringed have previously been held to be invalid.
3. The following shall constitute indicia that a person's assertion of patent infringement was not made in bad faith, but the absence of such indicia shall not constitute evidence of bad faith:
   1. The person engages in a reasonable effort under the circumstances to establish that the target has infringed the patent and to negotiate an appropriate remedy.
   2. The person makes a substantial investment in the use of the patent or in the development, production, or sale of a product or item covered by the patent.
   3. The person has:
      1. Demonstrated good faith in previous efforts to enforce the patent or a substantially similar patent; or
      2. Successfully enforced the patent, or a substantially similar patent, through litigation.
   4. The person is an institution of higher education or a technology transfer office organization owned by or affiliated with an institution of higher education.
4. The lists of indicia in this section are non-exclusive, and all indicia need not be present for a finding of bad faith or good faith.

   (2014, cc. 810, 819.)

§ 59.1-215.3. Enforcement; remedies; civil investigative demands; assurances of voluntary compliance; restraining prohibited acts.

1. Whenever the Attorney General has reasonable cause to believe that any person has engaged in, or is engaging in, or is about to engage in, any violation of this chapter, the Attorney General is empowered to issue a civil investigative demand. The provisions of § 59.1-9.10 shall apply mutatis mutandis to civil investigative demands issued pursuant to this section.
2. The Attorney General or any attorney for the Commonwealth may accept an assurance of voluntary compliance with this chapter from any person subject to the provisions of this chapter. Any such assurance shall be in writing and be filed with and be subject on petition to the approval of the appropriate circuit court. Such assurance of voluntary compliance shall not be considered an admission of guilt or a violation for any purpose. Such assurance of voluntary compliance may at any time be reopened by the Attorney General or the attorney for the Commonwealth for additional orders or decrees to enforce the assurance of voluntary compliance. When an assurance is presented to the circuit court for approval, the Attorney General or the attorney for the Commonwealth shall file, in the form of a complaint, the allegations that form the basis for the entry of the assurance. The assurance may provide by its terms for any relief that an appropriate circuit court could grant, including but not limited to arbitration of disputes between a person subject to the provisions of this chapter and any targets, investigative expenses, civil penalties, and costs, provided, however, that nothing in this chapter shall be construed to authorize or require the Commonwealth, the Attorney General, or any attorney for the Commonwealth to participate in arbitration of violations under this section.
3. Notwithstanding any other provisions of law to the contrary, the Attorney General or any attorney for the Commonwealth may cause an action to be brought in the appropriate circuit court in the name of the Commonwealth to enjoin any violation of this chapter. The circuit court having jurisdiction may enjoin such violations notwithstanding the existence of an adequate remedy at law. In any action under this section, it shall not be necessary that damages be proved. Unless the Attorney General or the attorney for the Commonwealth determines that a person subject to the provisions of this chapter intends to depart from the Commonwealth or to remove his property from the Commonwealth, or to conceal himself or his property within the Commonwealth, or on a reasonable determination that irreparable harm may occur if immediate action is not taken, the Attorney General or the attorney for the Commonwealth shall, before initiating any legal proceedings as provided in this section, give notice in writing that such proceedings are contemplated and allow such person a reasonable opportunity to show that a violation did not occur or execute an assurance of voluntary compliance as provided in subsection B. The circuit courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of this chapter. The circuit court also may award to the Commonwealth a civil penalty of not more than $2,500 for each violation, reasonable expenses incurred in investigating and preparing the case, and attorneys' fees.
4. Any person outside the Commonwealth asserting patent infringement to a target shall be deemed to be transacting business within the Commonwealth within the meaning of subdivision A 1 of § 8.01-328.1 and shall thereby be subject to the jurisdiction of the courts of the Commonwealth.
5. The enforcement provisions of this section shall be exercised solely by the Attorney General or an attorney for the Commonwealth. Nothing in this chapter shall create a private cause of action in favor of any person aggrieved by a violation of this chapter.
6. Nothing in this chapter authorizes the courts of the Commonwealth, the Attorney General, or any attorney for the Commonwealth to exercise jurisdiction over a claim for relief arising under an Act of Congress relating to patents.

   (2014, cc. 810, 819.)

§ 59.1-215.4. Exemptions.

A demand letter or assertion of patent infringement that includes a claim for relief arising under 35 U.S.C. § 271(e)(2) or 42 U.S.C. § 262 shall not be subject to the provisions of this chapter.

(2014, cc. 810, 819.)

§§ 59.1-216 through 59.1-254.

Defeated at referendum.

Editor's note. - This chapter, relating to horse racing and pari-mutuel betting, was enacted by Acts 1978, c. 600. The 1978 act, which also enacted § 18.2-334.1 , was made subject to referendum held Nov. 7, 1978, and provided that, if approved, the act would become effective Jan. 1, 1979. The act was defeated at the referendum, and therefore never went into effect.

§ 59.1-255. Short title.

This chapter may be known and cited as the "Virginia Motion Picture Fair Competition Act."

(1978, c. 764.)

The numbers of §§ 59.1-255 through 59.1-261 were assigned by the Virginia Code Commission, the numbers in the 1978 act having been 59.1-216 through 59.1-222.

Law review. - For survey of Virginia commercial law for the year 1977-1978, see 64 Va. L. Rev. 1383 (1978).

§ 59.1-256. Purpose of chapter.

The purpose of this chapter is to establish fair and open procedures for the bidding and negotiation for the right to exhibit motion pictures within the Commonwealth in order to prevent unfair and deceptive acts or practices and unreasonable restraints of trade in the business of motion picture distribution within the Commonwealth, to promote fair and effective competition in that business, and to ensure that exhibitors have the opportunity to view a motion picture and know its contents before committing themselves to exhibiting it in their communities.

(1978, c. 764.)

§ 59.1-257. Definitions.

As used in this chapter:

1. The term "person" means and includes one or more individuals, partnerships, associations, societies, trusts, organizations, or corporations;
2. The term "theater" means any establishment in which motion pictures are exhibited to the public regularly for a charge;
3. The term "distributor" means any person engaged in the business of distributing or supplying motion pictures to exhibitors by rental, sale or licensing;
4. The term "exhibitor" means any person engaged in the business of operating one or more theaters;
5. The term "exhibit" or "exhibition" means showing a motion picture to the public for a charge;
6. The term "invitation to bid" means a written or oral solicitation or invitation by a distributor to one or more exhibitors to bid for the right to exhibit a motion picture;
7. The term "bid" means a written offer or proposal by an exhibitor to a distributor in response to an invitation to bid for the right to exhibit a motion picture, stating the terms under which the exhibitor will agree to exhibit a motion picture;
8. The term "license agreement" means any contract, agreement, understanding or condition between a distributor and an exhibitor relating to the licensing or exhibition of a motion picture by the exhibitor;
9. The term "trade screening" means the showing of a motion picture by a distributor at some location within the Commonwealth or the District of Columbia or Prince Georges and Montgomery Counties, Maryland, which is open to any exhibitor from whom the distributor intends to solicit bids or with whom the distributor intends to negotiate for the right to exhibit the motion picture;
10. The term "blind bidding" means the bidding for, negotiating for, or offering or agreeing to terms for the licensing or exhibition of a motion picture at any time before such motion picture has either been trade screened within the Commonwealth or the District of Columbia or Prince Georges and Montgomery Counties, Maryland, or before such motion picture, at the option of the distributor, otherwise has been made available for viewing within the Commonwealth, or the District of Columbia or Prince Georges and Montgomery Counties, Maryland, by all exhibitors from whom the distributor is soliciting bids or with whom the distributor is negotiating for the right to exhibit such motion picture; and
11. The term "run" means the continuous exhibition of a motion picture in a defined geographic area for a specified period of time. A "first run" is the first exhibition of a picture in the designated area; a "second run" is the second exhibition; and "subsequent runs" are subsequent exhibitions after the second run. "Exclusive run" is any run limited to a single theater in a defined geographic area and a "nonexclusive run" is any run in more than one theater in a defined geographic area.

    (1978, c. 764.)

§ 59.1-258. "Blind bidding" prohibited.

1. Blind bidding is hereby prohibited within the Commonwealth. No bids shall be returnable, no negotiations for the exhibition or licensing of a motion picture shall take place, and no license agreement or any of its terms shall be agreed to, for the exhibition of any motion picture within the Commonwealth before the motion picture has either been trade screened within the Commonwealth or the District of Columbia or Prince Georges and Montgomery Counties, Maryland, or before such motion picture, at the option of the distributor, otherwise has been made available for viewing within the Commonwealth or the District of Columbia or Prince Georges and Montgomery Counties, Maryland, by all exhibitors from whom the distributor is soliciting bids or with whom the distributor is negotiating for the right to exhibit the motion picture.
2. A distributor shall provide reasonable and uniform notice of the trade screening of any motion picture to those exhibitors within the Commonwealth from whom he intends to solicit bids or with whom he intends to negotiate for the right to exhibit that motion picture.
3. Any purported waiver of the prohibition against blind bidding in this chapter shall be void and unenforceable.

   (1978, c. 764.)

§ 59.1-259. Bidding procedures.

If bids are solicited from exhibitors for the licensing of a motion picture within the Commonwealth, then:

1. The invitation to bid shall specify (i) whether the run for which the bid is being solicited is a first, second or subsequent run; (ii) whether the run is an exclusive or nonexclusive run; (iii) the geographic area for the run; (iv) the names of all exhibitors who are being solicited; (v) the date and hour the invitation to bid expires; and (vi) the time, date and the location, including the address, where the bids will be opened, which shall be within the Commonwealth or the District of Columbia or Prince Georges and Montgomery Counties, Maryland.
2. All bids shall be submitted in writing and shall be opened at the same time and in the presence of those exhibitors, or their agents, who submitted bids and are present at such time.
3. Immediately upon being opened, the bids shall be subject to examination by exhibitors, or their agents, who submitted bids, and who are present at the opening. Within ten business days after the bids are opened, the distributor shall notify each exhibitor who submitted a bid either the name of the winning bidder or the fact that none of the bids was acceptable.
4. Once bids are solicited, the distributor shall license the picture only by bidding and may solicit rebids if he does not accept any of the submitted bids.

   (1978, c. 764.)

§ 59.1-260. Civil enforcement; injunction.

Any person who suffers loss or pecuniary damage resulting from a violation of the provisions of this chapter shall be entitled to bring an individual action to recover damages and reasonable attorney's fees. The provisions of this chapter may be enforced by injunction or any other available equitable or legal remedy.

(1978, c. 764.)

§ 59.1-261.

Repealed by Acts 2015, c. 709, cl. 2.

Editor's note. - Former § 59.1-261 , pertaining to severability, derived from 1978, c. 764.

§ 59.1-262. Short title.

This chapter shall be known and may be cited as the "Business Opportunity Sales Act."

(1979, c. 523.)

Law review. - For survey of Virginia law on business associations for the year 1978-1979, see 66 Va. L. Rev. 205 (1980).

§ 59.1-263. Definitions.

1. For purposes of this chapter, "business opportunity" means the sale of any products, equipment, supplies or services which are sold to a purchaser upon payment of an initial required consideration exceeding $500 for the purpose of enabling such purchaser to start a business, and in which the seller:
   1. Represents that the seller will provide locations or assist the purchaser in finding locations for the use or operation of vending machines, racks, display cases or other similar devices, or currency-operated amusement machines or devices, on premises neither owned nor leased by the purchaser or seller; or
   2. Represents that it will purchase any or all products made, produced, fabricated, grown, bred or modified by the purchaser using in whole or in part the supplies, services or chattels sold by the seller to the purchaser; or
   3. Guarantees that the purchaser will derive income from the business opportunity which exceeds the price paid for the business opportunity, or that the seller will refund all or part of the price paid for the business opportunity, or repurchase any of the products, equipment, supplies or chattels supplied by the seller, if the purchaser is not satisfied with the business opportunity; or
   4. Represents that the seller will provide a sales program or marketing program which will enable the purchaser to derive income from the business opportunity which exceeds the price paid for the business opportunity.
2. Exclusions. - Such definition of "business opportunity" shall not include the following:
   1. A security as defined by § 13.1-501 ; or
   2. A franchise as defined in subsection A of § 13.1-559 or § 59.1-21.10 ; or
   3. A license granted by a general merchandise retailer which allows the licensee to sell goods, equipment, supplies, products or services to the general public under the retailer's trademark, trade name or service mark, provided that such general merchandise retailer has been doing business in the Commonwealth continuously for five years prior to the granting of such license and such general merchandise retailer also sells the same goods, equipment, supplies, products or services directly to the general public; or
   4. A newspaper distribution system; or
   5. The sale of an on-going business. An "on-going business" as used herein is one which for at least twelve months previous to the sale: (i) has been operated from a specific location, (ii) has been open for business to the general public and (iii) has had all equipment and supplies necessary for operating the business located at such specific location; or
   6. The sale of sales demonstration equipment and materials furnished at cost for use in making sales and not for resale; or
   7. A contract or agreement by which a retailer of goods or services is granted the right to sell goods or services within, or appurtenant to, a retail business establishment as a department or division thereof. (1979, c. 523; 1985, c. 242.)

§ 59.1-264. Written disclosure statement required.

1. At least forty-eight hours prior to the time the purchaser signs a business opportunity contract, or at least forty-eight hours prior to the receipt of any consideration therefor by the seller, whichever occurs first, the seller shall provide the prospective purchaser with a written document, the cover sheet of which is entitled in at least ten-point boldface capital letters "DISCLOSURES REQUIRED BY VIRGINIA LAW." Under this title shall appear the following statement in at least ten-point type: "The Commonwealth of Virginia has not reviewed and does not approve, recommend, endorse or sponsor any business opportunity. The information contained in this disclosure has not been verified by the Commonwealth. If you have any questions about this investment, see an attorney before you sign a contract or agreement." Nothing except the title and required statement shall appear on the cover sheet. The disclosure document shall also contain the following:
   1. The name of the seller; whether the seller is doing business as an individual, partnership, or corporation; the names under which the seller has done, is doing or intends to do business in Virginia; and the name of any parent or affiliated company which is legally obligated to engage in business transactions with purchasers.
   2. The names, addresses and titles of the seller's officers, directors, trustees, general partners, general managers, principal executives, and any other person charged with responsibility for the seller's business activities relating to the sale of business opportunities.
   3. The length of time the seller has:
      1. Sold business opportunities;
      2. Sold business opportunities involving the product, products, equipment, supplies, or services currently being offered to the purchaser.
   4. A full and detailed description of the actual services that the business opportunity seller agrees to perform for the purchaser.
   5. A copy of a financial statement of the seller, which shall not be older than thirteen months, which shall be updated to reflect any material changes in the seller's financial condition.
   6. The following statement:

      "If the seller fails to deliver the product, products, equipment or supplies necessary to begin substantial operation of the business within forty-five days of the delivery date stated in your contract, you may notify the seller in writing of your termination of the contract."

2. If training of any type is promised by the seller, the disclosure statement shall set forth a complete description of the training and the length of the training.
3. If the seller promises services to be performed in connection with the placement of the equipment, product, products, or supplies at any location or at various locations, the disclosure statement must set forth the full nature of those services as well as the nature of the agreements to be made with the owners or managers of the location or locations where the purchaser's equipment, product, products or supplies will be placed.
4. If the business opportunity seller is required to secure a bond or establish a trust deposit pursuant to § 59.1-265 , the document shall state in at least ten-point type, either:
   1. "As required by Virginia law, the seller has secured a bond issued by  .................... (name and address of surety company), a surety company authorized to do business in this State. Before signing a contract to purchase this business opportunity, you should check with the surety company to determine the bond's current status," or      2. "As required by Virginia law, the seller has established a trust account with  .................... (name and address of bank or savings institution). Before signing a contract to purchase this business opportunity, you should check with the bank or savings institution to determine the current status of the trust account."
5. If the seller makes any statement concerning sales or earnings or any range of sales or earnings that the purchaser may reasonably expect to be made through this business opportunity, the document shall disclose:
   1. The total number of purchasers of business opportunities within the United States involving the product, products, equipment, supplies or services being offered who, to the seller's knowledge, have actually received earnings in the amount or range specified, within three years prior to the date of the disclosure statement, and
   2. The total number of purchasers of business opportunities within the United States involving the product, products, equipment, supplies, or services being offered within three years prior to the date of the disclosure statement.

      (1979, c. 523.)

§ 59.1-265. Seller required to obtain bond or establish escrow account; action for damages against bond or account; limitation on liability of surety or escrow agent.

Before the business opportunity seller makes any of the representations set forth in § 59.1-263 , the seller shall either have obtained a surety bond issued by a surety company authorized to do business in this Commonwealth or have established an escrow account with any credit union or any licensed and insured commercial bank or savings institution located in the Commonwealth of Virginia. The amount of the bond or escrow account shall be an amount not less than $50,000. Any person who is damaged by any violation of this chapter or by the business opportunity seller's breach of the contract for the business opportunity sale or of any obligation arising therefrom may bring an action against the bond or escrow account to recover damages suffered; provided, however, that the aggregate escrow liability of the surety or escrow agents under any such bond or escrow account shall be only for actual damages and in no event shall exceed the amount of the bond or escrow account.

(1979, c. 523; 1996, c. 77.)

§ 59.1-266. Prohibited acts.

No business opportunity seller shall:

1. Represent that the business opportunity provides income or earning potential of any kind unless the seller has documented data to substantiate the claims of income or earning potential and discloses such data to the prospective purchaser at the time such representations are made; or
2. Use the trademark, service mark, trade names, logotype, advertising or other commercial symbol of any business which does not either control the ownership interest in the seller or is not legally obligated for all representations made by the seller in regard to the business opportunity, unless it is clear from the circumstances that the owner of the commercial symbol is not involved in the sale of the business opportunity; or
3. Make or authorize the making of any reference to its compliance with this chapter in any advertisement or other contact with prospective purchasers.

   (1979, c. 523.)

§ 59.1-267. Contracts required to be in writing; contents.

1. Every business opportunity sales contract shall be in writing and a copy shall be given to the purchaser at the time he signs the contract.
2. Every contract for the sale of a business opportunity shall include the following:
   1. The terms and conditions of payment;
   2. A full and detailed description of the acts or services that the business opportunity seller undertakes to perform for the purchaser;
   3. The seller's principal business address and the name and address of its agent in the Commonwealth of Virginia authorized to receive service of process;
   4. A full and detailed description of any product, products, equipment or supplies the business opportunity seller is to deliver to the purchaser;
   5. The approximate delivery date of any product, products, equipment, or supplies the business opportunity seller is to deliver to the purchaser.

      (1979, c. 523.)

§ 59.1-268. Purchaser's remedies.

If a business opportunity seller (i) uses any untrue or misleading statements in the sale of a business opportunity, (ii) fails to give the proper disclosures in the manner required by § 59.1-264 , or (iii) fails to deliver the equipment, supplies, product or products necessary to begin substantial operation of the business within forty-five days of the delivery date stated in the business opportunity contract, or if the contract does not comply with the requirements of § 59.1-267 , then, within one year of the date of the contract, upon written notice to seller, the purchaser may void the contract and shall be entitled to receive from the business opportunity seller all sums paid to the business opportunity seller. Upon receipt of such sums, the purchaser shall make available to the seller at the purchaser's address or at the places at which they are located at the time such notice is given, all product, products, equipment and supplies received by the purchaser. No purchaser shall be entitled to any unjust enrichment by exercise of the remedies provided in this subsection.

Any purchaser injured by (i) a violation of this chapter, (ii) the business opportunity seller's breach of a contract subject to this chapter, or (iii) by any obligation arising therefrom may bring a civil action for recovery of damages, including reasonable attorney's fees.

Upon complaint of any person that a business opportunity seller has violated the provisions of this chapter, the circuit court wherein the violation is alleged to have occurred shall have jurisdiction to enjoin such seller from further violations of this chapter.

The remedies provided herein shall be in addition to any other remedies provided for by law or in equity.

(1979, c. 523.)

§ 59.1-269. Penalty; limitation.

1. Any person who shall knowingly and willfully make, or cause to be made, any false statement in any disclosure statement or contract subject to the provisions of this chapter, or who shall knowingly and willfully commit any act prohibited by § 59.1-266 with the intent to defraud or to deceive a purchaser as to any material fact shall be guilty of a Class 4 felony.
2. Any person who shall knowingly make or cause to be made any false statement in any disclosure statement or contract subject to the provisions of this chapter or who shall commit any act prohibited by § 59.1-266 shall be guilty of a Class 1 misdemeanor.
3. No prosecution under this section shall be begun more than three years from the date of the alleged offense.

   (1979, c. 523.)

Cross references. - As to punishment for Class 4 felonies, see § 18.2-10 .

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§§ 59.1-270, 59.1-271.

Expired.

Editor's note. - These sections were enacted by Acts 1982, c. 275 and expired July 1, 2005, pursuant to Acts 1995, c. 792 and § 59.1-284.01 .

§§ 59.1-272 through 59.1-278.

Repealed by Acts 2005, cc. 863 and 884, cl. 2.

§ 59.1-279. Eligibility.

1. Any business firm may be designated a "qualified business firm" for purposes of this chapter if:
   1. 1. It establishes within an enterprise zone a trade or business not previously conducted in the Commonwealth by such taxpayer and (ii) 25 percent or more of the employees employed at the business firm's establishment or establishments located within the enterprise zone either have incomes below 80 percent of the median income for the jurisdiction prior to employment or are residents of an enterprise zone. 1. (i) It establishes within an enterprise zone a trade or business not previously conducted in the Commonwealth by such taxpayer and (ii) 25 percent or more of the employees employed at the business firm's establishment or establishments located within the enterprise zone either have incomes below 80 percent of the median income for the jurisdiction prior to employment or are residents of an enterprise zone.
   2. It (i) is actively engaged in the conduct of a trade or business in an area immediately prior to such an area being designated as an enterprise zone and (ii) increases the average number of full-time employees employed at the business firm's establishment or establishments located within the enterprise zone by at least 10 percent over the lower of the preceding two years' employment with no less than 25 percent of such increase being employees who either have incomes below 80 percent of the median income for the jurisdiction prior to employment or are residents of an enterprise zone. Current employees of the business firm that are transferred directly to the enterprise zone facility from another site within the state resulting in a net loss of employment at that site shall not be included in calculating the increase in the average number of full-time employees employed by the business firm within the enterprise zone.
   3. It (i) is actively engaged in the conduct of a trade or business in the Commonwealth and relocates to begin operation of a trade or business within an enterprise zone and (ii) increases the average number of full-time employees employed at the business firm's establishment or establishments within the enterprise zone by at least ten percent over the lower of the preceding two years' employment of the business firm prior to relocation with no less than 25 percent of such increase being employees who either have incomes below eighty percent of the median income for the jurisdiction prior to employment or are residents of an enterprise zone. Current employees of the business firm that are transferred directly to the enterprise zone facility from another site within the state resulting in a net loss of employment at that site shall not be included in calculating the increase in the average number of full-time employees employed by the business firm within the enterprise zone.
   4. For the purposes of this section, the term "full-time employee" means (i) an individual employed by a business firm and who works the normal number of hours a week as required by the firm or (ii) two or more individuals who together share the same job position and together work the normal number of hours a week as required by the business firm for that one position. For the purposes of this section, the term "jurisdiction" means the county, city or town which made the application under § 59.1-274 to have the enterprise zone. In the case of a joint application, jurisdiction means all parties making such application.
2. After designation as a qualified business firm pursuant to this section, each business firm in an enterprise zone shall submit annually to the Department a statement requesting one or more of the tax incentives provided in § 59.1-280 or 59.1-282 . Such a statement shall be accompanied by an approved form supplied by the Department and completed by an independent certified public accountant licensed by the Commonwealth which states that the business firm met the definition of a "qualified business firm" and continues to meet the requirements for eligibility as a qualified business firm in effect at the time of its designation. A copy of the statement submitted by each business firm to the Department shall be forwarded to the zone administrator.
3. The form referred to in subsection B of this section, prepared by an independent certified public accountant licensed by the Commonwealth, shall be prima facie evidence of the eligibility of a business firm for the purposes of this section, but the evidence of eligibility shall be subject to rebuttal. The Department or the Department of Taxation or State Corporation Commission, as applicable, may at its discretion require any business firm to provide supplemental information regarding the firm's eligibility (i) as a qualified business firm or (ii) for a tax credit claimed pursuant to this chapter.
4. The provisions of this section shall apply only as follows:
   1. To those qualified business firms that have initiated use of enterprise zone tax credits pursuant to this section on or before July 1, 2005;
   2. To those small qualified business firms and large qualified business firms that have signed agreements with the Commonwealth regarding the use of enterprise zone tax credits in accordance with this section on or before July 1, 2005; provided that in the case of small qualified business firms, the signed agreements must be based on proposals developed by the Commonwealth prior to November 1, 2004.

      (1982, c. 275; 1983, c. 572; 1988, cc. 236, 374; 1995, c. 792; 1997, cc. 497, 517, 808; 2005, cc. 863, 884.)

Cross references. - As to the expiration provision for this chapter, see § 59.1-284.01 .

As to regulation of the Enterprise Zone Grant Program by the Department of Housing and Community Development, see 13 VAC 5-112-10 et seq.

Editor's note. - Sections 59.1-274 and 59.1-282 , referred to in subdivision A 4 and subsection B, respectively, were repealed effective July 1, 2005, by Acts 2005, cc. 863 and 884, cl. 2.

Acts 2005, cc. 863 and 884, cl. 3, provides: "That the Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."

The 2005 amendments. - The 2005 amendments by cc. 863 and 884 are identical, and substituted "25 percent" for "twenty-five percent" in subdivisions A 1, A 2 and A 3, "80 percent" for "eighty percent" in subdivisions A 1 and A 2, "10 percent" for "ten percent" in subdivision A 2, added subdivision D and made a minor stylistic change.

§ 59.1-279.1.

Repealed by Acts 2005, cc. 863 and 884, cl. 2.

§ 59.1-280. Enterprise zone business tax credit.

1. As used in this section: "Business tax credit" means a credit against any tax due under Articles 2 (§ 58.1-320 et seq.) and 10 (§ 58.1-400 et seq.) of Chapter 3, Chapter 12 (§ 58.1-1200 et seq.), Article 1 (§ 58.1-2500 et seq.) of Chapter 25, or Article 2 (§ 58.1-2620 et seq.) of Chapter 26 of Title 58.1 due from a business firm. "Large qualified business firm" means a qualified business firm making qualified zone investments in excess of $15 million when such qualified zone investments result in the creation of at least 50 permanent full-time positions. "Qualified zone investment" and "permanent full-time position" shall have the meanings provided in subsection A of § 59.1-280.1 . "Small qualified business firm" means any qualified business firm other than a large qualified business firm.
2. The Department shall certify annually to the Commissioner of the Department of Taxation, or in the case of business firms subject to tax under Article 2 (§ 58.1-2620 et seq.) of Chapter 26 of Title 58.1 to the Director of Public Service Taxation for the State Corporation Commission, the applicability of the business tax credit provided herein for a qualified business firm. Any certification by the Department pursuant to this section shall not impair the authority of the Department of Taxation or State Corporation Commission to deny in whole or in part any claimed tax credit if the Department of Taxation or State Corporation Commission determines that the qualified business firm is not entitled to such tax credit. The Department of Taxation or State Corporation Commission shall notify the Department in writing upon determining that a business firm is ineligible for such tax credit.
3. Small qualified business firms shall be allowed a business tax credit in an amount equal to 80 percent of the tax due to the Commonwealth for the first tax year and 60 percent of the tax due the Commonwealth for the second tax year through the tenth tax year.
4. Large qualified business firms shall be allowed a business tax credit in a percentage amount determined by agreement between the Department and the large qualified business firm, provided such percentage amounts shall not exceed the percentages provided for small qualified business firms as set forth in subsection C.
5. Any business tax credit not usable may not be applied to future tax years.
6. When a partnership or a small business corporation making an election pursuant to Subchapter S of the Internal Revenue Code is eligible for a tax credit under this section, each partner or shareholder shall be eligible for the tax credit provided for in this section on his individual income tax in proportion to the amount of income received by that partner from the partnership, or shareholder from his corporation, respectively.
7. Tax credits provided for in this section shall only apply to taxable income of a qualified business firm attributable to the conduct of business within the enterprise zone. Any qualified business firm having taxable income from business activity both within and without the enterprise zone shall allocate and apportion its Virginia taxable income attributable to the conduct of business as follows:
   1. The portion of a qualified business firm's Virginia taxable income allocated and apportioned to business activities within an enterprise zone shall be determined by multiplying its Virginia taxable income by a fraction, the numerator of which is the sum of the property factor and the payroll factor, and the denominator of which is two.
      1. The property factor is a fraction. The numerator is the average value of real and tangible personal property of the business firm which is used in the enterprise zone. The denominator is the average value of real and tangible personal property of the business firm used everywhere in the Commonwealth.
      2. The payroll factor is a fraction. The numerator is the total amount paid or accrued within the enterprise zone during the taxable period by the business firm for compensation. The denominator is the total compensation paid or accrued everywhere in the Commonwealth during the taxable period by the business firm for compensation.
   2. The property factor and the payroll factor shall be determined in accordance with the procedures established in §§ 58.1-409 through 58.1-413 for determining the Virginia taxable income of a corporation having income from business activities which is taxable both within and without the Commonwealth, mutatis mutandis.
   3. If a qualified business firm believes that the method of allocation and apportionment hereinbefore prescribed as administered has operated or will operate to allocate or apportion to an enterprise zone a lesser portion of its Virginia taxable income than is reasonably attributable to business conducted within the enterprise zone, it shall be entitled to file with the Department of Taxation a statement of its objections and of such alternative method of allocation or apportionment as it believes to be appropriate under the circumstances with such detail and proof and within such time as the Department of Taxation may reasonably prescribe. If the Department of Taxation concludes that the method of allocation or apportionment employed is in fact inequitable or inapplicable, it shall redetermine the taxable income by such other method of allocation or apportionment as best seems calculated to assign to an enterprise zone the portion of the qualified business firm's Virginia taxable income reasonably attributable to business conducted within the enterprise zone.
8. Tax credits awarded under this section and under § 59.1-280.1 shall not exceed $7.5 million annually until the end of fiscal year 2019.
9. The provisions of this section shall apply only as follows:
   1. To those qualified business firms that have initiated use of enterprise zone tax credits pursuant to this section on or before July 1, 2005;
   2. To those small qualified business firms and large qualified business firms that have signed agreements with the Commonwealth regarding the use of enterprise zone tax credits in accordance with this section on or before July 1, 2005; provided that in the case of small qualified business firms, the signed agreements must be based on proposals developed by the Commonwealth prior to November 1, 2004.

      (1982, c. 275; 1983, c. 572; 1988, c. 236; 1992, c. 301; 1995, c. 792; 1996, c. 77; 1997, c. 517; 1998, c. 759; 2003, c. 676; 2005, cc. 863, 884; 2009, cc. 207, 271; 2011, c. 850.)

Cross references. - As to the expiration provision for this chapter, see § 59.1-284.01 .

Editor's note. - Acts 1992, c. 301, cl. 2, as amended by Acts 1995, c. 792, cl. 2, provides: "That the provisions of this act shall apply to qualified business firms which begin operations within an enterprise zone on or after July 1, 1992, or which are first designated as qualified business firms on or after July 1, 1995."

Acts 2005, cc. 863 and 884, cl. 3, provides: "That the Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."

The 2003 amendments. - The 2003 amendment by c. 676, in subsection A, added the paragraph defining "High investment/limited job creation qualified business firm"; in the paragraph defining "Large qualified business firm," substituted "50" for "fifty"; and in the paragraph defining "Small qualified business firm," added "or a high investment/limited job creation qualified business firm"; in subsection C, substituted "80" for "eighty" and "60" for "sixty"; in the second sentence of subsection D, inserted present clause (ii), redesignated former clause (ii) as present clause (iii), and substituted "$3 million" for "three million dollars"; inserted present subsection E; and redesignated former subsections E through G as present subsections F through H.

The 2005 amendments. - The 2005 amendments by cc. 863 and 884 are identical, and deleted the last sentence in subsection C relating to "tax credits granted to small business firms and qualified zone residents," deleted the last sentence in subsection D relating to "tax credits granted to large business firms, high investment/limited job creation and large qualified zone residents," deleted the last sentence in subsection F relating to "tax credits granted for qualified business firms prior to July 1, 1995" and added subsections I and J.

The 2009 amendments. - The 2009 amendments by cc. 207 and 271 are identical, and in subsection A, deleted the paragraph defining "High investment/limited job creation qualified business firm" and "or a high investment/limited job creation qualified business firm" at the end of the paragraph defining "Small qualified business firm"; deleted subsection E; and redesignated former subsections F through J as subsections E through I.

The 2011 amendments. - The 2011 amendment by c. 850, effective for the taxable year commencing on or after January 1, 2013, deleted "(i) business firms subject to tax under Article 1 ( § 58.1-2500 et seq.) of Chapter 25 of Title 58.1 to the Commissioner of Insurance for the State Corporation Commission, or (ii)" following "or in the case of" in the first sentence in subsection B.

Law review. - For an article, "Taxation," see 31 U. Rich. L. Rev. 1221 (1997).

For survey article on developments in the law affecting Virginia taxation, see 38 U. Rich. L. Rev. 267 (2003).

§ 59.1-280.1. Enterprise zone real property investment tax credit.

1. As used in this section: "Large qualified zone resident" means a qualified zone resident making qualified zone investments in excess of $100 million when such qualified zone investments result in the creation of at least 200 permanent full-time positions. "Permanent full-time position" means a job of an indefinite duration at a business firm located within an enterprise zone requiring the employee to report for work within the enterprise zone, and requiring either (i) a minimum of 35 hours of an employee's time a week for the entire normal year of the business firm's operations, which "normal year" must consist of at least 48 weeks, (ii) a minimum of 35 hours of an employee's time a week for the portion of the taxable year in which the employee was initially hired for, or transferred to, the business firm, or (iii) a minimum of 1,680 hours per year if the standard fringe benefits are paid by the business firm for the employee. Seasonal or temporary positions, or a position created when a job function is shifted from an existing location in the Commonwealth to a business firm located within an enterprise zone shall not qualify as permanent full-time positions. "Qualified zone improvements" means the amount expended for improvements to rehabilitate or expand depreciable real property placed in service during the taxable year within an enterprise zone, provided that the total amount of such improvements equals or exceeds (i) $50,000 and (ii) the assessed value of the original facility immediately prior to the rehabilitation or expansion. "Qualified zone expenditures" includes any such expenditure regardless of whether it is considered properly chargeable to a capital account or deductible as a business expense under federal Treasury Regulations. Qualified zone improvements include expenditures associated with any exterior, structural, mechanical, or electrical improvements necessary to expand or rehabilitate a building for commercial or industrial use and excavations, grading, paving, driveways, roads, sidewalks, landscaping, or other land improvements. Qualified zone improvements shall include, but not be limited to, costs associated with demolition, carpentry, sheetrock, plaster, painting, ceilings, fixtures, doors, windows, fire suppression systems, roofing and flashing, exterior repair, cleaning, and cleanup. Qualified zone improvements shall not include:
   1. The cost of acquiring any real property or building; however, the cost of any newly constructed depreciable nonresidential real property (excluding land, land improvements, paving, grading, driveways, and interest) shall be considered to be a qualified zone improvement eligible for the credit if the total amount of such expenditure is at least $250,000 with respect to a single facility.
   2. 1. The cost of furnishings; (ii) any expenditure associated with appraisal, architectural, engineering and interior design fees; (iii) loan fees, points, or capitalized interest; (iv) legal, accounting, realtor, sales and marketing, or other professional fees; (v) closing costs, permits, user fees, zoning fees, impact fees, and inspection fees; (vi) bids, insurance, signage, utilities, bonding, copying, rent loss, or temporary facilities incurred during construction; (vii) utility hook-up or access fees; (viii) outbuildings; or (ix) the cost of any well or septic or sewer system. 2. (i) The cost of furnishings; (ii) any expenditure associated with appraisal, architectural, engineering and interior design fees; (iii) loan fees, points, or capitalized interest; (iv) legal, accounting, realtor, sales and marketing, or other professional fees; (v) closing costs, permits, user fees, zoning fees, impact fees, and inspection fees; (vi) bids, insurance, signage, utilities, bonding, copying, rent loss, or temporary facilities incurred during construction; (vii) utility hook-up or access fees; (viii) outbuildings; or (ix) the cost of any well or septic or sewer system.
   3. The basis of any property: (i) for which a credit under this section was previously granted; (ii) which was previously placed in service in Virginia by the taxpayer, a related party as defined by Internal Revenue Code § 267 (b), or a trade or business under common control as defined by Internal Revenue Code § 52 (b); or (iii) which was previously in service in Virginia and has a basis in the hands of the person acquiring it, determined in whole or in part by reference to the basis of such property in the hands of the person from whom acquired or Internal Revenue Code § 1014 (a). "Qualified zone investments" means the sum of qualified zone improvements and the cost of machinery, tools and equipment used in manufacturing tangible personal property within an enterprise zone. For purposes of this section, machinery, tools and equipment shall only be deemed to include the cost of such property which is placed in service in the enterprise zone on or after July 1, 1995. Machinery, tools and equipment shall not include the basis of any property: (i) for which a credit under this section was previously granted; (ii) which was previously placed in service in Virginia by the taxpayer, a related party as defined by Internal Revenue Code § 267 (b), or a trade or business under common control as defined by Internal Revenue Code § 52 (b); or (iii) which was previously in service in Virginia and has a basis in the hands of the person acquiring it, determined in whole or part by reference to the basis of such property in the hands of the person from whom acquired, or Internal Revenue Code § 1014 (a). "Qualified zone resident" means an owner or tenant of real property located in an enterprise zone who expands or rehabilitates such real property to facilitate the conduct of a trade or business within the enterprise zone. "Real property investment tax credit" means a credit against the taxes imposed by Articles 2 (§ 58.1-320 et seq.) and 10 (§ 58.1-400 et seq.) of Chapter 3, Chapter 12 (§ 58.1-1200 et seq.), Article 1 (§ 58.1-2500 et seq.) of Chapter 25, or Article 2 (§ 58.1-2620 et seq.) of Chapter 26 of Title 58.1. "Small qualified zone resident" means any qualified zone resident other than a large qualified zone resident.
2. For all taxable years beginning on and after July 1, 1995, but before July 1, 2005, a qualified zone resident shall be allowed a real property investment tax credit as set forth in this section.
3. For any small qualified zone resident, a real property investment tax credit shall be allowed in an amount equaling 30 percent of the qualified zone improvements. Any tax credit granted pursuant to this subsection is refundable; however, in no event shall the cumulative credit allowed to a small qualified zone resident pursuant to this subsection exceed $125,000 in any five-year period.
4. For any large qualified zone resident, a real property investment tax credit shall be allowed in an amount of up to five percent of such qualified zone investments. The percentage amount of the real property investment tax credit granted to a large qualified zone resident shall be determined by agreement between the Department and the large qualified zone resident, provided such percentage amount shall not exceed five percent. The real property investment tax credit provided by this subsection shall not exceed the tax imposed for such taxable year, but any credit not usable for the taxable year generated may be carried over until the full amount of such credit has been utilized.
5. The Department shall certify the nature and amount of qualified zone improvements and qualified zone investments eligible for a real property investment tax credit in any taxable year. Only qualified zone improvements and qualified zone investments that have been properly certified shall be eligible for the credit. Any form filed with the Department of Taxation or State Corporation Commission for the purpose of claiming the credit shall be accompanied by a copy of the certification furnished to the taxpayer by the Department. Any certification by the Department pursuant to this section shall not impair the authority of the Department of Taxation or State Corporation Commission to deny in whole or in part any claimed tax credit if the Department of Taxation or State Corporation Commission determines that the taxpayer is not entitled to such tax credit. The Department of Taxation or State Corporation Commission shall notify the Department in writing upon determining that a taxpayer is ineligible for such tax credit.
6. In the case of a partnership, limited liability company or S corporation, the term "qualified zone resident" as used in this section means the partnership, limited liability company or S corporation. Credits granted to a partnership, limited liability company or S corporation shall be passed through to the partners, members or shareholders, respectively.
7. The Tax Commissioner shall have the authority to issue regulations relating to the computation and carryover of the credit provided under this section.
8. In the first taxable year only, the credit provided in this section shall be prorated equally against the taxpayer's estimated payments made in the third and fourth quarters and the final payment, if such taxpayer is required to make quarterly payments.
9. Tax credits awarded under this section and under § 59.1-280 shall not exceed $7.5 million annually until the end of fiscal year 2019.
10. The provisions of this section shall apply only as follows:
    1. To those large qualified zone residents that have initiated use of enterprise zone tax credits pursuant to this section on or before July 1, 2005;
    2. To those large qualified zone residents that have signed agreements with the Commonwealth regarding the use of enterprise zone tax credits in accordance with this section on or before July 1, 2005.

       (1995, c. 792; 1997, cc. 517, 634, 669; 1998, c. 759; 2005, cc. 863, 884; 2017, c. 451.)

Cross references. - As to the expiration provision for this chapter, see § 59.1-284.01 .

Editor's note. - Acts 2005, cc. 863 and 884, cl. 3, provides: "That the Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."

The 2005 amendments. - The 2005 amendments by cc. 863 and 884 are identical, and deleted "by such owner or tenant" preceding "within" in the paragraph defining "Qualified zone resident," deleted the last sentence in subsection C relating to "tax credits granted to small qualified zone residents and business firms," deleted the former third sentence in subsection D relating to "tax credits granted to large qualified zone residents and business firms," added subsections I and J and made minor stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 451, in the definition of "Qualified zone improvements" in subsection A, substituted "expended" for "properly chargeable to a capital account" in the first sentence and added the second sentence.

§ 59.1-280.2.

Repealed by Acts 2005, cc. 863 and 884, cl. 2.

§ 59.1-281.

Repealed by Acts 1983, c. 572.

§ 59.1-282.

Repealed by Acts 2005, cc. 863 and 884, cl. 2.

§§ 59.1-282.1, 59.1-282.2.

Repealed by Acts 2009, cc. 207 and 271, cl. 3.

Editor's note. - Former §§ 59.1-282.1 and 59.1-282.2, pertaining to grants for creating permanent full-time positions, eligibility, and the Enterprise Zone Grant Fund, was derived from Acts 1995, c. 792; 1997, cc. 634, 669; 2005, cc. 863, 884.

§§ 59.1-282.3 through 59.1-284.

Repealed by Acts 2005, cc. 863 and 884, cl. 2.

§ 59.1-284.01. Expiration of chapter; exceptions.

1. All provisions of this chapter except §§ 59.1-279 , 59.1-280 , 59.1-280.1 , 59.1-282.1 , 59.1-282.2 and this section shall expire on July 1, 2005, unless extended by an act of the General Assembly.
2. All enterprise zones designated pursuant to §§ 59.1-274, 59.1-274.1, and 59.1-274.2 as those were in effect prior to July 1, 2005 shall continue in effect until the end of their 20-year designation period. Such zones shall be governed by the provisions of Chapter 49 (§ 59.1-538 et seq.). (1995, c. 792; 2005, cc. 863, 884.)

Editor's note. - Acts 2005, cc. 863 and 884, cl. 3, provides: "That the Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."

Subsection A of this section refers to §§ 59.1-282.1 and 59.1-282.2, which were repealed by Acts 2009, cc. 207 and 271, cl. 3.

The 2005 amendments. - The 2005 amendments by cc. 863 and 884 are identical, and in the first paragraph, inserted the A designation at the beginning, "except §§ 59.1-279 , 59.1-280 , 59.1-280.1 , 59.1-282.1 , 59.1-282.2 and this section," added subsection B and made a minor stylistic change.

§§ 59.1-284.1 through 59.1-284.6.

Repealed by Acts 2005, c. 624, cl. 2.

Editor's note. - Repealed § 59.1-284.5 was previously repealed by Acts 1995, c. 128.

Acts 2005, c. 624, cl. 3, provides: "That the Secretary of Commerce and Trade is hereby authorized to approve the transfer of the assets and associated records of the Virginia Economic Development Revolving Fund established under the provisions of Chapter 22.1 ( § 59.1-284.1 et seq.) of Title 59.1 of the Code of Virginia, from the Small Business Financing Authority to an eligible qualifying community development financial institution ("CDFI"). An eligible qualifying CDFI shall be a community development bank or community development credit union that the Secretary of Commerce and Trade finds is (i) established to conduct business legally within the Commonwealth; (ii) subject to oversight by federal or state financial institution or insurance regulatory agencies, as appropriate; and (iii) eligible for certification by the U.S. Department of Treasury as a community development financial institution. The transferred funds shall be used for the purpose of providing a portion of the initial capitalization of the community development bank or community development credit union that is designated as the eligible qualifying CDFI. The community development bank or community development credit union is intended to be a source of targeted lending and investment with the capacity to provide a high degree of leveraging for economic development and housing activities within distressed communities throughout the Commonwealth. These activities may include mortgage financing for first-time buyers, financing for needed community facilities, commercial loans and investments to start or expand small businesses, loans to rehabilitate rental housing, and financial services needed by low-income households and local businesses. The CDFI may also provide services that help ensure that credit is used effectively, such as technical assistance to small businesses and credit counseling to consumers."

Acts 2005, c. 624, cl. 4, provides: "That on or before December 1, 2005, the Secretary of Commerce and Trade shall report to the General Assembly on the implementation of this act."

§§ 59.1-284.7 through 59.1-284.12.

Repealed by Acts 2004, c. 872.

§§ 59.1-284.13 through 59.1-284.15.1.

Repealed by Acts 2015, c. 761, cl. 3, effective July 1, 2016.

Editor's note. - Former § 59.1-284.13 , pertaining to the Semiconductor Manufacturing Performance Grant Program; eligible counties, derived from Acts 1996, cc. 642, 652; 2007, c. 813. Former § 59.1-284.14, pertaining to Semiconductor Memory or Logic Wafer Manufacturing Performance Grant Program; eligible cities, derived from Acts 1996, cc. 645, 651; 2001, c. 863; 2007, c. 813. Former § 59.1-284.14:1, pertaining to grants for capital investments made and jobs created by qualified semiconductor manufacturers, derived from Acts 2001, c. 863; 2005, c. 392. Former § 59.1-284.15, pertaining to Semiconductor Memory or Logic Wafer Manufacturing Performance Grant Program II, derived from Acts 1997, c. 789; 2001, c. 863; 2007, c. 813. Former § 59.1-284.15:1, pertaining to grants for additional employment and new capital investment, derived from Acts 2001, c. 863; 2005, c. 392.

§§ 59.1-284.16 through 59.1-284.19.

Repealed by Acts 2004, c. 872, cl. 13, effective May 4, 2005.

Editor's note. - Acts 2004, c. 872, cl. 13, provides: "That notwithstanding the revisions of the first enactment and the second enactment, Chapter 22.4 ( §§ 59.1-284.16 through 59.1-284.19) of Title 59.1 of the Code of Virginia is repealed if no specific appropriation has been made to the Information Technology Employment Performance Grant Program for fiscal year 2004 or fiscal year 2005." No appropriation was made for fiscal years 2004 and 2005.

Repealed § 59.1-284.17 was amended by Acts 2005, cc. 863 and 884.

Former § 59.1-284.19 was previously repealed by Acts 2004, c. 872, cl. 2.

§ 59.1-284.20. Aerospace Engine Manufacturing Performance Grant Program; eligible county.

1. As used in this section:

   "Affiliate" means with respect to any person, any other person directly or indirectly controlling, controlled by, or under common control with such person. For purposes of this definition, "control" (including "controlled by" and "under common control with") shall mean the power, directly or indirectly, to direct or cause the direction of the management and policies of such person whether through ownership or voting securities or by contract or otherwise.

   "Capital investment" means an investment in real property, tangible personal property, or both, within the Commonwealth that is capitalized.

   "Eligible county" means Prince George County.

   "Grant" means the aerospace engine manufacturing performance grant as described in this section.

   "Manufacture of aerospace engines" means (i) the manufacture or assembly and test of aircraft engines and engine parts; (ii) the design or development of aircraft engines and engine parts; or (iii) the manufacturing activities of a private company described under 2007 index number 336412 of the North American Industry Classification System.

   "Memorandum of understanding" means a performance agreement entered into accordance with a memorandum of understanding entered into on November 20, 2007, among a qualified manufacturer, the Commonwealth, and others setting forth the requirements for capital investment and the creation of new full-time jobs that will make the qualified manufacturer eligible for a grant under this section.

   "New full-time job" means employment of an indefinite duration in an eligible county, created as the direct result of new capital investment, for which the average annual wage is at least equal to the prevailing average annual wage in an eligible county and for which the standard fringe benefits are paid by the qualified manufacturer, requiring a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of such manufacturer's operations, which "normal year" must consist of at least 48 weeks or (ii) 1,680 hours per year. Seasonal or temporary positions, and positions created when a job function is shifted from an existing location in the Commonwealth shall not qualify as new full-time jobs under this section. Other positions, which may or may not be of indefinite duration, including supplemental employees of affiliates, subsidiaries, joint ventures, contractors, or subcontractors may be considered new full-time jobs, if so designated in the memorandum of understanding between such manufacturer, the Commonwealth, and others as such memorandum of understanding was in effect on November 20, 2007.

   "Qualified manufacturer" means a manufacturer that (i) is expected to make a capital investment of at least $500 million by June 30, 2023, in an eligible county related to the manufacture of aerospace engines and (ii) is expected to create at least 540 jobs in an eligible county for the manufacture of aerospace engines or activities ancillary or supportive of such manufacture.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

2. Any qualified manufacturer that, after July 1, 2008, first begins operations in an eligible county shall be eligible to receive a grant each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2013, and ending with the Commonwealth's fiscal year starting on July 1, 2022, unless such time frame is extended in accordance with subsection E. The grants under this section (i) shall be paid, subject to appropriation by the General Assembly, from a fund entitled the Aerospace Engine Manufacturing Performance Grant Fund, which Fund is hereby established on the books of the Comptroller, (ii) shall not exceed $35 million in the aggregate, and (iii) shall be paid to the qualified manufacturer during each fiscal year contingent upon the qualified manufacturer meeting the requirements for the aggregate (a) number of new full-time jobs created and the substantial retention of the same and (b) amount of the capital investment made and substantially retained as set forth in the memorandum of understanding.
3. If grants to be paid to qualified manufacturers under this section in a fiscal year exceed the aggregate amount available in the Aerospace Engine Manufacturing Performance Grant Fund for that year, each qualified manufacturer's grants for the year shall equal the amount of grants to which the qualified manufacturer would otherwise be eligible multiplied by a fraction. The numerator of the fraction shall equal the aggregate amount available for payment from the Aerospace Engine Manufacturing Performance Grant Fund for that fiscal year, and the denominator shall equal the aggregate dollar amount of grants to which all qualified manufacturers otherwise would be eligible for such fiscal year.

   The aggregate amount of the grants payable under this section shall be subject to the following requirements and limitations:

   1. Grants shall be awarded after July 1, 2013, and before July 1, 2023, unless such time frame is extended in accordance with subsection E.
   2. The amount of the grant to be paid in each fiscal year shall be conditional upon the qualified manufacturer meeting the requirements for the (i) aggregate number of new full-time jobs created and the substantial retention of the same throughout the calendar year that immediately precedes the end of such fiscal year, and (ii) aggregate amount of the capital investment made and substantially retained as of the last day of the calendar year that immediately precedes the end of such fiscal year as set forth in the memorandum of understanding entered into on November 20, 2007. Grants shall be paid based upon such requirements as agreed to on November 20, 2007, regardless if such memorandum of understanding is later modified, amended, superseded, or otherwise changed.
   3. The aggregate amount of grants that may be awarded in a particular fiscal year shall not exceed the following:
      1. $5.5 million for the Commonwealth's fiscal year beginning July 1, 2013;
      2. $11 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2014;
      3. $14 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2015;
      4. $17 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2016;
      5. $20 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2017;
      6. $23 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2018;
      7. $26 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2019;
      8. $29 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2020;
      9. $32 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2021; and
      10. $35 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2022.
   4. Grants provided by this section shall not exceed $35 million in the aggregate.
4. Any qualified manufacturer applying for a grant under this section shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs created and the substantial retention of the same throughout the calendar year that immediately precedes the end of the fiscal year in which the grant is to be paid, and (ii) the aggregate amount of the capital investment made and substantially retained as of the last day of the calendar year that immediately precedes the end of the fiscal year in which the grant is to be paid. The application and evidence shall be filed with the Secretary in person or by mail no later than April 1 each year following the calendar year in which the qualified manufacturer meets such aggregate new full-time job requirements and aggregate capital investment. Failure to meet the filing deadline shall result in a deferral of a scheduled grant payment set forth in subsection C. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
5. The memorandum of understanding may provide that if a grant payment has been deferred for any reason, including the initial failure to meet the aggregate capital investment and the aggregate new full-time job requirements set forth in the memorandum of understanding or the occurrence of any substantial reduction in such new full-time job requirements or capital investment requirements after such requirements have been met but before the grant payment has been made, payment in a subsequent fiscal year for which such requirements have been met for the immediately preceding calendar year shall include both the deferred payment and the scheduled grant payment as provided in subsection C.
6. Within 30 days after the filing deadline in subsection D, the Secretary shall certify to (i) the Comptroller and (ii) each qualified manufacturer the amount of the grant to which such qualified manufacturer is entitled under this section for payment in the current fiscal year. Payment of such grant shall be made by check issued by the Treasurer of Virginia on warrant of the Comptroller by June 30 of such fiscal year.
7. As a condition of receipt of a grant, a qualified manufacturer shall make available to the Secretary or his designee for inspection upon his request all relevant and applicable documents to determine whether the qualified manufacturer has met the requirements for the receipt of grants as set forth in this section and subject to the memorandum of understanding. The Comptroller shall not draw any warrants to issue checks for the grant program under this section without a specific appropriation for the same. All such documents appropriately identified by the qualified manufacturer shall be considered confidential and proprietary.

   (2008, cc. 256, 630.)

§ 59.1-284.21. Aerospace Engine Manufacturing Supplier Cluster Bonus Performance Grant Program; eligible county.

1. As used in this section: "Affiliate" means the same as such term is defined in § 59.1-284.20 . "Capital investment" means the same as such term is defined in § 59.1-284.20 . "Eligible county" means Prince George County. "Grant" means the aerospace engine manufacturing supplier cluster bonus performance grant as described in this section. "Memorandum of understanding" means a performance agreement entered into accordance with a memorandum of understanding entered into on November 20, 2007, among a qualified manufacturer, the Commonwealth, and others setting forth the requirements for capital investment and the creation of new full-time jobs by qualified suppliers that will make the qualified manufacturer eligible for a grant under this section. "New full-time job" means employment of an indefinite duration in the Commonwealth, created as the direct result of new capital investment, for which the average annual wage is at least equal to the prevailing average annual wage in the applicable locality and for which the standard fringe benefits are paid by the qualified supplier, requiring a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of such supplier's operations, which "normal year" must consist of at least 48 weeks or (ii) 1,680 hours per year. Seasonal or temporary positions, and positions created when a job function is shifted from an existing location in the Commonwealth shall not qualify as new full-time jobs under this section. "Qualified manufacturer" means the same as such term is defined in § 59.1-284.20. "Qualified supplier" means a manufacturer, assembler, distributor, or service provider on a qualified supplier list that (i) first begins doing business at a location within the Commonwealth or (ii) expands its business at a location within the Commonwealth subsequent to a qualified manufacturer commencing construction of a manufacturing, assembly, and testing facility in an eligible county. A "qualified supplier" shall deliver or provide ancillary parts, tools, or other components used by the qualified manufacturer within the Commonwealth or provide ancillary services within the Commonwealth for such qualified manufacturer. A qualified supplier shall not be an affiliate of a qualified manufacturer.

   "Qualified supplier cluster" means the aggregate of qualified suppliers.

   "Qualified supplier list" means a list of prospective qualified suppliers submitted by a qualified manufacturer to the Secretary no less frequently than annually.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

2. 1. Any qualified manufacturer who attracted a qualified supplier on its qualified supplier list (i) first beginning to do business at a location within the Commonwealth subsequent to the qualified manufacturer commencing construction in an eligible county or (ii) expanding its business at a location within the Commonwealth subsequent to the qualified manufacturer commencing construction in an eligible county shall be eligible for a grant under this section. However, no grant shall be paid to the qualified manufacturer unless the qualified supplier cluster (all of which qualified suppliers are on the qualified supplier list) subsequent to the qualified manufacturer commencing construction in an eligible county makes the aggregate capital investment and meets the new full-time job requirements as set forth in this section. The grants under this section (a) shall be paid, subject to appropriation by the General Assembly, from a fund entitled the Aerospace Engine Manufacturing Supplier Cluster Grant Fund, which Fund is hereby established on the books of the Comptroller, (b) shall not exceed $5 million in the aggregate, and (c) shall be paid, as provided in this section, to the qualified manufacturer subject to the conditions of this section being met. B. 1.  Any qualified manufacturer who attracted a qualified supplier on its qualified supplier list (i) first beginning to do business at a location within the Commonwealth subsequent to the qualified manufacturer commencing construction in an eligible county or (ii) expanding its business at a location within the Commonwealth subsequent to the qualified manufacturer commencing construction in an eligible county shall be eligible for a grant under this section. However, no grant shall be paid to the qualified manufacturer unless the qualified supplier cluster (all of which qualified suppliers are on the qualified supplier list) subsequent to the qualified manufacturer commencing construction in an eligible county makes the aggregate capital investment and meets the new full-time job requirements as set forth in this section. The grants under this section (a) shall be paid, subject to appropriation by the General Assembly, from a fund entitled the Aerospace Engine Manufacturing Supplier Cluster Grant Fund, which Fund is hereby established on the books of the Comptroller, (b) shall not exceed $5 million in the aggregate, and (c) shall be paid, as provided in this section, to the qualified manufacturer subject to the conditions of this section being met.
   2. If the qualified supplier cluster has, subsequent to the qualified manufacturer commencing construction in an eligible county, (i) created and substantially retained at least 150 new full-time jobs within the Commonwealth, (ii) made and substantially retained at least $25 million worth of capital investment within the Commonwealth, and (iii) made a written certification to the Secretary that its decision to create such new full-time jobs and make such capital investment was based in part by the location of the qualified manufacturer and was in part for a purpose of providing ancillary parts, tools, or other components used by the qualified manufacturer within the Commonwealth or for providing ancillary services within the Commonwealth for such qualified manufacturer, then a grant payment in the amount of $2.5 million shall be paid to the qualified manufacturer as provided in subsection E. If the qualified supplier cluster has, subsequent to the qualified manufacturer commencing construction in an eligible county, (a) created and substantially retained at least 300 new full-time jobs within the Commonwealth, (b) made and substantially retained at least $50 million worth of capital investment within the Commonwealth, and (c) made a written certification to the Secretary that its decision to create such new full-time jobs and make such capital investment was based in part by the location of the qualified manufacturer and was in part for a purpose of providing ancillary parts, tools, or other components used by the qualified manufacturer within the Commonwealth or for providing ancillary services within the Commonwealth for such qualified manufacturer, then an aggregate amount of $5 million in grants shall be paid to the qualified manufacturer as provided in subsection E. In no case, however, shall the aggregate amount of grants payable to all qualified manufacturers pursuant to this section exceed $5 million and in no case shall more than $2.5 million in grants pursuant to this section be paid in a fiscal year. Upon receipt of such written certification by the qualified supplier cluster, the Secretary shall promptly notify the qualified manufacturer of the same for purposes of applying for a grant under this section.

      The memorandum of understanding may provide that a qualified manufacturer shall be eligible for a reduced grant payment if at least 100 new full-time jobs have been created and substantially retained and at least one-third of the full $50 million capital investment has been made and substantially retained by the qualified supplier cluster. As described in the memorandum of understanding, in such case the reduction in the grant payments shall be proportional to the reduction in the new full-time jobs created and substantially retained and the reduction in the capital investment. Further, the memorandum of understanding may provide for deferred grant payments if the capital investment and the new full-time jobs have been met, but a substantial reduction occurs in the capital investment or new full-time job requirements between the date such requirements were met and the date the grant payment is to be made.

3. If grants to be paid to qualified manufacturers under this section exceed the aggregate amount of grants payable in a fiscal year, each eligible qualified manufacturer's grant for the year shall equal the amount of the grant to which the qualified manufacturer would otherwise be entitled multiplied by a fraction. The numerator of the fraction shall equal the amount of the grant payable in the fiscal year, and the denominator shall equal the aggregate dollar amount of requests for grants to which all qualified manufacturers otherwise would be eligible for such fiscal year.
4. Any qualified manufacturer applying for a grant under this section shall provide evidence, satisfactory to the Secretary, of (i) the number of new full-time jobs created and substantially retained by a qualified supplier on a qualified supplier list as described in subdivision B 2, and (ii) the aggregate capital investment made and substantially retained by a qualified supplier on a qualified supplier list as described in subdivision B 2. The application and evidence shall be filed with the Secretary in person or by mail by between July 1 and August 31.
5. Within 30 days after filing of the application described in subsection D, the Secretary shall certify to (i) the Comptroller and (ii) each qualified manufacturer the amount of the grant to which such qualified manufacturer is entitled under this section. Payment of such grant shall be made by check issued by the Treasurer of Virginia on warrant of the Comptroller, and such payment shall be made in the fiscal year that immediately follows the fiscal year in which the qualified manufacturer had applied for the grant.
6. As a condition of receipt of a grant, a qualified manufacturer shall make available to the Secretary or his designee for inspection upon his request all relevant and applicable documents to determine the aggregate number of new full-time jobs created by the qualified supplier cluster as described in subdivision B 2, the average wages paid for such jobs, the prevailing average wage in the localities in which such jobs are located, and the aggregate amount of capital investment made by the qualified supplier cluster as described in subdivision B 2.

   The Comptroller shall not draw any warrants to issue checks for any grant under this section without a specific legislative appropriation. All such documents appropriately identified by the qualified manufacturer shall be considered confidential and proprietary.

   (2008, cc. 256, 630.)

§ 59.1-284.22. Aerospace Engine Manufacturer Workforce Training Grant Fund; eligible county.

1. As used in this section: "Affiliate" means the same as that term is defined in § 59.1-284.20 . "Capital investment" means the same as that term is defined in § 59.1-284.20 . "Eligible county" means Prince George County. "Full-time" means employment of an indefinite duration for which the standard fringe benefits are paid, requiring a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of the employer's operations, which "normal year" shall consist of at least 48 weeks, or (ii) 1,680 hours per year. The term "full-time" shall not include seasonal or temporary positions or positions created when a job function is shifted from an existing location in the Commonwealth. "Grant" means the special training grant or supplemental training grant as described in this section. "Qualified employee" means an individual hired in the Commonwealth on or after November 20, 2007, by an entity that is a qualified manufacturer or by an affiliate thereof, who (i) is employed by the qualified manufacturer or by an affiliate for at least 90 days, and (ii) works on a full-time basis for the qualified manufacturer or for an affiliate for at least such 90-day period. "Qualified manufacturer" means the same as such term is defined in § 59.1-284.20. "Secretary" means the Secretary of Commerce and Trade or his designee.

   "Special training grant" means a $9,000 allocation from the Aerospace Engine Manufacturer Workforce Training Grant Fund per new qualified employee, as described in this section. The aggregate amount of special training grants under this section shall not exceed $5,778,000.

   "Supplemental training grant" means a one-time $3 million allocation from the Aerospace Engine Manufacturer Workforce Training Grant Fund, as described in this section.

2. Grants paid to the qualified manufacturer pursuant to this section are intended to be used for workforce development, instructional, or training purposes so as to enhance the skill sets of qualified employees.
3. Any qualified manufacturer that is eligible to receive a special training grant shall (i) report to the Secretary quarterly the number of new qualified employees hired and trained who have been employed for at least 90 days and for whom a special training grant has not been previously paid pursuant to this section, and (ii) provide evidence of the hiring and training of the new qualified employees described in clause (i). The application and evidence shall be filed with the Secretary in person or by mail. For filings by mail, the postmark cancellation shall govern the date of the filing determination. Within 30 days after such evidence has been provided by the qualified manufacturer, the Secretary shall certify to (a) the Comptroller and (b) each qualified manufacturer the amount of the special training grant to which such qualified manufacturer is entitled under this section for payment within 60 days after such certification. Payment of such grant shall be made by check issued by the Treasurer of Virginia on warrant of the Comptroller.

   The special training grants under this section (1) shall be paid, subject to appropriation by the General Assembly, from a fund entitled the Aerospace Engine Manufacturer Workforce Training Grant Fund, which Fund is hereby established on the books of the Comptroller, (2) shall not exceed $5,778,000 in the aggregate, and (3) shall be paid to or for the benefit of the qualified manufacturer on a quarterly basis.

4. A supplemental training grant shall be paid to any qualified manufacturer that has made an aggregate capital investment of at least $153.9 million in the eligible county and has hired at least 176 new qualified employees, excluding any qualified employee who has been rehired by the qualified manufacturer or an affiliate thereof or who is employed in a different position with the qualified manufacturer or an affiliate thereof. On or before June 30, 2010, and on or before each June 30 thereafter until the supplemental training grant has been paid, the qualified manufacturer shall provide written notification to the Secretary whether it has met or expects to meet the aggregate capital investment and employee requirements by the end of the current calendar year. If it has met or expects to meet such requirements by the end of the calendar year, the qualified manufacturer shall provide evidence of the same, satisfactory to the Secretary, with the written notification. The written notification and evidence shall be filed with the Secretary in person or by mail. For filings by mail, the postmark cancellation shall govern the date of the filing determination. Within 10 days after such notification and evidence have been provided by the qualified manufacturer, the Secretary shall certify to (i) the Comptroller and (ii) each qualified manufacturer the amount of the supplemental training grant to which such qualified manufacturer is entitled under this section for payment in the current fiscal year. Payment of such grant shall be made by check issued by the Treasurer of Virginia on warrant of the Comptroller.

   The supplemental training grant shall not be paid prior to July 1, 2010. The supplemental training grant (a) shall be paid, subject to appropriation by the General Assembly, from the Aerospace Engine Manufacturer Workforce Training Grant Fund, (b) shall be equal to $3 million, and (c) shall, subject to appropriation by the General Assembly, be paid to the qualified manufacturer by the end of the applicable fiscal year, as described herein. No more than $3 million in supplemental training grants shall be paid pursuant to this section.

5. If grants to be paid to qualified manufacturers under this section in a fiscal year exceed the aggregate amount available in the Aerospace Engine Manufacturer Workforce Training Grant Fund for that year, each qualified manufacturer's grants for the year shall equal the amount of grants to which the qualified manufacturer would otherwise be eligible multiplied by a fraction. The numerator of the fraction shall equal the aggregate amount available for payment from the Aerospace Engine Manufacturer Workforce Training Grant Fund for that fiscal year, and the denominator shall equal the aggregate dollar amount of grants to which all qualified manufacturers otherwise would be eligible for such fiscal year.
6. Notwithstanding any other provision of this section, in lieu of payment of special training grants by check to qualified manufacturers, the Secretary may determine that such special training grants shall be administered in a manner similar to existing training grant programs such as those permitted by § 2.2-2240.3 .
7. As a condition of receipt of a grant, a qualified manufacturer shall make available to the Secretary or his designee for inspection upon his request all relevant and applicable documents to determine the aggregate number of new qualified employees hired and the aggregate amount of capital investment. The Comptroller shall not draw any warrants to issue checks for a special training grant or a supplemental training grant under this section without a specific appropriation for the same. All such documents appropriately identified by the qualified manufacturer shall be considered confidential and proprietary.

   (2008, cc. 256, 630; 2013, c. 482; 2014, cc. 41, 464.)

The 2013 amendments. - The 2013 amendment by c. 482, effective January 1, 2014, substituted "shall consist" for "must consist" in clause (i) in the paragraph defining "Full-time" in subsection A; and substituted " § 2.2-1605 " for " § 2.2-902" in subsection F.

The 2014 amendments. - The 2014 amendments by cc. 41 and 464 are identical, and substituted "2.2-2240.3" for "2.2-1605" in subsection F.

§ 59.1-284.23. Advanced Shipbuilding Training Facility Grant Program; eligible city.

1. As used in this section:

   "Advanced shipbuilding" means (i) the manufacture, construction, assembly, overhaul, repair, and test of nuclear vessels and submarines for the U.S. Navy; (ii) the design or development of nuclear vessels and submarines for the U.S. Navy; or (iii) the manufacturing activities of a private company described under 2007 index number 336611 of the North American Industry Classification System.

   "Base training expense" means the total expenditures made by a qualified shipbuilder in 2008 that directly and indirectly support training activities.

   "Capital investment" means an investment in real property, tangible personal property, or both, within the Commonwealth.

   "Eligible city" means the City of Newport News or its industrial development authority.

   "Grant" means the advanced shipbuilding training facility grant as described in this section.

   "Memorandum of understanding" means a performance agreement entered into on or before August 31, 2011, among a qualified shipbuilder, the Commonwealth, and others as appropriate, such as the eligible city, setting forth the requirements for capital investment, training costs, and the creation of new full-time jobs that will make the qualified shipbuilder eligible for a grant under this section.

   "New full-time job" means employment of an indefinite duration in an eligible city, created as the direct result of capital investment, for which the average annual wage is at least equal to the prevailing average annual wage in an eligible city and for which the standard fringe benefits are paid by the qualified shipbuilder, requiring a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of such qualified shipbuilder's operations, which "normal year" must consist of at least 48 weeks, or (ii) 1,680 hours per year. Seasonal or temporary positions and positions created when a job function is shifted from an existing location in the Commonwealth shall not qualify as new full-time jobs under this section. Other positions, which may or may not be of indefinite duration, including supplemental employees of affiliates, subsidiaries, joint ventures, contractors, or subcontractors of the qualified shipbuilder, may be considered new full-time jobs, if so designated as such in the memorandum of understanding between such qualified shipbuilder, the Commonwealth, and others.

   "New training facility" means a facility that, pursuant to a Memorandum of Agreement with the Secretary, is to be operated by the qualified shipbuilder for use by the shipbuilding industry, primarily to provide education, training and retraining of workers in the shipbuilding industry. Such training facility may be owned by the qualified shipbuilder, or may be operated by the qualified shipbuilder through a lease agreement with the eligible city, a local industrial development authority, or a private developer.

   "Qualified shipbuilder" means a shipbuilder located in an eligible city that (i) makes a new capital investment of at least $300 million from January 1, 2009 through December 31, 2011, related to advanced shipbuilding in an eligible city; (ii) creates at least 1,000 new full-time jobs in an eligible city for advanced shipbuilding or activities ancillary to or supportive of advanced shipbuilding; (iii) maintains an apprenticeship program accredited by the Council for Occupational Education with an average annual enrollment of at least 750 and articulation agreements with local comprehensive community colleges that allow its graduates to qualify for accredited associate degrees from those institutions; and (iv) maintains a level of expenditures directly or indirectly supporting training activities, which level is at least equal to the base training expense.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

2. Any qualified shipbuilder located in an eligible city shall be eligible to receive a grant each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2012, and ending with the Commonwealth's fiscal year starting on July 1, 2016, unless such time frame is extended in accordance with subsection C or D. The grants under this section (i) shall be paid, subject to appropriation by the General Assembly, from a fund entitled the Advanced Shipbuilding Training Facility Fund, which Fund is hereby established on the books of the Comptroller; (ii) shall not exceed $25 million in the aggregate; (iii) shall be paid to a qualified shipbuilder during each fiscal year contingent upon the qualified shipbuilder meeting the requirements for the aggregate of (a) number of new full-time jobs created and the substantial retention of the same, (b) maintenance of base training expenses, and (c) amount of the capital investment made and substantially retained, as set forth in the memorandum of understanding; and (iv) shall be expended by the qualified shipbuilder on training costs or to pay the capital or lease cost of any new training facility to provide that training.
   1. The amount of the grant to be paid in each fiscal year shall be conditional upon the qualified shipbuilder meeting the requirements for (i) the aggregate number of new full-time jobs created and the substantial retention of the same throughout the calendar year that immediately precedes the beginning of such fiscal year; (ii) the aggregate amount of the capital investment made and substantially retained as of the last day of the calendar year that immediately precedes the beginning of such fiscal year; and (iii) maintaining a level of expenditures directly or indirectly supporting training activities, which level is at least equal to the base training expense. If the qualified shipbuilder has not fully met the grant requirements by December 31, 2011, the period of eligibility may be extended for up to three years, provided that the grants in any given fiscal year shall not exceed $5 million, plus any amounts deferred in accordance with subsection C or D. Grants shall be paid based upon such requirements as agreed to on or before August 31, 2011, regardless if such memorandum of understanding is later modified, amended, superseded, or otherwise changed;
   2. The aggregate amount of grants that may be awarded in a particular fiscal year shall not exceed the following:
      1. $5 million for the Commonwealth's fiscal year beginning July 1, 2012;
      2. $10 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2013;
      3. $15 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2014;
      4. $20 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2015; and
      5. $25 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2016; and
   3. Grants provided by this section shall not exceed $25 million in the aggregate or the aggregate total of training costs expended by a qualified shipbuilder during the period, whichever is less.
3. Any qualified shipbuilder applying for a grant under this section shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs created and the substantial retention of the same throughout the calendar year that immediately precedes the beginning of the fiscal year in which the grant is to be paid; (ii) the aggregate amount of the capital investment made and substantially retained as of the last day of the calendar year that immediately precedes the beginning of the fiscal year in which the grant is to be paid; and (iii) the aggregate amount of base training expenses as of the last day of the calendar year that immediately precedes the beginning of the fiscal year in which the grant is to be paid. The application and evidence shall be filed with the Secretary in person or by mail no later than April 1 each year following the calendar year in which the qualified shipbuilder meets such aggregate new full-time job requirements and aggregate capital investments. Failure to meet the filing deadline shall result in a deferral of a scheduled grant payment set forth in subsection B. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
4. The memorandum of understanding may provide that if a grant payment has been deferred for any reason, including the initial failure to meet the aggregate capital investment or the aggregate new full-time job requirements or the aggregate base training expenses set forth in the memorandum of understanding or the occurrence of any substantial reduction in such new full-time job requirements or capital investment requirements after such requirements have been met but before the grant payment has been made, payment in a subsequent fiscal year for which such requirements have been met for the immediately preceding calendar year shall include both the deferred payment and the scheduled grant payment as provided in subsection B or that a proportional payment, based on the proportional share of the required additional full-time jobs, be made.
5. As a condition of receipt of a grant, a qualified shipbuilder shall make available to the Secretary or his designee for inspection upon his request relevant and applicable documents to determine whether the qualified shipbuilder has met the requirements for the receipt of grants as set forth in this section and subject to the memorandum of understanding. The Comptroller shall not draw any warrants to issue checks for the grant program under this section without a specific appropriation for the same. All such documents appropriately identified by the qualified shipbuilder shall be considered confidential and proprietary.
6. An eligible city shall be eligible to receive a grant from the Advanced Shipbuilding Training Facility Fund established under subsection B each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2012. The grants under this subsection may be paid to the eligible city subject to a memorandum of understanding between the Secretary, the eligible city, and the qualified shipbuilder that provides that (i) the eligible city or a private developer will build a new training facility for use by the qualified shipbuilder and the qualified shipbuilder will use the new training facility during the grant period; (ii) the new training facility is part of a development plan approved by the eligible city and the qualified shipbuilder that includes additional private capital investment adjacent to the new training facility that is equal to or greater than the cost of the facility; and (iii) the qualified shipbuilder waives its right to apply for grants under subsection B. Grants to an eligible city may be used only for the construction, lease, or lease-purchase of the new training facility, including related debt service or repayment of any loans whose proceeds are used for such costs. The memorandum of understanding may provide for a total amount of grants under this subsection of not more than $42 million, subject to appropriation by the General Assembly, and for a period of eligibility of up to 10 years, unless such time frame is extended in accordance with subsection C or D, and may provide for a contractual agreement for payments by the Commonwealth. At the conclusion of the grant period, the qualified shipbuilder shall have the right to assume ownership of the new training facility.

   (2009, cc. 798, 850; 2011, c. 749.)

Editor's note. - Acts 2009, cc. 798 and 850, cl. 2 provides: "That a copy of the executed memorandum of understanding, as defined in § 59.1-284.23 of the Code of Virginia, shall be provided by July 30, 2009, to the chairmen of the House Committee on Appropriations and the Senate Committee on Finance, with any analysis by the Virginia Economic Development Partnership of the economic impact of the expected capital investment and new full-time jobs described in the memorandum of understanding. Any subsequent changes to the memorandum of understanding shall be submitted to the chairmen of the House Committee on Appropriations and the Senate Committee on Finance not later than 30 days after being executed by the Secretary."

Acts 2009, cc. 798 and 850, cl. 3 provides: "That the memorandum of understanding, as defined in § 59.1-284.23 of the Code of Virginia, may state that the requirement to create and maintain new full-time jobs may be met entirely within the Virginia Class Submarine program. No full-time jobs or capital investments that are subject to any other performance agreement with the Commonwealth or a locality may be counted under the memorandum of understanding pursuant to the grant program established pursuant to Chapter 22.6 ( § 59.1-284.23 ) of Title 59.1 of the Code of Virginia."

Acts 2009, cc. 798 and 850, cl. 4 provides: "That no later than 90 days following the application for payment of the fifth installment of training facility grants under the first enactment of this act, the Secretary shall provide a report to the chairmen of the House Committee on Appropriations and the Senate Committee on Finance detailing the performance of the qualified shipbuilder under the training facility grant program. Such review shall include, but not be limited to, an evaluation of (i) return on investment, (ii) the time frame for return on investment to the Commonwealth, (iii) average wages of the new full-time jobs created by the qualified shipbuilder, (iv) the additional capital investment made by the qualified shipbuilder, and (v) the status of the apprenticeship program and facilities. If the Secretary finds the qualified shipbuilder has met the terms of the program, he may recommend eligibility for an additional $25 million in grants for additional training activities by the qualified shipbuilder payable over a subsequent five-year period."

Acts 2009, cc. 798 and 850, cl. 5, as added by Acts 2011, c. 749, cl. 2, provides: "That a copy of the executed memorandum of understanding, as defined in § 59.1-284.23 of the Code of Virginia pursuant to enactments of the 2011 Session of the General Assembly, shall be provided by August 31, 2011, to the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance, with any analysis by the Virginia Economic Development Partnership of the economic impact of the expected capital investment and new full-time jobs described in the memorandum of understanding. Any subsequent changes to the memorandum of understanding shall be submitted to the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance not later than 30 days after being executed by the Secretary. All matters, including but not limited to any memorandum of agreement, or any other agreement, necessary to effectuate the purposes of this act shall be finalized on or before October 31, 2011. The Governor shall include in the Budget Bill he submits to the General Assembly in 2011 pursuant to § 2.2-1509 of the Code of Virginia all appropriations necessary to fulfill the obligations of the Commonwealth pursuant to such final agreements."

At the direction of the Virginia Code Commission, "comprehensive community colleges" was substituted for "community colleges" in the definition of "Qualified shipbuilder" in subsection A to conform to Acts 2016, c. 588.

The 2011 amendments. - The 2011 amendment by c. 749 substituted "in 2008" for "in the year prior to entering into a memorandum of understanding" in the second paragraph of subsection A; added "or its industrial development authority" to the end of the fourth paragraph; substituted "August 31, 2011" for "June 30, 2009" in the sixth paragraph of subsection A; substituted "expenditures directly or indirectly supporting training activities, which level is at least equal to the base training expense" for "base training expenditures no less than that spent in calendar year 2008 as set forth in the memorandum of understanding" at the end of the ninth paragraph of subsection A; in subdivision B 1, substituted "maintaining a level of expenditures directly or indirectly supporting training activities, which level is at least equal to the base training expense" for "the expenditure of base training expenses as set forth in the memorandum of understanding entered into on or before June 30, 2009," "August 31, 2011" for "June 30, 2009" in the first and last sentences; and added subsection F.

§ 59.1-284.24.

Repealed by Acts 2015, c. 761, cl. 4.

Editor's note. - Former § 59.1-284.24 , which established the Specialized Biotechnology Research Performance Grant Program, derived from 2010, cc. 482, 562.

§§ 59.1-284.25 through 59.1-284.27.

Repealed by Acts 2015, c. 761, cl. 4.

Editor's note. - Former §§ 59.1-284.25 through 59.1-284.27, which established the Clean Energy Manufacturing Incentive Grant Program, derived from 2011, cc. 815, 864.

§ 59.1-284.28. Pulp, Paper, and Fertilizer Advanced Manufacturing Performance Grant Program and Fund.

1. As used in this section:

   "Capital investment" means an investment in real property, tangible personal property, or both, made or caused to be made by a qualified entity in a facility.

   "Eligible county" means Chesterfield County.

   "Facility" means any facility that, pursuant to a memorandum of understanding, is to be owned or leased by the qualified entity and operated by the qualified entity for the manipulation and manufacture of pulp, paper, and fertilizer products.

   "Grant" means an installment of the pulp, paper, and fertilizer advanced manufacturing performance grant paid in a particular fiscal year as described in this section.

   "Memorandum of understanding" means a performance agreement to be entered into by July 31, 2015, by a qualified entity and the Commonwealth setting forth the requirements for capital investment, the creation of new full-time jobs, and other criteria that will make the qualified entity eligible for grants under this section.

   "New full-time job" means employment of an indefinite duration in a facility, for which the average annual wage is at least equal to the prevailing average annual wage in an eligible county and for which the standard fringe benefits are provided by the qualified entity, requiring a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of such qualified entity's operations, which "normal year" must consist of at least 48 weeks, or (ii) 1,680 hours per year. Seasonal or temporary positions and positions created when a job function is shifted from an existing location in the Commonwealth shall not qualify as new full-time jobs under this section. Other positions, which may or may not be of indefinite duration, including supplemental employees of affiliates, subsidiaries, joint ventures, contractors, or subcontractors of the qualified entity, may be considered new full-time jobs if designated as such in the memorandum of understanding.

   "Qualified entity" means a for-profit corporation or other entity that is or will be engaged in the manipulation and manufacture of pulp, paper, and fertilizer products and that will commit itself in the memorandum of understanding to (i) make or cause to be made a new capital investment of at least $2 billion on or after July 1, 2014, at a facility; (ii) create or cause to be created, on or after July 1, 2014, at least 2,000 new full-time jobs related to the qualified entity's operations; and (iii) meet the other criteria set forth in the memorandum of understanding.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

2. 1. Any qualified entity shall be eligible to receive a grant each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2016, and ending with the Commonwealth's fiscal year starting on July 1, 2022, unless such time frame is extended in accordance with this section. The grants under this section (i) shall be paid, subject to appropriation by the General Assembly, from a nonreverting fund entitled the Pulp, Paper, and Fertilizer Advanced Manufacturing Performance Grant Program Fund, which Fund is hereby established on the books of the Comptroller; (ii) shall not exceed $20 million in the aggregate; (iii) shall be paid to a qualified entity during each fiscal year contingent upon the qualified entity's meeting the requirements for the creation of new full-time jobs, new capital investment, and other criteria set forth in the memorandum of understanding; and (iv) shall be expended by or for the benefit of the qualified entity on the costs of developing a facility or establishing or maintaining the qualified entity's operations. B. 1.  Any qualified entity shall be eligible to receive a grant each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2016, and ending with the Commonwealth's fiscal year starting on July 1, 2022, unless such time frame is extended in accordance with this section. The grants under this section (i) shall be paid, subject to appropriation by the General Assembly, from a nonreverting fund entitled the Pulp, Paper, and Fertilizer Advanced Manufacturing Performance Grant Program Fund, which Fund is hereby established on the books of the Comptroller; (ii) shall not exceed $20 million in the aggregate; (iii) shall be paid to a qualified entity during each fiscal year contingent upon the qualified entity's meeting the requirements for the creation of new full-time jobs, new capital investment, and other criteria set forth in the memorandum of understanding; and (iv) shall be expended by or for the benefit of the qualified entity on the costs of developing a facility or establishing or maintaining the qualified entity's operations.
   2. The amount of the grant to be paid in each fiscal year shall be conditioned upon the qualified entity's meeting the requirements for (i) the aggregate number of new full-time jobs created throughout the calendar year that immediately precedes the beginning of such fiscal year, (ii) the aggregate amount of the capital investment made throughout the calendar year that immediately precedes the beginning of such fiscal year, and (iii) other criteria described in the memorandum of understanding. If the qualified entity has not met the grant requirements set forth in the memorandum of understanding by December 31, 2020, the period of eligibility may be extended for up to three years, provided that the grants paid in any given fiscal year shall not exceed $3 million, plus any amounts deferred in accordance with subsection C or D. Grants shall be paid based upon such requirements as agreed to on or before July 31, 2015, regardless if such memorandum of understanding is later modified, amended, superseded, or otherwise changed.
   3. The aggregate amount of grants that may be awarded in a particular fiscal year shall not exceed the following:
      1. $2 million for the Commonwealth's fiscal year beginning July 1, 2016;
      2. $5 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2017;
      3. $8 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2018;
      4. $11 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2019;
      5. $14 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2020;
      6. $17 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2021; and
      7. $20 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2022.
3. Any qualified entity applying for a grant under this section shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs created and the substantial retention of the same throughout the calendar year that immediately precedes the fiscal year in which the grant is to be paid, (ii) the aggregate amount of the capital investment made and substantially retained as of the last day of the calendar year that immediately precedes the fiscal year in which the grant is to be paid, and (iii) progress toward meeting all other requirements described in the memorandum of understanding. The application and evidence shall be filed with the Secretary in person or by mail no later than April 1 of each year following the calendar year in which the qualified entity meets such aggregate new full-time job requirements, aggregate capital investments, and other requirements described in the memorandum of understanding. Failure to meet the filing deadline shall result in a deferral of a scheduled grant payment set forth in subsection B. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
4. The memorandum of understanding may provide that if a grant payment has been deferred for any reason, including any failure to meet the aggregate capital investment or the aggregate new full-time job requirements or any other requirement set forth in the memorandum of understanding, payment in a subsequent fiscal year for which such requirements have been met for the immediately preceding calendar year (i) shall include both the deferred payment and the scheduled grant payment as provided in subsection B or (ii) that a proportional payment be made, based on the proportional share of the required capital investment, new additional full-time jobs, or other applicable criteria.
5. As a condition of receipt of a grant, a qualified entity shall make available to the Secretary for inspection upon his request relevant and applicable documents to determine whether the qualified entity has met the requirements for the receipt of grants as set forth in this section and the memorandum of understanding. The Comptroller shall not draw any warrants to issue checks for the grant program under this section without a specific appropriation for the same. All such documents appropriately identified by the qualified entity shall be considered confidential and proprietary.

   (2015, c. 207.)

§ 59.1-284.29. Advanced Shipbuilding Production Facility Grant Program.

1. As used in this section:

   "Advanced shipbuilding" means (i) the manufacture, construction, assembly, overhaul, repair, and testing of nuclear vessels and submarines for the United States Navy; (ii) the design or development of nuclear vessels and submarines for the United States Navy; or (iii) the manufacturing activities of a private company described under 2007 index number 336611 of the North American Industry Classification System.

   "Capital investment" means an investment in real property, tangible personal property, or both, within the eligible city.

   "Eligible city" means the City of Newport News or its industrial development authority.

   "Foundry" means a facility and equipment used to cast metal components used in advanced shipbuilding.

   "Grant" means the advanced shipbuilding production facility grant as described in this section.

   "Memorandum of understanding" means a performance agreement entered into on or before August 31, 2016, among a qualified shipbuilder, the Commonwealth, and others as appropriate, such as the eligible city, setting forth the requirements for capital investment and the creation of new full-time jobs that will make the qualified shipbuilder eligible for a grant under this section.

   "New full-time job" means employment of an indefinite duration in an eligible city, and engaged in the construction of a class of vessel or submarine not being built in that eligible city prior to January 1, 2016, for which the average annual wage is at least equal to the prevailing average annual wage in that eligible city and for which the standard fringe benefits are paid by the qualified shipbuilder, requiring a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of such qualified shipbuilder's operations, which "normal year" must consist of at least 48 weeks, or (ii) 1,680 hours per year. Seasonal or temporary positions and positions created when a job function is shifted from an existing location in the Commonwealth shall not qualify as new full-time jobs under this section. Other positions, which may or may not be of indefinite duration, including supplemental employees of affiliates, subsidiaries, joint ventures, contractors, or subcontractors of the qualified shipbuilder, may be considered new full-time jobs if designated as such in the memorandum of understanding between such qualified shipbuilder, the Commonwealth, and others.

   "New production facility" means a facility or equipment that, pursuant to a memorandum of understanding with the Secretary, is constructed or purchased after January 1, 2016, and operated by the qualified shipbuilder for use in the construction of or manufacture of components for a class of nuclear vessels or submarines not being built in that eligible city as of January 1, 2016. Such new production facility may be owned by the qualified shipbuilder or may be operated by the qualified shipbuilder through a lease agreement with the eligible city or a local industrial development authority.

   "Qualified shipbuilder" means a shipbuilder located in an eligible city that (i) makes a new capital investment of at least $750 million from January 1, 2015, through December 31, 2020, related to advanced shipbuilding in an eligible city; (ii) creates at least 1,000 new full-time jobs in an eligible city for advanced shipbuilding or activities ancillary to or supportive of advanced shipbuilding; and (iii) builds a new production facility.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

2. Any qualified shipbuilder located in an eligible city or the eligible city shall be eligible to receive a grant each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2020, and ending with the Commonwealth's fiscal year starting on July 1, 2024, unless such time frame is extended in accordance with subsection C or D. The grants under this section (i) shall be paid, subject to appropriation by the General Assembly, from the fund entitled the Advanced Shipbuilding Production Facility Grant Fund established in subsection G; (ii) shall not exceed $40 million in the aggregate; (iii) shall be paid to a qualified shipbuilder or eligible city during each fiscal year contingent upon the qualified shipbuilder's meeting the requirements for the aggregate of (a) number of new full-time jobs created and the substantial retention of the same and (b) amount of the capital investment made, as set forth in the memorandum of understanding; and (iv) shall be expended by the qualified shipbuilder or the eligible city on the capital or lease cost of a new production facility or a new or existing foundry.
   1. The amount of the grant to be paid in each fiscal year shall be conditional upon the qualified shipbuilder's meeting the requirements for (i) the aggregate number of new full-time jobs created and the substantial retention of the same throughout the calendar year that immediately precedes the beginning of such fiscal year and (ii) the aggregate amount of the capital investment made as of the last day of the calendar year that immediately precedes the beginning of such fiscal year. If the qualified shipbuilder has not fully met the grant requirements by December 31, 2020, the period of eligibility may be extended for up to three years, provided that the grants in any given fiscal year shall not exceed $8 million, plus any amounts deferred in accordance with subsection C or D.
   2. The aggregate amount of grants that may be awarded in a particular fiscal year shall not exceed the following:
      1. $8 million for the Commonwealth's fiscal year beginning July 1, 2020;
      2. $16 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2021;
      3. $24 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2022;
      4. $32 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2023; and
      5. $40 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2024.
3. Any qualified shipbuilder or eligible city applying for a grant under this section shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs created and the substantial retention of the same throughout the calendar year that immediately precedes the beginning of the fiscal year in which the grant is to be paid and (ii) the aggregate amount of the capital investment made as of the last day of the calendar year that immediately precedes the beginning of the fiscal year in which the grant is to be paid. The application and evidence shall be filed with the Secretary in person or by mail no later than April 1 each year following the calendar year in which the qualified shipbuilder meets such aggregate new full-time job requirements and aggregate capital investments. Failure to meet the filing deadline shall result in a deferral of a scheduled grant payment set forth in subsection B. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
4. The memorandum of understanding may provide that if a grant payment has been deferred for any reason, including the initial failure to meet the aggregate capital investment or the aggregate new full-time job requirements set forth in the memorandum of understanding or the occurrence of any substantial reduction in such new full-time job requirements after such requirements have been met but before the grant payment has been made, payment in a subsequent fiscal year for which such requirements have been met for the immediately preceding calendar year shall include both the deferred payment and the scheduled grant payment as provided in subsection B or that a proportional payment, based on the proportional share of the required additional full-time jobs, be made.
5. The memorandum of understanding may also provide that a shipbuilder or eligible city that has qualified for and received grants under § 59.1-284.23 may qualify for up to a separate and additional $6 million in one or more grants payable after July 1, 2016, but before July 1, 2022, to be used in the construction, lease, expansion, or renovation of a foundry in the eligible city. The memorandum of understanding shall require that the total amount of grants received pursuant to this subsection shall not exceed 25 percent of the total cost of improvements needed to meet standards for making castings for the construction of a class of vessel or submarine not being built in that eligible city prior to January 1, 2016, and that those standards are subsequently met. The memorandum of understanding may also set forth requirements for certain employment levels at the foundry. For clarification, such grants are not included in and shall not be subject to the overall limitation of the aggregate grant amount set forth in subsection B.
6. As a condition of receipt of a grant, a qualified shipbuilder shall make available to the Secretary or his designee for inspection upon his request relevant and applicable documents to determine whether the qualified shipbuilder has met the requirements for the receipt of grants as set forth in this section and subject to the memorandum of understanding. The Comptroller shall not draw any warrants to issue checks for the grant program under this section without a specific appropriation for the same. All such documents appropriately identified by the qualified shipbuilder shall be considered confidential and proprietary.
7. There is hereby created in the state treasury a special nonreverting fund to be known as the Advanced Shipbuilding Production Facility Grant Fund (the Fund). The Fund shall be established on the books of the Comptroller. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used for the purposes stated in this section.

   (2016, c. 723; 2019, cc. 36, 114.)

The 2019 amendments. - The 2019 amendments by cc. 36 and 114 are identical, and in subsection B, substituted "2020" for "2022" and "2024" for "2026" in the first sentence; in subdivision B 2 a, substituted "2020" for "2022"; in subdivision B 2 b, substituted "2021" for "2023"; in subdivision B 2 c, substituted "2022" for "2024"; in subdivision B 2 e, substituted "2023" for "2025"; and in subdivision B 2 e, substituted "2024" for "2026."

§ 59.1-284.30. Special Workforce Grant Fund created.

1. As used in this section, unless the context requires a different meaning:

   "Capital investment" means an investment on or after May 1, 2017, in real property, tangible personal property, or both, at a facility within an eligible county that has been capitalized or is subject to being capitalized. "Capital investment" may include (i) a capital expenditure related to a leasehold interest in real property; (ii) the purchase or lease of furniture, fixtures, machinery, and equipment, including under an operating lease; and (iii) necessary changes to facilities to accommodate specific business needs and tenant improvements made by or on behalf of the qualified company.

   "Eligible county" means Fairfax County.

   "Facility" means the building, group of buildings, or corporate campus, including any related machinery, furniture, fixtures, and equipment, that is owned, leased, licensed, occupied, or otherwise operated by the qualified company for use in the administration, management, and operation of its business.

   "Fund" means the Special Workforce Grant Fund.

   "Grant" means a grant from the Special Workforce Grant Fund awarded to a qualified company for up to $5,600 per new full-time job, and $25,000 per $1 million of capital investment, not to exceed a total aggregate award of $10.5 million. Grants are intended to pay or to reimburse the qualified company for the costs of workforce development, workforce recruitment, and instructional or training purposes. The qualified company may use the award for any lawful purpose.

   "Memorandum of understanding" means a performance agreement or related document entered into on or before August 1, 2018, between a qualified company and the Commonwealth that sets forth the requirements for capital investment and the creation of new full-time jobs for the qualified company to be eligible for a grant from the Fund.

   "New full-time job" means employment of an indefinite duration at the facility for which wages and standard fringe benefits are paid, for which the annual average wage is at least equal to the prevailing average wage of the eligible county, and requiring a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of the employer's operations, which "normal year" must consist of at least 48 weeks, or (ii) 1,680 hours per year. A new full-time job shall be a job position in which an employee, an employee of an employee leasing company, or a combination of such employees work at the facility. Seasonal or temporary positions and positions created when a job function is shifted from an existing location in the Commonwealth shall not qualify as new full-time jobs under this section. Other positions, which may or may not be of indefinite duration, including supplemental employees of affiliates, joint ventures, contractors, or subcontractors of the qualified company, may be considered new full-time jobs if designated as such in a memorandum of understanding. "New full-time job" does not include any existing full-time positions at the facility prior to May 1, 2017. The Commonwealth may gauge compliance with the new full-time jobs requirements for the qualified company by reference to the new payroll generated by a qualified company, as indicated in a memorandum of understanding.

   "Qualified company" means an e-commerce company, including its affiliates, that between May 1, 2017, and December 31, 2022, is expected to (i) make a capital investment at a facility of at least $84 million and (ii) create at least 1,500 new full-time jobs at the facility related to, or supportive of, its e-commerce business.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

2. There is hereby created in the state treasury a special nonreverting fund to be known as the Special Workforce Grant Fund. The Fund shall be established on the books of the Comptroller. All funds appropriated for such Fund shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purpose to pay grants. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller pursuant to subsection F.
3. A qualified company shall be eligible to receive grants each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2021, and ending with the Commonwealth's fiscal year starting on July 1, 2026, unless such timeframe is extended in accordance with the memorandum of understanding. The grants under this section shall be paid to the qualified company from the Fund, subject to appropriation by the General Assembly, during each such fiscal year, contingent upon the qualified company's meeting the requirements set forth in the memorandum of understanding for the number of new full-time jobs created and maintained and the amount of capital investment made. No grant shall be awarded until the qualified company has made a preliminary capital investment of at least $20 million and has created at least 600 new full-time jobs, and the amount of the grant that may be awarded in a particular fiscal year shall depend on the amount of capital investment and creation of new full-time jobs created to date.
4. The aggregate amount of grants payable under this section shall be calculated in accordance with the memorandum of understanding, estimated to not exceed the following:
   1. $5.31 million for the Commonwealth's fiscal year beginning July 1, 2021;
   2. $8.21 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2022; and
   3. $10.5 million, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2023.
5. A qualified company applying for a grant under this section shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs created and maintained as of the last day of the calendar year that immediately precedes the beginning of the fiscal year in which the grant installment is to be paid and (ii) the aggregate amount of the capital investment made as of the last day of the calendar year that immediately precedes the beginning of the fiscal year in which the grant installment is to be paid. The application and evidence shall be filed with the Secretary in person, by mail, or as otherwise agreed upon in the memorandum of understanding, by no later than April 1 each year following the end of the prior calendar year upon which the evidence set forth above is based. Failure to meet the filing deadline shall result in a deferral of a scheduled grant installment payment set forth in subsection D. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
6. Within 30 days of receiving the application and evidence pursuant to subsection E, the Secretary shall certify to the Comptroller and the qualified company the amount of grants to which such qualified company is entitled for payment in the following fiscal year. Payment of such grants shall be made by check issued by the State Treasurer on warrant of the Comptroller in the Commonwealth's fiscal year following the submission of such application. The Comptroller shall not draw any warrants to issue checks for the grants under this section without a specific appropriation for the same.
7. As a condition of receipt of the grants, a qualified company shall make available for inspection to the Secretary or his designee, upon request, all documents relevant and applicable to determining whether the qualified company has met the requirements for the receipt of a grant as set forth in this section and subject to the memorandum of understanding. All such documents appropriately identified by the qualified company shall be considered confidential and proprietary.

   (2018, c. 744.)

§ 59.1-284.31. Major Headquarters Workforce Grant Fund.

1. As used in this chapter, unless the context requires a different meaning: "Affiliate" means an entity that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with a qualified company. "Capital investment" means an investment by or on behalf of a qualified company on or after November 1, 2018, in real property, tangible personal property, or both, at a facility that is properly chargeable to a capital account or would be so chargeable with a proper election. "Capital investment" may include (i) a capital expenditure related to a leasehold interest in a property; (ii) the purchase or lease of furniture, fixtures, machinery, and equipment, including under an operating lease; and (iii) building up-fit and tenant improvements made by or on behalf of a qualified company. "Eligible county" means Arlington County. "Facility" means the building, group of buildings, or corporate campus located in the eligible county, including any related machinery, furniture, fixtures, and equipment, that is owned, leased, licensed, occupied, or otherwise operated by a qualified company as a major headquarters facility for use in the administration, management, and operation of its business. "Fund" means the Major Headquarters Workforce Grant Fund. "Grant" means a grant from the Fund awarded to a qualified company in an amount of $22,000 per new full-time job for the first 25,000 new full-time jobs, for a maximum aggregate amount of $550 million, and $15,564 per new full-time job for up to 12,850 additional new full-time jobs, for an additional maximum aggregate amount of $200 million, as calculated in accordance with the memorandum of understanding. The grant is intended to pay or to reimburse the qualified company for the costs of workforce development, workforce recruitment, and workforce instruction or training. The qualified company may use the proceeds of the grant for any lawful purpose, including but not limited to those outlined in subsection D of § 2.2-115 . "Memorandum of understanding" means the memorandum of understanding entered into on or about November 12, 2018, among a qualified company, the Commonwealth, and the Virginia Economic Development Partnership Authority that sets forth the requirements for the creation of new full-time jobs for the qualified company to be eligible for grant payments from the Fund. The memorandum of understanding shall contain criteria for the average annual wages for the new full-time jobs to qualify for a grant payment, starting at $150,000 for calendar year 2019 and escalating at 1.5 percent per year. "New full-time job" means a position in which employees of a qualified company are principally located at the facility and are expected to work a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of the employer's operations, which "normal year" must consist of at least 48 weeks, or (ii) 1,680 hours per year. Seasonal or temporary positions shall not qualify as new full-time jobs. A position created when a job function is shifted from an existing location in the Commonwealth shall qualify as a new full-time job if the qualified company certifies that it has hired a new employee to fill substantially the same job at the existing location as that held by the transferred position.

   "Qualified company" means a company, including its affiliates, that between November 1, 2018, and December 31, 2038, is expected to (i) make or cause to be made a capital investment at a facility of at least $2 billion, (ii) create at least 25,000 new full-time jobs, and (iii) potentially create an additional 12,850 jobs.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

2. There is hereby created in the state treasury a special nonreverting fund to be known as the Major Headquarters Workforce Grant Fund. The Fund shall be established on the books of the Comptroller. All funds appropriated for such Fund shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purpose of making grant payments pursuant to this chapter. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller pursuant to subsection F.
3. A qualified company shall be eligible to receive grant payments for each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2023, and ending with the Commonwealth's fiscal year starting on July 1, 2042. The grant payments under this section shall be paid to the qualified company from the Fund, subject to appropriation by the General Assembly, during each such fiscal year, contingent upon the qualified company meeting the requirements for receiving grant payments set forth in the memorandum of understanding.
4. For the first 25,000 new full-time jobs, the aggregate amount of grant payments payable under this chapter shall not exceed $550 million and shall be calculated in accordance with the memorandum of understanding. For the next 12,850 new full-time jobs, the aggregate amount of grant payments payable under this chapter shall not exceed $200 million and shall be calculated in accordance with the memorandum of understanding. The memorandum of understanding shall contain criteria for the average annual wages paid for the new full-time jobs to qualify for a grant payment, and contain other criteria for a new full-time job to qualify for a grant payment. The memorandum of understanding shall contain restrictions on the maximum aggregate amount of grant payments that may be paid to the qualified company through any fiscal year as follows:

   $200 million through fiscal year 2024;

   $300 million through fiscal year 2025;

   $350 million through fiscal year 2026;

   $400 million through fiscal year 2027;

   $450 million through fiscal year 2028;

   $500 million through fiscal year 2029;

   $550 million through fiscal year 2030;

   $600 million through fiscal year 2031;

   $650 million through fiscal year 2032;

   $700 million through fiscal year 2033; and

   $750 million through fiscal year 2034 and later fiscal years.

5. A qualified company applying for a grant payment pursuant to this chapter shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs created and maintained as of the last day of the calendar year that immediately precedes the date of the application and (ii) the average annual wage paid for those new full-time jobs. Similar evidence shall be provided each year until the new full-time jobs become new full-time jobs that qualify for a grant payment. The application and evidence shall be filed with the Secretary in person, by mail, or as otherwise agreed upon in the memorandum of understanding, by no later than April 1 of each year following the end of the calendar year upon which the evidence set forth is based. Failure to meet the filing deadline shall result in a deferral of a scheduled grant payment. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
6. Within 60 days of receiving the application and evidence pursuant to subsection E, the Secretary shall certify to the Comptroller and the qualified company the verification of the information contained in the application and the resulting amount of the grant payments to which the qualified company may be entitled for payment. Such grant payments shall be made by check or electronic payment issued by the State Treasurer on warrant of the Comptroller in the Commonwealth's fourth or later fiscal year following the submission of such application, as provided in the memorandum of understanding. The Comptroller shall not draw any warrants to issue checks or electronic payments for grant payments under this chapter without a specific appropriation for the same.
7. As a condition for the receipt of a grant payment, a qualified company shall make available for inspection to the Secretary, upon request, all documents relevant and applicable to determining whether the qualified company has met the requirements for the receipt of a grant payment as set forth in this chapter and subject to the memorandum of understanding.

   (2019, cc. 1, 482.)

Cross references. - As to the Virginia Economic Development Partnership Act, see § 2.2-2234 et seq.

§ 59.1-284.32. Semiconductor Manufacturing Grant Fund created.

1. As used in this chapter, unless the context requires a different meaning:

   "Capital investment" means an expenditure, or an asset transfer from a different qualified company site outside of the eligible city to a facility within an eligible city, by or on behalf of the qualified company on or after April 1, 2018, in real property, tangible personal property, or both, at a facility within an eligible city that has been capitalized or is subject to being capitalized. "Capital investment" may include (i) the purchase of land and the cost of infrastructure development and land improvements, (ii) a capital expenditure related to a leasehold interest in real property, and (iii) the purchase or lease of furniture, fixtures, machinery, and equipment, including under an operating lease.

   "Eligible city" means the City of Manassas.

   "Facility" means the building, group of buildings, or manufacturing, distribution, and research and development campus, including any related machinery and tools, furniture, fixtures, and equipment, in an eligible city that is owned, leased, licensed, occupied, or otherwise operated by the qualified company for use in the manufacture of, or research and development for, semiconductors and other electronic devices.

   "Fund" means the Semiconductor Manufacturing Grant Fund.

   "Grant" means a grant from the Fund awarded to a qualified company in an aggregate amount of up to $70,000,000. Grant proceeds are intended to be used by the qualified company to pay or reimburse the costs of site preparation and infrastructure related to the facility.

   "Memorandum of understanding" means a performance agreement or related document entered into on or before August 1, 2019, between a qualified company and the Commonwealth that sets forth the requirements for capital investment and the creation of new jobs for the qualified company.

   "New job" means full-time employment at the facility measured at any time following June 30, 2018, for which the annual average wage is at least $92,000, with an escalation factor for each year, that requires a minimum of 38 hours of an employee's time per week for the entire normal year, consisting of at least 48 weeks, of the qualified company's operations. Seasonal or temporary positions and positions created when a job function is shifted from an existing location in the Commonwealth shall not qualify as new jobs. Any new job must be in addition to the baseline number of existing full-time positions at the qualified company's facilities in the eligible city.

   "Qualified company" means a semiconductor manufacturing company, and its affiliates, that manufactures and distributes semiconductors, that between April 1, 2018, and June 30, 2033, is expected to (i) make or cause to be made a capital investment at a facility of at least $2.98 billion; (ii) create and maintain at least 1,106 new jobs at the facility related to, or supportive of, its manufacturing, distribution, and research and development functions; and (iii) establish and operate a research and development facility for research and product development in areas of interest to a semiconductor manufacturer, including research regarding unmanned systems and the "Internet of things."

   "Secretary" means the Secretary of Commerce and Trade or his designee.

2. There is hereby created in the state treasury a nonreverting fund to be known as the Semiconductor Manufacturing Grant Fund. The Fund shall be established on the books of the Comptroller. All funds appropriated to the Fund shall be paid into the state treasury and credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purpose to pay grant installments. Payment of such grant installments shall be made by check issued by the State Treasurer on warrant of the Comptroller. The Comptroller shall not draw any warrants to issue checks for Grant installments under this section without a specific appropriation for the same.
3. Subject to appropriation by the General Assembly, a qualified company shall be eligible to receive grant installments of $50 million in fiscal year 2020 and $20 million in fiscal year 2021. Such grant installments shall be paid to the qualified company from the Fund during each such fiscal year, contingent upon the qualified company's meeting the requirements set forth in the memorandum of understanding to provide security for any potential repayment of the grant, including a cash escrow.
4. A qualified company receiving a grant installment pursuant to this section shall provide evidence, satisfactory to the Secretary, annually of (i) the aggregate number of new jobs created and maintained as of the last day of the fiscal year, the payroll paid by the qualified company during the fiscal year, and the average annual wage of the new jobs in the fiscal year and (ii) the aggregate amount of the capital investment made during the fiscal year, including the extent to which such capital investment was or was not subject to the Virginia Retail Sales and Use Tax (§ 58.1-600 et seq.). The report and evidence shall be filed with the Secretary in person, by mail, or as otherwise agreed upon in the memorandum of understanding, by no later than October 1 each year following the end of the prior fiscal year upon which the evidence is based.
5. The memorandum of understanding shall provide that if any annual report and evidence provided pursuant to subsection D indicates that the qualified company failed to meet certain targets for capital investment that is or is not subject to the Virginia retail sales and use tax, the average annual wage for new jobs, the number of new jobs, or the payroll paid for new jobs, the qualified company may be required to repay the Commonwealth a portion of the grant in an amount that reflects the value of the shortfall in the applicable target.
6. As a condition of receipt and retention of the grant, a qualified company shall make available to the Secretary for inspection all documents relevant and applicable to determining whether the qualified company has met the requirements for the receipt and retention of the grant as set forth herein and subject to the memorandum of understanding. All such documents appropriately identified by the qualified company shall be considered confidential and proprietary, and shall not be subject to disclosure pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). (2019, cc. 34, 41.)

The numbers of this article and section were assigned by the Virginia Code Commission, the numbers in the 2019 acts having been Article 22.12 and § 59.1-284.31 .

§ 59.1-284.33. Truck Manufacturing Grant Fund.

1. As used in this section, unless the context requires a different meaning:

   "Capital investment" means an expenditure or an asset transfer from a site of a qualified company located outside of an eligible county to the facility, by or on behalf of the qualified company, on or after October 1, 2018, in real property, tangible personal property, or both, at a facility located in an eligible county that is properly chargeable to a capital account or would be so chargeable with a proper election. The purchase or lease of furniture; fixtures; business personal property; machinery and tools, including under an operating lease; and expected building expansion and up-fit by or on behalf of a qualified company shall qualify as a capital investment.

   "Eligible county" means the County of Pulaski.

   "Facility" means a truck manufacturing facility to be expanded, equipped, improved, or operated by a qualified company in an eligible county.

   "Fund" means the Truck Manufacturing Grant Fund.

   "Grants" means grants from the Fund awarded to a qualified company, in an aggregate not to exceed $16.5 million, intended to be used to pay or reimburse a qualified company for costs related to construction and renovation of a facility. A qualified company may use the grant payment for any lawful purpose.

   "Memorandum of understanding" means a performance agreement or related document entered into on or before August 1, 2020, by a qualified company, the Commonwealth, and VEDP that sets forth the requirements for capital investments and the creation of new full-time jobs by a qualified company in order for a qualified company to be eligible for grants from the Fund.

   "New full-time job" means a job position, in which position the employee of a qualified company works at a facility, for which the average annual wage is at least equal to the wage required by the memorandum of understanding, and for which a qualified company provides standard fringe benefits. Such position shall require a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of a qualified company's operations, which "normal year" shall consist of at least 48 weeks, or (ii) 1,680 hours per year. Seasonal or temporary positions, and positions created when a job function is shifted from an existing location in the Commonwealth, shall not qualify as new full-time jobs. Other positions, including employees of affiliates and certain suppliers, may be considered new full-time jobs if designated as such in a memorandum of understanding. New full-time jobs shall be in addition to the baseline of 3,219 full-time employees at a facility. The Commonwealth may gauge compliance with the new full-time job requirements for a qualified company by reference to the new payroll generated by a qualified company, as set forth in a memorandum of understanding.

   "Qualified company" means a truck manufacturer, including its affiliates, that engages in truck manufacturing in an eligible county, that between October 1, 2018, and September 30, 2029, is expected to (i) make or cause to be made a capital investment at a facility of at least $397 million, which shall include at least $93.6 million of investments related to the construction or renovation of real property at a facility, and (ii) create at least 777 new full-time jobs related to, or supportive of, its business.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

   "VEDP" means the Virginia Economic Development Partnership Authority.

2. There is hereby created in the state treasury a special nonreverting fund to be known as the Truck Manufacturing Grant Fund. The Fund shall be established on the books of the Comptroller. All funds appropriated to the Fund shall be paid into the state treasury and credited to it. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used to pay grants pursuant to this section. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller pursuant to subsection F.
3. A qualified company shall be eligible to receive grants each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2020, and ending with the Commonwealth's fiscal year starting on July 1, 2029, unless such timeframe is extended in accordance with a memorandum of understanding. Grants paid pursuant to this chapter shall be subject to appropriation by the General Assembly during each such fiscal year, and contingent on a qualified company meeting the requirements set forth in this chapter and the memorandum of understanding for the number of new full-time jobs created and maintained and the amount of capital investment made related to the construction or renovation of a facility. The first grant installment of $2 million shall not be awarded until a qualified company has made a capital investment related to the construction and renovation of a facility of at least $46.8 million and has retained at least 2,700 full-time positions at the facility.
4. The aggregate amount of grants payable under this section shall not exceed $16.5 million. Grants are expected to be paid in 10 annual installments, calculated in accordance with a memorandum of understanding, with the grants that may be awarded in a particular fiscal year not to exceed the following:
   1. $2,000,000 for the Commonwealth's fiscal year beginning July 1, 2020;
   2. $4,000,000, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2021;
   3. $4,300,000, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2022;
   4. $6,042,857, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2023;
   5. $7,785,714, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2024;
   6. $9,528,571, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2025;
   7. $11,271,428, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2026;
   8. $13,014,285, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2027;
   9. $14,757,142, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2028; and
   10. $16,500,000, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2029.
5. A qualified company applying for a grant installment under this section shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs in place in the grant year that immediately precedes the expected date on which the grant installment is to be paid and (ii) the aggregate amount of capital investment, and the capital investment related to the construction and renovation of a facility, made as of the last day of the grant year that immediately precedes the expected date on which the grant installment is to be paid. The application and evidence shall be filed with the Secretary in person, by mail, or as otherwise agreed upon in a memorandum of understanding, by no later than October 31 of each year reflecting performance in and through the prior grant year. Failure to meet the filing deadline shall result in a deferral of a scheduled grant installment payment. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
6. Within 30 days of receiving an application and evidence pursuant to subsection E, the Secretary shall certify to the Comptroller and the qualified company the amount of grants to which such qualified company is entitled for payment. Payment of such grant shall be made by check issued by the State Treasurer on warrant of the Comptroller by the end of the calendar year of the submission of the application and evidence. The Comptroller shall not draw any warrant to issue checks for grants under this chapter without a specific appropriation for the same.
7. As a condition of receipt of grants, a qualified company shall make available to the Secretary for inspection, upon request, of all documents relevant and applicable to determining whether a qualified company has met the requirements for receipt of grants as set forth in this chapter and subject to a memorandum of understanding. All such documents appropriately identified by a qualified company shall be considered confidential and proprietary.

   (2020, cc. 265, 604.)

§ 59.1-284.34. Advanced Production Grant Program and Fund.

1. As used in this section:

   "Capital investment" means an expenditure by or on behalf of a qualified company on or after October 1, 2019, in real property, tangible personal property, or both, at a facility within an eligible county that is properly chargeable to capital account or would be so chargeable with a proper election. The purchase or lease of furniture, fixtures, business personal property, machinery, and equipment, including under an operating lease, and expected building up-fit and improvements by or on behalf of a qualified company shall qualify as capital investment.

   "Eligible county" means the County of Pittsylvania.

   "Facility" means an advanced production and development facility to be purchased, equipped, improved, and operated by the qualified company in the eligible county.

   "Fund" means the Advanced Production Grant Fund created under subsection B.

   "Grants" means grants from the Advanced Production Grant Fund awarded to a qualified company in an aggregate amount not to exceed $7.0 million. A qualified company may use the proceeds of the grants for any lawful purpose.

   "Memorandum of understanding" means a performance agreement or related document entered into on or before August 1, 2020, among a qualified company, the Commonwealth, and VEDP that sets forth the requirements for capital investment and the creation of new full-time jobs for the qualified company to be eligible for grants from the Fund.

   "New full-time job" means a job position in which the employee of the qualified company works at the facility and for which the average annual wage is at least equal to $34,274, the qualified company provides standard fringe benefits, and the position requires a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of the qualified company's operations, which "normal year" must consist of at least 48 weeks, or (ii) 1,680 hours per year. Seasonal or temporary positions, positions created when a job function is shifted from an existing location in the Commonwealth, and positions with construction contractors, vendors, suppliers, and similar multiplier or spin-off jobs shall not qualify as new full-time jobs. The Commonwealth may gauge compliance with the new full-time jobs requirements for a qualified company by reference to the new payroll generated by a qualified company, as indicated in a memorandum of understanding.

   "Qualified company" means a business transportation manufacturer and producer, including its affiliates, that engages in the production of business trucks in the eligible county, that between October 1, 2019, and December 31, 2027, is expected (i) to make or cause to be made a capital investment at a facility of at least $57,837,356 and (ii) to create at least 703 new full-time jobs at the facility related to, or supportive of, its business.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

   "VEDP" means the Virginia Economic Development Partnership Authority.

2. There is hereby created in the state treasury a special nonreverting fund to be known as the Advanced Production Grant Fund, referred to in this section as "the Fund." The Fund shall be established on the books of the Comptroller. All funds appropriated for the Fund shall be paid into the state treasury and credited to it. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used for the purpose to pay grants pursuant to this chapter. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller pursuant to subsection F.
3. A qualified company shall be eligible to receive grants each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2021, and ending with the Commonwealth's fiscal year starting on July 1, 2026, unless such time frame is extended in accordance with the memorandum of understanding. The grants under this section shall be paid to a qualified company from the Fund, subject to appropriation by the General Assembly, during each such fiscal year, contingent upon the qualified company's meeting the requirements set forth in the memorandum of understanding for the number of new full-time jobs created and maintained and the amount of capital investment made and retained. The first grant installment of $500,000 shall not be awarded until the qualified company has made a capital investment of at least $40,800,000 and has created at least 373 new full-time jobs at the facility.
4. The aggregate amount of grants payable under this section shall not exceed $7.0 million, and grants are expected to be paid in six annual installments, calculated in accordance with the memorandum of understanding, with the grants that may be awarded in a particular fiscal year not exceeding the following:
   1. $500,000 for the Commonwealth's fiscal year beginning July 1, 2021;
   2. $1,800,000, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2022;
   3. $3,100,000, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2023;
   4. $4,400,000, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2024;
   5. $5,700,000, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2025; and
   6. $7,000,000, less the total amount of grants previously awarded pursuant to this subsection, for the Commonwealth's fiscal year beginning July 1, 2026.
5. A qualified company applying for a grant installment under this section shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs in place in the calendar year that immediately precedes the expected date on which the grant installment is to be paid and (ii) the aggregate amount of the capital investment made as of the last day of the calendar year that immediately precedes the expected date on which the grant installment is to be paid. The application and evidence shall be filed with the Secretary in person, by mail, or as otherwise agreed upon in the memorandum of understanding by no later than April 1 each year reflecting performance in and through the prior calendar year. Failure to meet the filing deadline shall result in a deferral of a scheduled grant installment payment set forth in subsection D. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
6. Within 60 days of receiving the application and evidence pursuant to subsection E, the Secretary shall certify to the Comptroller and the qualified company the amount of grants to which such qualified company is entitled for payment. Payment of such grants shall be made by check issued by the State Treasurer on warrant of the Comptroller by the September 1 succeeding the submission of such timely filed application. The Comptroller shall not draw any warrants to issue checks for the grants under this section without a specific appropriation for the same.
7. As a condition of receipt of the grants, a qualified company shall make available to the Secretary for inspection, upon request, all documents relevant and applicable to determining whether the qualified company has met the requirements for the receipt of grants as set forth in this section and subject to the memorandum of understanding. All such documents appropriately identified by the qualified company shall be considered confidential and proprietary. (2020, cc. 267, 763, § 59.1-284.33 .)

The number of this chapter was assigned by the Virginia Code Commission, the chapter in Acts 2020, cc. 267 and 763 having been enacted as Chapter 22.14.

The number of this section was assigned by the Virginia Code Commission, the number in Acts 2020, cc. 267 and 763 having been § 59.1-284.33 .

§ 59.1-284.35. Definitions.

1. As used in this section, unless the context requires a different meaning: "Capital investment" means an expenditure by or on behalf of a qualified company on or after March 1, 2019, in real property, tangible personal property, or both, at a facility in an eligible county that is properly chargeable to a capital account or would be so chargeable with a proper election. The purchase or lease of furniture; fixtures; business personal property; machinery and tools, including under an operating lease; and expected building expansion and up-fit by or on behalf of a qualified company shall qualify as capital investment. "Eligible county" means Rockingham County. "Facility" means the building, group of buildings, or corporate campus, including any related machinery and tools, furniture, fixtures, and business personal property, that is located at or near a qualified company's existing operations in an eligible county and is owned, leased, licensed, occupied, or otherwise operated by a qualified company for use in the administration, management, and operation of its business. "Fund" means the Pharmaceutical Manufacturing Grant Fund. "Grants" means grants from the Fund awarded to a qualified company in an aggregate not to exceed $7.5 million, intended to be used to pay or reimburse a qualified company for the costs of workforce recruitment, development, and training, and for stormwater management. A qualified company may use the grant payment for any lawful purpose. "Memorandum of understanding" means a performance agreement or related document entered into on or before August 1, 2020, by a qualified company, the Commonwealth, and VEDP, that sets forth the requirements for capital investment and the creation of new full-time jobs by a qualified company in order for a qualified company to be eligible for grants from the Fund. "New full-time job" means a job position, in which the employee of a qualified company works at a facility, for which the average annual wage is at least $100,000 and the qualified company provides standard fringe benefits. Such position shall require a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of the qualified company's operations, which "normal year" shall consist of at least 48 weeks, or (ii) 1,680 hours per year. Seasonal or temporary positions, and positions created when a job function is shifted from an existing location in the Commonwealth, shall not qualify as new full-time jobs. "New full-time job" shall not include any existing full-time positions at the facility as of March 1, 2019. The Commonwealth may gauge compliance with the new full-time job requirements for a qualified company by reference to the new payroll generated by a qualified company, as indicated in the memorandum of understanding. "Qualified company" means a company, including its affiliates, that engages in pharmaceutical manufacturing in an eligible county and that, between March 1, 2019, and February 28, 2025, is expected to make (i) a capital investment of at least $1 billion and (ii) create at least 152 new full-time jobs related to, or supportive of, its business.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

   "VEDP" means the Virginia Economic Development Partnership Authority.

   (2020, cc. 275, 758, § 59.1-284.33 .)

The number of this chapter was assigned by the Virginia Code Commission, the chapter in Acts 2020, cc. 275 and 758 having been enacted as Chapter 22.14.

The number of this section was assigned by the Virginia Code Commission, the number in Acts 2020, cc. 275 and 758 having been § 59.1-284.33 .

§ 59.1-284.36. Pharmaceutical Manufacturing Grant Fund created.

1. There is hereby created in the state treasury a special nonreverting fund to be known as the Pharmaceutical Manufacturing Grant Fund. The Fund shall be established on the books of the Comptroller. All funds appropriated to the Fund shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used to pay grants pursuant to this section. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller pursuant to subsection E.
2. A qualified company shall be eligible to receive grants each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2020, and ending with the Commonwealth's fiscal year starting on July 1, 2022, unless such timeframe is extended in accordance with a memorandum of understanding. Grants paid pursuant to this section shall be subject to appropriation by the General Assembly during each such fiscal year and are contingent on a qualified company meeting the requirements set forth in this chapter and the memorandum of understanding for the number of new full-time jobs created and maintained and the amount of capital investment made. The first grant payment of $2.5 million shall not be awarded until a qualified company has made a capital investment of at least $420 million and has created at least 85 new full-time jobs.
3. The aggregate amount of grants payable under this section shall not exceed $7.5 million and such grants are expected to be paid in three annual installments of $2.5 million each, calculated in accordance with a memorandum of understanding as follows:
   1. $2.5 million for the Commonwealth's fiscal year beginning July 1, 2020;
   2. $2.5 million for the Commonwealth's fiscal year beginning July 1, 2021; and
   3. $2.5 million for the Commonwealth's fiscal year beginning July 1, 2022.
4. A qualified company applying for a grant installment under this section shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs created and maintained as of the last day of February in the fiscal year that immediately precedes the fiscal year in which the grant installment is to be paid and (ii) the aggregate amount of capital investment made as of the last day of February in the fiscal year that immediately precedes the fiscal year in which the grant installment is to be paid. The application and evidence shall be filed with the Secretary in person, by mail, or as otherwise agreed upon in a memorandum of understanding no later than June 1 each year reflecting performance through the last day of the prior February. Failure to meet the filing deadline shall result in a deferral of a scheduled grant installment payment set forth in subsection C. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
5. Within 60 days of receiving an application and evidence pursuant to subsection D, the Secretary shall certify to the Comptroller and the qualified company the amount of grants to which such qualified company is entitled for payment. Payment of such grants shall be made by check issued by the State Treasurer on warrant of the Comptroller in the Commonwealth's fiscal year following the submission of an application. The Comptroller shall not draw any warrant to issue checks for grants without a specific appropriation for the same.
6. As a condition of receipt of grants under this section, a qualified company shall make available to the Secretary for inspection, upon request, all documents relevant and applicable to determining whether the qualified company has met the requirements for receipt of a grant as set forth in this section and subject to a memorandum of understanding. All such documents appropriately identified by a qualified company shall be considered confidential and proprietary. (2020, cc. 275, 758, § 59.1-284.34 .)

The number of this section was assigned by the Virginia Code Commission, the number in Acts 2020, cc. 275 and 758 having been § 59.1-284.34 .

§ 59.1-284.37. Resources for public institutions of higher education.

1. To support the needs of a qualified company, and other manufacturers and companies engaged in research and development in and near a qualified county, up to $2,525,000 shall be made available to a comprehensive community college and a baccalaureate public institution of higher education in or near an eligible county. Subject to appropriation, such funds are expected to be available in the Commonwealth's fiscal years beginning July 1, 2020, through July 1, 2024, as follows:
   1. $730,000 for the Commonwealth's fiscal year beginning July 1, 2020;
   2. $493,750 for the Commonwealth's fiscal year beginning July 1, 2021;
   3. $493,750 for the Commonwealth's fiscal year beginning July 1, 2022;
   4. $493,750 for the Commonwealth's fiscal year beginning July 1, 2023; and
   5. $313,750 for the Commonwealth's fiscal year beginning July 1, 2024.
2. Funds awarded pursuant to this section shall be used for (i) enhanced soft-skilled training; (ii) collaboration to ensure an effective workforce development program; (iii) equipment, maintenance, and personnel needs for bioscience training and education; and (iv) increased educational opportunities in science, technology, engineering, and math.
3. Decisions regarding the application and awarding of funds shall be determined annually by the Secretary of Commerce and Trade, upon the recommendation of the President and Chief Executive Officer of VEDP, the Chancellor of the Virginia Community College System or his designee, and the Director of the State Council of Higher Education for Virginia or his designee. Such officials may request from applicant institutions, and base decisions upon, annual reports from such institutions setting forth proposals regarding how such funds would be spent and reviewing how awarded funds have been spent. (2020, cc. 275, 758, § 59.1-284.35 .)

The number of this section was assigned by the Virginia Code Commission, the number in Acts 2020, cc. 275 and 758 having been § 59.1-284.35 .

§ 59.1-284.38. Technology Development Grant Fund.

1. As used in this chapter, unless the context requires a different meaning:

   "Capital investment" means an expenditure by or on behalf of a qualified company on or after January 1, 2020, in real property, tangible personal property, or both, at a facility located in an eligible county that is properly chargeable to a capital account or would be so chargeable with a proper election. The purchase or lease of machinery and tools, furniture, fixtures, and business personal property, including under an operating lease, and expected building expansion and up-fit by or on behalf of the qualified company shall qualify as capital investment.

   "Eligible county" means Fairfax County.

   "Facility" means the building, group of buildings, or corporate campus, including any related machinery and tools, furniture, fixtures, and business personal property, located in an eligible county, that is owned, leased, licensed, occupied, or otherwise operated by a qualified company for use in the administration, management, and operation of its business, including software development and technology research and development.

   "Fund" means the Technology Development Grant Fund.

   "Grants" means grants from the Fund awarded to a qualified company in an aggregate amount not to exceed $22.5 million.

   "Memorandum of understanding" means a performance agreement or related document entered into on or before August 1, 2020, among a qualified company, the Commonwealth, and VEDP that sets forth the requirements for capital investment and the creation of new full-time jobs for the qualified company to be eligible for grants from the Fund.

   "New full-time job" means a job position, in which the employee of the qualified company works at the facility, for which the standard fringe benefits are provided by the company and for which the average annual wage is at least $112,215. Each such position shall require a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of the qualified company's operations, which "normal year" shall consist of at least 48 weeks, or (ii) 1,680 hours per year. Seasonal or temporary positions, positions created when a job function is shifted from an existing location in the Commonwealth, unless the position in the existing location is backfilled, and positions with construction contractors, vendors, suppliers, and similar multiplier or spin-off jobs shall not qualify as new full-time jobs. The Commonwealth may gauge compliance with the new full-time jobs requirement for a qualified company by reference to the new payroll generated by the qualified company, as indicated in the memorandum of understanding.

   "Qualified company" means a technology company, including its affiliates, that between January 1, 2020, and June 30, 2025, is expected to (i) make a capital investment at a facility of at least $64 million and (ii) create at least 1,500 new full-time jobs at the facility related to, or supportive of, its business.

   "Secretary" means the Secretary of Commerce and Trade.

   "VEDP" means the Virginia Economic Development Partnership Authority.

2. There is hereby created in the state treasury a special nonreverting fund to be known as the Technology Development Grant Fund. The Fund shall be established on the books of the Comptroller. All funds appropriated for such Fund shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely to pay grants pursuant to this chapter. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller pursuant to subsection F.
3. A qualified company shall be eligible to receive grants each fiscal year beginning with the Commonwealth's fiscal year starting on July 1, 2021, and ending with the Commonwealth's fiscal year starting on July 1, 2026, unless such timeframe is extended in accordance with the memorandum of understanding. Grants shall be paid to the qualified company from the Fund, subject to appropriation by the General Assembly, during each such fiscal year, contingent upon the qualified company's meeting the requirements set forth in the memorandum of understanding for the number of new full-time jobs created and maintained and the amount of capital investment made. The first grant installment of $5,625,000 shall not be awarded until the qualified company has made a capital investment of at least $19,260,000 and has created at least 500 new full-time jobs.
4. The aggregate amount of grants payable under this section shall not exceed $22.5 million, and grants are expected to be paid in four annual installments of $5,625,000 each, calculated in accordance with the memorandum of understanding as follows:
   1. $5,625,000 for the Commonwealth's fiscal year beginning July 1, 2021;
   2. $5,625,000 for the Commonwealth's fiscal year beginning July 1, 2022;
   3. $5,625,000 for the Commonwealth's fiscal year beginning July 1, 2023; and
   4. $5,625,000 for the Commonwealth's fiscal year beginning July 1, 2024.
5. A qualified company applying for a grant installment pursuant to this chapter shall provide evidence, satisfactory to the Secretary, of (i) the aggregate number of new full-time jobs created and maintained in the calendar year that immediately precedes the beginning of the fiscal year in which the grant installment is to be paid; (ii) the aggregate number of existing jobs maintained in certain other facilities operated by the qualified company in the calendar year that immediately precedes the beginning of the fiscal year in which the grant installment is to be paid; and (iii) the aggregate amount of the capital investment made through the calendar year that immediately precedes the beginning of the fiscal year in which the grant installment is to be paid. The application and evidence shall be filed with the Secretary in person, by mail, or as otherwise agreed upon in the memorandum of understanding, by no later than April 1 of each year, reflecting performance through the prior December 31. Failure to meet the filing deadline shall result in a deferral of a scheduled grant installment set forth in subsection D. For filings by mail, the postmark cancellation shall govern the date of the filing determination.
6. Within 60 days of receiving the application and evidence pursuant to subsection E, the Secretary shall certify to the Comptroller and the qualified company the amount of grants to which the qualified company is entitled for payment. Such grants shall be paid by the State Treasurer on warrant of the Comptroller in the Commonwealth's fiscal year following submission of such application. The Comptroller shall not draw any warrants for payment of grants pursuant to this chapter without a specific appropriation for the same.
7. As a condition of receipt of the grants, a qualified company shall make available to the Secretary for inspection, upon request, all documents relevant and applicable to determining whether the qualified company has met the requirements for receipt of grants as set forth in this chapter and subject to the memorandum of understanding. All such documents appropriately identified by the qualified company shall be considered confidential and proprietary.

   (2021, Sp. Sess. I, c. 271.)

Effective date. - This section is effective July 1, 2021.

§ 59.1-284.39. Shipping and Logistics Headquarters Grant Program.

1. As used in this chapter, unless the context requires a different meaning:

   "Capital investment" means an expenditure within an eligible locality, by or on behalf of a qualified company on or after January 1, 2021, in real property, tangible personal property, or both, at one of the facilities within an eligible locality that has been capitalized or is subject to being capitalized. "Capital investment" may include (i) the purchase of land and buildings and the cost of infrastructure development and land improvements; (ii) a capital expenditure related to a leasehold interest in real property; and (iii) the purchase or lease of furniture, fixtures, machinery, and equipment, including under an operating lease.

   "Eligible locality" means the City of Chesapeake, the City of Norfolk, or the County of Arlington.

   "Facilities" means the buildings, group of buildings, or campus, including any related furniture, fixtures, equipment, and business personal property, in an eligible locality that is owned, leased, licensed, occupied, or otherwise operated by or on behalf of a qualified company for use as a headquarters facility, a customer care center, or a research and development innovation center in the furtherance of its shipping and logistics business.

   "Fund" means the Shipping and Logistics Headquarters Grant Fund.

   "Grant" means a grant from the Fund awarded to a qualified company in an aggregate amount of up to $9.5 million. Grant proceeds are intended to be used by the qualified company to pay or reimburse costs associated with constructing, renovating, acquiring, and staffing the facilities.

   "Memorandum of understanding" means a performance agreement or related document entered into on or before August 1, 2021, between a qualified company and the Commonwealth that sets forth the requirements for capital investment and the creation of new jobs for the qualified company.

   "New job" means full-time employment at or associated with any of the facilities measured at any time after January 1, 2021, for which the annual average wage is at least $56,713 for a position in the City of Norfolk or the City of Chesapeake or at least $99,385 for a position in the County of Arlington, that requires a minimum of 38 hours of an employee's time per week for the entire normal year, consisting of at least 48 weeks, of the qualified company's operations. Seasonal or temporary positions and positions created when a job function is shifted from an existing location in the Commonwealth shall not qualify as new jobs. Any new job shall be in addition to the baseline number of existing full-time positions at the qualified company's facilities, to be set forth in the memorandum of understanding.

   "Qualified company" means a shipping and logistics company, and its affiliates, that between January 1, 2021, and December 31, 2030, is expected to (i) retain its North American headquarters operations in the City of Norfolk; (ii) make or cause to be made a capital investment at one or more of the facilities of at least $36 million; (iii) create and maintain at least 415 new jobs at or associated with the facilities related to, or supportive of, its shipping and logistics business functions; and (iv) establish and operate a research and development innovation center.

   "Secretary" means the Secretary of Commerce and Trade or his designee.

2. There is hereby created in the state treasury a nonreverting fund to be known as the Shipping and Logistics Headquarters Grant Fund. The Fund shall be established on the books of the Comptroller. All funds appropriated to the Fund shall be paid into the state treasury and credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purpose to pay grant installments pursuant to this chapter. Payment of such grant installments shall be made by check issued by the State Treasurer on warrant of the Comptroller. The Comptroller shall not draw any warrants to issue checks for grant installments under this section without a specific appropriation for the same.
3. Subject to appropriation by the General Assembly, a qualified company shall be eligible to receive grant installments of $6.33 million in fiscal year 2022 and $3.17 million in fiscal year 2023. Such grant installments shall be paid to the qualified company from the Fund during each such fiscal year, contingent upon the qualified company's meeting the requirements set forth in the memorandum of understanding to provide security for any potential repayment of the grant, including a cash escrow.
4. A qualified company receiving a grant installment pursuant to this section shall provide evidence, satisfactory to the Secretary, annually of, for each facility: (i) the aggregate number of new jobs created and maintained as of the last day of the calendar year, the payroll paid by the qualified company during the calendar year, and the average annual wage of the new jobs in the calendar year and (ii) the aggregate amount of the capital investment made during the calendar year, including the extent to which such capital investment was or was not subject to the Virginia Retail Sales and Use Tax Act (§ 58.1-600 et seq.). The report and evidence shall be filed with the Secretary in person, by mail, or as otherwise agreed upon in the memorandum of understanding, by no later than April 1 each year following the end of the prior calendar year upon which the evidence is based.
5. The memorandum of understanding shall provide that if any annual report and evidence provided pursuant to subsection D indicates that the qualified company failed to meet certain targets for capital investment that is or is not subject to the Virginia Retail Sales and Use Tax Act (§ 58.1-600 et seq.), the average annual wage for new jobs, or the number of new jobs, the qualified company may be required to repay the Commonwealth a portion of the grant in an amount that reflects the value of the shortfall in the applicable target.
6. As a condition of receipt and retention of the grant, a qualified company shall make available to the Secretary for inspection all documents relevant and applicable to determining whether the qualified company has met the requirements for the receipt and retention of the grant as set forth herein and subject to the memorandum of understanding. All such documents appropriately identified by the qualified company shall be considered confidential and proprietary, and shall not be subject to disclosure pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). (2021, Sp. Sess. I, c. 434.)

The number of this chapter and section were assigned by the Virginia Code Commission, the numbers in the 2021 Sp. Sess. act having been Chapter 22.17 ( § 59.1-284.38 ).

Effective date. - This section is effective July 1, 2021.

§§ 59.1-285 through 59.1-293.

Repealed by Acts 1986, c. 424.

§§ 59.1-293.1 through 59.1-293.9.

Repealed by Acts 2014, cc. 370 and 418, cl. 2.

Cross references. - For current provisions pertaining to reduced cigarette ignition propensity, see § 9.1-209 et seq.

Editor's note. - Former Chapter 23.1 ( §§ 59.1-293.1 through 59.1-293.9) of Title 59.1, pertaining to reduced cigarette ignition propensity, was enacted by 2008, cc. 96, 348 and amended by 2012, cc. 66, 195.

§ 59.1-293.10. Definitions.

As used in this chapter, unless the context requires another meaning:

"Child-resistant packaging" means packaging that is designed or constructed to meet the child-resistant effectiveness standards set forth in 16 C.F.R. § 1700.15(b)(1) when tested in accordance with the protocols described in 16 C.F.R. § 1700.20 as in effect on July 1, 2015.

"Liquid nicotine" means a liquid or other substance containing nicotine in any concentration that is sold, marketed, or intended for use in a nicotine vapor product.

"Liquid nicotine container" means a bottle or other container holding liquid nicotine in any concentration but does not include a cartridge containing liquid nicotine if such cartridge is prefilled and sealed by the manufacturer of such cartridge and is not intended to be opened by the consumer.

"Nicotine vapor product" has the same meaning as in § 18.2-371.2 .

(2015, cc. 739, 756.)

§ 59.1-293.11. Sale or distribution of liquid nicotine container; prohibition; penalty.

1. No person shall sell or distribute at retail or offer for retail sale or distribution a liquid nicotine container in the Commonwealth on or after October 1, 2015, unless such liquid nicotine container meets child-resistant packaging standards.
2. The requirements of subsection A shall not prohibit a wholesaler or retailer from selling its existing inventory of liquid nicotine until January 1, 2016, if the wholesaler or retailer can establish that the inventory was purchased prior to October 1, 2015, in a quantity comparable to that of the inventory purchased during the same period of the prior year.
3. Any person who sells or distributes at retail or offers for retail sale or distribution a liquid nicotine container in the Commonwealth on or after October 1, 2015, that he knows or has reason to know does not satisfy the child-resistant packaging standards required by this section is guilty of a Class 4 misdemeanor. However, no person shall be guilty of a violation of this section who relies in good faith on any information provided by the manufacturer of a liquid nicotine container that such container meets the requirements of this section.
4. The provisions of this chapter do not apply to any manufacturer or wholesaler of liquid nicotine containers who sells or distributes a liquid nicotine container, provided that any such liquid nicotine container sold or distributed is intended for use outside of the Commonwealth.
5. The provisions of subsection A shall be null, void, and of no force and effect upon the effective date of either enacted federal legislation or final regulations issued by the U.S. Food and Drug Administration or by any other federal agency where such legislation or regulations mandate child-resistant packaging for liquid nicotine containers.

   (2015, cc. 739, 756.)

Cross references. - As to punishment for Class 4 misdemeanors, see § 18.2-11 .

§ 59.1-294. Short title.

This chapter shall be known and may be cited as the "Virginia Health Club Act."

(1984, c. 738; 2014, c. 459.)

The numbers of §§ 59.1-294 through 59.1-310 were assigned by the Virginia Code Commission, the numbers in the 1984 act having been 59.1-285 through 59.1-301 .

The 2014 amendments. - The 2014 amendment by c. 459 substituted "Health Club" for "Health Spa."

§ 59.1-295. Statement of purpose.

The purpose of this chapter is to safeguard the public interest against fraud, deceit, and financial hardship, and to foster and encourage competition, fair dealing and prosperity in the field of health club services by prohibiting false and misleading advertising, and dishonest, deceptive, and unscrupulous practices by which the public has been injured in connection with contracts for health club services.

(1984, c. 738; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" twice.

§ 59.1-296. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Automated external defibrillator" means a device that combines a heart monitor and defibrillator and (i) has been approved by the U.S. Food and Drug Administration; (ii) is capable of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia; (iii) is capable of determining, without intervention by an operator, whether defibrillation should be performed; and (iv) automatically charges and requests delivery of an electrical impulse to an individual's heart upon determining that defibrillation should be performed.

"Business day" means any day except a Sunday or a legal holiday.

"Buyer" means a natural person who enters into a health club contract.

"Commissioner" means the Commissioner of Agriculture and Consumer Services, or a member of his staff to whom he may delegate his duties under this chapter.

"Comparable alternate facility" means a health club facility that is reasonably of like kind, in nature and quality, to the health club facility originally contracted, whether such facility is in the same location but owned or operated by a different health club or is at another location of the same health club.

"Contract price" means the sum of the initiation fee, if any, and all monthly fees except interest required by the health club contract.

"Facility" means a location where health club services are offered as designated in a health club contract.

"Health club" means any person, firm, corporation, organization, club or association whose primary purpose is to engage in the sale of memberships in a program consisting primarily of physical exercise with exercise machines or devices, or whose primary purpose is to engage in the sale of the right or privilege to use exercise machines or devices. The term "health club" shall not include the following: (i) bona fide nonprofit organizations, including, but not limited to, the Young Men's Christian Association, Young Women's Christian Association, or similar organizations whose functions as health clubs are only incidental to their overall functions and purposes; (ii) any private club owned and operated by its members; (iii) any organization primarily operated for the purpose of teaching a particular form of self-defense such as judo or karate; (iv) any facility owned or operated by the United States; (v) any facility owned or operated by the Commonwealth of Virginia or any of its political subdivisions; (vi) any nonprofit public or private school or institution of higher education; (vii) any club providing tennis or swimming facilities located in a residential planned community or subdivision, developed in conjunction with the development of such community or subdivision, and deriving at least 80 percent of its membership from residents of such community or subdivision; and (viii) any facility owned and operated by a private employer exclusively for the benefit of its employees, retirees, and family members and which facility is only incidental to the overall functions and purposes of the employer's business and is operated on a nonprofit basis.

"Health club contract" means an agreement whereby the buyer of health club services purchases, or becomes obligated to purchase, health club services.

"Health club services" means and includes services, privileges, or rights offered for sale or provided by a health club.

"Initiation fee" means a nonrecurring fee charged at or near the beginning of a health club membership, and includes all fees or charges not part of the monthly fee.

"Monthly fee" means the total consideration, including but not limited to, equipment or locker rental, credit check, finance, medical and dietary evaluation, class and training fees, and all other similar fees or charges and interest, but excluding any initiation fee, to be paid by a buyer, divided by the total number of months of health club service use allowed by the buyer's contract, including months or time periods called "free" or "bonus" months or time periods and such months or time periods that are described in any other terms suggesting that they are provided free of charge, which months or time periods are given or contemplated when the contract is initially executed.

"Out of business" means the status of a facility that is permanently closed and for which there is no comparable alternate facility.

"Prepayment" means payment of any consideration for services or the use of facilities made prior to the day on which the services or facilities of the health club are fully open and available for regular use by the members.

"Relocation" means the provision of health club services by the health club that entered into the membership contract at a location other than that designated in the member's contract.

(1984, c. 738; 1985, c. 585; 1986, c. 187; 1990, cc. 392, 433; 1991, c. 149; 1992, c. 102; 2003, c. 344; 2007, c. 683; 2010, c. 439; 2014, c. 459; 2020, c. 628.)

Editor's note. - At the direction of the Virginia Code Commission, "institution of higher education" was substituted for "college or university" in the definition of "Health club" to conform to Acts 2016, c. 588.

The 2003 amendments. - The 2003 amendment by c. 344 inserted the definition of "Comparable alternate facility"; in the definition of "Health spa," substituted "80" for "eighty"; and added the definition of "Relocation."

The 2007 amendments. - The 2007 amendment by c. 683 inserted "the same location through another health spa or at" in the paragraph defining "Comparable alternate facility."

The 2010 amendments. - The 2010 amendment by c. 439, in the definition of "comparable alternate facility," substituted "is reasonably" for "provides health spa services and facilities that are reasonably," "health spa facility" for "services," and "whether such facility is in the same location but owned by a different health spa or is at another location of the same health" for "for at the same location through another health spa or at another location of the health spa"; added the definition of "facility"; in the definition of "health spa," rewrote the first sentence, which formerly read: " 'Health spa' means and includes any person, firm, corporation, organization, club or association engaged in the sale of memberships in a program of physical exercise, which included the use of one or more of a sauna, whirlpool, weight lifting room, massage, steam room, or exercising machine device, or engaged in the sale of the right or privilege to use exercise equipment or facilities, such as a sauna, whirlpool, weight lifting room, massage, steam room or exercising machine or device"; and added the definition for "out of business."

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" throughout the section; inserted "or operated" in the definition of "Comparable alternate facility"; and substituted "time periods that" for "time periods which" in the definition of "Monthly fee."

The 2020 amendments. - The 2020 amendment by c. 628, in the introductory language, added "unless the context requires a different meaning"; and added the definition for "Automated external defibrillator."

Michie's Jurisprudence. - For related discussion, see 9A M.J. Health and Sanitation, § 1.

§ 59.1-296.1. Registration; fees.

1. It shall be unlawful for any health club to offer, advertise, or execute or cause to be executed by the buyer any health club contract in this Commonwealth unless each facility of the health club has been properly registered with the Commissioner at the time of the offer, advertisement, sale or execution of a health club contract. The registration shall (i) disclose the address, ownership, date of first sales and date of first opening of the facility and such other information as the Commissioner may require consistent with the purposes of this chapter, (ii) be renewed annually on July 1, and (iii) be accompanied by the appropriate registration fee per each annual registration in the amount indicated below:

   Further, it shall be accompanied by a late fee of $50 if the registration renewal is neither postmarked nor received on or before July 1. In the event that a club operates multiple facilities, a $50 late fee for the first facility and $25 for each additional facility shall accompany the registrations. For each successive 30 days after August 1, an additional $25 shall be added for each facility. Each separate facility where health club services are offered shall be considered a separate facility and shall file a separate registration, even though the separate facilities are owned or operated by the same health club.

2. Any health club that sells a health club contract prior to registering pursuant to this section and, if required, submits the appropriate surety required by § 59.1-306 shall pay a late filing fee of $100 for each 30-day period the registration or surety is late. This fee shall be in addition to all other penalties allowed by law.
3. A registration shall be amended within 21 days if there is a change in the information included in the registration.
4. All fees shall be remitted to the State Treasurer and shall be placed to the credit and special fund of the Virginia Department of Agriculture and Consumer Services to be used in the administration of this chapter.

   (1985, c. 585; 1988, c. 13; 1990, cc. 392, 433; 2010, c. 439; 2014, c. 459.)

Number of unexpired Registration fee contracts originally written for more than one month 0 to 250 $200 251 to 500 $300 501 to 2000 $700 2001 or more $800

The 2010 amendments. - The 2010 amendment by c. 439, in subsection A, in the first paragraph, substituted "each facility of the health spa has been properly registered with the Commissioner" for "the health spa," deleted "has been properly registered with the Commissioner" following "health spa contract," substituted "facility" for "health spa," in the second paragraph, substituted "spa operates" for "spa has," "facilities" for "locations" twice, "facility" for "location" three times, "facility" for "health spa" once, and substituted "health spa" for "owner" at the end; and made stylistic changes throughout.

The 2014 amendments. - The 2014 amendment by c. 459 substituted "club" for "spa" throughout the section; and substituted "club that" for "spa which" in subsection B.

§ 59.1-296.2. Contracts sold on prepayment basis.

1. Each health club selling contracts or health club services on a prepayment basis shall notify the Commissioner of the proposed facility for which prepayments will be solicited and shall deposit all funds received from such prepayment contracts in an account established in a financial institution authorized to transact business in the Commonwealth until the health club has commenced operations in the facility and the facility has remained open for a period of 30 days. The account shall be established and maintained only in a financial institution that agrees in writing with the Commissioner to hold all funds deposited and not to release such funds until receipt of written authorization from the Commissioner. The prepayment funds deposited will be eligible for withdrawal by the health club after the facility has been open and providing services pursuant to its health club contracts for 30 days and the Commissioner gives written authorization for withdrawal.
2. The provisions of this section shall not apply to any facility duly registered pursuant to the provisions of § 59.1-296.1 for which a bond or letter of credit in the amount of $100,000 has been posted. (1985, c. 585; 1990, cc. 392, 433; 2010, c. 439; 2014, c. 459.)

The 2010 amendments. - The 2010 amendment by c. 439 designated the existing provisions as subsections A and B and made related changes; in subsection A, substituted "facility" for "location of the spa" and inserted "in the facility" and "the facility" in the first sentence, substituted "facility" for "health spa" in the last sentence; and in subsection B, substituted "facility" for "health spa" and "for which a bond" for "which has posted a bond," inserted "has been posted" at the end; and made minor stylistic changes.

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" throughout the section; and substituted "that" for "which" in the second sentence of subsection A.

§ 59.1-296.2:1. Prepayment contracts; prohibited practices; relocation; refund.

1. No health club shall sell a health club contract on a prepayment basis without disclosing in the contract the date on which the facility shall open. The opening date shall not be later than 12 months from the signing of the contract.
2. No health club shall close or relocate any facility without first giving notice to the Commissioner and conspicuously posting a notice both within and outside each entrance to the facility being closed or relocated of the closing or relocation date. Such notice shall be provided at least 30 days prior to the closing or relocation date. If a relocation is to occur, the Commissioner and the facility's members shall be provided with the address of the specific new facility at the time of this notice.
3. No health club shall knowingly and willfully make any false statement in any registration application, statement, report, or other disclosure required by this chapter.
4. No health club shall refuse or fail, after notice from the Commissioner, to produce for the Commissioner's review any of the health club's books or records required to be maintained by this chapter.
5. Unless it so discloses fully in 10-point bold-faced type or larger on the face of each health club contract, no health club shall sell any health club contract if any owner of the health club, regardless of the extent of his ownership, previously owned in whole or in part a health club that closed for business any facility and failed to:
   1. Refund all moneys due to holders of health club contracts; or
   2. Provide comparable alternate facilities with another health club that agreed in writing to honor all provisions of the health club contracts or at another facility operated by the originally contracting health club.
6. No health club that has failed to provide the Commissioner the appropriate surety pursuant to § 59.1-306 shall sell a health club contract unless that contract contains a statement that reads as follows: "This club is not permitted, pursuant to the Virginia Health Club Act, to accept any initiation fee in excess of $125 or any payment for more than the prorated monthly fee for the month when the contract is initially executed plus one full month in advance." Such disclosure shall be printed in 10-point bold-faced type or larger on the face of each contract. (1990, cc. 392, 433; 1993, c. 686; 2003, c. 344; 2004, c. 988; 2010, c. 439; 2014, c. 459.)

The 2003 amendments. - The 2003 amendment by c. 344, in subsection A, substituted "later than 12" for "in excess of twelve"; in subsection B, deleted "selling health spa contracts" following "No health spa," inserted "and conspicuously posting a notice both within and outside each entrance to the health spa facility being closed or relocated," substituted "30" for "thirty," and inserted "and the health spa facility's members"; in subsection C, deleted "or" following "application"; in subsection D, substituted "the Commissioner's" for "his," and substituted "health spa's" for "organization's"; in subsection E, substituted "shall sell" for "may sell"; in subdivision E 2, substituted "alternate" for "alternative"; and in subsection F, substituted "that has failed" for "failing" and "$75" for "seventy-five dollars."

The 2004 amendments. - The 2004 amendment by c. 988 substituted "$125" for "$75" in the first paragraph of subsection F.

The 2010 amendments. - The 2010 amendment by c. 439, in subsection A, substituted "facility" for "health spa"; in subsection B, inserted "any facility," substituted "facility" for "health spa," deleted "health spa" preceding "facility's members," and substituted "facility" for "location"; in subsection E, substituted "owner of the health spa" for "owner of the spa" and inserted "any facility"; in subdivision E 2, substituted "with another" for "at another" and added "or at another facility operated by the originally contracting health spa"; and made minor stylistic changes.

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" throughout the section.

§ 59.1-296.2:2. Automated external defibrillator required.

Each health club location shall have a working automated external defibrillator.

(2020, c. 628.)

§ 59.1-296.3. Initiation fees.

Whenever a refund is due a buyer, any initiation fee charged by a health club shall be prorated over the life of the contract or 12 months, whichever is greater.

(1985, c. 585; 1990, cc. 392, 433; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" and "12" for "twelve."

§ 59.1-297. Right of cancellation.

1. Every health club contract for the sale of health club services may be cancelled under the following circumstances:
   1. A buyer may cancel the contract without penalty within three business days of its making and, upon notice to the health club of the buyer's intent to cancel, shall be entitled to receive a refund of all moneys paid under the contract.
   2. A buyer may cancel the contract if the facility relocates or goes out of business and the health club fails to provide comparable alternate facilities within five driving miles of the location designated in the health club contract. Upon receipt of notice of the buyer's intent to cancel, the health club shall refund to the buyer funds paid or accepted in payment of the contract in an amount computed as prescribed in § 59.1-297.1 .
   3. The contract may be cancelled if the buyer dies or becomes physically unable to use a substantial portion of the services for 30 or more consecutive days. If the buyer becomes physically unable to use a substantial portion of the services for 30 or more consecutive days and wishes to cancel his contract, he must provide the health club with a signed statement from his doctor, physician assistant, or nurse practitioner verifying that he is physically unable to use a substantial portion of the health club services for 30 or more consecutive days. Upon receipt of notice of the buyer's intent to cancel, the health club shall refund to the buyer funds paid or accepted in payment of the contract in an amount computed as prescribed in § 59.1-297.1 . In the case of disability, the health club may require the buyer to submit to a physical examination by a doctor, physician assistant, or nurse practitioner agreeable to the buyer and the health club within 30 days of receipt of notice of the buyer's intent to cancel. The cost of the examination shall be borne by the health club.
2. The buyer shall notify the health club of cancellation in writing, by certified mail, return receipt requested, or personal delivery, to the address of the health club as specified in the health club contract.
3. If the customer has executed any credit or lien agreement with the health club or its representatives or agents to pay for all or part of health club services, any such negotiable instrument executed by the buyer shall be returned to the buyer within 30 days after such cancellation.
4. If the club agrees to allow a consumer to cancel for any other reason not outlined in this section, upon receipt of notice of cancellation by the buyer, the health club shall refund to the buyer funds paid or accepted in payment of the contract in an amount computed as prescribed in § 59.1-297.1 . (1984, c. 738; 1990, cc. 392, 433; 2003, c. 344; 2004, c. 855; 2006, c. 396; 2010, c. 439; 2014, c. 459.)

Editor's note. - Acts 2004, c. 855, cl. 2 provides: "That this act shall take effect 60 days following the effective date of the regulations promulgated by the Board of Medicine and Board of Nursing required by the third enactment clause of this act." Emergency regulations took effect July 15, 2004.

Acts 2004, c. 855, cl. 3 provides: "That the Board of Medicine and Board of Nursing shall amend regulations governing the licensure of nurse practitioners to be effective within 280 days of enactment of this act. Such amendments shall require inclusion of the nurse practitioner's authority for signatures, certifications, stamps, verifications, affidavits and endorsements in the written protocol between the supervising physician and the nurse practitioner."

The 2003 amendments. - The 2003 amendment by c. 344 rewrote the section.

The 2004 amendments. - The 2004 amendment by c. 855 inserted "or nurse practitioner" in the second and next-to-last sentences of subdivision A 3. For effective date, see Editor's note.

The 2006 amendments. - The 2006 amendment by c. 396 inserted "physician assistant" in the second and fourth sentences in subdivision A 3.

The 2010 amendments. - The 2010 amendment by c. 439, in subdivision A 2, substituted "facility relocates" for "health spa relocates" and inserted "the health spa" near the middle of the first sentence.

The 2014 amendments. - The 2014 amendment by c. 459 substituted "club" for "spa" throughout the section.

Law review. - For 2006 survey article, "Health Care Law," see 41 U. Rich. L. Rev. 179 (2006).

§ 59.1-297.1. Payment and calculation of refunds.

1. All refunds for cancellation of membership shall be paid within 30 days of the health club's receipt of written notice of cancellation by the buyer and calculated by:
   1. Dividing the contract price by the term of the contract in days;
   2. Multiplying the number obtained in subdivision 1 by the number of days between the effective date of the contract and the date of cancellation; and
   3. Subtracting the number obtained in subdivision 2 from the total price paid on the health club contract.
2. In the event of the health club going out of business, the date of cancellation shall be the date the health club ceased providing health club services at the facility.
3. A health club issuing a refund to a buyer under this chapter shall do so within 30 days of the health club receiving a notice of cancellation pursuant to § 59.1-297 , or within 30 days of the permanent closing of the facility designated in the buyer's contract. (2003, c. 344; 2010, c. 439; 2014, c. 459.)

The 2010 amendments. - The 2010 amendment by c. 439, in subsection B, added "at the facility" to the end; and added subsection C.

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" throughout the section.

§ 59.1-297.2. Automatic termination of a health club contract.

A health club contract shall be considered terminated automatically if the designated facility closes permanently and the health club does not provide a comparable alternate facility. A facility closes temporarily if it closes for a reasonable period of time (i) for renovations to all or a portion of the facility, (ii) because the lease for the facility has been canceled, or (iii) because of a fire, or a flood or other act of God, or other cause not within the reasonable control of the health club. If a facility closes temporarily, it shall within 14 days from the time of the temporary closing provide notice of the date it expects to reopen, which date shall be within a reasonable period of time from the time the facility temporarily closes, to the Commissioner and shall conspicuously post such notice both within and outside each entrance to the facility.

(2003, c. 344; 2010, c. 439; 2014, c. 459.)

The 2010 amendments. - The 2010 amendment by c. 439 rewrote the section.

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" throughout the section.

§ 59.1-298. Notice to buyer.

A copy of the executed health club contract shall be delivered to the buyer at the time the contract is executed. All health club contracts shall (i) be in writing, (ii) state the name and physical address of the health club, (iii) be signed by the buyer, (iv) designate the date on which the buyer actually signed the contract, (v) state the starting and expiration dates of the initial membership period, (vi) separately identify any initiation fee, (vii) either in the contract itself or in a separate notice provided to the buyer at the time the contract is executed, notify each buyer that the buyer should attempt to resolve with the health club any complaint the buyer has with the health club, and that the Virginia Department of Agriculture and Consumer Services regulates health clubs in the Commonwealth pursuant to the provisions of the Virginia Health Club Act, and (viii) contain the provisions set forth in § 59.1-297 under a conspicuous caption: "BUYER'S RIGHT TO CANCEL" that shall read substantially as follows: If you wish to cancel this contract, you may cancel by making or delivering written notice to this health club. The notice must say that you do not wish to be bound by the contract and must be delivered or mailed before midnight of the third business day after you sign this contract. The notice must be delivered or mailed to ........................................

(Health club shall insert its name and mailing address.)

If canceled within three business days, you will be entitled to a refund of all moneys paid. You may also cancel this contract if this club goes out of business or relocates and fails to provide comparable alternate facilities within five driving miles of the facility designated in this contract. You may also cancel if you become physically unable to use a substantial portion of the health club services for 30 or more consecutive days, and your estate may cancel in the event of your death. You must prove you are unable to use a substantial portion of the health club services by a doctor's, physician assistant's, or nurse practitioner's certificate, and the health club may also require that you submit to a physical examination, within 30 days of the notice of cancellation, by a doctor, physician assistant, or nurse practitioner agreeable to you and the health club. If you cancel after the three business days, the health club may retain or collect a portion of the contract price equal to the proportionate value of the services or use of facilities you have already received. Any refund due to you shall be paid within 30 days of the effective date of cancellation.

(1984, c. 738; 1990, cc. 392, 433; 2003, c. 344; 2004, c. 855; 2006, c. 396; 2010, c. 439; 2013, c. 24; 2014, c. 459.)

Editor's note. - Acts 2004, c. 855, cl. 2 provides: "That this act shall take effect 60 days following the effective date of the regulations promulgated by the Board of Medicine and Board of Nursing required by the third enactment clause of this act." Emergency regulations took effect July 15, 2004.

Acts 2004, c. 855, cl. 3 provides: "That the Board of Medicine and Board of Nursing shall amend regulations governing the licensure of nurse practitioners to be effective within 280 days of enactment of this act. Such amendments shall require inclusion of the nurse practitioner's authority for signatures, certifications, stamps, verifications, affidavits and endorsements in the written protocol between the supervising physician and the nurse practitioner."

The 2003 amendments. - The 2003 amendment by c. 345 rewrote the introductory paragraph, and in the form, deleted "moves or" preceding "goes out of business," substituted "comparable alternate" for "alternative," inserted "driving" preceding "miles," substituted "physically unable to use a substantial portion of the health spa services for 30 or more consecutive days" for "disabled," substituted "you are unable to use a substantial portion of the health spa services" for "such disability," inserted "within 30 days of the notice of cancellation," and added the last sentence.

The 2004 amendments. - The 2004 amendment by c. 855, in the last paragraph, in the fourth sentence, inserted "or nurse practitioner's" following "by a doctor's" and "or nurse practitioner" following "by a doctor." For effective date, see Editor's note.

The 2006 amendments. - The 2006 amendment by c. 396 inserted "physician assistant's" and "physician assistant" in the fourth sentence of the last paragraph.

The 2010 amendments. - The 2010 amendment by c. 439 substituted "facility" for "location" in the second paragraph of the "BUYER'S RIGHT TO CANCEL" notice.

The 2013 amendments. - The 2013 amendment by c. 24 deleted "Office of Consumer Affairs" following "Agriculture and Consumer Services" in clause (vi) of the second sentence of the first paragraph.

The 2014 amendments. - The 2014 amendment by c. 459 substituted "club" for "spa" throughout the section; and in the introductory paragraph, inserted "state the name and physical address of the health club, (iii)" and made related changes.

§ 59.1-299. Duration of contract.

No health club contract shall have a duration for a period longer than thirty-six months, including any renewal period; however, a health club contract may exceed 36 months provided that:

1. Any initiation fee does not exceed 10 times the initial monthly fee;
2. All payments for health club services, other than the initiation fee, are collected as monthly fees on a monthly basis;
3. After an initial term of not more than 12 months, either party may cancel the health club contract upon not more than 30 days' notice; and
4. The monthly fee is never reduced below 80 percent of the monthly fee at the time the contract is initially executed.

   (1984, c. 738; 1990, cc. 392, 433; 1992, c. 117; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" throughout the section; in the introductory paragraph substituted "36" for "thirty-six"; in subdivision 1 substituted "10" for "ten"; in subdivision 3 substituted "12" for "twelve" and "30" for "thirty"; and in subdivision 4 substituted "80" for "eighty."

§ 59.1-300. Provisions of this chapter not exclusive.

The provisions of this chapter are not exclusive and do not relieve the parties or the contracts subject thereto from compliance with all other applicable provisions of law.

(1984, c. 738.)

§ 59.1-301. Noncomplying contract voidable.

Any health club contract that does not comply with the applicable provisions of this chapter shall be voidable at the option of the buyer.

(1984, c. 738; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" and "that" for "which."

§ 59.1-302. Fraud rendering contract void.

Any health club contract entered into by the buyer upon any false or misleading information, representation, notice, or advertisement of the health club or the health club's agents shall be void and unenforceable.

(1984, c. 738; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" throughout the section.

§ 59.1-303. Waiver of provisions void and unenforceable.

Any waiver by the buyer of the provisions of this chapter shall be deemed contrary to public policy and shall be void and unenforceable.

(1984, c. 738.)

§ 59.1-304. Notice of preservation of buyers' rights.

All health club contracts and any promissory note executed by the buyer in connection therewith shall contain the following provision on the face thereof in at least 10-point, boldface type: NOTICE

ANY HOLDER OF THIS CONTRACT OR NOTE IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

(1984, c. 738; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459, in the first paragraph, substituted "health club" for "health spa" and "10" for "ten."

§ 59.1-305. Prohibition against assignment of health club contract cutting off buyer's right of action or defense against seller; conditions.

Whether or not the health club has complied with the notice requirements of § 59.1-304 , any right of action or defense arising out of a health club contract which the buyer has against the health club, and which would be cut off by assignment, shall not be cut off by assignment of the contract to any third party holder, whether or not the holder acquires the contract in good faith and for value.

(1984, c. 738; 2003, c. 344; 2014, c. 459.)

The 2003 amendments. - The 2003 amendment by c. 344 substituted "59.1-304" for "59.1-295."

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" throughout the section.

§ 59.1-306. Bond or letter of credit required; exception.

1. Every health club, before it enters into a health club contract and accepts any moneys in excess of the prorated monthly fee for the month when the contract is initially executed plus one month's fees or accepts any initiation fee in excess of $125, shall file and maintain with the Commissioner, in form and substance satisfactory to him, a bond with corporate surety, from a company authorized to transact business in the Commonwealth or a letter of credit from a bank insured by the Federal Deposit Insurance Corporation in the amounts indicated below:

   For purposes of calculating the number of applicable unexpired health club contracts when determining the required amount of bond or letter of credit, health club contracts entered into on or after January 1, 2005, with a term that exceeds 13 months shall be counted as multiple health club contracts, such that the number of applicable contracts counted with respect thereto shall equal the total of the number of full years and any partial year in its term. However, this paragraph shall not apply (i) to health club contracts that are payable only on a monthly basis and for which the initiation fee is no more than $250 or (ii) if the number of the health club's contracts in effect with a term that exceeds 13 months is less than 10 percent of the total of its health club contracts.

   The number of applicable unexpired contracts shall be separately calculated for each facility.

   A health club shall file a separate bond or letter of credit with respect to each separate facility, even though the separate facilities are owned or operated by the same health club.

   However, no health club shall be required to file with the Commissioner bonds or letters of credit in excess of $300,000. If the $300,000 limit is applicable, then the bonds or letters of credit filed by the health club shall apply to all facilities owned or operated by the same health club.

2. A health club may sell health club contracts of up to 36 months' duration for a facility for which a health club has not filed a bond or letter of credit so long as the amount of payment actually charged, due or received under the health club contracts each month by the health club or any holder thereunder does not exceed the monthly fee calculated pursuant to the definition thereof in § 59.1-296 , with the exception that the payment actually charged may include a maximum initiation fee of $125 for health club contracts of 13 months or more in duration. (1984, c. 738; 1985, c. 585; 1990, cc. 392, 433; 1992, c. 117; 2004, c. 988; 2010, c. 439; 2014, c. 459.)

Number of Amount of bond applicable contracts or letter of credit 0 to 250 $10,000 251 to 500 $20,000 501 to 750 $30,000 751 to 1000 $40,000 1001 to 1250 $50,000 1251 to 1500 $60,000 1501 to 1750 $70,000 1751 to 2000 $80,000 2001 or more $100,000

The 2004 amendments. - The 2004 amendment by c. 988 twice substituted "$125" for "seventy-five dollars"; inserted the present second paragraph in subsection A; and in subsection B, substituted "36" for "thirty-six" and "13" for "twelve."

The 2010 amendments. - The 2010 amendment by c. 439, in subsection A, in the third paragraph, substituted "facility" for "location where health spa services are offered," in the fourth paragraph, substituted "a health spa shall file" for "each separate location where health spa services are offered shall be considered a separate health spa and shall file," "to each separate facility" for "thereto," "facilities" for "locations," and "health spa" for "owner," in the fifth paragraph, substituted "health spa" for "owner," "the health spa" for "such owner," "facilities" for "health spas," and "same health spa" for "same owner"; and in subsection B, substituted "health spa may sell" for "health spa which has not filed a bond or letter of credit may nevertheless," inserted "for a facility for which a health spa has not filed a bond or letter of credit" and "under the health spa contracts," and substituted "thereunder" for "of its health spa contracts."

The 2014 amendments. - The 2014 amendment by c. 459 substituted "health club" for "health spa" throughout the section and made a minor stylistic change.

§ 59.1-307. Bond or letter of credit; persons protected.

1. The bond or letter of credit required by § 59.1-306 shall be in favor of the Commonwealth for the benefit of (i) any buyer injured by having paid money for health club services in a facility that fails to open by the date provided by the contract, which date shall not be in excess of 12 months from the signing of the contract; (ii) any buyer injured by having paid money for health club services in a facility which goes out of business prior to the expiration of the buyer's health club contract; or (iii) any buyer injured as a result of a violation of this chapter.
2. The aggregate liability of the bond or letter of credit to all persons for all breaches of the conditions of the bond or letter of credit shall in no event exceed the amount of the bond or letter of credit. The bond or letter of credit shall not be cancelled or terminated except with the consent of the Commissioner.

   (1984, c. 738; 1987, c. 547; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459 substituted "club" for "spa" throughout the subsection; and in subsection A, substituted "that" for "which" and "12" for "twelve."

§ 59.1-308. Change in ownership of health club.

For purposes of this chapter, a health club shall be considered a new health club and subject to the requirements of a bond or letter of credit at the time the health club changes ownership. Any health club that has more than 50 percent ownership by the same person or persons shall be considered as owned by the same owner. A change in ownership shall not release, cancel, or terminate liability under any bond or letter of credit previously filed unless the Commissioner agrees in writing to such release, cancellation, or termination because the new owner has filed a new bond or letter of credit for the benefit of the previous owner's members or because the former owner has refunded all unearned payments to its members. Every change in ownership shall be reported in writing to the Commissioner at least 10 days prior to the effective date of the change in ownership.

(1984, c. 738; 1985, c. 585; 1990, cc. 392, 433; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459 substituted "club" for "spa" throughout the section, "that" for "which," "person or persons" for "stockholder(s) and/or partner(s)," and "50" for "fifty" in the second sentence; and substituted "10" for "ten" in the last sentence.

§ 59.1-308.1. Production of records.

Every health club, upon the written request of the Commissioner, shall make available to the Commissioner its prepayment bank account records and all membership contracts for inspection and copying, to enable the Commissioner reasonably to determine compliance with this chapter. Every health club shall maintain a true copy of each health club contract executed between the health club and a buyer. Each contract shall be maintained for its term, including any renewal. Every health club shall maintain the executed health club contracts at a designated location where the contracts may be inspected by the Commissioner. If the location designated by the health club is outside Virginia, the health club shall pay the reasonable travel costs of an inspection by the Commissioner.

(1985, c. 585; 1990, cc. 392, 433; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459 substituted "club" for "spa" throughout the section.

§ 59.1-308.2. Investigations.

1. The Commissioner may:
   1. Make necessary public or private investigations within or without this Commonwealth to determine any violations of the provisions of this chapter or any rule, regulation, or order issued pursuant to this chapter; and
   2. Require or permit any person to file a statement in writing, under oath or otherwise as the Commissioner determines, as to all facts and circumstances concerning the matter under investigation.
2. For the purpose of any investigation or proceeding under this chapter, the Commissioner may administer oaths or affirmations, and upon such motion or upon request of any party, may subpoena witnesses, compel their attendance, take evidence, and require the production of any matter that is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts, or any other matter reasonably calculated to lead to the discovery of material evidence.
3. Any proceeding or hearing of the Commissioner pursuant to this chapter, in which witnesses are subpoenaed and their attendance required for evidence to be taken, or any matter is to be produced to ascertain material evidence, shall take place within the City of Richmond.
4. If any person fails to obey a subpoena or to answer questions propounded by the Commissioner and upon reasonable notice to all persons affected thereby, the Commissioner may apply to the Circuit Court of the City of Richmond for an order compelling compliance.
5. The Board may adopt reasonable regulations to implement the provisions of this chapter and such regulations shall be adopted, amended, or repealed in accordance with the Administrative Process Act, Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2. (1990, cc. 392, 433.)

§ 59.1-309. Enforcement; penalties.

Any violation of the provisions of this chapter shall constitute a prohibited practice pursuant to the provisions of § 59.1-200 and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act (§ 59.1-196 et seq.) of this title.

(1984, c. 738.)

§ 59.1-310. Applicability.

Sections 59.1-297 , 59.1-298 , 59.1-299 , 59.1-304 , and 59.1-305 shall not apply to health club contracts entered into before September 15, 2004.

(1984, c. 738; 2014, c. 459.)

The 2014 amendments. - The 2014 amendment by c. 459 substituted "club" for "spa" and "September 15, 2004" for "the effective date of this chapter."

§ 59.1-310.1. Definitions.

As used in this chapter unless the context requires otherwise:

"Fitzpatrick scale" means the following scale for classifying a skin type, based on the skin's reaction to the first 10 to 45 minutes of sun exposure after the winter season:

Skin Type: Sunburning and Tanning History 1 Always burns easily; never tans 2 Always burns easily; tans minimally 3 Burns moderately; tans gradually 4 Burns minimally; always tans well 5 Rarely burns; tans profusely 6 Never burns; deeply pigmented

"Owner" means a person who owns or operates a tanning facility.

"Person" means an individual, partnership, corporation, limited liability company or association.

"Phototherapy device" means a piece of equipment that emits ultraviolet radiation and that is used by a health care provider in the treatment of a disease.

"Tanning device" means any equipment that emits electromagnetic radiation with wavelengths in the air between 200 and 400 nanometers and that is used for tanning of human skin, including a sunlamp, tanning booth, or tanning bed. The term also includes any accompanying equipment, including protective eyewear, timers, and handrails.

"Tanning facility" means a business that provides persons access to tanning devices.

(1990, c. 776; 2007, c. 575.)

The 2007 amendments. - The 2007 amendment by c. 575 added the definitions of "Fitzpatrick scale" and "Owner"; inserted "limited liability company" in the definition of "Person"; and substituted "provider" for "professional" in the definition of "Phototherapy device."

§ 59.1-310.2. Federal law compliance; application of chapter.

A tanning device utilized by a tanning facility shall comply with all applicable federal laws and regulations. This chapter shall not apply to a phototherapy device used by or under the supervision of a licensed physician trained in the use of phototherapy devices.

(1990, c. 776.)

§ 59.1-310.3. Notice to customers; liability.

1. A tanning facility shall give each customer a written statement warning that:
   1. Failure to use the eye protection provided to the customer by the tanning facility may result in damage to the eyes;
   2. Overexposure to ultraviolet light causes burns;
   3. Repeated exposure may result in premature aging of the skin and skin cancer;
   4. Abnormal skin sensitivity or burning may be caused by reactions of ultraviolet light to certain (i) foods; (ii) cosmetics; or (iii) medications, including tranquilizers, diuretics, antibiotics, high blood pressure medicines, or birth control pills; and
   5. Any person taking a prescription or over-the-counter drug should consult a physician prior to using a tanning device.
2. Prior to allowing a prospective customer to use a tanning device, the owner or his designee shall obtain on the written statement the signature of each customer on a duplicate of the written statement provided to the customer under subsection A.
3. Compliance with the notice requirements does not affect the liability of a tanning facility owner or a manufacturer of a tanning device.
4. The signed duplicates of the written statements provided under subsection A may be retained at a location other than the tanning facility if an electronic or facsimile image of the original is readily available at each of an owner's tanning facilities.

   (1990, c. 776; 2007, c. 575; 2020, c. 387.)

The 2007 amendments. - The 2007 amendment by c. 575 added subsections B and D; and redesignated former subsection B as subsection C and substituted "owner" for "operator" in subsection C.

The 2020 amendments. - The 2020 amendment by c. 387 deleted the last sentence of subsection B, which read: "In addition, the owner or his designee shall obtain, every six months, the signature of the parent or legal guardian of a prospective customer who is under the age of 15 and is not emancipated under Virginia law."

Law review. - For 2007 annual survey article, "Health Care Law," see 42 U. Rich. L. Rev. 441 (2007).

§ 59.1-310.4. Warning signs.

1. A tanning facility shall post a warning sign in a conspicuous location where it is readily readable by persons entering the establishment. The sign shall contain the following warning:      DANGER: ULTRAVIOLET RADIATION            Repeated exposure to ultraviolet radiation may cause chronic sun damage to the skin characterized by wrinkling, dryness, fragility, and bruising of the skin, and skin cancer.           Failure to use protective eyewear may result in severe burns or permanent injury to the eyes.           Medications or cosmetics may increase your sensitivity to ultraviolet radiation. Consult a physician or nurse practitioner before using a sunlamp if you are using medications, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women taking oral contraceptives who use this product may develop discolored skin.      IF YOU DO NOT TAN IN THE SUN, YOU WILL NOT TAN FROM USE OF AN ULTRAVIOLET SUNLAMP.     B.  A tanning facility shall post a warning sign, one sign for each tanning device, in a conspicuous location that is readily readable to a person about to use the device. The sign shall contain the following:      DANGER: ULTRAVIOLET RADIATION           1. Follow the manufacturer's instructions for use of this device.           2. Avoid too frequent or lengthy exposure. As with natural sunlight, exposure can cause serious eye and skin injuries and allergic reactions. Repeated exposure may cause skin cancer.           3. Wear protective eyewear. Failure to use protective eyewear may result in severe burns or permanent damage to the eyes.         4. Do not sunbathe before or after exposure to ultraviolet radiation from sunlamps.           5. Medications or cosmetics may increase your sensitivity to ultraviolet radiation. Consult a physician or nurse practitioner before using a sunlamp if you are using medication, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women using oral contraceptives who use this product may develop discolored skin.      IF YOU DO NOT TAN IN THE SUN, YOU WILL NOT TAN FROM USE OF THIS DEVICE.

   (1990, c. 776; 2004, c. 855.)

Editor's note. - Acts 2004, c. 855, cl. 2 provides: "That this act shall take effect 60 days following the effective date of the regulations promulgated by the Board of Medicine and Board of Nursing required by the third enactment clause of this act." Emergency regulations took effect July 15, 2004.

Acts 2004, c. 855, cl. 3 provides: "That the Board of Medicine and Board of Nursing shall amend regulations governing the licensure of nurse practitioners to be effective within 280 days of enactment of this act. Such amendments shall require inclusion of the nurse practitioner's authority for signatures, certifications, stamps, verifications, affidavits and endorsements in the written protocol between the supervising physician and the nurse practitioner."

The 2004 amendments. - The 2004 amendment by c. 855 inserted "or nurse practitioner" in the next-to-last sentence of the next-to-last paragraph in subsection A; and inserted "or nurse practitioner" in the next-to-last sentence of subdivision B 5.

§ 59.1-310.5. Operational requirements.

1. A tanning facility shall have an operator present during operating hours. The operator shall be sufficiently knowledgeable in the correct operation of the tanning devices used at the facility and shall inform and assist each customer in the proper use of the tanning device.
2. The owner or his designee shall identify the skin type of the customer based on the Fitzpatrick scale, document the skin type of the customer, and advise the customer of the customer's maximum time of recommended exposure in the tanning device.
3. Before each use of a tanning device, the operator shall provide the customer with properly sanitized protective eyewear that protects the eyes from ultraviolet radiation and allows adequate vision to maintain balance. The operator shall not allow a person to use a tanning device if that person has not been provided protective eyewear. The operator shall also instruct each customer how to use suitable physical aids, such as handrails and markings on the floor, to maintain proper exposure distance as recommended by the manufacturer of the tanning device.
4. After each use of a tanning device, the owner or his designee shall clean the device with a cleaner or sanitizer capable of killing bacteria from any previous use.
5. The tanning facility shall use a timer with an accuracy of at least plus or minus ten percent of any selected time interval. The facility shall limit the exposure time of a customer on a tanning device to the maximum exposure time recommended by the manufacturer. The facility shall control the interior temperature of a tanning device so that it may not exceed 100 degrees Fahrenheit.
6. Either each time a customer uses a tanning facility or each time a person executes or renews a contract to use a tanning facility, the person shall sign a written statement acknowledging that the person has read and understood the required warnings before using the device and agrees to use the protective eyewear that the tanning facility provides.
7. No individual under the age of 18 shall be allowed to use any tanning device, other than a spray tanning device that does not emit ultraviolet light, at a tanning facility. The owner shall be responsible for ensuring that each customer using the tanning facility is of legal age to do so.
8. A tanning facility shall not claim, or distribute promotional material that claims that the use of a tanning device is safe, is without risk, or will result in medical or health benefits.
9. The provisions of subsection G shall not prohibit any person licensed by the Board of Medicine to practice medicine or osteopathic medicine from prescribing or using a phototherapy device for any patient, regardless of age. For the purposes of this section, "phototherapy device" means a device that emits ultraviolet radiation and is used in the diagnosis or treatment of disease or injury.

   (1990, c. 776; 2007, c. 575; 2020, c. 387.)

The 2007 amendments. - The 2007 amendment by c. 575 added subsections B, D, G and H; and redesignated the remaining subsections accordingly.

The 2020 amendments. - The 2020 amendment by c. 387, in subsection G, added the first sentence; and added subsection I.

Law review. - For 2007 annual survey article, "Health Care Law," see 42 U. Rich. L. Rev. 441 (2007).

§ 59.1-310.6. Violations of chapter; penalty.

Any person other than a customer, who knowingly and willfully violates any statute pertaining to the operation of tanning facilities shall be guilty of a Class 3 misdemeanor.

(1990, c. 776.)

Cross references. - As to punishment for Class 3 misdemeanors, see § 18.2-11 .

§ 59.1-310.7. Definitions.

As used in this chapter unless the context requires otherwise:

"Accredited septic system inspector" means a person who possesses the qualifications required by the provisions of this chapter.

"Person" means an individual, partnership, corporation, association, or other entity.

"Septic system" means an onsite method of disposing of sewage when sewers or sewerage facilities are not available and includes septic tanks, septic tank lines and drainage fields or other onsite, residential sewage systems.

(2001, c. 52.)

Effective date. - Acts 2001, c. 52, cl. 2, as amended by Acts 2002, c. 106, provides: "That the provisions of this act shall become effective on July 1, 2003."

§ 59.1-310.8. Exceptions.

This chapter shall not be construed to prohibit:

1. The work of an employee or a subordinate of an accredited septic system inspector;
2. The practice of any profession or occupation that is regulated by a regulatory board within the Department of Professional and Occupational Regulation or other state agency; or
3. The work of employees of the Department of Health in carrying out their regulatory duties under Chapter 6 (§ 32.1-163 et seq.) of Title 32.1. (2001, c. 52.)

Effective date. - Acts 2001, c. 52, cl. 2, as amended by Acts 2002, c. 106, provides: "That the provisions of this act shall become effective on July 1, 2003."

§ 59.1-310.9. Requirements for accredited septic system inspectors and performance of septic system inspections.

1. In order to use the title of "accredited septic system inspector" in connection with any real estate transaction, including refinancings, an applicant shall be accredited by the National Sanitation Foundation or an equivalent national accrediting organization, which accreditation shall include the passage of both a written and practical examination on the principles and practice of septic system inspections.

   In addition, the applicant shall satisfy the following requirements:

   1. Hold a high school diploma or equivalent; and
   2. Have evidence of at least one year of active field experience conducting onsite septic systems inspections or completion of a nationally approved training course.
2. Any individual who holds a valid onsite sewage system operator, onsite sewage system installer, or onsite soil evaluator license pursuant to Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 shall be authorized to perform a septic system inspection in connection with any real estate transaction, including refinancings. (2001, c. 52; 2020, c. 521.)

Effective date. - Acts 2001, c. 52, cl. 2, as amended by Acts 2002, c. 106, provides: "That the provisions of this act shall become effective on July 1, 2003."

The 2020 amendments. - The 2020 amendment by c. 521 added subsection B.

§ 59.1-310.10. Penalty for violation.

No person shall use the title "accredited septic system inspector" or perform a septic system inspection in connection with any real estate transaction unless he meets the requirements of this chapter. Any person who violates the provisions of this chapter is guilty of a Class 3 misdemeanor.

(2001, c. 52; 2020, c. 521.)

Cross references. - As to punishment for Class 3 misdemeanors, see § 18.2-11 .

Effective date. - Acts 2001, c. 52, cl. 2, as amended by Acts 2002, c. 106, provides: "That the provisions of this act shall become effective on July 1, 2003."

The 2020 amendments. - The 2020 amendment by c. 521, in the first sentence, inserted "or perform a septic system inspection in connection with any real estate transaction," and in the last sentence, substituted "is" for "shall be."

§ 59.1-311. Title.

This chapter shall be known and may be cited as the "Virginia Membership Camping Act."

(1985, c. 409.)

§ 59.1-312. Applicability.

This chapter shall apply to each membership camping contract executed at least in part in this Commonwealth after July 1, 1985, regardless of the whereabouts of the membership camping operator's principal office or his campground or recreational facilities.

(1985, c. 409.)

§ 59.1-313. Definitions.

When used in this chapter, unless the context requires a different meaning, the following shall have the meanings respectively set forth:

"Advertisement" shall be synonymous with "offer to sell."

"Agreement" shall be synonymous with "membership camping contract."

"Blanket encumbrance" means any legal instrument, whether or not evidencing the obligation to pay money, which permits or requires the foreclosure, sale, conveyance or other disposition of the campground or any portion thereof.

"Board" means the Virginia Board of Agriculture and Consumer Services.

"Business day" means any day except Sunday or a legal holiday.

"Camping site" means any parcel of real estate designed and promoted for the purpose of locating thereon a trailer, tent, tent trailer, pickup camper, recreational vehicle, house trailer, van, cabin or other similar device used for camping or for overnight lodging.

"Campground" means any single tract or parcel of real property on which there are at least ten camping sites.

"Commissioner" means the Commissioner of the Virginia Department of Agriculture and Consumer Services, or a member of his staff to whom he has delegated his duties under this chapter.

"Contract" shall be synonymous with "membership camping contract."

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Facility" means an amenity within a campground set aside or otherwise made available to purchasers in their use and enjoyment of the campground, and may include campsites, swimming pools, tennis courts, recreational buildings, boat docks, restrooms, showers, laundry rooms, and trading posts or grocery stores.

"Holder" means the membership camping operator who enters into a membership camping contract with a purchaser or the assignee of such contract who purchases the same for value.

"Managing entity" means a person who undertakes the duties, responsibilities and obligations of the management of a campground.

"Membership camping contract" or "membership camping agreement" means any written agreement of more than one year's duration, executed in whole or in part within this Commonwealth, which grants to a purchaser a nonexclusive right or license to use the campground of a membership camping operator or any portion thereof on a first come, first serve or reservation basis together with other purchasers. "Membership camping contract" or "membership camping agreement" also means any written agreement of more than one year's duration, executed in whole or in part within this Commonwealth, which obligates the membership camping operator to transfer or which does in fact transfer to the purchaser title to or an ownership interest in a campground or any portion thereof, and which gives the purchaser a nonexclusive right or license to use the campground of a membership camping operator or any portion thereof, on a first come, first serve or reservation basis together with other purchasers.

"Membership camping operator" means any person who is in the business of soliciting, offering, advertising, or executing membership camping contracts. A membership camping operator shall not include:

1. Any enterprise that is tax-exempt under § 501 (c) (3) of the Internal Revenue Code, as amended; or
2. Any enterprise that is tax-exempt under Chapter 36 of Title 58.1; or
3. Manufactured home parks wherein the residents occupy the premises as their primary homes.

   "Membership fees, dues, and assessments" means payments required of the purchaser, or his successor in interest, by the agreement for the support and maintenance of facilities at the campground about which the agreement relates.

   "Nondisturbance agreement" means any instrument executed by the owner of a blanket encumbrance which subordinates the rights of the owner of the blanket encumbrance to the rights of the purchasers of membership camping contracts. Unless the agreement specifically so provides, the owner of a blanket encumbrance does not by the fact of such ownership assume any of the obligations of the membership camping operator under membership camping contracts or under this chapter.

   "Offer," "offer to sell," "offer to execute" or "offering" means any offer, solicitation, advertisement, or inducement, to execute a membership camping agreement.

   "Person" means any individual, corporation, partnership, company, unincorporated association or any other legal entity other than a government or agency or a subdivision thereof.

   "Purchase money" means any money, currency, note, security or other consideration paid by the purchaser for a membership camping agreement.

   "Purchaser" means a person who enters into a membership camping contract with the membership camping operator.

   "Ratio of membership camping contracts to camping sites" means the total number of membership camping contracts sold in relation to each available camping site.

   "Reciprocal program" means any arrangement under which a purchaser is permitted to use camping sites or facilities at one or more campgrounds not owned or operated by the membership camping operator with whom the purchaser has entered into a membership camping contract.

   "Salesperson" means an individual, other than a membership camping operator, who offers to sell a membership camping contract by means of a direct sales presentation, but does not include a person who merely refers a prospective purchaser to a sales person without making any direct sales presentation.

   (1985, c. 409; 1989, c. 676; 1992, c. 545; 1999, c. 77.)

§ 59.1-313.1. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this chapter the Board, the Commissioner, or the Department is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board, the Commissioner, or the Department may be sent by regular mail.

(2011, c. 566.)

§ 59.1-314. Conflicts with other statutes.

In the event that there is any conflict between this chapter and the Virginia Condominium Act (§ 55.1-1900 et seq.), the Virginia Real Estate Time-Share Act (§ 55.1-2200 et seq.), or the Subdivided Land Sales Act (§ 55.1-2300 et seq.), the provisions of this chapter shall prevail, but this chapter shall not invalidate or otherwise affect rights or obligations vested under the Condominium Act, the Subdivided Land Sales Act, or the Virginia Real Estate Time-Share Act, before July 1, 1985, or the manner of their enforcement.

(1985, c. 409.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "the Virginia Condominium Act ( § 55.1-1900 et seq.), the Virginia Real Estate Time-Share Act ( § 55.1-2200 et seq.), or the Subdivided Land Sales Act ( § 55.1-2300 et seq.)" for "the Virginia Condominium Act ( § 55-79.39 et seq.), the Subdivided Land Sales Act ( § 55-336 et seq.), or the Virginia Real Estate Time-Share Act ( § 55-360 et seq.)."

§ 59.1-315.

Repealed by Acts 2015, c. 709, cl. 2.

Editor's note. - Former § 59.1-315 , pertaining to severability, derived from 1985, c. 409.

§ 59.1-316.

Reserved.

§ 59.1-317. Administration; unlawful offer or execution of membership camping contract.

1. This chapter shall be administered by the Virginia Department of Agriculture and Consumer Services.
2. It shall be unlawful for any membership camping operator to offer to sell any membership camping contract in this Commonwealth unless he is registered with the Commissioner.
3. It shall be unlawful for any membership camping operator registered under this chapter to sell any membership camping contract which causes the total ratio of the outstanding and valid membership camping contracts to exceed a ratio of fifteen such contracts for each camping site.

   (1985, c. 409; 1989, c. 676.)

§ 59.1-318. Application for registration of membership camping operator.

1. The application for registration shall be on a form prescribed by the Commissioner and shall include, to the extent applicable, the following:
   1. The applicant's name, address, and the organizational form of his business, including the date, and jurisdiction under which the business was organized; the address of each of its offices in this Commonwealth; and the name and address of each campground located in this Commonwealth, which is owned or operated, in whole or in part, by the applicant;
   2. The name, address, and principal occupation for the past five years of every officer of the applicant, including its principal managers, and the extent and nature of the interest of each such person at the time the application is filed;
   3. A list of all owners of ten percent or more of the capital stock of the applicant, except that this list is not required if the applicant is a company required to report under the Securities and Exchange Act of 1934;
   4. A brief description of and a certified copy of the instrument which creates the applicant's ownership of, or other right to use the campground and the facilities at the campground which are to be available for use by purchasers, together with a copy of any lease, license, franchise, reciprocal agreement or other agreement entitling the applicant to use such campground and facilities, and any material provision of the agreement which restricts a purchaser's use of such campground or facilities;
   5. A sample copy of each instrument which will be delivered to a purchaser to evidence his membership in the campground and a sample copy of each agreement which a purchaser will be required to execute;
   6. A statement of the zoning and other governmental regulations affecting the use of the campground including the site plans and building permits and their status;
   7. A list of special taxes or assessments, whether current or proposed, which affect the campground;
   8. Financial statements of the applicant prepared in accordance with generally accepted accounting principles, which shall include a financial statement for the most recent fiscal year audited by an independent certified public accountant and an unaudited financial statement for the most recent fiscal quarter;
   9. A copy of the disclosure statement required by § 59.1-326 ;
   10. An irrevocable appointment of the Commissioner or his designees to receive service of any lawful process in any proceeding arising under this chapter against the applicant or his agents, except one issued by the Commissioner. The Commissioner shall forward any such process by registered or certified mail addressed to any of the principals, officers, directors, partners, or trustees of the applicant who are listed on the application for registration pursuant to this chapter, or to any other person designated in the application to receive such process, and shall keep a record of it. Any process, notice, order, or demand issued by the Commissioner shall be served by registered mail addressed to any principal, officer, director, partner, or trustee of the applicant listed on the application for registration pursuant to this chapter or to any person designated in the application to receive such process. Nothing in this section shall be construed to limit or prohibit the lawful service of process on individual principals as allowed by the laws of the Commonwealth.  The names and addresses of the principals, officers, directors, partners, or trustees of the membership camping operator as last filed with the Commissioner pursuant to the provisions of this chapter shall be conclusive for the purposes of services of process;
   11. A narrative description of the promotional plan for the sale of the membership camping contracts;
   12. Any bonds required to be posted pursuant to the provisions of this chapter;
   13. A copy of the agreement, if any, between the applicant and any person owning, controlling, or managing the campground and the applicant;
   14. A complete list of locations and addresses of any and all sales offices located within the Commonwealth, together with a roster of all salespersons who are employed in this Commonwealth by the applicant whether as employees or as independent contractors;
   15. The names of any other states or foreign countries in which an application for registration of the membership camping operator or the membership camping contract or any similar document has been filed; and
   16. Complete information concerning any adverse order, judgment, or decree which has been entered by any court or administrative agency in connection with a campground or other project operated by the applicant or in which the applicant has or had an interest at the time.
2. The application shall be signed by the membership camping operator, an officer or general partner thereof or by another person holding a power of attorney for this purpose from the membership camping operator. If the application is signed pursuant to a power of attorney, a copy of the power of attorney shall be included with the application.
3. The application shall be submitted with a facing page as might be prescribed by the Commissioner if then in effect, along with the appropriate fees.
4. An application for registration shall be amended within twenty-five days if there is a material change in the information included in the application. A material change includes any change which significantly reduces or terminates either the applicant's or the purchaser's right to use the campground or any of the facilities described in the membership camping contract, but does not include minor changes covering the use of the campground, its facilities or the reciprocal program.
5. The review of the application for registration of the membership camping operator shall occur pursuant to the provisions of § 59.1-320.1 .
6. Registration with the Commissioner shall not be deemed to be an approval or endorsement by the Commissioner of the membership camping operator, his membership camping contract, or his campground, and any attempt by the membership camping operator to indicate that registration constitutes such approval or endorsement shall be unlawful.

   (1985, c. 409; 1992, c. 545.)

§ 59.1-319.

Reserved.

§ 59.1-320.

Repealed by Acts 1992, c. 545.

Cross references. - For present provision as to review of registration application, see § 59.1-320.1 .

§ 59.1-320.1. Review of registration application.

1. Once the Commissioner receives an application for registration in proper form, accompanied by the proper fee, he shall, within a reasonable period of time not to exceed forty-five days after the receipt of such application:
   1. Register the applicant if the applicant:
      1. Has met the requirements of § 59.1-318 ;
      2. Is not in violation of § 59.1-323 ; and
      3. Has a reasonable ability to discharge the obligations imposed upon him by his membership camping contract; or
   2. Issue a notice of opportunity for a hearing to consider whether the application should be denied, if it reasonably appears that the applicant fails to satisfy any provision of § 59.1-323 or any other requirement of this chapter.
2. Except as otherwise provided by order of the Commissioner, each registration shall be valid for the period from July 1 of one year until its expiration on June 30 of the following year.

   (1992, c. 545.)

§ 59.1-321. Exemption from registration under other acts.

Any membership camping operator registered with the Commissioner under this chapter shall not be required to register or comply with the terms and requirements of the following:

1. The Virginia Condominium Act (§ 55.1-1900 et seq.).
2. The Virginia Real Estate Time-Share Act (§ 55.1-2200 et seq.).
3. The Virginia Securities Act (§ 13.1-501 et seq.). (1985, c. 409; 1996, c. 372.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted "55.1-1900" for "55-79.39" and "55.1-2200" for "55-360."

§ 59.1-322. Other acts.

Registration with the Commissioner by a membership camping operator shall not relieve such operator of the obligation of complying with the requirements of the Virginia Home Solicitation Sales Act (§ 59.1-21.1 et seq.), if applicable.

(1985, c. 409.)

§ 59.1-323. Denial, suspension, or revocation of registration; hearing; summary action.

1. The Commissioner may deny an application for registration of a membership camping operator or may suspend, or revoke such registration if the Commissioner finds that such action is necessary for the protection of purchasers or prospective purchasers or that any one of the following is true:
   1. The membership camping operator has failed to comply with any provision of this chapter that materially affects the rights of purchasers, prospective purchasers or owners of membership camping contracts.
   2. The membership camping operator's offering or execution of membership camping contracts is fraudulent.
   3. The membership camping operator's application for registration or any amendment thereto is incomplete in any respect.
   4. The membership camping operator has failed to file timely amendments to the application for registration or meet any other requirement of § 59.1-318 of this chapter.
   5. The membership camping operator has represented or is representing to purchasers in connection with the offer to sell membership camping contracts that a particular facility or facilities are planned without reasonable expectation that such facility will be completed within a reasonable time, or without the apparent means to ensure its completion.
   6. The membership camping operator has permanently withdrawn from use all or any substantial portion of any campground and that (i) no adequate provision has been made to provide a substitute campground of comparable quality and attraction in the same general area within a reasonable time after such withdrawal, and (ii) the rights of all purchasers at the affected location have not expired, and (iii) the Commissioner has found that the withdrawal is consistent with the protection of purchasers. Notwithstanding the foregoing, a membership camping operator may reserve the right to withdraw permanently from use all or any portion of a campground devoted to membership camping if, after the membership camping operator first represents to purchasers that the campground is or will be available for camping, the specific date upon which the withdrawal becomes effective is disclosed in writing to all purchasers at or prior to the time the membership camping contract is executed.
   7. The membership camping operator has made any representation in any document or information filed with the Commissioner which is false or misleading.
   8. The membership camping operator has engaged or is engaging in any unlawful act or practice.
   9. The membership camping operator has disseminated or caused to be disseminated, any false or misleading promotional materials in connection with a campground.
   10. The membership camping operator does not have a reasonable ability to discharge the obligations imposed upon him by any membership camping contract.
2. Except as provided in subsection C of this section, before denying, suspending or revoking a registration, as provided in subsection A of this section, the Commissioner shall issue to the membership camping operator a notice of opportunity for a hearing to consider the denial, suspension, or revocation.
3. If the Commissioner finds that the public health, safety or welfare requires emergency action and incorporates this finding in his order, the Commissioner may summarily deny, suspend or revoke a registration.  The membership camping operator shall be given an opportunity within ten days after entry of such an order to appear before the Commissioner and show cause why the summary order should not remain in effect. If good cause is shown, the Commissioner shall vacate the summary order. If good cause is not shown, the summary order shall remain in effect. The membership camping operator shall have fifteen days thereafter within which to request a hearing, or the Commissioner may within thirty days thereafter set the matter for a hearing.

   (1985, c. 409; 1992, c. 545.)

§ 59.1-324. Cease and desist orders; temporary order.

1. If it appears to the Commissioner that any person has engaged or is engaging in any practice in violation of this chapter, he may issue an order directing the person to cease and desist provided that reasonable notice and an opportunity for a hearing shall be given to such person.
2. The Commissioner may issue a temporary order pending the hearing which is effective on delivery to the person named in the order. The temporary order shall remain in effect until five days after the hearing required in subsection A above is held. In the event no hearing is requested by the person named in the order, the order shall become final within fifteen days after it is delivered.

   (1985, c. 409.)

§ 59.1-325. Fees.

1. Each application for registration under § 59.1-318 shall be accompanied by a reasonable fee to be determined by the Board and published in the regulations adopted in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
2. Each application for registration or for amendment shall be accompanied by a reasonable fee to be determined by the Board and published in regulations adopted in accordance with the provisions of the Administrative Process Act.
3. Until such time as regulations covering fees are adopted by the Board, the registration fee shall be $2,500 and the fee for amendments shall be $100.
4. All fees shall be remitted to the State Treasurer and shall be credited to a special fund of the Virginia Department of Agriculture and Consumer Services to be used in the administration of this chapter.

   (1985, c. 409; 1988, c. 58; 1992, c. 545.)

§ 59.1-326. Membership camping operator's disclosure statement.

1. Every membership camping operator, salesperson, or other person who is in the business of offering for sale or transfer the rights under existing membership camping contracts for a fee shall deliver to his purchaser a current membership camping operator's disclosure statement before execution by the purchaser of the membership camping contract and no later than the date shown on such contract.
2. The membership camping operator's disclosure statement shall consist of the following items in the order as presented:
   1. A cover page stating:
      1. The words "Membership Camping Operator's Disclosure Statement" printed in boldfaced type of a minimum size of 10 points;
      2. The name and principal business address of the membership camping operator;
      3. A statement that the membership camping operator is in the business of offering for sale membership camping contracts;
      4. The following statement printed in boldfaced type of a minimum size of 10 points:

         THIS DISCLOSURE STATEMENT CONTAINS IMPORTANT MATTERS TO BE CONSIDERED IN THE EXECUTION OF A MEMBERSHIP CAMPING CONTRACT. THE MEMBERSHIP CAMPING OPERATOR IS REQUIRED BY LAW TO DELIVER TO YOU A COPY OF THIS DISCLOSURE STATEMENT BEFORE YOU EXECUTE A MEMBERSHIP CAMPING CONTRACT. THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN NATURE. YOU AS A PROSPECTIVE PURCHASER SHOULD REVIEW ALL REFERENCES, EXHIBITS, CONTRACT DOCUMENTS, AND SALES MATERIALS. YOU SHOULD NOT RELY UPON ANY ORAL REPRESENTATIONS AS BEING CORRECT. REFER TO THIS DOCUMENT AND TO THE ACCOMPANYING EXHIBITS FOR CORRECT REPRESENTATIONS. THE MEMBERSHIP CAMPING OPERATOR IS PROHIBITED FROM MAKING ANY REPRESENTATIONS WHICH CONFLICT WITH THOSE CONTAINED IN THE CONTRACT AND THIS DISCLOSURE STATEMENT.

      5. The following statement printed in boldfaced type of a minimum size of 10 points:

         SHOULD YOU EXECUTE A MEMBERSHIP CAMPING CONTRACT, YOU HAVE THE UNQUALIFIED RIGHT TO CANCEL SUCH CONTRACT. THIS RIGHT OF CANCELLATION CANNOT BE WAIVED. THE RIGHT TO CANCEL EXPIRES AT MIDNIGHT ON THE 7TH CALENDAR DAY FOLLOWING THE DATE ON WHICH THE CONTRACT WAS EXECUTED. TO CANCEL THE MEMBERSHIP CAMPING CONTRACT, YOU AS THE PURCHASER MUST MAIL NOTICE OF YOUR INTENT TO CANCEL BY CERTIFIED UNITED STATES MAIL TO THE MEMBERSHIP CAMPING OPERATOR AT THE ADDRESS SHOWN IN THE MEMBERSHIP CAMPING CONTRACT, POSTAGE PREPAID. THE CAMPING OPERATOR IS REQUIRED BY LAW TO RETURN ALL MONEYS PAID BY YOU IN CONNECTION WITH THE EXECUTION OF THE MEMBERSHIP CAMPING CONTRACT, UPON YOUR PROPER AND TIMELY CANCELLATION OF THE CONTRACT. IN ADDITION, AFTER THE INITIAL 7-CALENDAR-DAY CANCELLATION PERIOD, YOU THE PURCHASER OR YOUR SUCCESSOR IN INTEREST MAY TERMINATE YOUR LIABILITY UNDER THE MEMBERSHIP CAMPING CONTRACT INCLUDING PAYMENT OF ANY MEMBERSHIP FEES, DUES, AND ASSESSMENTS UPON YOUR GIVING PROPER AND EFFECTIVE NOTICE TO THE MEMBERSHIP CAMPING OPERATOR. TO BE EFFECTIVE, THE NOTICE MUST BE IN WRITING AND SENT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED AND IT MUST CONTAIN: (1) YOUR TRANSFER OF ANY AND ALL RIGHTS, TITLE, AND INTEREST YOU HAVE IN THE MEMBERSHIP CAMPING CONTRACT AND CAMPGROUND BACK TO THE MEMBERSHIP CAMPING OPERATOR; (2) A RECORDABLE DEED, DULY EXECUTED AND NOTARIZED, AND THE RECORDING FEE, IF YOU RECEIVED A RECORDED DEED FROM THE MEMBERSHIP CAMPING OPERATOR; (3) PAYMENTS OF (i) THE UNPAID BALANCE OF THE PURCHASE PRICE AND ANY ACCRUED UNPAID INTEREST THEREON AND (ii) ALL UNPAID MEMBERSHIP FEES, DUES, AND ASSESSMENTS WITH ACCRUED INTEREST THEREON PERMITTED BY THE MEMBERSHIP CAMPING CONTRACT; AND (4) PAYMENT OF ALL OTHER UNPAID FINANCIAL OBLIGATIONS OWED BY YOU THE PURCHASER PURSUANT TO THE MEMBERSHIP CAMPING CONTRACT.

      6. The following statement:

         "Registration of the membership camping operator with the Commissioner of the Virginia Department of Agriculture and Consumer Services does not constitute an approval or endorsement by the Commissioner of the membership camping operator, his membership camping contract, or his campground."

   2. The name of the membership camping operator and the address of his principal place of business and the following information:
      1. The name, principal occupation, and address of every director, partner, or trustee of the membership camping operator;
      2. The name and address of each person owning or controlling an interest of 10 percent or more in the membership camping operator;
      3. The particulars of any indictment, conviction, judgment, decree, or order of any court or administrative agency against the membership camping operator or its managing entity arising out of the violation or alleged violation of any federal, state, local, or foreign law or regulation in connection with activities relating to the sale of campground memberships, land sales, land investments, security sales, construction, or sale of homes or improvements or any similar or related activity; and
      4. A statement of any unsatisfied judgments against the membership camping operator or its managing entity, the status of any pending suits involving the sale of membership camping contracts or the management of campgrounds to which the membership camping operator or its managing entity is a party and the status of any pending suits, administrative proceedings, or indictments of significance to the campground;
   3. A brief description of the nature of the purchaser's right or license to use the campground and the facilities that are to be available for use by purchasers;
   4. A brief description of the membership camping operator's experience in the membership camping business, including the length of time the operator has been in the membership camping business;
   5. The location of each of the campgrounds that is to be available for use by purchasers and a brief description of the facilities at each campground that are currently available for use by purchasers. Facilities that are planned, incomplete, or not yet available for use shall be clearly identified as incomplete or unavailable. A brief description of any facilities that are or will be available to nonpurchasers shall also be provided;
   6. As to all memberships offered by the membership camping operator at each campground:
      1. The form of membership offered;
      2. The types and duration of memberships along with a summary of the major privileges, restrictions, and limitations applicable to each type; and
      3. Provisions, if any, that have been made for public utilities at each campsite including water, electricity, telephone, and sewerage facilities;
   7. A statement regarding any initial or special fee due from the purchaser together with a description of the purpose and method of calculating the fee;
   8. A description of any liens, defects, or encumbrances affecting the campground;
   9. A general description of any financing offered or available through the membership camping operator;
   10. A statement that the purchaser has until midnight of the seventh calendar day following the signing of the membership campground contract to cancel the contract by proper notice to the membership camping operator;
   11. A description of the insurance coverage that the membership camping operator provides for the benefit of purchasers, if any;
   12. A statement regarding any fees or charges that purchasers are or may be required to pay for the use of the campground or any facilities;
   13. The extent to which financial arrangements, if any, have been provided for the completion of facilities together with a statement of the membership camping operator's obligation to complete planned facilities. The statement shall include a description of any restrictions or limitations on the membership camping operator's obligation to begin or to complete such facilities;
   14. The name of the managing entity, if there is one, and the significant terms of any management contract, including but not limited to the circumstances under which the membership camping operator may terminate the management contract;
   15. A statement regarding any services that the membership camping operator currently provides or expenses he pays that are expected to become the responsibility of the purchasers, including the projected liability that each such service or expense may impose on each purchaser;
   16. A brief description of the ownership in or other right to use the campground that is to be transferred to each purchaser, together with the duration of any lease, license, franchise, or reciprocal agreement entitling the membership camping operator or purchasers from him to use the campground, and any provisions in any such agreements that restrict or limit a purchaser's use of the campground;
   17. 1. A copy, whether by way of supplement or otherwise, of the rules, restrictions, or covenants regulating the purchaser's use of the campground in Virginia and its facilities that are to be available for use by the purchasers, including a statement of whether and how the rules, restrictions, or covenants may be changed;
       2. A summary, whether by way of supplement or otherwise, of the rules, restrictions, or covenants regulating the purchaser's use of any other campgrounds, facilities, or any other amenities resulting from the purchase of, or used as an inducement to influence the purchase of, the membership camping contract;
   18. A description of any restraints on the transfer of the membership camping contract;
   19. A brief description of the policies covering the availability of camping sites, the availability of reservations and the conditions under which they are made;
   20. A brief description of any grounds for forfeiture of a purchaser's membership camping contract;
   21. A statement of whether the membership camping operator has the right to withdraw permanently from use all or any portion of any campground devoted to membership camping and, if so, the conditions under which such withdrawal is to be permitted;
   22. A statement describing the material terms and conditions of any reciprocal program to be available to the purchaser, including a statement concerning whether the purchaser's participation in any reciprocal program is dependent upon the continued affiliation of the membership camping operator with that reciprocal program and whether the membership camping operator reserves the right to terminate such affiliation;
   23. The following statement printed in boldfaced type of a minimum size of 10 points:

       "The purchase of this membership camping contract should not be based on any representations that it is an investment or that it can be resold. The resale of a membership may be difficult"; and

   24. A statement that contains in boldfaced type the name, address, and telephone number of the Virginia Department of Agriculture and Consumer Services and that states that that agency is the regulatory agency that handles consumer complaints regarding membership campgrounds.
3. The membership camping operator shall promptly amend his membership camping operator's disclosure statement to reflect any material change in the campground or its facilities. He shall also promptly file any such amendments with the Commissioner.

   (1985, c. 409; 1992, c. 545; 2013, c. 24.)

The 2013 amendments. - The 2013 amendment by c. 24, in subsection B, added "items in the order as presented" at the end of the introductory language, deleted "followed by" at the end of B 1 a, B 1 b, and B 1 c, substituted "statement printed in boldfaced" for "in printed boldfaced" at the beginning of B 1 d, substituted "statement" for "language," and deleted "after the appearance of the items required in subdivisions a through d above" at the end of the introductory language of B 1 e; substituted "statement" for "language below all statements required in subdivisions a through e above" in the introductory language of B 1 f; added "and the following information" at the end of B 2; inserted "A statement regarding" at the beginning of B 7, B 12 and B 15; substituted "statement" for "language" in the introductory language of B 23; and deleted "State Division of Consumer Affairs" following "Consumer Services" in B 24; and made minor stylistic changes throughout.

§ 59.1-327. Purchaser's rights.

1. The purchaser shall have the following rights during the first seven calendar days following the execution of the membership camping contract:
   1. A purchaser shall have the right to cancel a membership camping contract within seven calendar days following the date of its execution.
   2. The right of cancellation shall not be waived and any attempt to obtain such a waiver shall be unlawful. Nothing in this section shall preclude the execution of documents in advance of closing for delivery after expiration of the cancellation period.
   3. If the purchaser elects to cancel the membership camping contract, he may do so only by mailing notice thereof by certified United States mail to the membership camping operator at the address listed in the membership camping contract. The cancellation shall be deemed effective upon mailing.
   4. Upon cancellation, the membership camping operator shall refund to the purchaser all payments made by such purchaser and collected by the membership camping operator pursuant to the canceled membership camping contract. The refund shall be made within sixty days after the effective date of the cancellation and may, where payment has been made by credit card, be made by an appropriate credit to the purchaser's account. Where payment is made by an exchange of real or personal property, the property may be returned to the purchaser.
   5. The purchaser's right to cancel shall apply only to the initial membership camping contract executed by such purchaser and to no successor contract and shall not apply to a successor contract which replaces an existing contract executed by such purchaser, unless the successor contract is executed within seven calendar days of the original contract in which case the cancellation period shall renew itself.
2. In addition to the rights afforded the purchaser contained in subsection A of this section, the purchaser and any successor in interest shall not be held liable for any maintenance fees, dues, and assessments succeeding the effective date of notification pursuant to subdivision 2 of this subsection, if:
   1. The purchaser or his successor in interest relinquishes any and all interest in the membership camping contract to the membership camping operator or his assigns; and
   2. The purchaser or his successor in interest notifies the membership camping operator or his assigns, in writing, by certified mail, return receipt requested, of his relinquishment.  The notice shall be deemed effective:
      1. Eighteen months after the notice is mailed provided the membership camping contract is no less than fifty-four months old; and
      2. If and only if the principal and interest payments, the membership fees, dues, and assessments and all other financial obligations owed by the purchaser, or his successor in interest, under the membership camping contract are paid in full as of the date of mailing; and
      3. The relinquishment contained in subdivision B 1 shall be in the form of a recordable deed, duly executed and properly notarized, or other form found acceptable to the membership camping operator accompanied by a fee sufficient to record the deed.
3. If the notice complies with subsection B of this section concerning avoiding further payments of membership fees, dues, and assessments, the membership camping operator shall confirm, in writing, receipt of the notice within ten days after its receipt. If the notice does not comply with subsection B of this section, the membership camping operator or his assigns shall inform the purchaser or his successors in interest, in writing, within ten days after its receipt, of the specific reasons why the notice does not comply.
4. All moneys collected by the membership camping operator pursuant to the membership camping contract prior to notification by the purchaser or his successor in interest pursuant to subsection B of this section shall remain the property of the membership camping operator.
5. Upon satisfaction of all provisions of subsection B of this section, the purchaser or his successor in interest shall have no rights or obligations under the membership camping contract and the membership camping operator or his assigns shall make no claims against the purchaser or his successor in interest thereunder.

   (1985, c. 409; 1992, c. 545.)

§ 59.1-328. Membership camping contracts.

The membership camping operator shall deliver to his purchaser a fully executed copy of the membership camping contract, which contract shall include at least the following information:

1. The actual date the membership camping contract is executed by the purchaser.
2. The name of the membership camping operator and the address of his principal place of business.
3. The total financial obligation imposed upon the purchaser by the contract, including the initial purchase price and any additional charges that the purchaser may be required to pay.
4. A description of the nature and duration of the membership being purchased, including any interest in real property.
5. A statement that the membership camping operator, salesperson, or any other person who is in the business of offering for sale or transfer the rights under existing membership camping contracts for a fee is required by the Virginia Membership Camping Act (§ 59.1-311 et seq.) to provide each purchaser with a copy of the membership camping operator's disclosure statement prior to execution of such contract and that a failure to do so is a violation of the Act.
6. The following statement under its own paragraph and conspicuously placed:

   "PURCHASER'S NONWAIVABLE RIGHT TO CANCEL" shall appear at the beginning of such paragraph in boldfaced type of a minimum size of 10 points, immediately preceding the following statement, which shall appear in type no smaller than the other provisions of the contract:

   YOU AS THE PURCHASER HAVE A NONWAIVABLE 7-CALENDAR-DAY RIGHT OF CANCELLATION. THIS RIGHT OF CANCELLATION IS FULLY EXPLAINED ON THE COVER SHEET OF THE MEMBERSHIP CAMPING OPERATOR'S DISCLOSURE STATEMENT. YOU ARE URGED TO REVIEW THE DISCLOSURE STATEMENT PRIOR TO THE EXECUTION OF THIS CONTRACT FOR A COMPLETE UNDERSTANDING OF YOUR RIGHT OF CANCELLATION. IN ADDITION, AFTER THE INITIAL 7-CALENDAR-DAY CANCELLATION PERIOD, YOU THE PURCHASER OR YOUR SUCCESSOR IN INTEREST MAY TERMINATE YOUR LIABILITY UNDER THE MEMBERSHIP CAMPING CONTRACT INCLUDING PAYMENT OF ANY MEMBERSHIP FEES, DUES, AND ASSESSMENTS UPON YOUR GIVING PROPER AND EFFECTIVE NOTICE TO THE MEMBERSHIP CAMPING OPERATOR. TO BE EFFECTIVE, THE NOTICE MUST BE IN WRITING AND SENT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED AND IT MUST CONTAIN: (1) YOUR TRANSFER OF ANY AND ALL RIGHTS, TITLE, AND INTEREST YOU HAVE IN THE MEMBERSHIP CAMPING CONTRACT AND CAMPGROUND BACK TO THE MEMBERSHIP CAMPING OPERATOR; (2) A RECORDABLE DEED, DULY EXECUTED AND NOTARIZED, AND THE RECORDING FEE, IF YOU RECEIVED A RECORDED DEED FROM THE MEMBERSHIP CAMPING OPERATOR; (3) PAYMENTS OF (i) THE UNPAID BALANCE OF THE PURCHASE PRICE AND ANY ACCRUED UNPAID INTEREST THEREON AND (ii) ALL UNPAID MEMBERSHIP FEES, DUES, AND ASSESSMENTS WITH ACCRUED INTEREST THEREON PERMITTED BY THE MEMBERSHIP CAMPING CONTRACT; AND (4) PAYMENT OF ALL OTHER UNPAID FINANCIAL OBLIGATIONS OWED BY YOU THE PURCHASER PURSUANT TO THE MEMBERSHIP CAMPING CONTRACT.

7. The full name of all salespersons involved in the execution of the membership camping contract.
8. A statement that contains, in boldfaced type, the name, address, and telephone number of the Virginia Department of Agriculture and Consumer Services, stating that that agency is the regulatory agency handling consumer complaints regarding membership campgrounds.

   (1985, c. 409; 1992, c. 545; 2013, c. 24.)

The 2013 amendments. - The 2013 amendment by c. 24 deleted "shall appear in the contract" following "The following statement" in subdivision 6 and "Division of Consumer Affairs" following "Consumer Services" in subdivision 8, and made minor stylistic and punctuation changes throughout.

§ 59.1-329. Escrow and bonding.

1. All purchase money received from or on behalf of a purchaser in connection with the execution of a membership camping contract shall be deposited in an escrow or trust account designated solely for that purpose, which may be the membership camping operator's own escrow or trust account or that of his attorney's, until the expiration of the time for cancellation has expired unless a later time is provided in the membership camping contract. If the contract has not been canceled, any purchase money received from a purchaser may be released to the membership camping operator upon:
   1. The conveying to the purchaser of the title to, interest in, or right or license to use the campground and facilities as required in the membership camping contract; or
   2. The forfeiture of the purchase money by the purchaser under the terms of the membership camping contract.
2. In lieu of the obligations imposed by subsection A, the membership camping operator may file and maintain with the Commissioner a surety bond issued in favor of the Commissioner for the benefit of purchasers insuring the escrow of the purchase money until such time as it may be released as outlined in subsection A.  Such bond may not be canceled until thirty days after written notice of cancellation is received by the Commissioner. In lieu of such bond, the membership camping operator may post with the Commissioner an irrevocable letter of credit in a form and content acceptable to the Commissioner. The penalty of the bond or letter of credit shall be adjusted from time to time in accordance with the following schedule:
3. The amount of purchase money paid by purchasers held at any one time by the membership camping operator shall not exceed the amount for which the operator is bonded or the letter of credit is issued in accordance with the schedule set forth in subsection B.
4. In addition to any bonding requirements contained in this section, the membership camping operator shall file and maintain with the Commissioner a payment and performance bond with surety issued in favor of the Commissioner for the benefit of the purchasers and which guarantees the completion of all incomplete or planned facilities constructed or to be constructed in this Commonwealth as outlined or listed in either the membership camping contract or the membership camping operator's disclosure statement. The bond may not be canceled until thirty days after written notice of cancellation is received by the Commissioner. In lieu of the bond the membership camping operator may post with the Commissioner an irrevocable letter of credit. The surety bond or letter of credit shall be in a form and content acceptable to the Commissioner. The penalty of the bond or letter of credit shall be in an amount equal to the cost of completing the incomplete or planned facilities as of the date of its issuance or as of the membership camping operator's application for continued registration date as provided in § 59.1-320.1 , whichever is later. (1985, c. 409; 1992, c. 545.)

TOTAL AMOUNT OF PURCHASE PENALTY OF BOND MONEY HELD 1. $0 to $200,000 $50,000 2. $200,000 to $500,000 $75,000 3. Over $500,000 $100,000

§ 59.1-330.

Repealed by Acts 1992, c. 545.

Cross references. - For present provision for noncomplying contract being voidable, see § 59.1-330.1 .

For present provision for fraud rendering contract voidable, see § 59.1-330.2 .

§ 59.1-330.1. Noncomplying contract voidable.

Any membership camping contract which does not comply with the applicable provisions of this chapter shall be voidable at the option of the purchaser.

(1992, c. 545.)

§ 59.1-330.2. Fraud rendering contract voidable.

Any membership camping contract entered into by the purchaser upon any false, misleading, prohibited, or unlawful information, representation, notice, or advertisement of the membership camping operator or the operator's agent shall be voidable at the option of the purchaser.

(1992, c. 545.)

§ 59.1-331. Resale of memberships.

1. In the event of the resale of a membership by a purchaser who is neither a membership camping operator nor any other person who is in the business of offering for sale or transfer the rights under existing membership camping contracts for a fee, such purchaser (hereinafter in this section called "owner") shall furnish to the new purchaser before the execution of any instrument of conveyance a copy of the membership camping contract and a certificate containing:
   1. A statement disclosing any right of first refusal or other restraint on transfer of the membership.
   2. A statement setting forth the amount of the periodic payments which are required by the contract including any amounts currently due and payable.
   3. That the membership camping operator may have a valid reason for not transferring the contract to the new purchaser.
   4. That there may have been changes in the rules or regulations concerning the rights and obligations of the membership camping operator or purchasers, including changes with respect to membership fees, dues, and assessments, or that some campgrounds or facilities may have been withdrawn.
   5. Any other material changes or risks to the purchaser known to the owner.
2. The membership camping operator within ten days after receipt of a written request by an owner, shall furnish the owner with a written certificate containing the information necessary to enable the owner to comply with subdivisions 1 and 2 of subsection A of this section. An owner providing such certificate pursuant to subsection A is not liable to the purchaser for any erroneous information provided by the membership camping operator and included in the certificate. The membership camping operator is not liable to either the owner or the new purchaser for any information not provided by him.

   (1985, c. 409; 1992, c. 545.)

§ 59.1-332. Conditions on offering items as an inducement to execute.

1. It is unlawful for any person by any means, as part of an advertising program, to offer any item of value as an inducement to the recipient to visit a membership camping operator's campground, attend a sales presentation, or contact a salesperson, unless the person clearly discloses in writing in the offer in readily understandable language each of the following:
   1. The name and campground address of the membership camping operator.
   2. A general statement that the advertising program is being conducted by a membership camping operator and the purpose of any requested visit.
   3. A statement of odds, in Arabic numerals, of receiving each item offered.
   4. The approximate retail value of each item offered.
   5. The number of campgrounds that are participating in such advertising program.
   6. The restrictions, qualifications, and other conditions that must be satisfied before the recipient is entitled to receive the item, including:
      1. Any deadline, if any, by which the recipient must visit the campground, attend the sales presentation, or contact a salesperson in order to receive the item.
      2. The approximate duration of any visit and sales presentation.
      3. The date upon which the offer shall terminate and the final date upon which the gifts or prizes are to be awarded.
      4. Any other conditions, such as minimum age qualification, a financial qualification, or a requirement that if the recipient is married both spouses must be present in order to receive the item.
   7. A statement that the membership camping operator reserves the right to provide a rain check or a substitute or like item, if these rights are reserved.
   8. All other material rules, terms, and conditions of the offer or program.
2. It is unlawful for any person making an offer subject to subsection A, or any employee or agent of the person, to offer any item if the person knows or has reason to know that the offered item will not be available in a sufficient quantity based on the reasonably anticipated response to the offer.
3. It is unlawful for any person making an offer subject to subsection A, or any employee or agent of the person, to fail to provide any offered item that any recipient who has responded to the offer in the manner specified in the offer, has performed the requirements disclosed in the offer, and has met the qualifications described in the offer is entitled to receive, unless the offered item is not reasonably available and the offer discloses the reservation of a right to provide a rain check or a like or substitute item if the offered item is unavailable.
4. If the person making an offer subject to subsection A is unable to provide an offered item because of limitations of supply, quantity, or quality not reasonably foreseeable or controllable by the person making the offer, the person making the offer shall inform the recipient of the recipient's right to receive a rain check for the item offered, unless the person making the offer knows or has a reasonable basis for knowing that the item will not be reasonably available at approximately the same price to the person making the offer, and shall inform the recipient of the recipient's right to at least one of the following additional options:
   1. The person making the offer will provide a like item of equivalent or greater retail value or a rain check for the item. This option must be offered if the offered item is not reasonably available.
   2. The person making the offer will provide a substitute item of equivalent or greater retail value.
   3. The person making the offer will provide a rain check for a like or substitute item.
5. If a rain check is provided, the person making an offer subject to subsection A shall, within a reasonable time, and in any event not more than 90 days after the rain check is provided, deliver the agreed item to the recipient's address without additional cost or obligation to the recipient, unless the item for which the rain check is provided remains unavailable because of limitations of supply, quantity, or quality not reasonably foreseeable or controllable by the person making the offer. If the item is unavailable for these reasons, the person shall, not more than 30 days after the expiration of the aforesaid 90-day period, deliver a like item of equal or greater retail value or, if the item is not reasonably available to the person at approximately the same price, a substitute item of equal or greater retail value.
6. On the written request of a recipient who has received or claims a right to receive any offered item, the person making an offer subject to subsection A shall furnish to the recipient sufficient evidence showing that the item provided matches the item randomly or otherwise selected for distribution to that recipient.
7. It is unlawful for any person making an offer subject to subsection A, or any employee or agent of the person, to:
   1. Misrepresent the size, quantity, identity, or quality of any prize, gift, money, or other item of value offered.
   2. Misrepresent in any manner the odds of receiving any particular gift, prize, amount of money, or other item of value.
   3. Label any offer a "notice of termination" or "notice of cancellation."
   4. Materially misrepresent, in any manner, the offer or program.
8. If any provision of this section is in conflict with the provisions of the Prizes and Gifts Act (§ 59.1-415 et seq.), the provisions of the Prizes and Gifts Act shall control. (1985, c. 409; 1992, c. 545; 2020, c. 900.)

The 2020 amendments. - The 2020 amendment by c. 900, in subdivision A 6 d, substituted "spouses" for "husband and wife"; and made stylistic changes throughout the section.

§ 59.1-333. Nondisturbance provisions.

With respect to any property in this Commonwealth acquired and put into operation by a membership camping operator after July 1, 1985, the membership camping operator shall neither offer nor execute a membership camping contract in this Commonwealth granting the right to use such property until:

1. Each person holding an interest in a blanket encumbrance shall have executed and delivered a nondisturbance agreement which includes the following provisions: (i) that the rights of the owner or owners of the blanket encumbrance in the affected campground are subordinate to the rights of purchasers, and (ii) that any person who acquires the affected campground or any portion thereof by the exercise of any right of sale or foreclosure contained in such agreement shall take the same subject to the rights of the purchasers, and (iii) that the owner or owners of the blanket encumbrance shall not use or cause the property to be used in any manner which interferes with the right of the purchasers to use the campground and its facilities in accordance with the terms and conditions of the membership camping contract. Such agreement shall be recorded in the clerk's office of the circuit court in which the property is located; and
2. Every financial institution providing a major hypothecation loan to the membership camping operator (the "hypothecation lender") which has a lien on, or security interest in the membership camping operator's ownership interest in the campground shall have executed and delivered a nondisturbance agreement and recorded such agreement in the clerk's office of the circuit court in which the campground is located. In addition, each person holding an interest in a blanket encumbrance superior to the interest held by the hypothecation lender shall have executed, delivered and recorded an instrument stating that such person shall give the hypothecation lender notice of, and at least thirty days to cure, any default under the blanket encumbrance before such person commences any foreclosure action affecting the campground. For the purposes of this provision, a major hypothecation loan to a membership camping operator is a loan or line of credit secured by substantially all of the contracts receivable arising from the membership camping operator's sale of membership camping contracts; or
3. There shall have been delivered to and accepted by the Commissioner a surety bond or letter of credit satisfying the following requirements: The surety bond or letter of credit shall be issued to the Commissioner for the benefit of purchasers and shall be in an amount which is not less than 105 percent of the remaining principal balance of every indebtedness secured by a blanket encumbrance affecting the campground. Such bond shall be issued by a surety authorized to do business in this Commonwealth and having sufficient net worth to satisfy the indebtedness. Such letter of credit shall be irrevocable and shall be drawn upon a bank, savings and loan, or financial institution and shall be in form and content acceptable to the Commissioner. The bond or letter of credit shall provide for payment of all amounts secured by the blanket encumbrance, including costs, expenses, and legal fees of the lien holder, if for any reason the blanket encumbrance is enforced. The bond or letter of credit may be reduced at the option of the membership camping operator periodically in proportion to the reductions of the amounts secured by the blanket encumbrance.
4. The nondisturbance agreement may be amended provided the provisions of this section are not diminished or altered by the amendment.

   (1985, c. 409.)

§ 59.1-334. Investigations.

1. The Commissioner may:
   1. Make necessary public or private investigations within or without this Commonwealth to determine whether any person has violated or is about to violate any provision of this chapter or any rule, regulation, or order issued hereunder, or to aid in the enforcement of this chapter in prescribing rules and form hereunder.
   2. Require or permit any person to file a statement in writing, under oath or otherwise as the Commissioner determines, as to all facts and circumstances concerning the matter to be investigated.
2. For the purpose of any investigation or proceeding under this chapter, the Commissioner may administer oaths or affirmations, and upon such motion or upon request of any party, may subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts, or any other matter reasonably calculated to lead to the discovery of material evidence.
3. Any proceeding or hearing of the Commissioner under this chapter, where witnesses are subpoenaed and their attendance required for evidence to be taken, or any matter is to be produced to ascertain material evidence, shall take place within the City of Richmond.
4. Upon failure to obey a subpoena or to answer questions propounded by the Commissioner and upon reasonable notice to all persons affected thereby, the Commissioner may apply to the Circuit Court of the City of Richmond for an order compelling compliance.
5. The Board may prescribe reasonable rules and regulations in order to implement the terms of this chapter and such rules and regulations shall be adopted, amended, or repealed in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).
6. Except as otherwise provided in this chapter, all proceedings under this chapter shall be in accordance with the Administrative Process Act.

   (1985, c. 409.)

§ 59.1-335. Penalties.

1. Any person violating any of the provisions of §§ 59.1-317 , 59.1-318 , 59.1-326 , 59.1-327 , 59.1-328 , and 59.1-329 or a cease and desist or temporary order issued pursuant to § 59.1-324 shall be guilty of a Class 1 misdemeanor and any person violating any of the provisions of § 59.1-332 shall be guilty of a Class 3 misdemeanor.  Other than with reference to § 59.1-332 each violation shall be deemed a separate offense.
2. Any violation of the provisions of this chapter shall constitute a prohibited practice pursuant to the provisions of § 59.1-200 and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act (§ 59.1-196 et seq.) of this title. (1985, c. 409; 1992, c. 545.)

Cross references. - As to punishment for Class 1 and Class 3 misdemeanors, see § 18.2-11 .

§ 59.1-335.1. Title.

This chapter may be cited as the "Virginia Credit Services Businesses Act."

(1989, cc. 651, 655.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 1 Extra-Judicial Procedures. § 1.02 Self Help. Bryson.

§ 59.1-335.2. Definitions.