Subtitle I. General Provisions Relating to Regulatory Boards.

Chapter 1. General Provisions.

§ 54.1-100. Regulations of professions and occupations.

The right of every person to engage in any lawful profession, trade, or occupation of his choice is clearly protected by both the Constitution of the United States and the Constitution of the Commonwealth of Virginia. The Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when (i) it is clearly found that such abridgment is necessary for the protection or preservation of the health, safety, and welfare of the public and (ii) any such abridgment is no greater than necessary to protect or preserve the public health, safety, and welfare.

No regulation shall be imposed upon any profession or occupation except for the exclusive purpose of protecting the public interest when:

  1. The unregulated practice of the profession or occupation can harm or endanger the health, safety or welfare of the public, and the potential for harm is recognizable and not remote or dependent upon tenuous argument;
  2. The practice of the profession or occupation has inherent qualities peculiar to it that distinguish it from ordinary work and labor;
  3. The practice of the profession or occupation requires specialized skill or training and the public needs, and will benefit by, assurances of initial and continuing professional and occupational ability; and
  4. The public is not effectively protected by other means.No regulation of a profession or occupation shall conflict with the Constitution of the United States, the Constitution of Virginia, the laws of the United States, or the laws of the Commonwealth of Virginia. Periodically and at least annually, all agencies regulating a profession or occupation shall review such regulations to ensure that no conflict exists.

History. 1979, c. 408, § 54-1.17; 1988, c. 765; 2016, c. 467.

Transition provisions.

House Joint Resolution No. 32 of the 1984 Acts of Assembly directed the Virginia Code Commission to make a study of Title 54 and report its findings in the form of a recodification of the title to the Governor and the General Assembly of Virginia. In January 1988, its report, containing a proposed revision of Title 54, was sent to the Governor and the General Assembly. The report was published as House Document No. 23 of the 1988 Session and served as the basis for Title 54.1, which was enacted by Acts 1988, c. 765, effective January 1, 1989.

Acts 1988, c. 765, cl. 2 through 5 provide: “2. That whenever any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 54 or any other title of this Code as such titles existed prior to July 1, 1988 are transferred in the same or modified form to a new section, article or chapter of this title or any other title of this Code and whenever any such former section, article or chapter is given a new number in this or any other title, all references to any such former section, article or chapter of Title 54 or other title appearing in this Code shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions, contents or portions thereof.

“3. That the regulations of the Department of Commerce and the Department of Health Regulatory Boards and the regulatory boards within the Departments in effect on the effective date of this act shall continue in effect to the extent that they are not in conflict with this act and shall be deemed to be regulations promulgated under this act.

“4. That this recodification of Title 54 as Title 54.1 shall not be construed to require the reappointment of any officer or any member of a board, council, committee, or other appointed body referred to in Title 54.1, and each such officer and member shall continue to serve the term for which appointed pursuant to the provisions of Title 54.

“5. That this act shall be deemed to have been enacted prior to any other act enacted in the 1988 regular session of the General Assembly, and any act purporting to amend and reenact any law contained in Title 54 or Title 54.1 of the Code of Virginia is deemed to be added to, amendatory of, or a repealer of, as the case may be, any corresponding law contained in this act; provided, that effect shall be given to such other or subsequent act only to the extent of any apparent changes in the law as it existed prior to the commencement of such session.”

Many of the cases cited in the notes under provisions of this title were decided under former Title 54 or prior law.

Cross references.

As to exemptions, generally, to the Administrative Process Act, see § 2.2-4006 .

As to report to the appropriate regulatory agency of a violation of § 63.2-1218 , regarding advertising, solicitation, etc., in connection with an adoption, see § 63.2-1219 .

For requirement that applications for issuance and renewal of occupational licenses and registrations include the applicant’s social security number or a control number issued pursuant to § 46.2-342 , and provision for suspension of such license or registration for delinquency in support obligations, see § 63.2-1937 .

The 2016 amendments.

The 2016 amendment by c. 467, in the first paragraph, inserted the clause (i) designation, inserted “protection or,” added clause (ii), and made a minor stylistic change.

Law Review.

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

For article, “Constitutional Limitations on State-Imposed Continuing Competency Requirements for Licensed Professionals,” see 25 Wm. & Mary L. Rev. 253 (1983).

CASE NOTES

Due process rights not impaired. —

Virginia Auctioneers Board did not impair an auctioneer’s due process rights under § 54.1-100 by imposing monetary penalties and suspending his license when fewer than five members had been appointed as the Board serves an administrative function, regulating the licensure of auctioneers, including suspending licenses and imposing sanctions for cause, and the legislative purpose would be forestalled if transient vacancies were permitted to impair the Board’s ability to perform its duties. Khan v. Commonwealth, 42 Va. App. 469, 592 S.E.2d 755, 2004 Va. App. LEXIS 78 (2004).

Inherent in grant of authority must be the power to revoke a license improperly issued by reason of material fraud or misrepresentation on the part of the applicant. Without such power, board would lack an essential tool for enforcing its authority to regulate the profession it oversees. Carpenter v. Virginia Real Estate Bd., 20 Va. App. 100, 455 S.E.2d 287, 1995 Va. App. LEXIS 309 (1995).

CIRCUIT COURT OPINIONS

Professional licensing as evidence establishing personal jurisdiction. —

Engineering firm was subject to the personal jurisdiction of the trial court under the transacting business and supplying services provisions of the long-arm statute where: (1) the firm contracted to provide engineering services for a city project; (2) the firm was required to obtain a certificate of authority from the Virginia Board for Architects and Professional Engineers prior to performing engineering services for a Virginia project and to have a Virginia licensed professional engineer to supervise, stamp, and seal all engineering calculations and drawings; (3) while there was no evidence as to whether the firm obtained a proper license, the firm represented that it violated Virginia law and did not obtain such authority; (4) the engineering drawings were signed and sealed by a Virginia Professional Engineer; and (5) the Virginia Professional Engineer was a firm employee. City of Portsmouth v. Buro Happold Consulting Eng'rs, 69 Va. Cir. 397, 2005 Va. Cir. LEXIS 255 (Portsmouth Dec. 22, 2005).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. —

Commonwealth has authority to promulgate regulations for facilities in which first trimester abortions are performed as well as for providers of first trimester abortions, so long as the regulations adhere to constitutional limitations. See opinion of Attorney General to The Honorable Ralph K. Smith, Member, Senate of Virginia, 10-012, 2010 Va. AG LEXIS 45 (8/20/10); Opinion of Attorney General to The Honorable Robert G. Marshall, Member, House of Delegates, 10-012, (8/20/10).

§ 54.1-100.1. Department of Commerce continued as Department of Professional and Occupational Regulation.

The Department of Professional and Occupational Regulation, formerly known as the Department of Commerce, is continued, and wherever “Department of Commerce” is used in this Code, it shall mean the Department of Professional and Occupational Regulation. The Board for Professional and Occupational Regulation, formerly known as the Board of Commerce, is continued, and wherever “Board of Commerce” is used in this Code, it shall mean the Board for Professional and Occupational Regulation.

History. 1993, c. 499.

§ 54.1-101. Copies of examinations filed by regulatory boards.

A copy of examinations given by regulatory and advisory boards within the Department of Professional and Occupational Regulation and the Department of Health Professions authorized to conduct examinations of applicants for admission to practice or pursue any profession, vocation, trade, calling, or art shall be kept on file at the office of the secretary of each board. A copy of the examination shall be placed on file within ten days after it is administered, and shall be preserved for at least one year as a public record accessible to any person desiring to examine it during usual business hours. After the expiration of one year from the time the examination is filed, the secretary of the respective board may withdraw and destroy the examination. However, this section shall not be construed or interpreted in a manner to require the filing or release of examinations or other information which would result in compromising the validity or security of future examinations conducted by regulatory or advisory boards of the Department of Professional and Occupational Regulation or the Department of Health Professions. In the event any provision of this section results in a conflict with the provisions of § 54.1-108 , the provisions of § 54.1-108 shall prevail.

History. Code 1950, § 54-1 ; 1952, c. 227; 1959, Ex. Sess., c. 94; 1960, c. 10; 1962, c. 13; 1970, c. 623; 1973, c. 284; 1985, c. 448; 1988, c. 765; 1993, c. 499.

CASE NOTES

Regulations in the public interest. —

The common basis of all of this title regulating professions and occupations is that all of the included professions and occupations are related to the health, safety, morals, or welfare of the public. The legislature has considered that the public interest is such that it demands their regulation. F.S. Bowen Elec. Co. v. Foley, 194 Va. 92 , 72 S.E.2d 388, 1952 Va. LEXIS 210 (1952) (decided under prior law).

§ 54.1-101.1. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this title any regulatory board within the Department of Professional and Occupational Regulation or the Department of Health Professions 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 any such regulatory board may be sent by regular mail.

History. 2011, c. 566.

§ 54.1-102. Unlawful procurement of certificate, license or permit; unauthorized possession of examination or answers; penalty.

  1. It shall be unlawful:
    1. For any person to procure, or assist another to procure, through theft, fraud or other illegal means, a certificate, license or permit, from any state board, or other body charged by law with the responsibility of examining persons desiring to engage in a regulated business or profession;
    2. For any person, other than a member or officer of the board or body, to procure or have in his possession prior to the beginning of an examination, without written authority of a member or officer of the board or body, any question intended to be used by the board or body conducting the examination, or to receive or furnish to any person taking the examination, prior to or during the examination, any written or printed material purporting to be answers to, or aid in answering such questions;
    3. For any person to attempt to procure, through theft, fraud or other illegal means, any questions intended to be used by the board or body conducting the examination, or the answers to the questions;
    4. For any person to use, disclose or release any questions intended to be used by the board or body conducting the examination, or to release the answers to the questions, beyond the scope specifically authorized by the board or body; or
    5. To promise or offer any valuable or other consideration to a person having access to the questions or answers as an inducement to procure for delivery to the promisor, or any other person, a copy or copies of any questions or answers.If an examination is divided into separate parts, each of the parts shall be deemed an examination for the purposes of this section.
  2. Any person violating the provisions of subsection A shall be guilty of a Class 2 misdemeanor.

History. Code 1950, §§ 54-1.1, 54-1.2; 1988, c. 765; 2012, c. 416.

Cross references.

As to punishment for Class 2 misdemeanors, see § 18.2-11 .

The 2012 amendments.

The 2012 amendment by c. 416 deleted “by giving to, or receiving from, any person any information, oral, written or printed, during the administration of the examination, which is intended to, or will, assist any person taking the examination in passing the examination and obtaining the required certificate, license or permit” from the end of subdivision A 1, added subdivision A 4, and redesignated former A 4 as present A 5.

CASE NOTES

Inherent in grant of authority must be the power to revoke a license improperly issued by reason of material fraud or misrepresentation on the part of the applicant. Without such power, board would lack an essential tool for enforcing its authority to regulate the profession it oversees. Carpenter v. Virginia Real Estate Bd., 20 Va. App. 100, 455 S.E.2d 287, 1995 Va. App. LEXIS 309 (1995).

§ 54.1-103. Additional training of regulated persons; reciprocity; endorsement.

  1. The regulatory boards within the Department of Professional and Occupational Regulation and the Department of Health Professions may promulgate regulations specifying additional training or conditions for individuals seeking certification or licensure, or for the renewal of certificates or licenses.
  2. The regulatory boards may enter into agreements with other jurisdictions for the recognition of certificates and licenses issued by other jurisdictions.
  3. The regulatory boards are authorized to promulgate regulations recognizing licenses or certificates issued by other states, the District of Columbia, or any territory or possession of the United States as full or partial fulfillment of qualifications for licensure or certification in the Commonwealth.

History. 1979, c. 408, § 54-1.28; 1983, c. 569; 1988, c. 765; 1990, c. 194; 1993, c. 499.

Law Review.

For article, “Constitutional Limitations on State-Imposed Continuing Competency Requirements for Licensed Professionals,” see 25 Wm. & Mary L. Rev. 253 (1983).

§ 54.1-104. Suspension of license, certificate, registration, permit, or authority for dishonor of fee payment; reinstatement.

The Department of Professional and Occupational Regulation and the Department of Health Professions may suspend the license, certificate, registration, permit, or authority it has issued any person who submits a check, money draft, or similar instrument for payment of a fee required by statute or regulation which is not honored by the bank or financial institution named. The suspension shall become effective 10 days following delivery by certified mail of written notice of the dishonor and the impending suspension to such person’s address. Upon notification of suspension, the person may reinstate the license, certificate, registration, permit, or authority upon payment of the fee and penalties required under statute or regulation. Suspension under this provision shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq.).

History. 1980, c. 433, § 54-1.2:1; 1988, c. 765; 1993, c. 499; 2017, c. 423.

The 2017 amendments.

The 2017 amendment by c. 423 inserted “permit” following “certificate, registration” in the first and last sentences and made a minor stylistic change.

§ 54.1-104.1. License, certificate, registration, permit, or authority may not be suspended or revoked solely on the basis of default or delinquency in payment of federal-guaranteed or state-guaranteed education loan or scholarship.

The Department of Professional and Occupational Regulation, the Department of Health Professions, and the Board of Accountancy shall not be authorized to suspend or revoke the license, certificate, registration, permit, or authority it has issued to any person who is in default or delinquent in the payment of a federal-guaranteed or state-guaranteed educational loan or work-conditional scholarship solely on the basis of such default or delinquency.

History. 2018, cc. 170, 381.

§ 54.1-105. Majority of board or panel required to suspend or revoke license, certificate, registration, permit, or multistate licensure privilege; imposition of sanctions.

An affirmative vote of a majority of those serving on a board who are qualified to vote or those serving on a panel of a health regulatory board convened pursuant to § 54.1-2400 shall be required for any action to suspend or revoke a license, certification, registration, permit, or multistate licensure privilege to practice nursing or to impose a sanction on a licensee. However, an affirmative vote of a majority of a quorum of the regulatory board shall be sufficient for summary suspension pursuant to specific statutory authority.

History. 1988, c. 765; 1992, c. 659; 2004, c. 49; 2017, c. 423.

The 2004 amendments.

The 2004 amendment by c. 49, in the first sentence, deleted “or” following “certification” and inserted “or multistate licensure privilege to practice nursing.”

The 2017 amendments.

The 2017 amendment by c. 423 inserted “permit” following “certificate, registration” in the first sentence.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Administrative Law, § 15.

CASE NOTES

Due process rights not impaired. —

Virginia Auctioneers Board did not impair an auctioneer’s due process rights under § 54.1-100 by imposing monetary penalties and suspending his license when fewer than five members had been appointed as the Board serves an administrative function, regulating the licensure of auctioneers, including suspending licenses and imposing sanctions for cause, and the legislative purpose would be forestalled if transient vacancies were permitted to impair the Board’s ability to perform its duties; further, § 54.1-105 requires an affirmative vote of a majority of those serving on the Board to suspend a license or impose a sanction, and such a majority of the Board acted in the case. Khan v. Commonwealth, 42 Va. App. 469, 592 S.E.2d 755, 2004 Va. App. LEXIS 78 (2004).

Because Virginia Board of Medicine proceedings are not, in fact, criminal, protections afforded a criminal defendant simply were not applicable to a physician; accordingly, the board did not violate the physician’s rights by not affording him the same rights afforded a criminal defendant. Merchia v. Va. Bd. of Med., 2018 Va. App. LEXIS 334 (Va. Ct. App. Dec. 4, 2018).

Majority action proper. —

Although § 54.1-200 and subsection A of § 54.1-602 have similar wording, subsection A of § 54.1-602 specifically addresses the Virginia Auctioneers Board and applied to the Board’s actions to impose monetary penalties and to suspend an auctioneer’s license; “shall” as used in subsection A of § 54.1-602 was directory, rather than mandatory, and the Board properly acted under § 54.1-105 with a majority of three, even though only four members of the Board had been appointed at the time of the Board’s actions. Khan v. Commonwealth, 42 Va. App. 469, 592 S.E.2d 755, 2004 Va. App. LEXIS 78 (2004).

§ 54.1-106. Health care professionals rendering services to patients of certain clinics and administrators of such services exempt from liability.

  1. No person who is licensed or certified by the Boards of/for Audiology and Speech-Language Pathology; Counseling; Dentistry; Medicine; Nursing; Optometry; Opticians; Pharmacy; Hearing Aid Specialists; Psychology; or Social Work or who holds a multistate licensure privilege to practice nursing issued by the Board of Nursing who renders at any site any health care services within the limits of his license, certification or licensure privilege, voluntarily and without compensation, to any patient of any clinic which is organized in whole or in part for the delivery of health care services without charge or any clinic for the indigent and uninsured that is organized for the delivery of primary health care services as a federally qualified health center designated by the Centers for Medicare & Medicaid Services, shall be liable for any civil damages for any act or omission resulting from the rendering of such services unless the act or omission was the result of his gross negligence or willful misconduct. Additionally, no person who administers, organizes, arranges, or promotes such services shall be liable to patients of clinics described in this section for any civil damages for any act or omission resulting from the rendering of such services unless the act or omission was the result of his or the clinic’s gross negligence or willful misconduct.For purposes of this section, any commissioned or contract medical officers or dentists serving on active duty in the United States armed services and assigned to duty as practicing commissioned or contract medical officers or dentists at any military hospital or medical facility owned and operated by the United States government shall be deemed to be licensed pursuant to this title.
  2. For the purposes of Article 5 (§ 2.2-1832 et seq.) of Chapter 18 of Title 2.2, any person rendering such health care services who (i) is registered with the Division of Risk Management and (ii) has no legal or financial interest in the clinic from which the patient is referred shall be deemed an agent of the Commonwealth and to be acting in an authorized governmental capacity with respect to delivery of such health care services. The premium for coverage of such person under the Risk Management Plan shall be paid by the Department of Health.
  3. For the purposes of this section and Article 5 (§ 2.2-1832 et seq.) of Chapter 18 of Title 2.2, “delivery of health care services without charge” shall be deemed to include the delivery of dental, medical or other health services when a reasonable minimum fee is charged to cover administrative costs.

History. 1983, c. 25, § 54-1.2:2; 1988, c. 765; 1989, c. 159; 1992, cc. 414, 706; 1995, cc. 509, 531; 1996, c. 748; 1999, c. 834; 2000, cc. 473, 618, 632; 2004, c. 49; 2010, c. 353; 2017, cc. 57, 415.

The 1999 amendment deleted “and located in the Commonwealth” following “United States government” in subsection A, in the second paragraph.

The 2000 amendments.

The 2000 amendment by c. 473, in subsection A, inserted “Counseling” following “Speech-Language Pathology,” and substituted “or Social Work” for “Social Work; or Licensed Professional Counselors, Marriage and Family Therapists and Substance Abuse Treatment Professionals.”

The 2000 amendments by cc. 618 and 632 are identical, and substituted “Article 2.2 (§ 2.1-191.5 et seq.) of Chapter 14” for “Article 5.1 (§ 2.1-526.1 et seq.) of Chapter 32” in subsections B and C.

The 2004 amendments.

The 2004 amendment by c. 49, in subsection A, inserted “or who holds a multistate licensure privilege to practice nursing issued by the Board of Nursing,” deleted “or” preceding “certification,” and inserted “or licensure privilege.”

The 2010 amendments.

The 2010 amendment by c. 353 inserted “or any clinic for the indigent and uninsured that is organized for the delivery of primary health care services as a federally qualified health center designated by the Centers for Medicare & Medicaid Services” in the first paragraph of subsection A.

The 2017 amendments.

The 2017 amendments by cc. 57 and 415 are identical, and added the last sentence of the first paragraph in subsection A.

Law Review.

For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Physicians and Surgeons, §§ 2, 6.

OPINIONS OF THE ATTORNEY GENERAL

Liability of dentists who provide free dental services. —

Dentists who provide free dental services to Mission of Mercy are liable for civil damages only for acts or omissions resulting from gross negligence or willful misconduct. See opinion of Attorney General to The Honorable Terry G. Kilgore, Member, House of Delegates, 00-079, 2000 Va. AG LEXIS 68 (11/13/00).

§ 54.1-106.1. Notification to licensees of the Board of Medicine about immunity for health care services to patients of free clinics.

The Board of Medicine shall provide to its licensees a full description of the protection from civil liability established pursuant to § 54.1-106 . Such description shall explain the coverage available under the Division of Risk Management pursuant to subsection B of § 54.1-106 .

History. 2005, c. 134.

The number of this section was assigned by the Virginia Code Commission, the 2005 act having assigned no number.

§ 54.1-107. Appointments, terms and removal of members of regulatory boards; citizen members.

All members of regulatory boards shall be citizens of the United States and residents of Virginia. Members shall be appointed by the Governor and may be removed by him as provided in subsection A of § 2.2-108 . Any vacancy occurring other than by expiration of terms shall be filled for the unexpired term. Members shall hold office after expiration of their terms until their successors are duly appointed and have qualified. Appointment to fill an unexpired term shall not be considered a full term. All members of regulatory boards appointed by the Governor for terms commencing on or after July 1, 1988, shall be appointed for terms of four years. No member shall serve more than two successive full terms on any regulatory board.

A “citizen member” of a regulatory board shall be a person who (i) is not by training or experience a practitioner of the profession or occupation regulated by the board, (ii) is not the spouse, parent, child, or sibling of such a practitioner, and (iii) has no direct or indirect financial interest, except as a consumer, in the practice of the profession or occupation regulated by the board.

The provisions of this section shall not apply to the Board for Branch Pilots.

History. 1981, c. 447, § 54-1.18:1; 1988, cc. 42, 765.

Cross references.

As to citizen members on Fair Housing Board, see § 54.1-2344 .

Editor’s note.

At the direction of the Virginia Code Commission, “subsection A of § 2.2-108 ” was substituted for “subsection B of § 2.2-108 ” to conform to the recodification by Acts 2016, c. 588, effective October 1, 2016.

§ 54.1-108. Disclosure of official records.

Official records of the Department of Professional and Occupational Regulation or the Department of Health Professions or any board named in this title shall be subject to the disclosure provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), except for the following:

  1. Examination questions, papers, booklets, and answer sheets, which may be disclosed at the discretion of the board administering or causing to be administered such examinations.
  2. Applications for admission to examinations or for licensure, certification, registration, or permitting and the scoring records maintained by any board or by the Departments on individuals or applicants. However, this material may be made available during normal working hours for copying by the subject individual or applicant at his expense at the office of the Department or board that possesses the material.
  3. Records of active investigations being conducted by the Departments or any board.

History. 1979, c. 408, § 54-1.41; 1982, c. 207; 1988, c. 765; 1993, c. 499; 2017, c. 423.

Cross references.

As to certain information not to be made public, see § 54.1-4424 .

The 2017 amendments.

The 2017 amendment by c. 423, in subdivision 2, in the first sentence, inserted “certification, registration, or permitting” and substituted “individuals” for “individual licensees,” and in the second sentence, inserted “or applicant” and substituted “that” for “which.”

§ 54.1-109. Reviews and appeals.

Any person who has been aggrieved by any action of the Department of Professional and Occupational Regulation, Department of Health Professions, Board for Professional and Occupational Regulation, Board of Health Professions, any regulatory board within the Departments or any panel of a health regulatory board convened pursuant to § 54.1-2400 shall be entitled to a review of such action. Appeals from such actions shall be in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

History. 1979, c. 408, § 54-1.19; 1988, c. 765; 1992, c. 659; 1993, c. 499.

§ 54.1-110. Presiding officer; participation of board in hearing; disqualification of board member.

  1. Every hearing in a contested case shall be conducted in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). When a hearing officer presides, the regulatory board shall determine whether the hearing officer is to hear the case alone or with a panel of a health regulatory board convened pursuant to § 54.1-2400 or whether the board is to hear the case with the hearing officer.
  2. A board member shall disqualify himself and withdraw from any case in which he cannot accord fair and impartial consideration. Any party may request the disqualification of any board member by stating with particularity the grounds upon which it is claimed that fair and impartial consideration cannot be accorded. The remaining members of the board or panel shall determine whether the individual should be disqualified.

History. 1979, c. 408, § 54-1.37; 1986, c. 615; 1988, c. 765; 1992, c. 659.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Administrative Law, § 10.

CASE NOTES

Legislative intent. —

This section does not allow the board to select certain members to participate in the investigatory stage, as well as the decisional stage. Instead, the intent of the statute is that each member of the board be presented with the information on an equal basis. Virginia Bd. of Medicine v. Fetta, 12 Va. App. 1173, 408 S.E.2d 573, 8 Va. Law Rep. 640, 1991 Va. App. LEXIS 217 (1991), aff'd, 244 Va. 276 , 421 S.E.2d 410, 9 Va. Law Rep. 256, 1992 Va. LEXIS 91 (1992).

No waiver of procedural objection. —

The party who is the target of the proceeding is not required to present oral argument before the board, or even to appear at the full board hearing, and thus does not waive the procedural objection. Virginia Bd. of Medicine v. Fetta, 244 Va. 276 , 421 S.E.2d 410, 9 Va. Law Rep. 256, 1992 Va. LEXIS 91 (1992).

Board did not abuse discretion in refusing to require recusal. —

Virginia Board of Medicine did not abuse its discretion in refusing to require the recusal of the panel chair when a doctor alleged that the panel chair’s denial of the doctor’s motion for a second continuance, as well as the statements the chair made in conjunction with the ruling, showed that the chair was biased against the doctor and should have been recused. A full review of the panel chair’s comments showed that the doctor was not denied a fair and impartial adjudication of the issues. Va. Bd. of Med. v. Hagmann, 67 Va. App. 488, 797 S.E.2d 422, 2017 Va. App. LEXIS 80 (2017).

No bias demonstrated. —

Failure of a physician to raise below his claim that he was denied his right to an impartial jury was significant because it prevented the Virginia Board of Medicine from addressing the claim in the manner prescribed by statute. Merchia v. Va. Bd. of Med., 2018 Va. App. LEXIS 334 (Va. Ct. App. Dec. 4, 2018).

Presence of board members not harmless error. —

The presence of four Virginia Board of Medicine members at evidentiary hearing, and their subsequent participation in the full Virginia Board of Medicine deliberations, could have had a significant impact on the ultimate decision so as to undermine the “substantiality of the evidential support” for the factual findings, and was not harmless error. Virginia Bd. of Medicine v. Fetta, 244 Va. 276 , 421 S.E.2d 410, 9 Va. Law Rep. 256, 1992 Va. LEXIS 91 (1992).

§ 54.1-111. Unlawful acts; prosecution; proceedings in equity; civil penalty.

  1. It is unlawful for any person, partnership, corporation, or other entity to engage in any of the following acts:
    1. Practicing a profession or occupation without holding a valid license as required by statute or regulation.
    2. Making use of any designation provided by statute or regulation to denote a standard of professional or occupational competence without being duly certified or licensed.
    3. Making use of any titles, words, letters, or abbreviations which may reasonably be confused with a designation provided by statute or regulation to denote a standard of professional or occupational competence without being duly certified or licensed.
    4. Performing any act or function which is restricted by statute or regulation to persons holding a professional or occupational license or certification, without being duly certified or licensed.
    5. Failing to register as a practitioner of a profession or occupation as required by statute or regulation.
    6. Materially misrepresenting facts in an application for licensure, certification, or registration.
    7. Willfully refusing to furnish a regulatory board information or records required or requested pursuant to statute or regulation.
    8. Violating any statute or regulation governing the practice of any profession or occupation regulated pursuant to this title.
    9. Refusing to process a request, tendered in accordance with the regulations of the relevant health regulatory board or applicable statutory law, for patient records or prescription dispensing records after the closing of a business or professional practice or the transfer of ownership of a business or professional practice.
  2. Any person who willfully engages in any unlawful act enumerated in this section is guilty of a Class 1 misdemeanor. The third or any subsequent conviction for violating this section during a 36-month period constitutes a Class 6 felony. In addition, any person convicted of any unlawful act enumerated in subdivisions A 1 through 8, for conduct that is within the purview of any regulatory board within the Department of Professional and Occupational Regulation, may be ordered by the court to pay restitution in accordance with §§ 19.2-305 through 19.2-305.4 .
  3. The Director of the Department of Professional and Occupational Regulation, or his designee, may issue a notice to any person violating the provisions of subdivisions A 1 through 5 or A 8 to cease and desist such activity.
  4. In addition to the criminal penalties provided for in subsection B, the Department of Professional and Occupational Regulation or the Department of Health Professions, without compliance with the Administrative Process Act (§ 2.2-4000 et seq.), shall have the authority to enforce the provisions of subsection A and may institute proceedings in equity to enjoin any person, partnership, corporation or any other entity from engaging in any unlawful act enumerated in this section and to recover a civil penalty of at least $200 but not more than $5,000 per violation, with each unlawful act constituting a separate violation; but in no event shall the civil penalties against any one person, partnership, corporation or other entity exceed $25,000 per year. Such proceedings shall be brought in the name of the Commonwealth by the appropriate Department in the circuit court or general district court of the city or county in which the unlawful act occurred or in which the defendant resides.
  5. This section shall not be construed to prohibit or prevent the owner of patient records from (i) retaining copies of his patient records or prescription dispensing records after the closing of a business or professional practice or the transfer of ownership of a business or professional practice or (ii) charging a reasonable fee, in accordance with subsections B2, B3, B4, and B6 of § 8.01-413 or subsection J of § 32.1-127.1:03 , for copies of patient records, as applicable under the circumstances.
  6. Nothing in this section, nor §§ 13.1-543 , 13.1-1102 , 54.1-2902 , and 54.1-2929 , shall be construed to prohibit or prevent any entity of a type listed in § 13.1-542.1 or 13.1-1101.1 , which employs or contracts with an individual licensed by a health regulatory board, from (i) practicing or engaging in the practice of a profession or occupation for which such individual is licensed, (ii) providing or rendering professional services related thereto through the licensed individual, or (iii) having a legitimate interest in enforcing the terms of employment or its contract with the licensed individual.
  7. This section shall apply, mutatis mutandis, to all persons holding a multistate licensure privilege to practice nursing in the Commonwealth of Virginia.

History. 1979, c. 408, § 54-1.20; 1988, c. 765; 1993, cc. 129, 499; 1998, c. 470; 2001, c. 544; 2003, cc. 753, 762; 2004, c. 49; 2005, cc. 398, 642, 697; 2008, c. 358; 2017, c. 457; 2019, cc. 481, 517.

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 1998 amendment, effective April 14, 1998, in subsection A, added subdivision 9; and added subsection C.

The 2001 amendments.

The 2001 amendments by c. 544, in subsection B, deleted “of this section” following “subsection A” in two places, inserted the language beginning “and to recover a civil penalty” at the end of the first sentence, and inserted “or general district court” in the second sentence.

The 2003 amendments.

The 2003 amendments by cc. 753 and 762 are identical, and substituted “36-month period” for “thirty-six month period” in the final paragraph of subsection A, and substituted “$5,000” for “$1,000” and “$25,000” for “$10,000” in the first sentence of subsection B.

The 2004 amendments.

The 2004 amendment by c. 49 added subsection D.

The 2005 amendments.

The 2005 amendment by c. 398 added the last sentence in the last paragraph of subsection A.

The 2005 amendments by cc. 642 and 697 are identical, and in subsection C, deleted “not in excess of the amounts authorized” following “charging a reasonable fee,” inserted “accordance with subsections A and B of” preceding “§ 8.01-413 ,” “or subsection J of § 32.1-127.1:03 ,” preceding “for copies of patient records,” and “as applicable under the circumstances” at the end.

The 2008 amendments.

The 2008 amendment by c. 358 added subsection D and redesignated former subsection D as subsection E.

The 2017 amendments.

The 2017 amendment by c. 457 substituted “subsections B2, B3, B4, and B6” for “subsections A and B” in subsection C.

The 2019 amendments.

The 2019 amendment by cc. 481 and 517 are nearly identical, and inserted the subsection B designation, added subsection C and redesignated former subsections B through E as subsections D through G; in subsection A, substituted “It is unlawful” for “It shall be unlawful”; in subsection B, substituted “constitutes” for “shall constitute”; and made stylistic changes.

Law Review.

For comment, “Design-Build Contracts in Virginia,” see 14 U. Rich. L. Rev. 791 (1980).

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

For annual survey article, “Corporate and Business Law,” see 44 U. Rich. L. Rev. 307 (2009).

CASE NOTES

Extent of requirement to have real estate license. —

The requirement that those who act as a real estate broker in Virginia be licensed in Virginia extends not only to those who enter into a compensation contract with a seller or a purchaser but also to those who contract with each other to share commissions earned by the performance of such acts. Harrison & Bates, Inc. v. LSR Corp., 238 Va. 741 , 385 S.E.2d 624, 6 Va. Law Rep. 843, 1989 Va. LEXIS 162 (1989).

Non-professional corporation not permitted to practice medicine. —

In a suit to enforce a non-compete covenant, § 54.1-2902 barred a non-professional corporation from practicing medicine since it was unlicensed; the corporation was therefore not permitted to engage in a competing medical practice with a physician, had no legitimate business interest in enforcing its non-compete covenant with the physician, and judgment for the corporation was error. Parikh v. Family Care Ctr., Inc., 273 Va. 284 , 641 S.E.2d 98, 2007 Va. LEXIS 37 (2007).

Wrongful termination claim. —

Although regulations of the state Board for Opticians prohibited opticians from engaging in false advertising, an optician failed to establish that he was wrongfully terminated for refusing to participate in his former employer’s sales scheme, which the employee contended was false and fraudulent, and which he further alleged would have subjected him to revocation of his optician’s license, because the regulations regarding this matter, 18 VAC 100-20-110 A 5, concerned publishing or causing to be published a false advertisement, and the employee was not involved in creating or publishing the allegedly false advertisements. Lucker v. Cole Vision Corp., No. 7:05CV00126, 2005 U.S. Dist. LEXIS 25118 (W.D. Va. Oct. 26, 2005).

Where a former employee allegedly was fired in retaliation for reporting illegal pharmacy practices, the employee sufficiently stated a claim that the employee’s termination violated the public policy of Va. Code Ann. §§ 54.1-3310 and 54.1-3435 because the employee clearly described the circumstances of the employee’s refusal to engage in an act of criminal consequences. Weidman v. Exxon Mobil Corp., 776 F.3d 214, 2015 U.S. App. LEXIS 276 (4th Cir. 2015), cert. denied, 576 U.S. 1036, 135 S. Ct. 2868, 192 L. Ed. 2d 897, 2015 U.S. LEXIS 4167 (2015), dismissed, No. 1:13-cv-501, 2016 U.S. Dist. LEXIS 98059 (E.D. Va. July 26, 2016).

Evidence sufficient. —

Defendant contended that the Commonwealth failed to prove that his actions met the definition of a “contractor” and thus he could not be in violation of this section. This contention belied appellant’s own admissions that he was the contractor who was going to build the houses and that he had no license. This testimony was sufficient for the trial court to convict appellant of violating this section. Additionally, the evidence was sufficient to prove he acted as a contractor without possessing a license, as well as to prove he was acting as an owner-developer without possessing a license. Sams v. Commonwealth, 1997 Va. App. LEXIS 181 (Va. Ct. App. Apr. 1, 1997).

Felony enhancement. —

Defendant contended that the felony enhancement should not be applied to him because the date of sentencing for the instant offenses was not within thirty-six months of his two prior convictions. However, this section uses the term “conviction” rather than “date of offense.” Because the plain language of a statute must be given its ordinary meaning, the date of conviction is the proper date to use in determining whether the felony enhancement provisions of this section apply. Sams v. Commonwealth, 1997 Va. App. LEXIS 181 (Va. Ct. App. Apr. 1, 1997).

Ends of justice exception not applicable. —

Defendant having admitted in open court that defendant did not have the required contractor’s license in order to perform or manage work defendant contracted to do, in defendant’s conviction for entering a construction contract without holding the required license in violation of § 54.1-111 , there was no basis upon which to apply the ends of justice exception to Va. Sup. Ct. R. 5A:18. Wade v. Commonwealth, 2009 Va. App. LEXIS 95 (Va. Ct. App. Mar. 10, 2009).

CIRCUIT COURT OPINIONS

Unlawful practice of medicine without license. —

In an inmate’s complaint regarding the injuries he claimed to have received while in the city jail, sheriff’s demurrer and the plea in bar as to Count I were sustained because the sheriff made medical care available to the inmate; the physicians were not the sheriff’s servants, but independent contractors; the sheriff could not diagnose, treat, and attempt to cure the inmate’s broken bones and brain injury as the sheriff would be practicing medicine without a license; and sheriff could not have the duty of a physician to use the degree of skill and diligence in the care and treatment of a patient that a reasonably prudent physician in his field of practice would have used in the circumstances. Quigley v. McCabe, 91 Va. Cir. 397, 2015 Va. Cir. LEXIS 243 (Norfolk Nov. 30, 2015).

§ 54.1-112. Copies of records as evidence.

Copies of all records, documents and other papers of the Department of Professional and Occupational Regulation and the Department of Health Professions and their regulatory boards which bear the official seal and which are duly certified and authenticated in writing on the face of such documents to be true copies by the custodian thereof and by the person to whom the custodian reports shall be received as evidence with like effect as the original records, documents or other papers in all courts of the Commonwealth.

History. 1988, c. 765; 1993, c. 499.

§ 54.1-113. (Effective until July 1, 2022) Regulatory boards to adjust fees; certain transfer of moneys collected on behalf of health regulatory boards prohibited.

  1. Following the close of any biennium, when the account for any regulatory board within the Department of Professional and Occupational Regulation or the Department of Health Professions maintained under § 54.1-308 or 54.1-2505 shows expenses allocated to it for the past biennium to be more than 10 percent greater or less than moneys collected on behalf of the board, it shall revise the fees levied by it for certification, licensure, registration, or permit and renewal thereof so that the fees are sufficient but not excessive to cover expenses.
  2. Nongeneral funds generated by fees collected on behalf of the health regulatory boards and accounted for and deposited into a special fund by the Director of the Department of Health Professions shall be held exclusively to cover the expenses of the health regulatory boards, the Health Practitioners’ Monitoring Program, and the Department and Board of Health Professions and shall not be transferred to any agency other than the Department of Health Professions, except as provided in §§ 54.1-3011.1 and 54.1-3011.2 .

History. 1981, c. 558, § 54-1.28:1; 1988, c. 765; 1993, c. 499; 2006, c. 631; 2009, c. 472; 2017, c. 423.

Section set out twice.

The section above is effective until July 1, 2022. For the version of this section effective July 1, 2022, see the following section, also numbered § 54.1-113 .

The 2006 amendments.

The 2006 amendment by c. 631 added the subsection A designation and added subsection B.

The 2009 amendments.

The 2009 amendment by c. 472 substituted “Health Practitioners’ Monitoring Program” for “Health Practitioners’ Intervention Program” in subsection B.

The 2017 amendments.

The 2017 amendment by c. 423, in subsection A, inserted “registration, or permit” and made minor stylistic changes.

Law Review.

For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

§ 54.1-113. (Effective July 1, 2022) Regulatory boards to adjust fees; certain transfer of moneys collected on behalf of health regulatory boards prohibited.

  1. Following the close of any biennium, when the account for any regulatory board within the Department of Professional and Occupational Regulation maintained under § 54.1-308 shows that unspent and unencumbered revenue exceeds $100,000 or 20 percent of the total expenses allocated to the regulatory board for the past biennium, whichever is greater, the regulatory board shall (i) distribute all such excess revenue to current regulants and (ii) reduce the fees levied by it for certification, licensure, registration, or permit and renewal thereof so that the fees are sufficient but not excessive to cover expenses.
  2. Following the close of any biennium, when the account for any regulatory board within the Department of Health Professions maintained under § 54.1-2505 shows expenses allocated to it for the past biennium to be more than 10 percent greater or less than moneys collected on behalf of the regulatory board, it shall revise the fees levied by it for certification, licensure, registration, or permit and renewal thereof so that the fees are sufficient but not excessive to cover expenses.
  3. Nongeneral funds generated by fees collected on behalf of the health regulatory boards and accounted for and deposited into a special fund by the Director of the Department of Health Professions shall be held exclusively to cover the expenses of the health regulatory boards, the Health Practitioners’ Monitoring Program, and the Department and Board of Health Professions and shall not be transferred to any agency other than the Department of Health Professions, except as provided in §§ 54.1-3011.1 and 54.1-3011.2 .

History. 1981, c. 558, § 54-1.28:1; 1988, c. 765; 1993, c. 499; 2006, c. 631; 2009, c. 472; 2017, c. 423; 2019, cc. 517, 697.

Section set out twice.

The section above is effective July 1, 2022. For this section as in effect until July 1, 2022, see the preceding section, also numbered § 54.1-113 .

Editor’s note.

Acts 2019, c. 517, cl. 2 provides: “That the provisions of this act amending § 54.1-113 of the Code of Virginia shall become effective on July 1, 2022.”

Acts 2019, c. 697, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2022.”

The 2019 amendments.

The 2019 amendments by cc. 517 and 697 are nearly identical, effective July 1, 2022, and added subsection A and made related changes; in subsection B, deleted “Department of Professional and Occupational Regulation or the” following “within the,” deleted “54.1-308 or” preceding “54.1-2505,” and inserted “regulatory” preceding “board, it.”

§ 54.1-114. (Contingent expiration date /– See Editor's note) Biennial report.

The Board of Bar Examiners, the Department of Professional and Occupational Regulation and the Department of Health Professions shall submit biennial reports to the Governor and General Assembly on or before November 1 of each even-numbered year. The biennial report shall contain at a minimum the following information for the Board of Bar Examiners and for each board within the two Departments: (i) a summary of the board’s fiscal affairs, (ii) a description of the board’s activities, (iii) statistical information regarding the administrative hearings and decisions of the board, (iv) a general summary of all complaints received against licensees and the procedures used to resolve the complaints, and (v) a description of any action taken by the board designed to increase public awareness of board operations and to facilitate public participation. The Department of Health Professions shall include, in those portions of its report relating to the Board of Medicine, a compilation of the data required by § 54.1-2910.1 .

History. 1985, c. 537, § 54-1.2:3; 1988, c. 765; 1993, c. 499; 1998, c. 744; 2004, c. 650.

Editor’s note.

The 1998 amendment inserted the next-to-last sentence.

That the provisions of the first enactment of this act amending § 54.1-114 of the Code of Virginia shall become effective on July 1, 2025.

That the provisions of this act shall not become effective unless reenacted by the 2023 Session of the General Assembly.

The 2022 amendments.

The 2022 amendments by cc. 382 and 383, effective July 1, 2025, are identical, and inserted the subsection A designation and added subsection B.

§ 54.1-114. (Contingent expiration date — See Editor’s note) Biennial report.

  1. The Board of Bar Examiners, the Department of Professional and Occupational Regulation and the Department of Health Professions shall submit biennial reports to the Governor and General Assembly on or before November 1 of each even-numbered year. The biennial report shall contain at a minimum the following information for the Board of Bar Examiners and for each board within the two Departments: (i) a summary of the board’s fiscal affairs, (ii) a description of the board’s activities, (iii) statistical information regarding the administrative hearings and decisions of the board, (iv) a general summary of all complaints received against licensees and the procedures used to resolve the complaints, and (v) a description of any action taken by the board designed to increase public awareness of board operations and to facilitate public participation. The Department of Health Professions shall include, in those portions of its report relating to the Board of Medicine, a compilation of the data required by § 54.1-2910.1 .
  2. The Department of Professional and Occupational Regulation’s biennial report shall include, with respect to all licenses, certificates, and registrations made:
    1. The total number of applicants and, of that number, the number of those granted a license and the number of those denied;
    2. The total number of examinations administered and, of that number, the number of applicants who were successful and the number of applicants who were unsuccessful in passing the examination requirements;
    3. The number of initial applicants and renewal applicants with a criminal record and, of those numbers, the number of times each board acted to grant the application or to deny, diminish, suspend, revoke, withhold, or refuse to renew or otherwise limit the requested license, certificate, or registration due at least in part to an individual’s criminal conviction;
    4. The number of each offense category for which each board acted in subdivision 3, whether that offense be property-related, person-related, or drug-related;
    5. The number of guidance documents filed by each board under subsection F of § 54.1-204 ; and
    6. Any other data, as determined by the Department to be (i) relevant and helpful to inform the Governor and General Assembly of the impact of criminal convictions on professional or occupational licensure or (ii) necessary to accurately account for all totals requested.

History. 1985, c. 537, § 54-1.2:3; 1988, c. 765; 1993, c. 499; 1998, c. 744; 2004, c. 650; 2022, cc. 382, 383.

§ 54.1-115. Expired.

Editor’s note.

This section was enacted by Acts 1991, c. 522, and expired by its own terms on July 1, 1992.

§ 54.1-116. Applicants to include social security numbers, or other identifying number; exemption.

  1. Every applicant for a license, certificate, registration or other authorization to engage in a business, trade, profession or occupation issued by the Commonwealth pursuant to this title, and every applicant for renewal thereof, shall provide on the application either his social security number or control number issued by the Department of Motor Vehicles pursuant to § 46.2-342 . An initial application or renewal application which does not include either identifying number shall not be considered or acted upon by the issuing entity, and no refund of any fees paid with the application shall be granted.
  2. Notwithstanding the provisions of subsection A, a health regulatory board of the Department of Health Professions may issue a temporary license or authorization to practice, effective for not longer than 90 days, to an otherwise qualified applicant for a license, certificate or registration who is a foreign national and cannot provide a social security number or control number at the time of application.

History. 1997, cc. 794, 898; 2003, c. 803.

The 2003 amendments.

The 2003 amendment by c. 803, effective March 20, 2003, designated the existing provisions of the section as subsection A and added subsection B.

§ 54.1-117. Expiration of documents issued to persons in diplomatic service and the armed services of the United States.

Notwithstanding any contrary provision of law, any license, permit, certificate, or other document, however styled or denominated, that is related to the practice of any business, profession, or calling and issued under this title to any citizen of the Commonwealth shall be held not to have expired during the period of such person’s service outside the United States, in the armed services of the United States or as a member of the diplomatic service of the United States, appointed under the Foreign Service Act of 1946, serving outside the United States and 60 days thereafter. However, no extension granted under this section shall exceed five years from the date of expiration of the document. The provisions of this section shall apply to the spouse of a member of the armed services of the United States if the spouse accompanies the member during periods of service outside of the United States.

For the purposes of this section “service in the armed services of the United States” includes active duty service with the regular Armed Forces of the United States or the National Guard or other reserve component.

History. 2004, c. 975; 2011, cc. 342, 357.

The 2011 amendments.

The 2011 amendments by cc. 342 and 357 are identical, and inserted the last sentence in the first paragraph.

§ 54.1-118. Initiatives to reduce unemployment among veterans.

  1. Except as provided in this section, the regulatory boards within the Department of Professional and Occupational Regulation, the Department of Health Professions, or any board named in this title shall accept the military training, education, or experience of a service member honorably discharged from active military service in the armed forces of the United States, to the extent that such training, education, or experience is substantially equivalent to the requirements established by law and regulations of the respective board for the issuance of any license, permit, certificate, or other document, however styled or denominated, required for the practice of any business, profession, or occupation in the Commonwealth. To the extent that the service member’s military training, education, or experience, or portion thereof, is not deemed substantially equivalent, the respective board shall credit whatever portion of the military training, education, or experience that is substantially equivalent toward meeting the requirements for the issuance of the license, permit, certificate, or other document.The provisions of this subsection shall not apply to the Board of Medicine in the regulation of the practice of medicine or osteopathic medicine. Nor shall this subsection apply to the Board of Dentistry in the regulation of dentists or oral and maxillofacial surgeons.
  2. The Board of Medicine may accept a service member’s military training, education, or experience as an intern or resident in an approved facility to satisfy the requirement of one year of satisfactory postgraduate training as an intern or resident in a hospital or health care facility, provided the applicant for licensure (i) has been honorably discharged from active military service in the armed forces of the United States, (ii) is a graduate of a Board-approved institution, (iii) has successfully completed all required examinations for licensure, and (iv) applies for licensure within six months of discharge from active military service.
  3. The Board of Dentistry may accept the military training, education, or experience of a service member provided the applicant for licensure (i) has been honorably discharged from active military service in the armed forces of the United States, (ii) has been in continuous clinical practice for four of the six years immediately preceding the application for licensure, (iii) holds a diploma or certificate of a dental program accredited by the Commission on Dental Accreditation of the American Dental Association, and (iv) has successfully completed all required examinations for licensure. Active patient care in the Dental Corps of the United States armed forces, voluntary practice in a public health clinic, or practice in an intern or residency program may be accepted by the Board to satisfy requirements for licensure.
  4. Any regulatory board may require the service member to provide such documentation of his training, education, or experience as deemed necessary by the board to determine substantial equivalency.
  5. As used in this section, “active military service” means federally funded military duty as (i) a member of the armed forces of the United States on active duty pursuant to Title 10 of the United States Code or (ii) a member of the Virginia National Guard on active duty pursuant to either Title 10 or Title 32 of the United States Code.

History. 2012, c. 524.

Cross references.

As to initiatives by the Department of Veterans Services to reduce unemployment among veterans, see § 2.2-2001.2 .

Editor’s note.

Acts 2012, c. 524, cl. 2 provides: “That the Secretary of Health and Human Resources shall report annually to the Chairmen of the House Committee on General Laws and the Senate Committee on General Laws and Technology on the number of licenses or permits issued pursuant to the provisions of this act.”

§ 54.1-119. Expediting the issuance of licenses, etc., to spouses of military service members; issuance of temporary licenses, etc.

  1. Notwithstanding any other law to the contrary and unless an applicant is found by the board to have engaged in any act that would constitute grounds for disciplinary action, a regulatory board within the Department of Professional and Occupational Regulation or the Department of Health Professions or any other board named in this title shall expedite the issuance of a license, permit, certificate, or other document, however styled or denominated, required for the practice of any business, profession, or occupation in the Commonwealth to an applicant whose application has been deemed complete by the board and (i) who holds the same or similar license, permit, certificate, or other document required for the practice of any business, profession, or occupation issued by another jurisdiction; (ii) whose spouse is (a) on federal active duty orders pursuant to Title 10 of the United States Code or (b) a veteran, as that term is defined in § 2.2-2000.1 , who has left active-duty service within one year of the submission of an application to a board; and (iii) who accompanies the applicant’s spouse to the Commonwealth or an adjoining state or the District of Columbia, if, in the opinion of the board, the requirements for the issuance of the license, permit, certificate, or other document in such other jurisdiction are substantially equivalent to those required in the Commonwealth. A board may waive any requirement relating to experience if the board determines that the documentation provided by the applicant supports such a waiver.
  2. If a board is unable to (i) complete the review of the documentation provided by the applicant or (ii) make a final determination regarding substantial equivalency within 20 days of the receipt of a completed application, the board shall issue a temporary license, permit, or certificate, provided the applicant otherwise meets the qualifications set out in subsection A. Any temporary license, permit, or certification issued pursuant to this subsection shall be limited for a period not to exceed 12 months and shall authorize the applicant to engage in the profession or occupation while the board completes its review of the documentation provided by the applicant or the applicant completes any specific requirements that may be required in Virginia that were not required in the jurisdiction in which the applicant holds the license, permit, or certificate.
  3. The provisions of this section shall apply regardless of whether a regulatory board has entered into a reciprocal agreement with the other jurisdiction pursuant to subsection B of § 54.1-103 .
  4. Any regulatory board may require the applicant to provide documentation it deems necessary to make a determination of substantial equivalency.

History. 2012, c. 604; 2014, c. 602; 2016, c. 33; 2020, cc. 28, 35.

The number of this section was assigned by the Virginia Code Commission, the number in the 2012 act having been 54.1-118 .

Editor’s note.

Acts 2012, c. 604, cl. 2 provides: “That the provisions of this act shall become effective on July 1, 2012, except that the provisions of subsection B of § 54.1-119 added in this act establishing the requirement to issue a temporary license, permit, or certification shall become effective on July 1, 2014.”

The 2014 amendments.

The 2014 amendment by c. 602, in subsection B substituted “20” for “30.”

The 2016 amendments.

The 2016 amendment by c. 33, in clause (iii) of subsection A, substituted “accompanies” for “left employment to accompany” and substituted “12 months” for “six months” in subsection B.

The 2020 amendments.

The 2020 amendments by cc. 28 and 35 are identical, and in subsection A, substituted “(a) on federal active duty orders pursuant to Title 10 of the United States Code or (b) a veteran, as that term is defined in § 2.2-2000.1 , who has left active duty service within one year of the submission of an application to a board” for “the subject of a military transfer to the Commonwealth” and “the Commonwealth or an adjoining state or the District of Columbia” for “Virginia” in the first sentence and added the last sentence.

Subtitle II. Professions and Occupations Regulated by the Department of Professional and Occupational Regulation and Boards Within the Department.

Chapter 2. General Provisions.

§ 54.1-200. Composition of regulatory boards.

A regulatory board established to administer a system of certification or licensure as provided in §§ 54.1-310 and 54.1-311 , unless otherwise specified by law, shall consist of at least five members. The Board for Professional and Occupational Regulation may recommend to the General Assembly the number of members to be placed on the regulatory board. Two members of each board established hereafter shall be citizen members and the remainder of the members shall be practitioners of the profession or occupation which is being regulated. Citizen members shall participate in all matters except decisions regarding the examination of applicants for licensure or decisions regarding the professional competence of licensees. Terms of the members shall be staggered to ensure a continuing body.

History. 1979, c. 408, § 54-1.27; 1988, c. 765; 1993, c. 499.

Michie’s Jurisprudence.

For related discussion, see 3A M.J. Brokers, § 3.

CASE NOTES

Applicability. —

Although § 54.1-200 and subsection A of § 54.1-602 have similar wording, subsection A of § 54.1-602 specifically addresses the Virginia Auctioneers Board and applied to the Board’s actions to impose monetary penalties and to suspend an auctioneer’s license. Khan v. Commonwealth, 42 Va. App. 469, 592 S.E.2d 755, 2004 Va. App. LEXIS 78 (2004).

§ 54.1-201. Powers and duties of regulatory boards.

  1. The powers and duties of regulatory boards shall be as follows:
    1. To establish the qualifications of applicants for certification or licensure by any such board, provided that all qualifications shall be necessary to ensure either competence or integrity to engage in such profession or occupation.
    2. To examine, or cause to be examined, the qualifications of each applicant for certification or licensure within its particular regulatory system, including when necessary the preparation, administration and grading of examinations.
    3. To certify or license qualified applicants as practitioners of the particular profession or occupation regulated by such board.
    4. To levy and collect fees for certification or licensure and renewal that are sufficient to cover all expenses for the administration and operation of the regulatory board and a proportionate share of the expenses of the Department of Professional and Occupational Regulation and the Board for Professional and Occupational Regulation.
    5. To promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) necessary to assure continued competency, to prevent deceptive or misleading practices by practitioners and to effectively administer the regulatory system administered by the regulatory board. The regulations shall not be in conflict with the purposes and intent of this chapter or of Chapters 1 (§ 54.1-100 et seq.) and 3 (§ 54.1-300 et seq.) of this title.
    6. To ensure that inspections are conducted relating to the practice of each practitioner certified or licensed by the regulatory board to ensure that the practitioner is conducting his practice in a competent manner and within the lawful regulations promulgated by the board.
    7. To place a regulant on probation or revoke, suspend or fail to renew a certificate or license for just causes as enumerated in regulations of the board. Conditions of probation may include, but not be limited to the successful completion of remedial education or examination.
    8. To receive complaints concerning the conduct of any regulant and to take appropriate disciplinary action if warranted.
    9. To provide a regulant subject to a disciplinary action with a notice advising the regulant of his right to be heard at an informal fact-finding conference pursuant to § 2.2-4019 of the Administrative Process Act. The notice shall state that if the regulant does not request an informal fact-finding conference within 30 days of receipt of the notice, the board may issue a case decision as defined in § 2.2-4001 , with judicial review of the case decision in accordance with § 2.2-4026 . If the regulant asserts his right to be heard prior to the board issuing its case decision, the board shall remand the case to an informal fact-finding conference. The notice required by this subdivision shall be sent by certified mail, return receipt requested or, if agreed to by the parties, electronic means, provided that the board retains sufficient proof of the electronic delivery, which may be an electronic receipt of delivery, a confirmation that the notice was sent by facsimile, or a certificate of service prepared by the sender confirming the electronic delivery.
    10. To promulgate canons of ethics under which the professional activities of regulants shall be conducted.
  2. A regulant shall furnish, upon the request of a person to whom the regulant is providing or offering to provide service, satisfactory proof that the regulant (i) is duly licensed, certified, or registered under this subtitle and (ii) has obtained any required bond or insurance to engage in his profession or occupation.
  3. As used in this section, “regulant” means any person, firm, corporation, association, partnership, joint venture, or any other legal entity required by this subtitle to be licensed, certified, or registered.

History. 1979, c. 408, § 54-1.28; 1983, c. 569; 1988, c. 765; 1993, c. 499; 2005, c. 383; 2012, c. 769; 2013, cc. 398, 486.

The 2005 amendments.

The 2005 amendment by c. 383, in subdivision 7, inserted “place a regulant on probation or” in the first sentence and added the last sentence.

The 2012 amendments.

The 2012 amendment by c. 769 added the subsection A designator and subsections B and C; and substituted “regulant” for “person regulated” or similar language in subdivisions A 8 and A 9.

The 2013 amendments.

The 2013 amendments by cc. 398 and 486 are identical, and added subdivision A 9 and redesignated former subdivision A 9 as subdivision A 10.

§ 54.1-201.1. Issuance of temporary licenses and certifications.

  1. Notwithstanding any other provision of law, the regulatory boards within the Department of Professional and Occupational Regulation may issue a temporary license or certification to any applicant who holds a comparable license or certification issued by another state, provided (i) the license or certificate is valid, (ii) the applicant is in good standing with the regulatory entity that issued the license or certification, and (iii) the applicant simultaneously submits a completed application for a Virginia license or certification.
  2. Any person who receives a temporary license or certification pursuant to this section shall be subject to the jurisdiction of the issuing regulatory board.
  3. Any license or certification issued pursuant to this section shall be valid for a period not to exceed 45 days from the date of issuance and may not be renewed.

History. 2010, cc. 260, 280.

Editor’s note.

Acts 2010, cc. 260 and 280, cl. 2 provides: “That the regulatory boards within the Department of Professional and Occupational Regulation shall promulgate regulations to implement the provision of this act to be effective within 280 days of its enactment.”

Acts 2010, cc. 260 and 280, cl. 3 provides: “That notwithstanding any other provision of law to the contrary, the regulations promulgated pursuant to the second enactment of this act shall remain in full force and effect until replaced by final regulations adopted by the appropriate regulatory board.”

§ 54.1-202. Monetary penalty; delegation to Director of authority enter consent agreements.

  1. Any person licensed or certified by a regulatory board who violates any statute or regulation pertaining to that regulatory board who is not criminally prosecuted shall be subject to the monetary penalty provided in this section. If a regulatory board determines that a respondent is guilty of the violation complained of, the board shall determine the amount of the monetary penalty for the violation, which shall not exceed $2,500 for each violation. The penalty may be sued for and recovered in the name of the Commonwealth.
  2. Any regulatory board within the Department of Professional and Occupational Regulation may adopt a resolution delegating to the Director the authority to enter into consent agreements on behalf of the regulatory board with regulants of the board. Such resolution shall specify the types of violations to which the delegation applies and the maximum monetary penalty that may be imposed in a consent agreement for each regulatory violation. No delegation of authority pursuant to this subsection shall provide for a monetary penalty over $2,500 per regulatory violation.

History. 1979, c. 408, § 54-1.22; 1988, c. 765; 1999, cc. 37, 950; 2001, c. 832; 2005, c. 383.

The 1999 amendments.

The 1999 amendment by c. 37 substituted “$2,500” for “$1,000” in the second sentence.

The 1999 amendment by c. 950 added “Except as provided by § 54.1-2006” at the beginning of the second sentence.

The 2001 amendments.

The 2001 amendment by c. 832, deleted “Except as provided by § 54.1-2006,” from the beginning of the second sentence.

The 2005 amendments.

The 2005 amendment by c. 383, redesignated the former section as subsection A and added subsection B.

§ 54.1-203. Recovery of cost after grant of formal fact-finding.

After a formal fact-finding pursuant to § 2.2-4020 wherein a sanction is imposed to fine, or to suspend, revoke or deny renewal of any license, certificate or registration, the regulatory board or the Department may assess the holder thereof the cost of conducting such fact-finding when the board or Department has final authority to grant such license, certificate or registration, unless the board or Department determines that the offense was inadvertent or done in a good faith belief that such act did not violate a statute or regulation. The cost shall be limited to (i) the reasonable hourly rate for the hearing officer and (ii) the actual cost of recording the proceedings.

History. 1983, c. 401, § 54-1.22:1; 1988, c. 765.

§ 54.1-204. (Contingent expiration date /– See Editor's note) Prior convictions not to abridge rights.

  1. A person shall not be refused a license, certificate or registration to practice, pursue, or engage in any regulated occupation or profession solely because of a prior criminal conviction, unless the criminal conviction directly relates to the occupation or profession for which the license, certificate or registration is sought. However, the regulatory board shall have the authority to refuse a license, certificate or registration if, based upon all the information available, including the applicant’s record of prior convictions, it finds that the applicant is unfit or unsuited to engage in such occupation or profession.
  2. In determining whether a criminal conviction directly relates to an occupation or profession, the regulatory board shall consider the following criteria:
    1. The nature and seriousness of the crime;
    2. The relationship of the crime to the purpose for requiring a license to engage in the occupation;
    3. The extent to which the occupation or profession might offer an opportunity to engage in further criminal activity of the same type as that in which the person had been involved;
    4. The relationship of the crime to the ability, capacity or fitness required to perform the duties and discharge the responsibilities of the occupation or profession;
    5. The extent and nature of the person’s past criminal activity;
    6. The age of the person at the time of the commission of the crime;
    7. The amount of time that has elapsed since the person’s last involvement in the commission of a crime;
    8. The conduct and work activity of the person prior to and following the criminal activity; and
    9. Evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or following release.
  3. A regulatory board or department may require any applicant for registration, licensure or certification to submit to fingerprinting and to provide personal descriptive information to be forwarded along with the applicant’s fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such applicant. Such applicant shall pay the cost of the fingerprinting or a criminal records check or both.The regulatory board or department may enter into a contract to obtain the fingerprints and descriptive information as required for submission to the Central Criminal Records Exchange in a manner and format approved by the Central Criminal Records Exchange.The Central Criminal Records Exchange, upon receipt of an applicant’s record or notification that no record exists, shall make a report to the regulatory board or department or their designee, who must belong to a governmental entity. If an applicant is denied a registration, license or certificate because of the information appearing in his criminal history record, the regulatory board or department shall notify the applicant that information obtained from the Central Criminal Records Exchange contributed to such denial. The information shall not be disseminated except as provided for in this section.
  4. A regulatory board or department shall consider the criminal information as contained in the applicant’s state or national criminal history in lieu of the applicant providing certified copies of such court records in determining whether a criminal conviction directly relates to an occupation or profession or if an applicant is unfit or unsuited to engage in an occupation or profession. The regulatory board or department may request additional information from the applicant in making such determination.

History. 1979, c. 408, § 54-1.21; 1988, c. 765; 2003, c. 582; 2009, c. 667.

Editor’s note.

Acts 2009, c. 667, cl. 3 provides: “That the Department of Professional and Occupational Regulation shall amend the renewal license application form to require applicants for a renewal real estate sales or brokerage license to state that they have no criminal convictions that have not been previously disclosed. Penalties for misrepresentation shall be established by the Real Estate Board.”

Acts 2009, c. 667, cl. 4 provides: “That the State Police shall invoice the Department of Professional and Occupational Regulation for any costs and expenses of implementing the provisions of this act.”

Acts 2022, c. 382, cl. 3 and c. 383, cl. 1 provides:: “That the provisions of this act shall become effective unless reenacted by the 2023 Session of the General Assembly.”

The 2003 amendments.

The 2003 amendment by c. 582 designated the existing section as subsection A and added subsections B through D.

The 2009 amendments.

The 2009 amendment by c. 667 inserted the second paragraph in subsection C.

The 2022 amendments.

The 2022 amendments by cc. 382 and 383 are identical, and rewrote subsection A; inserted subsection B; inserted “non-excluded in the introductory paragraph in subsection C; substituted “circumstances” for “seriousness” in subdivision C 1; substituted “present a substantial risk” for “offer an opportunity” in subdivision C 3; in subdivision C 4, substituted “qualifications required to practice” for “ability, capacity or fitness required to perform the duties and discharge the responsibilities of” and added “in a competent manner”; substituted “convictions” for “activity “ in subdivision C 5; substituted “most recent conviction” for “last involvement in the commission of a crime” in subdivision C 7;inserted subdivisions C 8, C 9, and C 10; rewrote subdivision C 12; inserted subsection D; deleted the last two sentences in former subsection C; deleted former subsection D; added subsection E; and made stylistic changes.

CASE NOTES

Administrative procedure met due process requirements. —

Circuit court erred in suspending the revocation of a real estate agent’s license because the Real Estate Board of the Commonwealth of Virginia did not violated the agent’s procedural due process rights when a reasonable reading of the initial notice clearly indicated that the agent’s prior criminal record would be before the Board and that it was actually required to consider it; the initial notice set forth the agent’s rights pursuant to the Virginia Administrative Process Act, subsection A of § 2.2-4019 , the grounds for disciplinary actions under 18 VAC 135-20-155, the actual language of § 54.1-204 , and the fact that the Board was required to consider the provisions of § 54.1-204 in making its determination. Commonwealth v. DeLapp, 2010 Va. App. LEXIS 405 (Va. Ct. App. Oct. 19, 2010).

CIRCUIT COURT OPINIONS

Board’s findings were insufficient. —

Because the court was unable to determine from the Board for Contractors’ decision whether the Board complied with relevant law of § 54.1-204 , in denying a prisoner’s application for a tradesman license in heating, ventilation, and air conditioning, the matter had to be remanded for further findings. Anderson v. Commonwealth, 69 Va. Cir. 344, 2005 Va. Cir. LEXIS 364 (Richmond Dec. 5, 2005).

§ 54.1-204. (Contingent effective date — See Editor’s note) Prior convictions not to abridge rights.

  1. A person shall not be refused a license, certificate, or registration to practice, pursue, or engage in any occupation or profession regulated by the Department of Professional and Occupational Regulation solely because of a prior criminal conviction until the regulatory board completes an individualized assessment of the individual’s criminal record and current circumstances and determines that the criminal conviction directly relates to the occupation or profession for which the license, certificate, or registration is sought, as assessed pursuant to subsection C. However, the regulatory board shall have the authority to refuse a license, certificate, or registration if, based upon all the information available, including the applicant’s record of prior convictions, it finds that the applicant is unfit or unsuited to engage in such occupation or profession. The regulatory board must complete the individualized assessment prior to refusing a license, certificate, or registration.
  2. The regulatory board shall not require an applicant to disclose an excluded record, and an excluded record shall not be the basis for the refusal of a license, certificate, or registration by the board. An excluded record is any conviction that has been sealed, annulled, dismissed, expunged, or pardoned. A regulatory board or department review of a person’s criminal history record shall be limited to any conviction, finding of guilt, or plea of guilty open to disclosure pursuant to § 19.2-389.3 , regardless of whether the sentence is imposed, suspended, or executed. Any plea of nolo contendere shall be considered a conviction for the purposes of this section. No regulatory board shall consider information in a criminal history record related solely to an arrest or charge.
  3. In determining whether a non-excluded criminal conviction directly relates to an occupation or profession, the regulatory board shall consider the following criteria:
    1. The nature and circumstances of the crime;
    2. The relationship of the crime to the purpose for requiring a license to engage in the occupation;
    3. The extent to which the occupation or profession might present a substantial risk to engage in further criminal activity of the same type as that in which the person had been involved;
    4. The relationship of the crime to the qualifications required to practice the occupation or profession in a competent manner;
    5. The extent and nature of the person’s past criminal convictions;
    6. The age of the person at the time of the commission of the crime;
    7. The amount of time that has elapsed since the person’s most recent conviction;
    8. The reasonable progress made toward the completion of the sentence, whether the setting of that sentence be probation, parole, or a term of incarceration;
    9. The successful completion of treatment for drugs or alcohol abuse if ordered, recommended, or assigned by a court or as a condition of probation or any community supervision program;
    10. The successful completion of rehabilitative programming in the context of a term of incarceration or as a condition of probation, drug court, mental health court, diversion opportunity, or any community supervision program;
    11. The conduct and work activity of the person prior to and following the criminal activity; and
    12. Any other evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or following release that may mitigate against the relationship of past criminal conduct to the practice of the occupation or profession, including testimony or recommendations from correctional, probation, or parole officers, community or faith leaders, counselors or peer recovery specialists, employers, or other individuals as deemed relevant by the board.
  4. The board shall consider the criminal information contained in the applicant’s state or national criminal records in lieu of the applicant providing certified copies of such court records and may request additional information from the applicant in determining whether a criminal conviction directly relates to an occupation or profession. If an applicant is denied a license, certificate, or registration because of the information appearing in his criminal history record, the regulatory board or department shall notify the applicant in writing of the specific offense or offenses that contributed to such denial, how the criminal history directly relates to the occupation, and how the factors provided in subsection C contributed to the board’s decision. The information shall not be disseminated except as provided for in this section.

    A regulatory board or department may require any applicant for licensure, certification, or registration to submit to fingerprinting and to provide personal descriptive information to be forwarded along with the applicant’s fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such applicant. Such applicant shall pay the cost of the fingerprinting or a criminal records check or both.

    The regulatory board or department may enter into a contract to obtain the fingerprints and descriptive information as required for submission to the Central Criminal Records Exchange in a manner and format approved by the Central Criminal Records Exchange.

    The Central Criminal Records Exchange, upon receipt of an applicant’s record or notification that no record exists, shall make a report to the regulatory board or department or its designee, who must belong to a governmental entity.

  5. All regulatory boards shall develop and publish on their website guidance documents that inform prospective applicants of the types of criminal offenses that may impede licensure, including specific convictions and application of the factors provided in subsection C.

History. 1979, c. 408, § 54-1.21; 1988, c. 765; 2003, c. 582; 2009, c. 667; 2022, cc. 382, 383.

Chapter 3. Department of Professional and Occupational Regulation.

§ 54.1-300. Definitions.

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

“Board” means the Board for Professional and Occupational Regulation.

“Certification” means the process whereby the Department or any regulatory board issues a certificate on behalf of the Commonwealth to a person certifying that he possesses the character and minimum skills to engage properly in his profession or occupation.

“Department” means the Department of Professional and Occupational Regulation.

“Director” means the Director of the Department of Professional and Occupational Regulation.

“Inspection” means a method of regulation whereby a state agency periodically examines the activities and premises of practitioners of an occupation or profession to ascertain if the practitioner is carrying out his profession or occupation in a manner consistent with the public health, safety and welfare.

“Licensure” means a method of regulation whereby the Commonwealth, through the issuance of a license, authorizes a person possessing the character and minimum skills to engage in the practice of a profession or occupation that is unlawful to practice without a license.

“Registration” means a method of regulation whereby any practitioner of a profession or occupation may be required to submit information concerning the location, nature and operation of his practice.

“Regulatory board” means the Auctioneers Board, Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects, Board for Barbers and Cosmetology, Board for Branch Pilots, Board for Contractors, Board for Hearing Aid Specialists and Opticians, Board for Professional Soil Scientists, Wetland Professionals, and Geologists, Board for Waste Management Facility Operators, Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals, Cemetery Board, Real Estate Appraiser Board, Real Estate Board, Fair Housing Board, Virginia Board for Asbestos, Lead, and Home Inspectors, and Common Interest Community Board.

History. 1979, c. 408, § 54-1.18; 1980, c. 757; 1981, c. 132; 1982, c. 538; 1983, cc. 115, 322; 1984, cc. 82, 203; 1985, c. 448; 1987, c. 686; 1988, cc. 354, 716, 765; 1990, cc. 459, 466; 1991, c. 551; 1993, c. 499; 1998, c. 27; 1999, c. 950; 2000, c. 726; 2001, cc. 723, 832; 2002, c. 784; 2003, c. 575; 2007, cc. 892, 924; 2009, cc. 358, 557; 2012, cc. 803, 835.

Editor’s note.

Acts 1995, c. 737, cl. 3 provides that “the provisions of this act shall take effect July 1, 1996, or after the Director of DEQ certifies that the activities contemplated under 10.1-1408.2 , as amended by this act, will not result in higher certification fees for waste management facility operators, whichever occurs later.” By letter dated May 23, 1996, the director of DEQ certified that the fees would increase. Therefore, the changes made by Acts 1995, c. 737 will not take effect.

Acts 2007, cc. 892 and 924, cl. 4 provides: “That the provisions of this act shall become effective on July 1, 2009, except the provisions of § 54.1-2301 , which shall become effective in due course.”

Acts 2009, c. 358, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2011, except that the provisions of § 54.1-500.1 of the Code of Virginia shall become effective on July 1, 2009.”

The 1998 amendment, in the paragraph defining “Regulatory board,” inserted “Certified Interior Designers.”

The 1999 amendment in the paragraph defining “Regulatory board,” deleted “Athletic Board” preceding “Auctioneers Board,” substituted “Board of Accountancy” for “Board for Accountancy,” inserted “Board for Waste Management Facility Operators,” inserted “Cemetery Board,” and substituted “Virginia Board for Asbestos and Lead” for “Board for Waste Management Facility Operators.”

The 2000 amendments.

The 2000 amendment by c. 726, in the paragraph defining “Regulatory board” inserted “and Cosmetology” following “for Barbers” and deleted “Board for Cosmetology” preceding “Board for Geology.”

The 2001 amendments.

The 2001 amendment by c. 723, effective July 1, 2003, substituted “Lead, and Home Inspectors” for “and Lead” at the end of the paragraph defining “regulatory board.”

The 2001 amendment by c. 832 deleted “Board of Accountancy” from the definition of “Regulatory board.”

The 2002 amendments.

The 2002 amendment by c. 784, effective July 1, 2004, inserted “and Wetland Professionals” in the definition of “regulatory board.”

The 2003 amendments.

The 2003 amendment by c. 575 substituted “that” for “which” in the definition of “Licensure”; and inserted “Fair Housing Board” in the definition of “Regulatory board.”

The 2007 amendments.

The 2007 amendments by cc. 892 and 924, effective July 1, 2009, are identical, and inserted “and Onsite Sewage System Professionals” in the definition of “Regulatory board.”

The 2009 amendments.

The 2009 amendment by c. 358, effective July 1, 2011, inserted “Mold” near the end of the definition of “Regulatory board.”

The 2009 amendment by c. 557 added “and Common Interest Community Board” to the end of the paragraph defining “Regulatory board” and made a related change.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 34, are identical, and substituted “and Opticians” for “Board for Opticians” in the definition of “Regulatory board.” Clause 38 also amended this section in the definition of “Regulatory board” by deleting “Board of Geology” following “Board for Contractors” and inserting “and Geologists” and making a related change. Clause 55 also amended this section by deleting “Mold” following “Lead” in the definition of “Regulatory board.”

§ 54.1-301. Department continued; appointment of Director.

The Department of Professional and Occupational Regulation within the executive branch is hereby continued. The Department shall be headed by a Director who shall be appointed by the Governor, subject to confirmation by the General Assembly, to serve at the pleasure of the Governor for a term coincident with that of the Governor.

History. 1979, c. 408, § 54-1.30; 1984, c. 720; 1988, c. 765; 1993, c. 499.

§ 54.1-302. Supervision of Department.

The Director of the Department of Professional and Occupational Regulation shall be responsible for the supervision of the Department under the direction and control of the Governor and shall exercise such other powers and perform such other duties as the Governor requires.

History. 1979, c. 408, § 54-1.31; 1984, c. 720; 1988, c. 765; 1993, c. 499.

§ 54.1-303. General powers of Director.

The Director shall have the following general powers:

To employ personnel and assistance necessary for the operation of the Department and the purposes of this chapter.

To make and enter into all contracts and agreements necessary or incidental to the performance of the duties of the Department and the execution of its powers under this chapter, including, but not limited to, contracts with the United States, other states, and agencies and governmental subdivisions of the Commonwealth.

To accept grants from the United States government and agencies and instrumentalities thereof and any other source. To these ends, the Department shall have the power to comply with such conditions and execute such agreements as may be necessary, convenient or desirable.

To do all acts necessary or convenient to carry out the purposes of this subtitle.

History. 1979, c. 408, § 54-1.32; 1988, c. 765.

§ 54.1-304. Powers and duties of the Director with respect to regulatory boards.

Each of the regulatory boards within the Department shall be a separate board. All of the administrative functions of the regulatory boards shall be under the direction and supervision of the Director.

In the performance and discharge of his duties with respect to the regulatory boards, the Director shall:

  1. Be the secretary of each board;
  2. Maintain all records for each board;
  3. Collect and account for all fees prescribed to be paid into each board and account for and deposit the moneys so collected into a special fund from which the expenses of the Board, regulatory boards and Department shall be paid;
  4. Enforce all statutes and regulations the Director is required to administer;
  5. Exercise other powers necessary to function as the sole administrative officer of each of such boards; and
  6. Perform any additional administrative functions prescribed by the Board.

History. 1979, c. 408, § 54-1.33; 1984, c. 734; 1988, c. 765.

§ 54.1-305. Bond of Director.

The Director shall be bonded in accordance with § 2.2-1840 .

History. 1979, c. 408, § 54-1.34; 1988, c. 765; 2021, Sp. Sess. I, c. 152.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 152, effective July 1, 2021, rewrote the section, which formerly read: “Before entering upon the discharge of his duties, the Director shall give bond payable to the Commonwealth of Virginia conditioned upon the faithful discharge of his duties in a form approved by the Attorney General, in such penalty as shall be fixed by the Governor, with a surety or guaranty company authorized to do business in this Commonwealth. The premium required for the bond shall be paid out of the administrative fund appropriated to the Department, and the bond shall be filed with and preserved by the Comptroller.”

§ 54.1-306. Enforcement of laws by Director or investigators; authority of investigators appointed by Director.

  1. The Director or investigators appointed by him shall be sworn to enforce the statutes and regulations pertaining to the Department, the regulatory boards within Subtitle II (§ 54.1-200 et seq.) of this title, and any of the programs which may be in another title of this Code for which any regulatory board within Subtitle II has enforcement responsibility. The Director or investigators appointed by him shall have the authority to investigate violations of the statutes and regulations that the Director is required to enforce. The Director or investigators appointed by him shall also have the authority to issue summonses for violations of the statutes and regulations governing the unlicensed practice of professions regulated by the Department. In the event a person issued such a summons fails or refuses to discontinue the unlawful acts or refuses to give a written promise to appear at the time and place specified in the summons, the investigator may appear before a magistrate or other issuing authority having jurisdiction to obtain a criminal warrant pursuant to § 19.2-72 . In addition, sworn criminal investigators of the Department’s Criminal Investigations section shall be statewide conservators of the peace while engaged in the performance of their official duties.
  2. All investigators appointed by the Director are vested with the authority to administer oaths or affirmations for the purpose of receiving complaints and conducting investigations of violations of this subtitle, or any regulation promulgated pursuant to authority given by this subtitle or in connection with any investigation conducted on behalf of any regulatory board within this subtitle or a program which may be located in another title in this Code. Such investigators are vested with the authority to obtain, serve and execute any warrant, paper or process issued by any court or magistrate or any regulatory board under the authority of the Director and request and receive criminal history information under the provisions of § 19.2-389 .
  3. Any regulatory board within the Department of Professional and Occupational Regulation may adopt a resolution delegating to the sworn investigators appointed by the Director pursuant to § 54.1-306 , the authority to conduct inspections. After conducting an inspection pursuant to the delegation of inspection authority, an investigator may initiate an investigation based on any act, omission, or condition witnessed by the investigator and offer a consent agreement to the regulant to resolve any violation discovered during the inspection, subject to the provisions of subsection B of § 54.1-202 . If a consent agreement is offered pursuant to the delegation of authority authorized by this subsection, it shall not become effective until approved by the Director.

History. 1979, c. 408, § 54-1.39; 1988, c. 765; 1989, c. 16; 1991, c. 130; 2002, c. 605; 2005, c. 383.

The 2002 amendments.

The 2002 amendment by c. 605, effective July 1, 2003, added the last sentence of the first paragraph.

The 2005 amendments.

The 2005 amendment by c. 383 added subsection C and made related changes.

§ 54.1-307. Subpoenas.

In addition to the authority granted in § 2.2-4022 to issue subpoenas and the right to issue subpoenas granted the several regulatory boards within the Department of Professional and Occupational Regulation, the Director or a designated subordinate shall have the right to make an ex parte application to the circuit court for the city or county wherein evidence sought is kept or wherein a licensee does business, for the issuance of a subpoena duces tecum in furtherance of the investigation of a sworn complaint within the jurisdiction of the Department or a regulatory board to request production of any relevant records, documents and physical or other evidence of any person, partnership, association or corporation licensed or regulated by the Department. The court shall be authorized to issue and compel compliance with such a subpoena upon a showing of reasonable cause. Upon determining that reasonable cause exists to believe that evidence may be destroyed or altered, the court may issue a subpoena duces tecum requiring the immediate production of evidence.

History. 1979, c. 408, § 54-1.40; 1988, c. 765; 1993, c. 499.

§ 54.1-307.1. Time for filing complaints against regulants.

  1. Except as otherwise provided in § 36-96.9 and subsections B and C of this section, any complaint against a regulant for any violation of statutes or regulations pertaining to the regulatory boards within Subtitle II (§ 54.1-200 et seq.) of this title or any of the programs which may be in another title of the Code for which any regulatory board within Subtitle II has enforcement responsibility, in order to be investigated by the Department, shall be made in writing, or otherwise made in accordance with Department procedures, and received by the Department within three years of the act, omission or occurrence giving rise to the violation. Public information obtained from any source by the Director or agency staff may serve as the basis for a written complaint against a regulant.
  2. However, where a regulant has materially and willfully misrepresented, concealed or omitted any information and the information so misrepresented, concealed or omitted is material to the establishment of the violation, the complaint may be made at any time within two years after discovery of the misrepresentation, concealment or omission.
  3. In cases where criminal charges have been filed involving matters that, if found to be true, would also constitute a violation of the regulations or laws of the regulant’s profession enforced by the Department, an investigation may be initiated by the Department at any time within two years following the date such criminal charges are filed.
  4. Nothing in this section shall be construed to require the filing of a complaint if the alleged violation of the statute or regulation is discovered during the conduct of an inspection authorized by law, and the acts, omissions, or conditions constituting the alleged violations are witnessed by a sworn investigator appointed by the Director.

History. 1994, c. 581; 2004, c. 297; 2005, c. 383.

The 2004 amendments.

The 2004 amendment by c. 297 added the last sentence in subsection A; in subsection B, twice inserted “concealed or omitted,” deleted “required by statute or regulations to be disclosed to a complainant” following “any information,” and added “concealment or omission” at the end; and rewrote subsection C.

The 2005 amendments.

The 2005 amendment by c. 383 added subsection D.

CIRCUIT COURT OPINIONS

Two-year discovery period. —

For two-year discovery period to apply to complaints against surveyors, the surveyor must have misrepresented information required to be disclosed; the regulations cited by the board, Regulation § 4.12(A) and Regulation § 4.13(A), did not require disclosure of information not on the plat, so the complaint, filed more than three years after completion of the survey, was untimely. May v. Bd. for Architects, 2002 Va. Cir. LEXIS 456 (Amherst County Nov. 22, 2002).

§ 54.1-308. Departmental expenses.

The compensation of the Director and the employees within the Department, including the compensation of the members of each board, shall be paid out of the total funds collected and charged to the accounts of the respective boards. The Director shall maintain a separate account for each board showing the moneys collected on its behalf and the expenses allocated to each board.

History. 1979, c. 408, § 54-1.42; 1988, c. 765.

§ 54.1-308.1. Interest on cash bonds held by regulatory boards of Department.

Interest earned on any cash bond held by the Department on behalf of any regulatory board shall be credited to the Department.

History. 1995, c. 43.

§ 54.1-309. Board for Professional and Occupational Regulation; members, terms, chairman; meetings.

There shall be a Board for Professional and Occupational Regulation within the Department of Professional and Occupational Regulation. The Board shall consist of nine members appointed by the Governor, subject to confirmation by the General Assembly. Members shall serve for four-year terms and no member shall serve for more than two full successive terms. The chairman of the Board shall be elected annually by the Board.

The Board shall meet at least once each year and on the call of the chairman when he deems additional meetings necessary.

History. 1979, c. 408, §§ 54-1.23, 54-1.24; 1988, c. 765; 1993, c. 499; 2012, c. 522.

Editor’s note.

Acts 1996, cc. 934 and 1006, cls. 3, provide: “[t]hat the Board for Professional and Occupational Regulation shall conduct a study to determine the appropriate level of regulation of backflow prevention device workers. The Board shall also determine the approximate costs to individual regulants, affected businesses, and consumers of the various forms of regulation. The Board shall report its findings to the Governor and the 1997 Session of the General Assembly by December 1, 1996.”

The 2012 amendments.

The 2012 amendment by c. 522 substituted “at least once each year and” for “at least four times annually, and” in the second paragraph.

§ 54.1-310. Powers and duties of Board.

  1. The Board shall have the following powers and duties:
    1. Provide a means of citizen access to the Department.
    2. Provide a means of publicizing the policies and programs of the Department in order to educate the public and elicit public support for Department activities.
    3. Monitor the policies and activities of the Department and have the right of access to departmental information.
    4. Advise the Governor and the Director on matters relating to the regulation of professions and occupations.
    5. Promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) necessary to carry out its responsibilities.
    6. Evaluate constantly each profession and occupation in the Commonwealth not otherwise regulated for consideration as to whether such profession or occupation should be regulated and, if so, the degree of regulation that should be imposed. Whenever it determines that the public interest requires that a profession or occupation which is not regulated by law should be regulated, the Board shall recommend to the General Assembly next convened a regulatory system accompanied by comprehensive regulations necessary to conduct the degree of regulation required.
  2. Upon the regulation of a profession or occupation as set forth in subsection A, the Board shall have the power and duty to promulgate supplemental regulations necessary to effectuate the purposes and intent of this chapter and to establish regulatory boards to administer the system of regulation and the regulations recommended by the Board and approved by the General Assembly.

History. 1979, c. 408, § 54-1.25; 1984, cc. 720, 734; 1988, c. 765.

§ 54.1-310.1. Petitions for regulation; review by Board; report.

  1. Any professional or occupational group or organization, any person, or any other interested party that proposes the regulation of any unregulated professional or occupational group shall submit a request to the Board no later than December 1 of any year for analysis and evaluation during the following year.
  2. The Board shall review the request only when filed with a statement of support for the proposed regulation signed by at least 10 members of the professional or occupational group for which regulation is being sought or at least 10 individuals who are not members of the professional or occupational group.
  3. The request shall include, at a minimum, the following information:
    1. A description of the group proposed for regulation, including a list of associations, organizations, and other groups representing the practitioners in the Commonwealth, and an estimate of the number of practitioners in each group;
    2. A definition of the problems to be solved by regulation and the reasons why regulation is necessary;
    3. The reasons why registration, certification, licensure, or other type of regulation is being proposed and why that regulatory alternative was chosen;
    4. The benefit to the public that would result from the proposed regulation;
    5. The cost of the proposed regulation; and
    6. A description of any anticipated disqualifications on an applicant for certification, licensure, or renewal and how such disqualifications serve public safety or commercial or consumer protection interests.
  4. Upon receipt of a request submitted in accordance with the requirements of subsection C, the Board shall conduct an analysis and evaluation of any proposed regulation based on the criteria enumerated in § 54.1-311 .
  5. The Board may decline to conduct a review only if it:
    1. Previously conducted an analysis and evaluation of the proposed regulation of the same professional or occupational group;
    2. Issued a report not more than three years prior to the submission of the current proposal to regulate the same professional or occupational group; and
    3. Finds that no new information has been submitted in the request that would cause the Board to alter or modify the recommendations made in its earlier report on the proposed regulation of the professional or occupational group.
  6. The Board shall submit a report with its findings on whether the public interest requires the requested professional or occupational group be regulated to the House Committee on General Laws, the Senate Committee on General Laws and Technology, and the Joint Commission on Administrative Rules no later than November 1 of the year following the request submission.

History. 2016, c. 467.

§ 54.1-311. Degrees of regulation.

  1. Whenever the Board determines that a particular profession or occupation should be regulated, or that a different degree of regulation should be imposed on a regulated profession or occupation, it shall consider the following degrees of regulation in the order provided in subdivisions 1 through 5. The Board shall regulate only to the degree necessary to fulfill the need for regulation and only upon approval by the General Assembly.
    1. Private civil actions and criminal prosecutions. — Whenever existing common law and statutory causes of civil action or criminal prohibitions are not sufficient to eradicate existing harm or prevent potential harm, the Board may first consider the recommendation of statutory change to provide more strict causes for civil action and criminal prosecution.
    2. Inspection and injunction. — Whenever current inspection and injunction procedures are not sufficient to eradicate existing harm, the Board may promulgate regulations consistent with the intent of this chapter to provide more adequate inspection procedures and to specify procedures whereby the appropriate regulatory board may enjoin an activity which is detrimental to the public well-being. The Board may recommend to the appropriate agency of the Commonwealth that such procedures be strengthened or it may recommend statutory changes in order to grant to the appropriate state agency the power to provide sufficient inspection and injunction procedures.
    3. Registration. — Whenever it is necessary to determine the impact of the operation of a profession or occupation on the public, the Board may implement a system of registration.
    4. Certification. — When the public requires a substantial basis for relying on the professional services of a practitioner, the Board may implement a system of certification.
    5. Licensing. — Whenever adequate regulation cannot be achieved by means other than licensing, the Board may establish licensing procedures for any particular profession or occupation.
  2. In determining the proper degree of regulation, if any, the Board shall determine the following:
    1. Whether the practitioner, if unregulated, performs a service for individuals involving a hazard to the public health, safety or welfare.
    2. The opinion of a substantial portion of the people who do not practice the particular profession, trade or occupation on the need for regulation.
    3. The number of states which have regulatory provisions similar to those proposed.
    4. Whether there is sufficient demand for the service for which there is no regulated substitute and this service is required by a substantial portion of the population.
    5. Whether the profession or occupation requires high standards of public responsibility, character and performance of each individual engaged in the profession or occupation, as evidenced by established and published codes of ethics.
    6. Whether the profession or occupation requires such skill that the public generally is not qualified to select a competent practitioner without some assurance that he has met minimum qualifications.
    7. Whether the professional or occupational associations do not adequately protect the public from incompetent, unscrupulous or irresponsible members of the profession or occupation.
    8. Whether current laws which pertain to public health, safety and welfare generally are ineffective or inadequate.
    9. Whether the characteristics of the profession or occupation make it impractical or impossible to prohibit those practices of the profession or occupation which are detrimental to the public health, safety and welfare.
    10. Whether the practitioner performs a service for others which may have a detrimental effect on third parties relying on the expert knowledge of the practitioner.

History. 1979, c. 408, § 54-1.26; 1988, c. 765.

Cross references.

As to evaluations to be prepared for legislation increasing or beginning regulation of an occupation, see § 30-19.03:1.3.

Law Review.

For article, “Constitutional Limitations on State-Imposed Continuing Competency Requirements for Licensed Professionals,” see 25 Wm. & Mary L. Rev. 253 (1983).

Chapter 4. Architects, Engineers, Surveyors, Landscape Architects and Interior Designers.

Article 1. Architects, Engineers, Surveyors and Landscape Architects.

§ 54.1-400. Definitions.

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

“Architect” means a person who, by reason of his knowledge of the mathematical and physical sciences, and the principles of architecture and architectural design, acquired by professional education, practical experience, or both, is qualified to engage in the practice of architecture and whose competence has been attested by the Board through licensure as an architect.

The “practice of architecture” means any service wherein the principles and methods of architecture are applied, such as consultation, investigation, evaluation, planning and design, and includes the responsible administration of construction contracts, in connection with any private or public buildings, structures or projects, or the related equipment or accessories.

“Board” means the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects.

“Certified interior designer” means a design professional who meets the criteria of education, experience, and testing in the rendering of interior design services established by the Board through certification as an interior designer.

“Improvements to real property” means any valuable addition or amelioration made to land and generally whatever is erected on or affixed to land which is intended to enhance its value, beauty or utility, or adapt it to new or further purposes. Examples of improvements to real property include, but are not limited to, structures, buildings, machinery, equipment, electrical systems, mechanical systems, roads, and water and wastewater treatment and distribution systems.

“Interior design” by a certified interior designer means any service rendered wherein the principles and methodology of interior design are applied in connection with the identification, research, and creative solution of problems pertaining to the function and quality of the interior environment. Such services relative to interior spaces shall include the preparation of documents for nonload-bearing interior construction, furnishings, fixtures, and equipment in order to enhance and protect the health, safety, and welfare of the public.

“Land surveyor” means a person who, by reason of his knowledge of the several sciences and of the principles of land surveying, and of the planning and design of land developments acquired by practical experience and formal education, is qualified to engage in the practice of land surveying, and whose competence has been attested by the Board through licensure as a land surveyor.

The “practice of land surveying” includes surveying of areas for a determination or correction, a description, the establishment or reestablishment of internal and external land boundaries, or the determination of topography, contours or location of physical improvements, and also includes the planning of land and subdivisions thereof. The term “planning of land and subdivisions thereof” shall include, but not be limited to, the preparation of incidental plans and profiles for roads, streets and sidewalks, grading, drainage on the surface, culverts and erosion control measures, with reference to existing state or local standards.

“Landscape architect” means a person who, by reason of his special knowledge of natural, physical and mathematical sciences, and the principles and methodology of landscape architecture and landscape architectural design acquired by professional education, practical experience, or both, is qualified to engage in the practice of landscape architecture and whose competence has been attested by the Board through licensure as a landscape architect.

The “practice of landscape architecture” by a licensed landscape architect means any service wherein the principles and methodology of landscape architecture are applied in consultation, evaluation, planning (including the preparation and filing of sketches, drawings, plans and specifications) and responsible supervision or administration of contracts relative to projects principally directed at the functional and aesthetic use of land.

“Professional engineer” means a person who is qualified to practice engineering by reason of his special knowledge and use of mathematical, physical and engineering sciences and the principles and methods of engineering analysis and design acquired by engineering education and experience, and whose competence has been attested by the Board through licensure as a professional engineer.

The “practice of engineering” means any service wherein the principles and methods of engineering are applied to, but are not necessarily limited to, the following areas: consultation, investigation, evaluation, planning and design of public or private utilities, structures, machines, equipment, processes, transportation systems and work systems, including responsible administration of construction contracts. The term “practice of engineering” shall not include the service or maintenance of existing electrical or mechanical systems.

“Residential wastewater” means sewage (i) generated by residential or accessory uses, not containing storm water or industrial influent, and having no other toxic, or hazardous constituents not routinely found in residential wastewater flows, or (ii) as certified by a professional engineer.

“Responsible charge” means the direct control and supervision of the practice of architecture, professional engineering, landscape architecture, or land surveying.

History. 1970, c. 671, § 54-17.1; 1974, c. 534; 1980, c. 757; 1982, c. 590; 1984, c. 437; 1988, c. 765; 1990, c. 512; 1992, cc. 780, 783; 1998, c. 27; 2008, c. 68; 2009, c. 309.

Cross references.

As to the requirement that the Division of Engineering and Buildings employ value engineering for any capital project costing more than five million dollars, see § 2.2-1133 .

As to exceptions from the article regarding private security services businesses and the training requirements for out-of-state central station dispatchers, see § 9.1-140 .

As to professional engineering of onsite treatment works, see § 32.1-163.6 .

Editor’s note.

Acts 2009, c. 309, cl. 2 provides: “That the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2009, c. 309, cl. 3 provides: “That nothing in this act shall be construed or interpreted to expand the ‘practice of landscape architecture’ as defined in § 54.1-400 and as it exists as of January 1, 2009.”

Acts 2018, Sp. Sess. I, c. 2, as amended by Acts 2019, c. 854, Item 362 N, effective for the biennium ending June 30, 2020, provides: “Notwithstanding § 54.1, Chapter 4, the U.S. Department of Agriculture’s Natural Resources Conservation Service and Department of Conservation and Recreation Central Office staff may provide engineering services to the Department of Conservation and Recreation and the local Soil and Water Conservation Districts for design and construction of agriculture best management practices.”

The 1998 amendment, in the paragraph defining “Board,” inserted “Certified Interior Designers.”

The 2008 amendments.

The 2008 amendment by c. 68 added the definition of “Residential wastewater.”

The 2009 amendments.

The 2009 amendment by c. 309, in the definition of “Landscape architect,” substituted “Landscape architect” for “Certified landscape architect” and “licensure” for “certification”; in the second paragraph, substituted “licensed” for “certified”; and inserted “landscape architecture” in the definition of “Responsible charge.”

Michie’s Jurisprudence.

For related discussion, see 18 M.J. Surveys and Surveyors, § 1.

CIRCUIT COURT OPINIONS

Proof of licensing in establishing personal jurisdiction. —

Engineering firm was subject to the personal jurisdiction of the trial court under the transacting business and supplying services provisions of the long-arm statute where: (1) the firm contracted to provide engineering services for a city project; (2) the firm was required to obtain a certificate of authority from the Virginia Board for Architects and Professional Engineers prior to performing engineering services for a Virginia project and to have a Virginia licensed professional engineer to supervise, stamp, and seal all engineering calculations and drawings; (3) while there was no evidence as to whether the firm obtained a proper license, the firm represented that it violated Virginia law and did not obtain such authority; (4) the engineering drawings were signed and sealed by a Virginia Professional Engineer; and (5) the Virginia Professional Engineer was a firm employee. City of Portsmouth v. Buro Happold Consulting Eng'rs, 69 Va. Cir. 397, 2005 Va. Cir. LEXIS 255 (Portsmouth Dec. 22, 2005).

§ 54.1-401. Exemptions.

The following shall be exempted from the provisions of this chapter:

  1. Practice of professional engineering and land surveying by a licensed architect when such practice is incidental to what may be properly considered an architectural undertaking.
  2. Practice of architecture and land surveying by a licensed professional engineer when such practice is incidental to an engineering project.
  3. Practice as a professional engineer, architect or landscape architect in this Commonwealth by any person not a resident of and having no established place of business in this Commonwealth, or by any person resident in this Commonwealth whose arrival is recent, provided that such person is otherwise qualified for such professional service in another state or country and qualifies in Virginia and files prior to commencement of such practice an application, with the required fee, for licensure as a professional engineer, architect or landscape architect. The exemption shall continue until the Board has had sufficient time to consider the application and grant or deny licensure or certification.
  4. Engaging in the practice of professional engineering as an employee under a licensed professional engineer, engaging in the practice of architecture as an employee under a licensed architect, engaging in the practice of landscape architecture as an employee under a licensed landscape architect, or engaging in the practice of land surveying as an employee under a licensed land surveyor; provided, that such practice shall not include responsible charge of design or supervision.
  5. Practice of professional engineering, architecture, landscape architecture, or land surveying solely as an employee of the United States. However, the employee shall not be exempt from other provisions of this chapter if he furnishes advisory service for compensation to the public in connection with engineering, architectural, landscape architecture, or land surveying matters.
  6. Practice of architecture or professional engineering by an individual, firm or corporation on property owned or leased by such individual, firm or corporation, unless the public health or safety is involved.
  7. Except as provided by regulations promulgated by the State Corporation Commission pursuant to § 56-257.2:1, the practice of engineering solely as an employee of a corporation engaged in interstate commerce, or as an employee of a public service corporation, by rendering such corporation engineering service in connection with its facilities which are subject to regulation by the State Corporation Commission, provided that corporation employees who furnish advisory service to the public in connection with engineering matters other than in connection with such employment shall not be exempt from the provisions of this chapter.

History. Code 1950, § 54-37; 1968, c. 77; 1980, c. 757; 1988, c. 765; 1992, cc. 595, 780, 783; 2009, c. 309; 2020, c. 822.

Editor’s note.

Acts 2020, c. 822, cl. 4 provides: “That the provisions of the first enactment of this act shall become effective on January 1, 2021.”

The 2009 amendments.

The 2009 amendment by c. 309, in subsection 3, deleted “certified” preceding “landscape architect” near the beginning and substituted “architect or landscape architect” for “or, architect or certification as a landscape architect” near the end; in subsection 4, inserted “engaging in the practice of landscape architecture as an employee under a licensed landscape architect”; and in subsection 5, inserted “landscape architecture” twice.

The 2020 amendments.

The 2020 amendment by c. 822, effective January 1, 2021, substituted “Except as provided by regulations promulgated by the State Corporation Commission pursuant to § 56-257.2:1, the practice” for “Practice” in subdivision 7; and made minor stylistic changes.

§ 54.1-402. Further exemptions from license requirements for architects, professional engineers, and land surveyors.

  1. No license as an architect or professional engineer shall be required pursuant to § 54.1-406 for persons who prepare plans, specifications, documents and designs for the following, provided any such plans, specifications, documents or designs bear the name and address of the author and his occupation:
    1. Single- and two-family homes, townhouses and multifamily dwellings, excluding electrical and mechanical systems, not exceeding three stories; or
    2. All farm structures used primarily in the production, handling or storage of agricultural products or implements, including, but not limited to, structures used for the handling, processing, housing or storage of crops, feeds, supplies, equipment, animals or poultry; or
    3. Buildings and structures classified with respect to use as business (Use Group B) and mercantile (Use Group M), as provided in the Uniform Statewide Building Code and churches with an occupant load of 100 or less, excluding electrical and mechanical systems, where such building or structure does not exceed 5,000 square feet in total net floor area, or three stories; or
    4. Buildings and structures classified with respect to use as factory and industrial (Use Group F) and storage (Use Group S) as provided in the Uniform Statewide Building Code, excluding electrical and mechanical systems, where such building or structure does not exceed 15,000 square feet in total net floor area, or three stories; or
    5. Additions, remodeling or interior design without a change in occupancy or occupancy load and without modification to the structural system or a change in access or exit patterns or increase in fire hazard; or
    6. Electric installations which comply with all applicable codes and which do not exceed 600 volts and 800 amps, where work is designed and performed under the direct supervision of a person licensed as a master’s level electrician or Class A electrical contractor by written examination, and where such installation is not contained in any structure exceeding three stories or located in any of the following categories:
      1. Use Group A-1 theaters which exceed assembly of 100 persons;
      2. Use Group A-4 except churches;
      3. Use Group I, institutional buildings, except day care nurseries and clinics without life-support systems; or
    7. Plumbing and mechanical systems using packaged mechanical equipment, such as equipment of catalogued standard design which has been coordinated and tested by the manufacturer, which comply with all applicable codes. These mechanical systems shall not exceed gauge pressures of 125 pounds per square inch, other than refrigeration, or temperatures other than flue gas of 300°  F (150 degrees C) where such work is designed and performed under the direct supervision of a person licensed as a master’s level plumber, master’s level heating, air conditioning and ventilating worker, or Class A contractor in those specialties by written examination. In addition, such installation may not be contained in any structure exceeding three stories or located in any structure which is defined as to its use in any of the following categories:
      1. Use Group A-1 theaters which exceed assembly of 100 persons;
      2. Use Group A-4 except churches;
      3. Use Group I, institutional buildings, except day care nurseries and clinics without life-support systems; or
    8. The preparation of shop drawings, field drawings and specifications for components by a contractor who will supervise the installation and where the shop drawings and specifications (i) will be reviewed by the licensed professional engineer or architect responsible for the project or (ii) are otherwise exempted; or
    9. Buildings, structures, or electrical and mechanical installations which are not otherwise exempted but which are of standard design, provided they bear the certification of a professional engineer or architect registered or licensed in another state, and provided that the design is adapted for the specific location and for conformity with local codes, ordinances and regulations, and is so certified by a professional engineer or architect licensed in Virginia; or
    10. Construction by a state agency or political subdivision not exceeding $75,000 in value keyed to the January 1, 1991, Consumer Price Index (CPI) and not otherwise requiring a licensed architect, engineer, or land surveyor by an adopted code and maintenance by that state agency or political subdivision of water distribution, sewage collection, storm drainage systems, sidewalks, streets, curbs, gutters, culverts, and other facilities normally and customarily constructed and maintained by the public works department of the state agency or political subdivision; or
    11. Conventional and alternative onsite sewage systems receiving residential wastewater, under the authority of Chapter 6 of Title 32.1, designed by a licensed onsite soil evaluator, which utilize packaged equipment, such as equipment of catalogued standard design that has been coordinated and tested by the manufacturer, and complies with all applicable codes, provided (i) the flow is less than 1,000 gallons per day; and (ii) if a pump is included, (a) it shall not include multiple downhill runs and must terminate at a positive elevational change; (b) the discharge end is open and not pressurized; (c) the static head does not exceed 50 feet; and (d) the force main length does not exceed 500 feet.
  2. No person shall be exempt from licensure as an architect or engineer who engages in the preparation of plans, specifications, documents or designs for:
    1. Any unique design of structural elements for floors, walls, roofs or foundations; or
    2. Any building or structure classified with respect to its use as high hazard (Use Group H).
  3. Persons utilizing photogrammetric methods or similar remote sensing technology shall not be required to be licensed as a land surveyor pursuant to subsection B of § 54.1-404 or 54.1-406 to: (i) determine topography or contours, or to depict physical improvements, provided such maps or other documents shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination, or (ii) graphically show existing property lines and boundaries on maps or other documents provided such depicted property lines and boundaries shall only be used for general information.Any determination of topography or contours, or depiction of physical improvements, utilizing photogrammetric methods or similar remote sensing technology by persons not licensed as a land surveyor pursuant to § 54.1-406 shall not show any property monumentation or property metes and bounds, nor provide any measurement showing the relationship of any physical improvements to any property line or boundary.Any person not licensed pursuant to subsection B of § 54.1-404 or 54.1-406 preparing documentation pursuant to subsection C of § 54.1-402 shall note the following on such documentation: “Any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination.”
  4. Terms used in this section, and not otherwise defined in this chapter, shall have the meanings provided in the Uniform Statewide Building Code in effect on July 1, 1982, including any subsequent amendments.

History. 1982, c. 590, § 54-37.1; 1988, cc. 294, 765; 1992, cc. 780, 783; 2005, cc. 359, 440; 2008, c. 68.

The 2005 amendments.

The 2005 amendments by cc. 359 and 440 are nearly identical, and inserted subsection C; redesignated former subsection C as subsection D; and made minor stylistic changes.

The 2008 amendments.

The 2008 amendment by c. 68 added subdivision A 11.

Law Review.

For survey on construction law in Virginia for 1989, see 23 U. Rich. L. Rev. 541 (1989).

§ 54.1-402.1. State and local government employees; license exemptions for persons employed prior to March 8, 1992.

Any person engaged in the practice of engineering, architecture, or land surveying as those terms are defined in § 54.1-400 as a regular, full-time, salaried employee of the Commonwealth or any political subdivision of the Commonwealth on March 8, 1992, who remains employed by any state agency or political subdivision shall be exempt until June 30, 2010, from the licensure requirements of § 54.1-406 provided the employee does not furnish advisory service for compensation to the public or as an independent contracting party in this Commonwealth or any political subdivision thereof in connection with engineering, architectural, or land surveying matters. The chief administrative officer of any agency of the Commonwealth or political subdivision thereof employing persons engaged in the practice of engineering, architecture, or land surveying as regular, full-time, salaried employees shall have the authority and responsibility to determine the engineering, architecture, and land surveying positions which have responsible charge of engineering, architectural, or land surveying decisions.

History. 1992, cc. 780, 783; 1994, c. 379.

§ 54.1-402.2. Cease and desist orders for unlicensed activity; civil penalty.

  1. Notwithstanding § 54.1-111 , the Board may issue an order requiring any person to cease and desist from (i) practicing or offering to practice as an architect, professional engineer, land surveyor, or landscape architect when such person is not licensed or registered by the Board in accordance with this chapter or (ii) holding himself out as a certified interior designer when such person is not certified or registered by the Board in accordance with this chapter. The order shall be effective upon its entry and shall become final unless such person files an appeal with the Board in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) within 21 days of the date of entry of the order.
  2. If the person fails to cease and desist the unlicensed, uncertified, or unregistered activity after entry of an order in accordance with subsection A, the Board may refer the matter for enforcement pursuant to § 54.1-306 .
  3. Any person engaging in unlicensed, uncertified, or unregistered activity shall be subject to further proceedings before the Board and the Board may impose a civil penalty not to exceed $2,500. Any penalties collected under this section shall be paid to the Literary Fund after deduction of the administrative costs of the Board in furtherance of this section.
  4. Nothing contained in this section shall apply to any person engaged in activity exempted from the provisions of this chapter.

History. 2007, c. 618; 2009, c. 309.

The 2009 amendments.

The 2009 amendment by c. 309, in subsection A, in clause (i), inserted “or landscape architect” and made a related change, and in clause (ii), deleted “landscape architect or certified landscape architect or” preceding “certified interior designer.”

§ 54.1-403. Board members and officers; quorum.

The Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects shall be composed of 15 members as follows: three architects, three professional engineers, three land surveyors, two landscape architects, two certified interior designers, and two nonlegislative citizen members.

Except for the nonlegislative citizen members appointed in accordance with § 54.1-107 , Board members shall have actively practiced or taught their professions for at least 10 years prior to their appointments. The terms of Board members shall be four years.

The Board shall elect a president and vice-president from its membership.

Nine Board members, consisting of two engineers, two architects, two land surveyors, one landscape architect, one interior designer and one nonlegislative citizen member, shall constitute a quorum.

History. Code 1950, §§ 54-19, 54-22, 54-23; 1980, c. 757, § 54-18.1; 1981, c. 447; 1988, cc. 42, 765; 1990, c. 512; 1991, c. 291; 1998, c. 27; 2009, c. 309; 2010, c. 91; 2018, c. 824.

Cross references.

As to appointments, removals, and limitation of terms of members of regulatory boards, see § 54.1-107 .

The 1998 amendment added the present subsection A designation, in subsection A, in the first paragraph, in the first sentence, inserted “Certified Interior Designers,” in the second paragraph, in the second sentence, added “unless otherwise provided in subsection B”, and in the third paragraph, inserted “and vice-president”; and added subsection B.

The 2009 amendments.

The 2009 amendment by c. 309 deleted “certified” preceding “landscape architect” in the first and fourth paragraphs of subsection A.

The 2010 amendments.

The 2010 amendment by c. 91 deleted the subsection A designator and subsection B, which outlined the terms of appointments; deleted the former second sentence of the first paragraph, which read: “However, the two certified interior designer members initially appointed to the Board shall be qualified for certification pursuant to this chapter.”; and deleted “unless otherwise provided in subsection B” at the end of the second sentence of the second paragraph.

The 2018 amendments.

The 2018 amendment by c. 824, in the first paragraph, substituted “15 members” for “13 members” and inserted “and two nonlegislative citizen members” and deleted the second sentence pertaining to interior design member nominations; added the exception at the beginning of the second paragraph; and in the last paragraph, substituted “None” for “Eight” and added “and one nonlegislative citizen member.”

§ 54.1-404. Regulations; code of professional practice and conduct.

  1. The Board shall promulgate regulations not inconsistent with this chapter governing its own organization, the professional qualifications of applicants, the requirements necessary for passing examinations in whole or in part, the proper conduct of its examinations, the implementation of exemptions from license requirements, and the proper discharge of its duties.
  2. The Board may impose different licensure requirements for a limited area of the practice of land surveying for persons who determine topography, contours, or depiction of physical improvements utilizing photogrammetric methods or similar remote sensing technology who are not otherwise exempt pursuant to subsection C of § 54.1-402 . Any such requirements shall include reasonable provisions for licensure without examination of persons deemed by the Board to be qualified to provide photogrammetric and remote sensing surveying services.Any license issued pursuant to this subsection shall be distinctive, reflecting the limited area of the practice of land surveying so authorized, and considered as a land surveyor and the practice of land surveying for the purposes of §§ 13.1-549 , 13.1-1111 , 54.1-402 , 54.1-405 , 54.1-406 and 54.1-411 . Nothing herein shall be construed to authorize a person issued a limited license pursuant to this subsection to practice beyond such limited area of practice. The establishment of any such limited license shall not prohibit any duly qualified land surveyor licensed pursuant to § 54.1-400 from engaging in any such limited area of practice.
  3. The regulations may include a code of professional practice and conduct, the provisions of which shall serve any or all of the following purposes:
    1. The protection of the public health, safety and welfare;
    2. The maintenance of standards of objectivity, truthfulness and reliability in public statements by professionals;
    3. The avoidance by professionals of conflicts of interests;
    4. The prohibition of solicitation or acceptance of work by professionals on any basis other than their qualifications for the work offered;
    5. The restriction by the professional in the conduct of his professional activity from association with any person engaging in illegal or dishonest activities; or
    6. The limitation of professional service to the area of competence of each professional.

History. Code 1950, § 54-25; 1974, c. 459; 1982, c. 590; 1988, c. 765; 2005, cc. 359, 440.

The 2005 amendments.

The 2005 amendments by cc. 359 and 440 are identical, and inserted the A designation at the beginning of the first paragraph; inserted subsection B; and inserted the C designation at the beginning of the former second paragraph.

§ 54.1-404.1. Repealed by Acts 2010, c. 91, cl. 2.

Editor’s note.

Former § 54.1-404.1 , which extended former education and experience requirements until 1997, was derived from Acts 1994, c. 334.

§ 54.1-404.2. Continuing education.

  1. The Board shall promulgate regulations governing continuing education requirements for architects, professional engineers, land surveyors, and landscape architects licensed by the Board. Such regulations shall require the completion of the equivalent of 16 hours per biennium of Board-approved continuing education activities as a prerequisite to the renewal or reinstatement of a license issued to an architect, professional engineer, land surveyor, or landscape architect. The Board shall establish criteria for continuing education activities including, but not limited to (i) content and subject matter; (ii) curriculum; (iii) standards and procedures for the approval of activities, courses, sponsors, and instructors; (iv) methods of instruction for continuing education courses; and (v) the computation of course credit.
  2. The Board may grant exemptions or waive or reduce the number of continuing education hours required in cases of certified illness or undue hardship.

History. 2006, c. 683; 2009, c. 309.

The 2009 amendments.

The 2009 amendment by c. 309, in subsection A, in the first sentence, inserted “and landscape architects” and made a related change, in the second sentence, inserted “or landscape architect” and made a related change.

§ 54.1-405. Examinations and issuance of licenses and certificates.

  1. The Board shall hold at least one examination each year at times and locations designated by the Board. A license to practice as a professional engineer, an architect, a land surveyor, or a landscape architect shall be issued to every applicant who complies with the requirements of this chapter and the regulations of the Board. A license shall be valid during the life of the holder unless revoked or suspended by the Board. A license holder must register with the Board to practice in the Commonwealth. The licenses shall be signed by at least four members of the Board.
  2. Notwithstanding the provisions of § 54.1-111 , a license holder who has retired from practice may use the designation granted by such license, followed by the word “emeritus,” without possessing a current registration from the Board provided (i) the license has not been revoked or suspended by the Board and (ii) the license holder does not practice or offer to practice architecture, engineering, land surveying, or landscape architecture.

History. Code 1950, § 54-26; 1974, c. 534; 1980, c. 757; 1988, c. 765; 1992, c. 613; 1994, c. 29; 2009, c. 309; 2010, c. 612.

The 2009 amendments.

The 2009 amendment by c. 309, in the second sentence, deleted “or” following “an architect” and deleted “certificate to practice as a” preceding “landscape architect”; and in the last sentence, deleted “or certificates” following “licenses.”

The 2010 amendments.

The 2010 amendment by c. 612 inserted the A designation at the beginning of the first paragraph; and added subsection B.

§ 54.1-406. License required.

  1. Unless exempted by § 54.1-401 , 54.1-402 , or 54.1-402 .1, a person shall hold a valid license prior to engaging in the practice of architecture or engineering which includes design, consultation, evaluation or analysis and involves proposed or existing improvements to real property.Unless exempted by § 54.1-401 , 54.1-402, or 54.1-402.1 , a person shall hold a valid license prior to engaging in the practice of land surveying.
  2. Unless exempted by § 54.1-402 , any person, partnership, corporation or other entity offering to practice architecture, engineering, or land surveying without being registered or licensed in accordance with the provisions of this chapter, shall be subject to the provisions of § 54.1-111 of this title.
  3. Any person, partnership, corporation or other entity which is not licensed or registered to practice in accordance with this chapter and which advertises or promotes through the use of the words “architecture,” “engineering” or “land surveying” or any modification or derivative thereof in its name or description of its business activity in a manner that indicates or implies that it practices or offers to practice architecture, engineering or land surveying as defined in this chapter shall be subject to the provisions of § 54.1-111 .
  4. Notwithstanding these provisions, any state agency or political subdivision of the Commonwealth unable to employ a qualified licensed engineer, architect, or land surveyor to fill a responsible charge position, after reasonable and unsuccessful search, may fill the position with an unlicensed person upon the determination by the chief administrative officer of the agency or political subdivision that the person, by virtue of education, experience, and expertise, can perform the work required of the position.
  5. Notwithstanding the provisions of this section, a contractor who is licensed pursuant to the provisions of Chapter 11 (§ 54.1-1100 et seq.) of this title shall not be required to be licensed or registered to practice in accordance with this chapter when bidding upon or negotiating design-build contracts or performing services other than architectural, engineering or land surveying services under a design-build contract. The architectural, engineering or land surveying services offered or rendered in connection with such contracts shall only be rendered by an architect, professional engineer or land surveyor licensed in accordance with this chapter.

History. 1979, c. 408, § 54-26.1; 1982, c. 590; 1984, c. 470; 1988, c. 765; 1992, cc. 780, 783; 1994, c. 784; 1996, c. 329; 2004, c. 191; 2005, cc. 359, 440; 2010, c. 91.

The 2004 amendments.

The 2004 amendment by c. 191, in subsection F, inserted “bidding upon or” in the first sentence and deleted “offered and” preceding “rendered by an architect” and inserted “professional” in the last sentence.

The 2005 amendments.

The 2005 amendments by cc. 359 and 440 are identical, and inserted “54.1-402” in the last paragraph of subsection A and made minor stylistic changes.

The 2010 amendments.

The 2010 amendment by c. 91 deleted former subsection E and redesignated subsection F as E.

§ 54.1-407. Land surveying.

Notwithstanding the provisions of any regulation promulgated by the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects, a land surveyor shall not be required by Board regulations to set corner monumentation or perform a boundary survey on any property when (i) corner monumentation has been set or is otherwise required to be set pursuant to the provisions of a local subdivision ordinance as mandated by § 15.2-2240 or subdivision 7 of § 15.2-2241 , or where the placing of such monumentation is covered by a surety bond, cash escrow, set-aside letter, letter of credit, or other performance guaranty, or (ii) the purpose of the survey is to determine the location of the physical improvements on the said property only, if the prospective mortgagor or legal agent ordering the survey agrees in writing that such corner monumentation shall not be provided in connection with any such physical improvements survey. The provisions of this section shall apply only to property located within the Counties of Arlington, Fairfax, King George, Loudoun, Prince William, Spotsylvania and Stafford; and the Cities of Alexandria, Fairfax, Falls Church, Fredericksburg, Manassas and Manassas Park.

History. 1986, c. 531, § 54-25.1; 1988, cc. 271, 765; 1998, c. 27.

The 1998 amendment, in the first sentence, inserted “Certified Interior Designers,” substituted “15.2-2240” for “15.1-465,” and substituted “subdivision 7 of § 15.2-2241 ” for “subdivision 7 of subsection A of § 15.1-466.”

§ 54.1-408. Practice of land surveying; subdivisions.

In addition to the work defined in § 54.1-400 , a land surveyor may, for subdivisions, site plans and plans of development only, prepare plats, plans and profiles for roads, storm drainage systems, sanitary sewer extensions, and water line extensions, and may perform other engineering incidental to such work, but excluding the design of pressure hydraulic, structural, mechanical, and electrical systems. The work included in this section shall involve the use and application of standards prescribed by local or state authorities. The land surveyor shall pass an examination given by the Board in addition to that required for the licensing of land surveyors as defined in § 54.1-400 . Any land surveyor previously licensed pursuant to subdivision (3) (b) of former § 54-17.1 may continue to do the work herein described without further examination.

Except as provided, nothing contained herein or in the definition of “practice of land surveying” in § 54.1-400 shall be construed to include engineering design and the preparation of plans and specifications for construction.

History. 1970, c. 671, § 54-17.1; 1974, c. 534; 1980, c. 757; 1982, c. 590; 1984, c. 437; 1988, c. 765.

§ 54.1-409. Practice of landscape architecture; license required.

  1. Beginning July 1, 2010, a person who engages in the practice of landscape architecture as defined in § 54.1-400 and who holds himself out as a landscape architect shall hold a valid license prior to engaging in such practice. Resulting site plans, plans of development, preliminary plats, drawings, technical reports, and specifications, submitted under the seal, stamp or certification of a licensed landscape architect, shall be accepted for review by local and state authorities, in connection with both public and private projects. However, no landscape architect, unless he is also licensed as a land surveyor, shall provide boundary surveys, plats or descriptions for any purpose, except in conjunction with or under the supervision of an appropriately licensed professional, who shall provide certification, as required. Landscape architects shall only engage in projects which they are qualified to undertake based on education, training, and examination and in accordance with the practice of landscape architecture as defined in § 54.1-400 .Any person who (i) holds a valid certification as a landscape architect issued by the Board on June 30, 2010, and (ii) is a Virginia-certified landscape architect in good standing with the Board, shall be licensed to practice landscape architecture as of July 1, 2010.
  2. Nothing contained herein or in the definition of “practice of landscape architecture” or in the definition of “landscape architect” in § 54.1-400 shall be construed to restrict or otherwise affect the right of any architect, professional engineer, land surveyor, nurseryman, landscape designer, landscape contractor, land planner, community planner, landscape gardener, golf course designer, turf maintenance specialist, irrigation designer, horticulturist, arborist, or any other similar person from engaging in their occupation or the practice of their profession or from rendering any service in connection therewith that is not otherwise proscribed.
  3. Any person, partnership, corporation, or other entity that is not licensed to practice landscape architecture in accordance with the provisions of this chapter and that advertises or promotes through the use of the words “landscape architecture” or any modification or derivation thereof in its name or description of its business activity in a manner that indicates or implies that it practices or offers to practice landscape architecture as defined in this chapter shall be subject to the provisions of § 54.1-111 . Nothing contained herein or in the definitions of “landscape architect” or “practice of landscape architecture” in § 54.1-400 shall be construed to restrict or otherwise affect the right of any person undertaking the occupations or professions referred in subsection B of this section to engage in their occupation, or the practice of their profession, or from rendering any service in connection therewith that is not otherwise proscribed.
  4. Any person, partnership, corporation, or other entity offering to practice landscape architecture without being registered or licensed to practice landscape architecture in accordance with the provisions of this chapter, shall be subject to the provisions of § 54.1-111 . Nothing contained herein or in the definitions of “landscape architect” and “practice of landscape architecture” in § 54.1-400 shall be construed to restrict or otherwise affect the right of any person undertaking the occupations or professions referenced in subsection B of this section to engage in their occupation, or the practice of their profession, or from rendering any service in connection therewith that is not otherwise proscribed.

History. 1970, c. 671, § 54-17.1; 1974, c. 534; 1980, c. 757; 1982, c. 590; 1984, c. 437; 1988, c. 765; 2000, c. 990; 2006, c. 643; 2009, c. 309.

The 2000 amendments.

The 2000 amendment by c. 990, in the second paragraph, deleted “uncertified landscape architect” following “right of any nurseryman” and inserted “landscape architect” in the last sentence and added the last paragraph.

The 2006 amendments.

The 2006 amendment by c. 643, in the first paragraph, substituted “shall be accepted for review by” for “may be accepted by” in the first sentence and added the last sentence.

The 2009 amendments.

The 2009 amendment by c. 309 added subsection A and B designators and added subsections C and D; in subsection A, added the first sentence, in the second sentence, substituted “Resulting site plans, plans of development, preliminary plats, drawings, technical reports” for “Resulting plans” and “licensed” for “certified,” added the second paragraph; and rewrote subsection B.

§ 54.1-410. Other building laws not affected; duties of public officials.

  1. Nothing contained in this chapter or in the regulations of the Board shall be construed to limit the authority of any public official authorized by law to approve plans, specifications or calculations in connection with improvements to real property. This shall include, but shall not be limited to, the authority of officials of local building departments as defined in § 36-97 , to require pursuant to the Uniform Statewide Building Code, state statutes, local ordinances, or code requirements that such work be prepared by a person licensed or certified pursuant to this chapter.
  2. Any public body authorized by law to require that plans, specifications or calculations be prepared in connection with improvements to real property shall establish a procedure to ensure that such plans, specifications or calculations be prepared by an architect, professional engineer, land surveyor or landscape architect licensed or authorized pursuant to this chapter in any case in which the exemptions contained in §§ 54.1-401 , 54.1-402 or § 54.1-402.1 are not applicable.Drafting of permits, reviewing of plans or inspection of facilities for compliance with an adopted code or standard by any public body or its designated agent shall not require the services of an architect, professional engineer, land surveyor or landscape architect licensed pursuant to this chapter.

History. 1982, c. 590, § 54-37.2; 1988, c. 765; 1992, cc. 780, 783; 1993, c. 662; 2009, c. 309.

The 2009 amendments.

The 2009 amendment by c. 309, in subsection B, in the first paragraph, deleted “certified” preceding “or authorized pursuant to,” and in the second paragraph, deleted “or certified” preceding “pursuant to this chapter.”

§ 54.1-410.1. Prerequisites for obtaining business license.

Any architect or professional engineer applying for or renewing a business license in any locality in accordance with Chapter 37 (§ 58.1-3700 et seq.) of Title 58.1 shall furnish prior to the issuance or renewal of such license either (i) satisfactory proof that he is duly licensed under the terms of this chapter or (ii) a written statement, supported by an affidavit, that he is not subject to licensure as an architect or professional engineer pursuant to this chapter.

No locality shall issue or renew or allow the issuance or renewal of such license unless the architect or professional engineer has furnished his license number issued pursuant to this chapter or evidence of being exempt from the provisions of this chapter.

History. 2011, c. 79.

§ 54.1-411. Organization for practice; registration.

  1. Nothing contained in this chapter or in the regulations of the Board shall prohibit the practice of architecture, engineering, land surveying, landscape architecture or the offering of the title of certified interior designer by any corporation, partnership, sole proprietorship, limited liability company, or other entity provided such practice or certification is rendered through its officers, principals or employees who are correspondingly licensed or certified. No individual practicing architecture, engineering, land surveying, landscape architecture, or offering the title of certified interior designer under the provisions of this section shall be relieved of responsibility that may exist for services performed by reason of his employment or other relationship with such entity. No such corporation, partnership, sole proprietorship, limited liability company, or other entity, or any affiliate thereof, shall, on its behalf or on behalf of any such licensee or certificate holder, nor any licensee or certificate holder, be prohibited from (i) purchasing or maintaining insurance against any such liability; (ii) entering into any indemnification agreement with respect to any such liability; (iii) receiving indemnification as a result of any such liability; or (iv) limiting liability through contract.
  2. Except for professional corporations holding a certificate of authority issued in accordance with § 13.1-549 , professional limited liability companies holding a certificate of authority issued in accordance with § 13.1-1111 , and sole proprietorships that do not employ other individuals for which licensing is required, any person, corporation, partnership, limited liability company, or other entity offering or rendering the practice of architecture, engineering, land surveying, landscape architecture or offering the title of certified interior designer shall register with the Board. As a condition of registration, the entity shall name at least one licensed architect, professional engineer, land surveyor, landscape architect or certified interior designer for such profession offered or rendered. The person or persons named shall be responsible and have control of the regulated services rendered by the entity.
  3. The Board shall adopt regulations governing the registration of persons, corporations, partnerships, limited liability companies, sole proprietors and other entities as required in subsections A and B which:
    1. Provide for procedural requirements to obtain and renew registration on a periodic basis;
    2. Establish fees for the application and renewal of registration sufficient to cover costs;
    3. Assure that regulated services are rendered and controlled by persons authorized to do so; and
    4. Ensure that conflicts of interests are disclosed.

History. 1982, c. 590, § 54-37.3; 1983, c. 28; 1988, c. 765; 1992, c. 574; 2000, c. 763; 2009, c. 309; 2010, cc. 99, 206.

The 2000 amendments.

The 2000 amendment by c. 763 substituted “architect or certified interior designer” for “architecture” in subsections A and B, and inserted “or certified interior designer” in subsection B, and made a minor stylistic change.

The 2009 amendments.

The 2009 amendment by c. 309, in subsection A, inserted “landscape architecture” and deleted “certified landscape architect or” preceding “certified interior designer”; in subsection B, in the first sentence, inserted “landscape architecture” and deleted “landscape architect or certified” preceding “interior designer,” and in the second sentence, deleted “certified” preceding “landscape architect.”

The 2010 amendments.

The 2010 amendments by cc. 99 and 206 are identical and, in subsection A, rewrote the second sentence, and in the third sentence, inserted “nor any licensee or certificate holder” in the introductory language and added clause (iv), and made related punctuation and stylistic changes.

Law Review.

For review of judicial decisions of significance in Virginia affecting construction law, see 43 U. Rich. L. Rev. 107 (2008).

For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

CIRCUIT COURT OPINIONS

Limitation of liability. —

Former version of § 54.1-411 prohibited an engineering firm from contractually limiting its liability to an owner to the amount of fees paid by the owner. The 2010 version of § 54.1-411 would have allowed such a limitation of liability. Dewberry & Davis, Inc. v. C3NS, Inc., 81 Va. Cir. 122, 2010 Va. Cir. LEXIS 118 (Fairfax County Aug. 18, 2010).

Article 2. Interior Designers.

§ 54.1-412. Applicability.

This chapter shall not be construed to restrict or otherwise affect the right of any uncertified interior designer, architect, engineer, or any other person from rendering any of the services which constitute the practice of interior design; however, no person may hold himself out as, or use the title of, “certified interior designer” unless he has been so certified pursuant to the provisions of this chapter.

History. 1990, c. 512.

§ 54.1-413. Examination.

At least once each year the Board shall arrange for the National Council for Interior Design Qualification examination or an equivalent examination approved by the Board to be given to qualified applicants for certification as interior designers.

History. 1990, c. 512; 1991, c. 291.

§ 54.1-414. Issuance of certification; waiver of examination.

The Board shall issue a certification to practice as a certified interior designer in the Commonwealth to every applicant who shall have complied with the requirements of this chapter and the regulations of the Board. The certificates shall be signed by at least three members of the Board.

The Board shall certify any person who is a graduate of a minimum four-year professional degree program accredited by the Foundation for Interior Design Education Research, an equivalent accrediting organization or a professional program approved by the Board and who has two years of monitored experience in the performance of interior design services and who has taken and passed the examination for certification as a certified interior designer.

The Board, in its discretion, shall determine whether an applicant’s professional education and professional experience in the field of interior design are sufficient to establish eligibility for the examination.

The Board, in lieu of all examinations, may accept satisfactory evidence of licensing or certification in another state or country or the District of Columbia where (i) the qualifications for such licensure or certification are equal, in the opinion of the Board, to the qualifications required by the provisions of this chapter as of the date of application and (ii) the applicant is the holder of a license or certificate in good standing. Upon receipt of such satisfactory evidence and provided all other such requirements of this chapter are complied with, a certificate shall be issued to such applicant.

History. 1990, c. 512; 1991, c. 291; 1994, c. 625; 2000, c. 42.

The 2000 amendments.

The 2000 amendment by c. 42 added “waiver of examination” to the section head and added the last paragraph.

§ 54.1-415. Repealed by Acts 2000, c. 42, cl. 2.

Cross references.

As to waiver of examination, see now § 54.1-414 .

Chapter 5. Asbestos, Lead, and Home Inspection Contractors and Workers.

Article 1. General Provisions.

Editor’s note.

The division of this chapter into articles 1 and 2 is effective July 1, 2003. See Acts 2001, c. 723.

§ 54.1-500. Definitions.

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

“Accredited asbestos training program” means a training program that has been approved by the Board to provide training for individuals to engage in asbestos abatement, conduct asbestos inspections, prepare management plans, prepare project designs or act as project monitors.

“Accredited lead training program” means a training program that has been approved by the Board to provide training for individuals to engage in lead-based paint activities.

“Accredited renovation training program” means a training program that has been approved by the Board to provide training for individuals to engage in renovation or dust clearance sampling.

“Asbestos” means the asbestiform varieties of actinolite, amosite, anthophyllite, chrysotile, crocidolite, and tremolite.

“Asbestos analytical laboratory license” means an authorization issued by the Board to perform phase contrast, polarized light, or transmission electron microscopy on material known or suspected to contain asbestos.

“Asbestos contractor’s license” means an authorization issued by the Board permitting a person to enter into contracts to perform an asbestos abatement project.

“Asbestos-containing materials” or “ACM” means any material or product which contains more than 1.0 percent asbestos or such other percentage as established by EPA final rule.

“Asbestos inspector’s license” means an authorization issued by the Board permitting a person to perform on-site investigations to identify, classify, record, sample, test and prioritize by exposure potential asbestos-containing materials.

“Asbestos management plan” means a program designed to control or abate any potential risk to human health from asbestos.

“Asbestos management planner’s license” means an authorization issued by the Board permitting a person to develop or alter an asbestos management plan.

“Asbestos project” or “asbestos abatement project” means an activity involving job set-up for containment, removal, encapsulation, enclosure, encasement, renovation, repair, construction or alteration of an asbestos-containing material. An asbestos project or asbestos abatement project shall not include nonfriable asbestos-containing roofing, flooring and siding materials which when installed, encapsulated or removed do not become friable.

“Asbestos project designer’s license” means an authorization issued by the Board permitting a person to design an asbestos abatement project.

“Asbestos project monitor’s license” means an authorization issued by the Board permitting a person to monitor an asbestos project, subject to Department regulations.

“Asbestos supervisor” means any person so designated by an asbestos contractor who provides on-site supervision and direction to the workers engaged in asbestos projects.

“Asbestos worker’s license” means an authorization issued by the Board permitting an individual to work on an asbestos project.

“Board” means the Virginia Board for Asbestos, Lead, and Home Inspectors.

“Dust clearance sampling” means an on-site collection of dust or other debris that is present after the completion of a renovation to determine the presence of lead-based paint hazards and the provisions of a report explaining the results.

“Dust sampling technician” means an individual licensed by the Board to perform dust clearance sampling.

“Friable” means that the material when dry may be crumbled, pulverized, or reduced to powder by hand pressure and includes previously nonfriable material after such previously nonfriable material becomes damaged to the extent that when dry it may be crumbled, pulverized, or reduced to powder by hand pressure.

“Home inspection” means any inspection of a residential building for compensation conducted by a licensed home inspector. A home inspection shall include a written evaluation of the readily accessible components of a residential building, including heating, cooling, plumbing, and electrical systems; structural components; foundation; roof; masonry structure; exterior and interior components; and other related residential housing components. A home inspection may be limited in scope as provided in a home inspection contract, provided that such contract is not inconsistent with the provisions of this chapter or the regulations of the Board. For purposes of this chapter, residential building energy analysis alone, as defined in § 54.1-1144 , shall not be considered a home inspection.

“Home inspector” means a person who meets the criteria of education, experience, and testing required by this chapter and regulations of the Board and who has been licensed by the Board to perform home inspections.

“Lead abatement” means any measure or set of measures designed to permanently eliminate lead-based paint hazards, including lead-contaminated dust or soil.

“Lead-based paint” means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligrams per square centimeter or more than 0.5 percent by weight.

“Lead-based paint activity” means lead inspection, lead risk assessment, lead project design and abatement of lead-based paint and lead-based paint hazards, including lead-contaminated dust and lead-contaminated soil.

“Lead-contaminated dust” means surface dust that contains an area or mass concentration of lead at or in excess of levels identified by the Environmental Protection Agency pursuant to § 403 of TSCA (15 U.S.C. § 2683).

“Lead-contaminated soil” means bare soil that contains lead at or in excess of levels identified by the Environmental Protection Agency.

“Lead contractor” means a person who has met the Board’s requirements and has been issued a license by the Board to enter into contracts to perform lead abatements.

“Lead inspection” means a surface-by-surface investigation to determine the presence of lead-based paint and the provisions of a report explaining the results of the investigation.

“Lead inspector” means an individual who has been licensed by the Board to conduct lead inspections and abatement clearance testing.

“Lead project design” means any descriptive form written as instructions or drafted as a plan describing the construction or setting up of a lead abatement project area and the work practices to be utilized during the lead abatement project.

“Lead project designer” means an individual who has been licensed by the Board to prepare lead project designs.

“Lead risk assessment” means (i) an on-site investigation to determine the existence, nature, severity and location of lead-based paint hazards and (ii) the provision of a report by the individual or the firm conducting the risk assessment, explaining the results of the investigation and options for reducing lead-based paint hazards.

“Lead risk assessor” means an individual who has been licensed by the Board to conduct lead inspections, lead risk assessments and abatement clearance testing.

“Lead supervisor” means an individual who has been licensed by the Board to supervise lead abatements.

“Lead worker” or “lead abatement worker” means an individual who has been licensed by the Board to perform lead abatement.

“Person” means a corporation, partnership, sole proprietorship, firm, enterprise, franchise, association or any other individual or entity.

“Principal instructor” means the individual who has the primary responsibility for organizing and teaching an accredited asbestos training program, an accredited lead training program, an accredited renovation training program, or any combination thereof.

“Renovation” means the modification of any existing structure or portion thereof, for compensation, that results in the disturbance of painted surfaces, unless that activity is (i) performed as a part of a lead abatement or (ii) limited in scope to the site work or remediation as referenced in the definition of contractor in § 54.1-1100 . As used in this definition, “compensation” shall include the receipt of (a) pay for work performed, such as that paid to contractors and subcontractors; (b) wages, including but not limited to those paid to employees of contractors, building owners, property management companies, child-occupied facilities operators, state and local government agencies, and nonprofit organizations; and (c) rent for housing constructed before January 1, 1978, or child-occupied facilities in public or commercial building space.

“Renovation contractor” means a person who has met the Board’s requirements and has been issued a license by the Board to conduct renovations.

“Renovator” means an individual who has been issued a license by the Board to perform renovations or to direct others who perform renovations.

“Residential building” means, for the purposes of home inspection, a structure consisting of one to four dwelling units used or occupied, or intended to be used or occupied, for residential purposes.

“Training manager” means the individual responsible for administering a training program and monitoring the performance of instructors for an accredited asbestos training, accredited lead training program or accredited renovation training program.

History. 1987, c. 579, § 54-145.4; 1988, cc. 765, 802; 1989, c. 397; 1990, cc. 49, 73, 823; 1992, c. 152; 1993, cc. 499, 660; 1994, cc. 185, 911; 1996, cc. 76, 176, 180, 846; 1997, c. 885; 1998, c. 739; 2001, c. 723; 2009, cc. 358, 819; 2012, cc. 803, 835; 2016, cc. 161, 436, 527.

Cross references.

As to the Commonwealth’s immunity from civil liability for abatement of risk of asbestos in State-owned and public school buildings, see § 2.2-1167 .

As to asbestos inspection requirements for child day centers, see § 63.2-1811.

Editor’s note.

Acts 2001, c. 723, cl. 3 provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall adopt final regulations for the certification of home inspectors in accordance with Chapter 5, § 54.1-501 , on or before July 1, 2003.”

Acts 2009, c. 358, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2011, except that the provisions of § 54.1-500.1 of the Code of Virginia shall become effective on July 1, 2009.”

Acts 2016, cc. 161 and 436, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2017, except as otherwise provided in the fourth enactment of this act.”

Acts 2016, cc. 161 and 436, cl. 4 provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall promulgate regulations to implement the provisions of this act to be effective no later than July 1, 2017. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

The 2001 amendments.

The 2001 amendment by c. 723, effective July 1, 2003, substituted “Lead, and Home inspectors” for “and Lead” at the end of the paragraph defining “Board,” and added the paragraphs defining “Certified home inspection,” “Certified home inspector,” and “Residential building.”

The 1997 amendment deleted the former paragraphs defining “Certified lead contractor” and “Certified lead professional” which read: “ ‘Certified lead contractor’ means a person who has met the Board’s requirements and has been issued a certificate by the Board to enter into contracts to perform lead-based paint activities.

“ ‘Certified lead professional’ or ‘certified lead worker’ means a person who has met the certification requirements in at least one of the lead evaluation, inspection or abatement disciplines established by the Board and has been issued a certificate by the Board”; and added the paragraphs defining “Licensed lead contractor” and “Licensed lead professional.”

The 1998 amendment, inserted the paragraphs defining “Accredited asbestos training program” and “Accredited lead training program”; rewrote the paragraph defining “Asbestos”; inserted the paragraphs defining “Asbestos-containing materials,” “Lead abatement,” “Lead-based paint,” and “Lead-based paint activity”; deleted the paragraph defining “Lead-containing substance”; inserted the paragraphs defining “Lead-contaminated dust” and “Lead-contaminated soil”; in the paragraph defining “Lead contractor,” deleted “Licensed“ from the beginning and substituted “lead abatements” for “lead-based paint activities”; inserted the paragraphs defining “Lead inspection,” “Lead inspector,” “Lead project design,” “Lead project designer,” “Lead risk assessment,” “Lead risk assessor,” “Lead supervisor,” and “Lead worker”; deleted the paragraphs defining “Licensed lead professional,” “Local education agency,” and “Primary instructor”; and added the paragraphs defining “Principal instructor” and “Training manager.”

The 2009 amendments.

The 2009 amendment by c. 358, effective July 1, 2011, inserted “Mold” in the definition of “Board” and inserted definitions “Mold,” “Mold analysis,” “Mold inspection,” “Mold inspector,” Mold remediation” and “Mold remediator.”

The 2009 amendment by c. 819 added the paragraphs defining “Accredited renovation training program,” “Dust clearance sampling” and “Dust sampling technician”; in the paragraph defining “Principal instructor,” substituted “program” for “course or” and “program, an accredited renovation training program, or any combination thereof” for “course or both”; added the paragraphs defining “Renovation,” “Renovation contractor” and “Renovator”; and in the paragraph defining “Training manager,” substituted “accredited lead training program or accredited renovation training program” for “or an accredited lead training program or both.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 55, are identical, and deleted “Mold” following “Lead” in the definition of “Board”; and deleted the definitions of “Mold,” “Mold analysis,” “Mold inspection,” “Mold inspector,” “Mold remediation,” and “Mold remediator.”

The 2016 amendments.

The 2016 amendments by cc. 161 and 436, effective July 1, 2017, are identical, and deleted the definitions for “Certified home inspection,” and “Certified home inspector,” and inserted definitions for “Home inspection” and “Home inspector.”

The 2016 amendment by c. 527, in the definition of “Renovation,” inserted “and or (ii) limited in scope to the site work or remediation as referenced in the definition of contractor in § 54.1-1100 ” and made a related change, and substituted “(a),” “(b)” and “(c)” for “(i),” “(ii)” and “(iii),” respectively.

Law Review.

For article, “What’s Current in Asbestos Regulations,” see 23 U. Rich. L. Rev. 375 (1989).

For survey on construction law in Virginia for 1989, see 23 U. Rich. L. Rev. 541 (1989).

Research References.

Virginia Forms (Matthew Bender). No. 16-401 Land Sales Contract; No. 16-432 Disclosures and Notices Under Virginia Residential Property Disclosure Act.

CASE NOTES

The defendant had no reasonable expectation of privacy in those records that it is required to maintain because it is involved in the removal and disposal of asbestos, an industry that is heavily regulated by statute and by regulation; thus defendant’s claim that the citations were not valid because a search warrant was required to lawfully search these records was unsupportable. Abateco Servs., Inc. v. Bell, 23 Va. App. 504, 477 S.E.2d 795, 1996 Va. App. LEXIS 722 (1996).

§ 54.1-500.1. (Effective until July 1, 2022) Virginia Board for Asbestos, Lead, and Home Inspectors; membership; meetings; offices; quorum.

The Virginia Board for Asbestos, Lead, and Home Inspectors shall be appointed by the Governor and composed of 14 members as follows: one shall be a representative of a Virginia-licensed asbestos contractor, one shall be a representative of a Virginia-licensed lead contractor, one shall be a representative of a Virginia-licensed renovation contractor, one shall be either a Virginia-licensed asbestos inspector or project monitor, one shall be a Virginia-licensed lead risk assessor, one shall be a Virginia-licensed renovator, one shall be a Virginia-licensed dust sampling technician, one shall be a representative of a Virginia-licensed asbestos analytical laboratory, one shall be a representative of an asbestos, lead, or renovation training program, one shall be a member of the Board for Contractors, two shall be Virginia-licensed home inspectors, and two shall be citizen members. After initial staggered terms, the terms of members of the Board shall be four years, except that vacancies may be filled for the remainder of the unexpired term. The two home inspector members appointed to the Board shall have practiced as home inspectors for at least five consecutive years immediately prior to appointment. The renovation contractor, renovator, and dust sampling technician members appointed to the board shall have practiced respectively as a renovation contractor, renovator, or dust sampling technician for at least five consecutive years prior to appointment.

The Board shall meet at least once each year and other such times as it deems necessary. The Board shall elect from its membership a chairman and a vice-chairman to serve for a period of one year. Eight members of the Board shall constitute a quorum. The Board is vested with the powers and duties necessary to execute the purposes of this chapter.

History. 1993, c. 660; 1994, cc. 185, 911; 1996, cc. 180, 846; 1997, c. 885; 2001, c. 723; 2009, cc. 358, 819; 2012, cc. 522, 803, 835; 2016, cc. 161, 436.

Editor’s note.

Acts 2001, c. 723, cl. 3 provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall adopt final regulations for the certification of home inspectors in accordance with Chapter 5, § 54.1-501 , on or before July 1, 2003.”

Acts 2009, c. 358, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2011, except that the provisions of § 54.1-500.1 of the Code of Virginia shall become effective on July 1, 2009.”

Acts 2009, c. 819, cl. 2 provides: “That the term of the Board for Contractors member shall be concurrent with his term upon that Board, and that the initial appointments of the members in accordance with this act shall be staggered as follows: one member for a one-year term, two members for a two-year term, and one member for a three-year term.”

Acts 2009, c. 819, cl. 3 provides: “That the Board for Contractors member shall have full voting rights; however, other members appointed in accordance with this act shall not vote on any matters before the Board for Asbestos, Lead, and Home Inspectors except on matters related to renovations as defined in § 54.1-500 until the effective date of the regulations promulgated pursuant to this act.”

Acts 2016, cc. 161 and 436, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2017, except as otherwise provided in the fourth enactment of this act.”

Acts 2016, cc. 161 and 436, cl. 4 provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall promulgate regulations to implement the provisions of this act to be effective no later than July 1, 2017. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

The 1997 amendment, in the first paragraph, in the first sentence, substituted “Asbestos and Lead” for “Asbestos Licensing and Lead Certification” and substituted “Virginia licensed” for “Virginia certified” in two places.

The 2001 amendments.

The 2001 amendment by c. 723, effective July 1, 2001, in the first paragraph, in the first sentence, substituted “Lead, and home Inspectors” for “and Lead,” “ten members” for “nine members,” and “two shall be certified home inspectors and two” for “and three,” added the present third sentence, and added the language beginning “The two home inspector members” through “related to home inspectors until July 1, 2003”; and substituted “Six members” for “Five members” in the third sentence of the last paragraph.

The 2009 amendments.

The 2009 amendment by c. 358, effective July 1, 2009, in the first paragraph, in the first sentence, inserted “Mold,” substituted “11 members” for “ten members” near the beginning and inserted “one shall be a licensed mold inspector or a licensed mold remediator” near the end; deleted the former second sentence, which read: “Of the 1994 appointments, the terms shall be as follows: one member shall serve a term of two years, and one member shall serve a term of four years. Of the 2001 home inspector appointments, the terms shall be as follows: one home inspector shall serve a three-year term, and one home inspector shall serve a four-year term”; substituted “The terms” for “Thereafter, the terms” in the former third sentence; deleted the former fourth sentence, which read: “The initially appointed representatives of the lead industry shall be deemed to be certified upon having completed lead training offered at an Environmental Protection Agency Regional Training Center”; and added the last two sentences.

The 2009 amendment by c. 819 rewrote the first paragraph; and in the second paragraph, substituted “eight members” for “six members.”

The 2012 amendments.

The 2012 amendment by c. 522 substituted “at least once each year” for “at least four times each year” in the second paragraph.

The 2012 amendments by cc. 803 and 835, cl. 55, are identical, and in the first paragraph, in the first sentence, deleted “Mold” following “Lead,” substituted “14 members” for “15 members,” and deleted “one shall be a licensed mold inspector or a licensed mold remediator” following “certified home inspectors,” and deleted the former fourth and fifth sentences, which read: “The mold inspector or mold remediator member appointed to the Board shall have practiced as a mold inspector or mold remediator for at least three consecutive years immediately prior to appointment. The mold inspector or mold remediator member shall not vote on any matters before the Board except matters related to mold inspection or remediation until July 1, 2010.”

The 2016 amendments.

The 2016 amendments by cc. 161 and 436, effective July 1, 2017, are identical, and substituted “Virginia-licensed home inspectors” for “certified home inspectors.”

The 2022 amendments.

The 2022 amendments by cc. 576 and 577 are identical, and in the first paragraph, substituted “13” for “14”, added the clause (i) through (x) designations, deleted “one shall be a Virginia-licensed renovator, one shall be a Virginia-licensed dust sampling technician” following “assessor” in clause (v), deleted “two” following “Contractors”, inserted “three” preceding “shall be Virginia-licensed home inspectors” in clause (ix), substituted “After the initial staggering of terms” for “After initial staggered terms” in clause (x), rewrote the second sentence, which read: “The two home inspector members appointed to the Board shall have practiced as home inspectors for at least five consecutive years immediately prior to appointment.” and deleted the last sentence, which read: “The renovation contractor, renovator, and dust sampling technician members appointed to the board shall have practiced respectively as a renovation contractor, renovator, or dust sampling technician for at least five consecutive years prior to appointment.”; deleted the third sentence of the second paragraph, which read: “Eight members of the Board shall constitute a quorum.”; and made stylistic changes.

§ 54.1-500.1. (Effective July 1, 2022) Virginia Board for Asbestos, Lead, and Home Inspectors; membership; meetings; offices; quorum.

The Virginia Board for Asbestos, Lead, and Home Inspectors shall be appointed by the Governor and composed of 13 members as follows: (i) one shall be a representative of a Virginia-licensed asbestos contractor, (ii) one shall be a representative of a Virginia-licensed lead contractor, (iii) one shall be a representative of a Virginia-licensed renovation contractor, (iv) one shall be either a Virginia-licensed asbestos inspector or project monitor, (v) one shall be a Virginia-licensed lead risk assessor, (vi) one shall be a representative of a Virginia-licensed asbestos analytical laboratory, (vii) one shall be a representative of an asbestos, lead, or renovation training program, (viii) one shall be a member of the Board for Contractors, (ix) three shall be Virginia-licensed home inspectors, and (x) two shall be citizen members. After the initial staggering of terms, the terms of members of the Board shall be four years, except that vacancies may be filled for the remainder of the unexpired term. The home inspector and renovation contractor members appointed to the Board shall have practiced as a home inspector and a renovation contractor, respectively, for at least five consecutive years immediately prior to appointment.

The Board shall meet at least once each year and other such times as it deems necessary. The Board shall elect from its membership a chairman and a vice-chairman to serve for a period of one year. The Board is vested with the powers and duties necessary to execute the purposes of this chapter.

History. 1993, c. 660; 1994, cc. 185, 911; 1996, cc. 180, 846; 1997, c. 885; 2001, c. 723; 2009, cc. 358, 819; 2012, cc. 522, 803, 835; 2016, cc. 161, 436; 2022, cc. 576, 577.

§ 54.1-501. Powers and duties of the Board.

The Board shall administer and enforce this chapter. The Board shall:

  1. Promulgate regulations necessary to carry out the requirements of this chapter in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) to include but not be limited to the prescription of fees, procedures, and qualifications for the issuance and renewal of asbestos, lead, and renovation licenses, and governing conflicts of interest among various categories of asbestos, lead, and renovation licenses;
  2. Approve the criteria for accredited asbestos training programs, accredited lead training programs, accredited renovation training programs, training managers, and principal instructors;
  3. Approve accredited asbestos training programs, accredited lead training programs, accredited renovation training programs, examinations and the grading system for testing applicants for asbestos, lead, and renovation licensure;
  4. Promulgate regulations governing the licensing of and establishing performance criteria applicable to asbestos analytical laboratories;
  5. Promulgate regulations governing the functions and duties of project monitors on asbestos projects, circumstances in which project monitors shall be required for asbestos projects, and training requirements for project monitors;
  6. Promulgate, in accordance with the Administrative Process Act, regulations necessary to establish procedures and requirements for the: (i) approval of accredited lead training programs, (ii) licensure of individuals and firms to engage in lead-based paint activities, and (iii) establishment of standards for performing lead-based paint activities consistent with the Residential Lead-based Paint Hazard Reduction Act and United States Environmental Protection Agency regulations. If the United States Environmental Protection Agency (EPA) has adopted, prior to the promulgation of any related regulations by the Board, any final regulations relating to lead-based paint activities, then the related regulations of the Board shall not be more stringent than the EPA regulations in effect as of the date of such promulgation. In addition, if the EPA shall have outstanding any proposed regulations relating to lead-based paint activities (other than as amendments to existing EPA regulations), as of the date of promulgation of any related regulations by the Board, then the related regulations of the Board shall not be more stringent than the proposed EPA regulations. In the event that the EPA shall adopt any final regulations subsequent to the promulgation by the Board of related regulations, then the Board shall, as soon as practicable, amend its existing regulations so as to be not more stringent than such EPA regulations;
  7. Promulgate regulations for the licensing of home inspectors not inconsistent with this chapter regarding the professional qualifications of home inspectors applicants, the requirements necessary for passing home inspectors examinations, the proper conduct of its examinations, the proper conduct of the home inspectors licensed by the Board, and the proper discharge of its duties; and
  8. Promulgate, in accordance with the Administrative Process Act, regulations necessary to establish procedures and requirements for the (i) approval of accredited renovation training programs, (ii) licensure of individuals and firms to engage in renovation, and (iii) establishment of standards for performing renovation consistent with the Residential Lead-based Paint Hazard Reduction Act and United States Environmental Protection Agency (EPA) regulations. Such regulations of the Board shall be consistent with the EPA Lead Renovation, Repair, and Painting Program final rule.

History. 1987, c. 579, § 54-145.5; 1988, c. 765; 1989, c. 397; 1990, cc. 49, 73, 823; 1991, c. 45; 1992, c. 477; 1993, cc. 499, 660; 1994, cc. 185, 911; 1995, cc. 543, 585; 1996, cc. 180, 846; 1997, cc. 649, 885; 1998, c. 739; 2001, c. 723; 2009, cc. 358, 819; 2012, cc. 803, 835; 2016, cc. 161, 436.

Editor’s note.

Acts 2001, c. 723, cl. 2, provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2003, except that § 54.1-500.1 shall become effective on July 1, 2001.”

Acts 2001, c. 723, cl. 3, provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall adopt final regulations for the certification of home inspectors in accordance with Chapter 5, § 54.1-501 , on or before July 1, 2003.”

Acts 1995, cc. 543 and 585, cls. 2, effective March 24, 1995, provide: “That, notwithstanding the provisions of subsection B of § 54.1-503 as in effect on January 1, 1995, no person shall be required to hold a certificate as a lead contractor, professional, or worker to perform lead inspections, evaluation, or abatement activities until one hundred and twenty days after the effective date of the Virginia Board for Asbestos Licensing and Lead Certification’s initial regulations.”

Acts 1995, cc. 543 and 585, cls. 3, effective March 24, 1995, provide: “That, by October 1, 1995, the first set of regulations of the Virginia Board for Asbestos Licensing and Lead Certification to establish procedures and requirements pursuant to subdivision 7 of § 54.1-501 shall be finally adopted.”

Acts 2009, c. 358, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2011, except that the provisions of § 54.1-500.1 of the Code of Virginia shall become effective on July 1, 2009.”

Acts 2016, cc. 161 and 436, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2017, except as otherwise provided in the fourth enactment of this act.”

Acts 2016, cc. 161 and 436, cl. 4 provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall promulgate regulations to implement the provisions of this act to be effective no later than July 1, 2017. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

The Residential Lead-based Paint Hazard Reduction Act, referred to above, is codified as 42 U.S.C.S. § 4851 et seq.

The 1997 amendments.

The 1997 amendment by c. 649, in subdivision 6, substituted the present second through fourth sentences for the former second sentence, which read: “The Board’s regulations shall not be more stringent than the federal requirements set forth in: (i) the United States Environmental Protection Agency’s (EPA) proposed regulations, if the Board’s regulations are promulgated prior to the effective date of the EPA’s final regulations, or (ii) the EPA’s final regulations, if the Board’s regulations are promulgated after the effective date of the EPA’s final regulations.”

The 1997 amendment by c. 885 substituted “asbestos and lead licenses” for “asbestos licenses and lead certificates” in two places in subdivision 1; substituted “asbestos and lead licensure” for “asbestos licensure and lead certification” in subdivision 3; and substituted “licensure” for “certification” in clause (ii) of the first sentence of subdivision 6.

The 1998 amendment, rewrote subdivisions 2 and 3, and in subdivision 6, in clause (i), substituted “accredited lead” for “lead-based paint activities,” and in clause (ii), substituted “lead-based paint” for “lead inspection, evaluation, and abatement.”

The 2001 amendments.

The 2001 amendment by c. 723, effective July 1, 2003, deleted “and” at the end of subdivision 5, added “and” at the end of subdivision 6, and added subdivision 7.

The 2009 amendments.

The 2009 amendment by c. 358, effective July 1, 2011, added subdivision 8, which was redesignated as subdivision 9 at the direction of the Virginia Code Commission.

The 2009 amendment by c. 819, in subdivisions 1 through 3, inserted “accredited renovation training programs” both times it appears and “and renovation” three times and made related changes; in subdivision 1, substituted “among various” for “between various”; and added subdivision 8 and made a related change.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 55, are identical, and deleted subdivision 9, which read: “Promulgate regulations for licensing of mold inspectors and mold remediators not inconsistent with this chapter regarding the professional qualifications of such applicants, the requirements necessary for passing applicable examinations in whole or in part, the proper conduct of its examinations, the proper conduct of the mold inspectors and mold remediators licensed by the Board, the implementation of exemptions from licensure requirements, and the proper discharge of its duties. The Board shall have the discretion to impose different requirements for licensure for the performance of mold inspections and mold remediation.”

The 2016 amendments.

The 2016 amendments by cc. 161 and 436, effective July 1, 2017, are identical, and in subdivision 7, substituted “the licensing of home inspectors” for “certification of home inspectors,” deleted “in who or in part” following “home inspectors examinations,” and substituted “licensed by the board” for “certified by the board, the implementation of exemptions from certifications requirements.”

§ 54.1-501.1. Applicability.

The provisions of this chapter shall not apply to any employer, or any employees of such employer, regulated by the federal Occupational Safety and Health Act, and under the enforcement authority of the Occupational Safety and Health Administration.

History. 1992, c. 52.

Editor’s note.

For the federal Occupational Safety and Health Act, referred to above, see generally 29 U.S.C.S. § 651 et seq.

§ 54.1-502. Interdepartmental implementation plan.

The Board, in conjunction with the Departments of General Services, Health, Labor and Industry, Education, and Environmental Quality, shall develop a plan for the implementation of this chapter which specifies the duties of each agency.

History. 1987, c. 579, § 54-145.6; 1988, cc. 765, 802; 1989, c. 397; 1990, cc. 73, 823; 1993, c. 660.

§ 54.1-503. Licenses required.

  1. It shall be unlawful for any person who does not have an asbestos contractor’s license to contract with another person, for compensation, to carry out an asbestos project or to perform any work on an asbestos project. It shall be unlawful for any person who does not have an asbestos project designer’s license to develop an asbestos project design. It shall be unlawful for any person who does not have an asbestos inspector’s license to conduct an asbestos inspection. It shall be unlawful for any person who does not have an asbestos management planner’s license to develop an asbestos management plan. It shall be unlawful for any person who does not have a license as an asbestos project monitor to act as project monitor on an asbestos project.
  2. It shall be unlawful for any person who does not possess a valid asbestos analytical laboratory license issued by the Board to communicate the findings of an analysis, verbally or in writing, for a fee, performed on material known or suspected to contain asbestos for the purpose of determining the presence or absence of asbestos.
  3. It shall be unlawful for any person who does not possess a license as a lead contractor to contract with another person to perform lead abatement activities or to perform any lead abatement activity or work on a lead abatement project. It shall be unlawful for any person who does not possess a lead supervisor’s license to act as a lead supervisor on a lead abatement project. It shall be unlawful for any person who does not possess a lead worker’s license to act as a lead worker on a lead abatement project. It shall be unlawful for any person who does not possess a lead project designer’s license to develop a lead project design. It shall be unlawful for any person who does not possess a lead inspector’s license to conduct a lead inspection. It shall be unlawful for any person who does not possess a lead risk assessor’s license to conduct a lead risk assessment. It shall be unlawful for any person who does not possess a lead inspector’s or lead risk assessor’s license to conduct lead abatement clearance testing.
  4. It shall be unlawful for any person who does not possess a license as a renovation contractor to perform renovation. It shall be unlawful for any person who does not possess a renovator’s license to perform or direct others to perform renovation. It shall be unlawful for any person who does not possess a dust sampling technician’s license to perform dust clearance sampling.
  5. It shall be unlawful for any individual who does not possess a license as a home inspector issued by the Board to perform a home inspection for compensation on a residential building. It shall be unlawful for any individual who does not possess a home inspector license with the new residential structure endorsement to conduct a home inspection for compensation on any new residential structure. For purposes of this chapter, “new residential structure” means a residential structure for which the first conveyance of record title to a purchaser has not occurred, or of which a purchaser has not taken possession, whichever occurs later.

History. 1987, c. 579, § 54-145.7; 1988, cc. 765, 802; 1989, c. 397; 1990, c. 73; 1993, c. 660; 1994, cc. 185, 911; 1995, cc. 543, 585; 1996, cc. 180, 846; 1997, cc. 560, 885; 1998, c. 739; 2004, c. 133; 2009, c. 819; 2015, c. 411; 2016, cc. 161, 436.

Editor’s note.

Acts 1995, cc. 543 and 585, cls. 2, effective March 24, 1995, provide: “That, notwithstanding the provisions of subsection B of § 54.1-503 as in effect on January 1, 1995, no person shall be required to hold a certificate as a lead contractor, professional, or worker to perform lead inspections, evaluation, or abatement activities until one hundred and twenty days after the effective date of the Virginia Board for Asbestos Licensing and Lead Certification’s initial regulations.”

Acts 1995, cc. 543 and 585, cls. 3, effective March 24, 1995, provide: “That, by October 1, 1995, the first set of regulations of the Virginia Board for Asbestos Licensing and Lead Certification to establish procedures and requirements pursuant to subdivision 7 of § 54.1-501 shall be finally adopted.”

Acts 1997, c. 885, cl. 2, provides: “That the provisions of this act shall not effect the validity of any certificate duly issued by the Board for Asbestos Licensing, the Board for Contractors, or the Board for Waste Management Facility Operators before July 1, 1997.”

Acts 2015, c. 411, cl. 2 provides: “That prior to July 1, 2016, the Virginia Board for Asbestos, Lead, and Home Inspectors shall develop, in conjunction with the Department of Housing and Community Development, a training module based on the International Residential Code component of the Virginia Uniform Statewide Building Code and make such training module available for use in accordance with this act.”

Acts 2015, c. 411, cl. 3 provides: “That the first enactment of this act shall become effective on July 1, 2016.”

Acts 2016, cc. 161 and 436, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2017, except as otherwise provided in the fourth enactment of this act.”

Acts 2016, cc. 161 and 436, cl. 4 provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall promulgate regulations to implement the provisions of this act to be effective no later than July 1, 2017. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

The 1997 amendments.

The 1997 amendment by c. 560 added present subsection B and redesignated former subsection B as present subsection C.

The 1997 amendment by c. 885, in subsection C, substituted “a license issued” for “a certificate issued” and substituted “a licensed lead” for “a certified lead.”

The 1998 amendment rewrote subsections A and C.

The 2004 amendments.

The 2004 amendment by c. 133 inserted “or to perform any work on an asbestos project” at the end of the first sentence in subsection A; and inserted “or to perform any lead abatement activity or work on a lead abatement project” at the end of the first sentence in subsection C.

The 2009 amendments.

The 2009 amendment by c. 819 added subsection D.

The 2015 amendments.

The 2015 amendment by c. 411, effective July 1, 2016, added subsection E.

The 2016 amendments.

The 2016 amendments by cc. 161 and 436, effective July 1, 2017, are identical, and rewrote subsection E, which read “It shall be unlawful for any person who is not a certified home inspector pursuant to this chapter and who has not successfully completed the training module required by § 54.1-517.2 to conduct a home inspection on any new residential structure.”

Law Review.

For article, “What’s Current in Asbestos Regulations,” see 23 U. Rich. L. Rev. 375 (1989).

For survey on construction law in Virginia for 1989, see 23 U. Rich. L. Rev. 541 (1989).

§ 54.1-504. Asbestos supervisor’s or worker’s license required; exception.

After July 1, 1988, it shall be unlawful for an individual who does not have an asbestos supervisor’s license or worker’s license to work on an asbestos project. No asbestos supervisor’s license or worker’s license shall be required for a supervisor or worker in the installation, maintenance, repair or removal of asbestos-containing roofing, flooring or siding material, provided that such supervisor or worker shall satisfy any training requirements promulgated by the Board pursuant to § 54.1-501 .

History. 1987, c. 579, § 54-145.8; 1988, c. 765; 1989, c. 397; 1993, c. 660.

Law Review.

For article, “What’s Current in Asbestos Regulations,” see 23 U. Rich. L. Rev. 375 (1989).

§ 54.1-504.1. Notices for handling asbestos.

The Department of Professional and Occupational Regulation shall include with every asbestos worker’s license a notice, in English and Spanish, containing a summary of the basic worker safety procedures regarding the handling of asbestos and information on how to file a complaint with the Virginia Board for Asbestos, Lead, and Home Inspectors.

History. 2016, c. 252.

Editor’s note.

Acts 2016, c. 252 was codified as this section at the direction of the Virginia Code Commission.

§ 54.1-505. Qualification for an asbestos contractor’s license.

To qualify for an asbestos contractor’s license, an applicant shall:

  1. Except as provided in § 54.1-504 , ensure that each of his employees or agents who will come into contact with asbestos or who will be responsible for an asbestos project is licensed as an asbestos supervisor or worker; and
  2. Demonstrate to the satisfaction of the Board that the applicant and his employees or agents are familiar with and are capable of complying fully with all applicable requirements, procedures and standards of the United States Environmental Protection Agency, the United States Occupational Safety and Health Administration, the Department of Labor and Industry, and the State Air Pollution Control Board covering any part of an asbestos project.

History. 1987, c. 579, § 54-145.9; 1988, cc. 765, 802; 1989, c. 397; 1993, c. 660; 1996, cc. 180, 846.

§ 54.1-506. Repealed by Acts 1993, c. 660.

§ 54.1-507. Repealed by Acts 1992, c. 477.

Cross references.

For provisions relating to duties of licensed asbestos or certified lead contractors, see § 40.1-51.20 .

§§ 54.1-508, 54.1-509.

Repealed by Acts 1993, c. 660.

§ 54.1-510. Repealed by Acts 1988, c. 802.

§ 54.1-511. Repealed by Acts 1993, c. 660.

§ 54.1-512. Exemptions from licensure.

  1. In an emergency, the Board may, at its discretion, waive the requirement for asbestos contractor’s, supervisor’s and worker’s licenses.
  2. Any employer, and any employee of such employer, who conducts an asbestos project on premises owned or leased by such employer shall be exempt from licensure.
  3. Notwithstanding the provisions of the Virginia Tort Claims Act (§ 8.01-195.1 et seq.), neither the Commonwealth nor any agency or employee of the Commonwealth shall be subject to any liability as the result of a determination made by the Board hereunder.
  4. Nothing in this chapter shall be construed as requiring the licensure of a contractor who contracts to undertake a project, a portion of which constitutes an asbestos or lead abatement project or renovation, if all of the asbestos or lead abatement work or renovation is subcontracted to a person licensed to perform such work in accordance with the provisions of this chapter.
  5. This chapter shall not apply to any person who performs lead-based paint activities within residences which they own, unless the residence is occupied by a person or persons other than the owner or the owner’s immediate family while these activities are being conducted or a child is residing in the property and has been identified as having an elevated blood-lead level.
  6. This chapter shall not apply to renovations of owner-occupied housing constructed before 1978, provided the person performing renovations obtains a statement signed by the owner providing that (i) no child under the age of six or pregnant woman resides in the structure, (ii) the residence is not a child-occupied facility, and (iii) the owner acknowledges that renovations may not include all of the lead-safe work practices contained in the EPA Lead Renovation, Repair, and Painting Program final rule.
  7. This chapter shall not apply to any person who performs renovations on (i) housing constructed after January 1, 1978, (ii) housing for the elderly or persons with disabilities, unless a child under the age of six resides or is expected to reside in the structure, or (iii) a structure that does not have bedrooms.

History. 1987, c. 579, § 54-145.10:6; 1988, cc. 765, 807; 1989, c. 397; 1993, c. 660; 1996, cc. 180, 846; 1998, c. 739; 2009, c. 819.

The 1998 amendment added subsections D and E.

The 2009 amendments.

The 2009 amendment by c. 819, in subsection A, deleted “that results from a sudden unexpected event that is not planned renovation or demolition”’ preceding “the Board may” and inserted “at its discretion”; in subsection D, inserted “or renovation” twice; and added subsections F and G.

Law Review.

For article, “What’s Current in Asbestos Regulations,” see 23 U. Rich. L. Rev. 375 (1989).

For survey on construction law in Virginia for 1989, see 23 U. Rich. L. Rev. 541 (1989).

§ 54.1-513. Repealed by Acts 1998, c. 739.

§ 54.1-514. Award of contracts by state agencies and political subdivisions.

A state agency or a political subdivision shall not award a contract in connection with an asbestos project to a person who does not hold an asbestos contractor’s, inspector’s, management planner’s or project designer’s license at the time the bid is submitted unless the general contractor to whom the contract is awarded will be contractually committed to have all asbestos related work performed by its own subcontractors who are appropriately licensed as asbestos contractors, inspectors, management planners or project designers pursuant to this chapter.

History. 1987, c. 579, § 54-145.10:8; 1988, cc. 765, 802; 1989, c. 397; 1990, c. 105; 1996, cc. 180, 846.

§ 54.1-515. Employer discrimination; penalty.

Any employer who discriminates against or otherwise penalizes an employee who complains to or cooperates with the Board or any other governmental agency in administering this chapter is subject to the penalties in § 54.1-517 .

History. 1987, c. 579, § 54-145.10:9; 1988, c. 765; 1993, cc. 499, 660.

Law Review.

For a note, “Are You Breaking Some Sort of Law?: Protecting an Employee’s Informal Complaints Under the Fair Labor Standards Act’s Anti-retaliation Provision,” see 42 Wm. & Mary L. Rev. 319 (2000).

§ 54.1-516. Disciplinary actions.

  1. The Board may reprimand, fine, suspend or revoke (i) the license of a lead contractor, lead inspector, lead risk assessor, lead project designer, lead supervisor, lead worker, asbestos contractor, asbestos supervisor, asbestos inspector, asbestos analytical laboratory, asbestos management planner, asbestos project designer, asbestos project monitor, asbestos worker, renovator, dust sampling technician, renovation contractor, or home inspector or (ii) the approval of an accredited asbestos training program, accredited lead training program, accredited renovation training program, training manager or principal instructor, if the licensee or approved person or program:
    1. Fraudulently or deceptively obtains or attempts to obtain a license or approval;
    2. Fails at any time to meet the qualifications for a license or approval or to comply with the requirements of this chapter or any regulation adopted by the Board; or
    3. Fails to meet any applicable federal or state standard when performing an asbestos project or service, performing lead-based paint activities, or performing renovations.
  2. The Board may reprimand, fine, suspend or revoke the license of (i) any asbestos contractor who employs or permits an individual without an asbestos supervisor’s or worker’s license to work on an asbestos project, (ii) any lead contractor who employs or permits an individual without a lead supervisor’s or lead worker’s license to work on a lead abatement project, or (iii) any renovation contractor who employs or permits an individual without a renovator’s license to perform or to direct others who perform renovations.
  3. The Board may reprimand, fine, suspend or revoke the license of a home inspector.

History. 1987, c. 579, § 54-145.10:10; 1988, cc. 765, 802; 1989, c. 397; 1990, c. 823; 1993, c. 660; 1994, cc. 185, 911; 1996, cc. 180, 846; 1997, c. 885; 1998, c. 739; 2001, c. 723; 2009, cc. 358, 819; 2012, cc. 803, 835; 2016, cc. 161, 436.

Editor’s note.

Acts 2001, c. 723, cl. 2, provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2003, except that § 54.1-500.1 shall become effective on July 1, 2001.”

Acts 2001, c. 723, cl. 3, provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall adopt final regulations for the certification of home inspectors in accordance with Chapter 5, § 54.1-501 , on or before July 1, 2003.”

Acts 2009, c. 358, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2011, except that the provisions of § 54.1-500.1 of the Code of Virginia shall become effective on July 1, 2009.”

Acts 2016, cc. 161 and 436, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2017, except as otherwise provided in the fourth enactment of this act.”

Acts 2016, cc. 161 and 436, cl. 4 provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall promulgate regulations to implement the provisions of this act to be effective no later than July 1, 2017. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

The 2001 amendments.

The 2001 amendment by c. 723, effective July 1, 2003, substituted “fine, suspend” for “or suspend” in subsections A and B, and added subsection C.

The 1997 amendment, in subsection A, substituted “license” for “certificate” and deleted “or certified entity” following “licensee,” deleted “or certificate” following “a license” in subdivisions A 1 and A 2; and substituted “licensed” for “certified” near the end of subsection B.

The 1998 amendment, in subsection A, in the introductory paragraph, inserted the clause (i) and (ii) designations, substituted “lead inspector, lead risk assessor, lead project designer, lead supervisor, lead worker” for “professional or worker or the license of an,” inserted “asbestos” preceding “supervisor,” “inspector,” “management planner,” “project designer,” “project monitor,” and “worker,” inserted “asbestos analytical laboratory,” inserted “accredited,” substituted “program, accredited lead training program, training manager or principal instructor, if the licensee or approved person or program” for “provider or primary instructor, if the licensee”; in subdivisions 1 and 2, inserted “or approval”; and in subdivision 3, substituted “lead-based paint activities” for “a lead inspection, evaluation, or abatement”; and in subsection B, in clause (ii), substituted “without a lead supervisor’s or lead worker’s license to work on a lead abatement project” for “required to be licensed under this chapter to perform any lead inspection, evaluation, or abatement.”

The 2009 amendments.

The 2009 amendment by c. 358, effective July 1, 2011, added subsection D.

The 2009 amendment by c. 819, in subsection A, inserted “renovator, dust sampling technician, or renovation contractor,” made a related change, and inserted “accredited renovation training program”; in subdivision A 3, inserted “or performing renovations” and made a related change; and in subsection B, added clause (iii) and made a related change.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 55, are identical, and deleted subsection D, which read: “The Board may reprimand, fine, suspend, or revoke the license of a mold inspector or remediator.”

The 2016 amendments.

The 2016 amendments by cc. 161 and 436, effective July 1, 2017, are identical, and in subsection A, inserted “or home inspector” in clause (i); in subsection C, substituted “license” for “certification”; and made minor stylistic changes.

§ 54.1-516.1. Summary suspension of licenses or approvals; allegations to be in writing.

The Board may suspend the license or the approval of any (i) accredited training program, (ii) training manager or (iii) principal instructor of any person holding a license issued by it without a hearing simultaneously with the institution of proceedings for a hearing or an informal fact finding conference, if the relevant board finds that there is a substantial danger to the public health or safety that warrants this action. The Board may meet by telephone conference call when summarily suspending a license or the approval of an accredited training program, training manager or principal instructor if a good faith effort to assemble a quorum of the Board has failed and, in the judgment of a majority of the members of the Board, the continued practice by the licensee or approved individual or training program constitutes a substantial danger to the public health or safety. Institution of proceedings for a hearing or an informal fact finding conference shall be provided simultaneously with the summary suspension. Such hearing or conference shall be scheduled within a reasonable time of the date of the summary suspension. Allegations of violations of this section shall be made in accordance with § 54.1-307.1 .

History. 2004, c. 222.

§ 54.1-517. Penalties for willful violations.

Notwithstanding any other provision of law, any person who willfully violates any provision of this chapter or any regulation related to licensure or training adopted pursuant to this chapter shall be guilty of a Class 1 misdemeanor for the first two violations and a Class 6 felony for a third and each subsequent violation within a three-year period.

In addition, licensed asbestos contractors, asbestos supervisors, asbestos inspectors, asbestos management planners, asbestos project designers, asbestos project monitors, asbestos analytical laboratories and asbestos workers, lead contractors, lead inspectors, lead risk assessors, lead project designers, lead supervisors, lead workers, renovators, dust sampling technicians, renovation contractors, and accredited asbestos training programs, accredited lead training programs, accredited renovator training programs, training managers or principal instructors may be assessed a civil penalty by the Board of not more than $1,000 for an initial violation and $5,000 for each subsequent violation within a three-year period arising from a willful violation of standards established by the Environmental Protection Agency, Occupational Safety and Health Administration, Department of Labor and Industry, or the Divisions of Air Pollution Control and Waste Management of the Department of Environmental Quality in a three-year period.

History. 1987, c. 579, § 54-145.10:11; 1988, cc. 765, 802; 1989, c. 397; 1990, c. 823; 1993, c. 660; 1994, cc. 185, 911; 1996, cc. 180, 846; 1997, c. 885; 1998, c. 739; 2009, c. 819.

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 1997 amendment substituted “and licensed lead” for “and certified lead” near the beginning of the second paragraph.

The 1998 amendment, in the second paragraph, inserted “asbestos” preceding “supervisors,” “inspectors,” “management planners,” “project designers,” “project monitors,” and “workers,” substituted “lead contractors, lead inspectors, lead risk assessors, lead project designers, lead supervisors, lead workers, and accredited asbestos training programs, accredited lead training programs, training managers or principal instructors” for “and licensed lead contractors, professionals and workers,” and substituted “or” for “and” following “Labor and Industry.”

The 2009 amendments.

The 2009 amendment by c. 819, in the second paragraph, inserted “renovators, dust sampling technicians, renovation contractors” and “accredited renovator training programs.”

Law Review.

For article, “What’s Current in Asbestos Regulations,” see 23 U. Rich. L. Rev. 375 (1989).

Article 2. Home Inspectors.

Editor’s note.

The division of this chapter into articles 1 and 2 is effective July 1, 2003. See Acts 2001, c. 723.

§ 54.1-517.1. Repealed by Acts 2016, cc. 161 and 436, cl. 2, effective July 1, 2017.

Editor’s note.

Former § 54.1-517.1 , pertaining to applicability, derived from 2001, c. 723

§ 54.1-517.2. Requirements for licensure.

  1. The Board shall issue a license to practice as a home inspector in the Commonwealth to:
    1. An individual who holds an unexpired certificate as a home inspector issued prior to June 30, 2017; or
    2. An applicant who has successfully:
      1. Completed the educational requirements as required by the Board;
      2. Completed the experience requirements as required by the Board; and
      3. Passed the examination approved by the Board.
  2. The Board shall issue a license with the new residential structure endorsement to any applicant who completes a training module developed by the Board in conjunction with the Department of Housing and Community Development based on the International Residential Code component of the Virginia Uniform Statewide Building Code.

History. 2001, c. 723; 2015, c. 411; 2016, cc. 161, 436.

Editor’s note.

Acts 2001, c. 723, cl. 2, provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2003, except that § 54.1-500.1 shall become effective on July 1, 2001.”

Acts 2001, c. 723, cl. 3, provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall adopt final regulations for the certification of home inspectors in accordance with Chapter 5, § 54.1-501 , on or before July 1, 2003.”

Acts 2015, c. 411, cl. 2 provides: “That prior to July 1, 2016, the Virginia Board for Asbestos, Lead, and Home Inspectors shall develop, in conjunction with the Department of Housing and Community Development, a training module based on the International Residential Code component of the Virginia Uniform Statewide Building Code and make such training module available for use in accordance with this act.”

Acts 2015, c. 411, cl. 3 provides: “That the first enactment of this act shall become effective on July 1, 2016.”

Acts 2016, cc. 161 and 436, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2017, except as otherwise provided in the fourth enactment of this act.”

Acts 2016, cc. 161 and 436, cl. 4 provides: “That the Virginia Board for Asbestos, Lead, and Home Inspectors shall promulgate regulations to implement the provisions of this act to be effective no later than July 1, 2017. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

The 2015 amendments.

The 2015 amendment by c. 411, effective July 1, 2016, added subdivision 4 and made related changes.

The 2016 amendments.

The 2016 amendments by cc. 161 and 436, effective July 1, 2017, are identical, and rewrote section.

§ 54.1-517.2:1. Home inspection; required statement related to the presence of yellow shaded corrugated stainless steel tubing.

  1. As used in this section:“Bonding” means connecting metallic systems to establish electrical continuity and conductivity.“Corrugated stainless steel tubing” or “CSST” means a flexible stainless steel pipe used to supply natural gas or propane in residential, commercial, and industrial structures.“Grounding” means connecting to the ground or to a conductive body that extends to ground connection.
  2. If a home inspector observes the presence of any shade of yellow corrugated stainless steel tubing during a home inspection in a home that was built prior to the adoption of the 2006 Virginia Construction Code, effective May 1, 2008, he shall include that observation in the report along with the following statement: “Manufacturers believe that this product is safer if properly bonded and grounded as required by the manufacturer’s installation instructions. Proper bonding and grounding of the product should be determined by a contractor licensed to perform the work in the Commonwealth of Virginia.”

History. 2017, c. 805.

Research References.

Virginia Forms (Matthew Bender). No. 16-431 Miscellaneous Contingencies: EIF Systems, Aircraft Noise, Flood Plain, Polybutylene Pipes, Water Conservation Ordinances.

Article 3. Mold Inspectors and Remediators.

§§ 54.1-517.3 through 54.1-517.5. Repealed by Acts 2012, cc. 803 and 835, cl. 56.

Editor’s note.

Former § 54.1-517.3 , requiring licensure to perform mold inspections or mold remediation, derived from 2009, c. 358. Former § 54.1-517.4, pertaining to exemptions from licensure, derived from 2009, c. 358. Former § 54.1-517.5, pertaining to requirements for licensure, derived from 2009, c. 358.

Former § 54.1-517.4 was also amended by Acts 2012, c. 788.

Chapter 5.1. Athlete Agents.

§§ 54.1-518 through 54.1-525.

Repealed by Acts 1992, c. 282.

Chapter 5.2. Athlete Agents.

§ 54.1-526. (Effective until July 1, 2022) Definitions.

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

“Agency contract” means an agreement in which a student-athlete authorizes a person to negotiate or solicit on behalf of the student-athlete a professional sports services contract or endorsement contract.

“Athlete agent” means an individual, whether or not registered under this chapter, who (i) directly or indirectly recruits or solicits a student-athlete to enter into an agency contract or, for compensation, procures employment or offers, promises, attempts, or negotiates to obtain employment for a student-athlete as a professional athlete or member of a professional sports team or organization; (ii) for compensation or in anticipation of compensation related to a student-athlete’s participation in athletics (a) serves the student-athlete in an advisory capacity on a matter related to finances, business pursuits, or career management decisions, unless the individual is an employee of an educational institution acting exclusively as an employee of the institution for the benefit of the institution, or (b) manages the business affairs of the student-athlete by providing assistance with bills, payments, contracts, or taxes; or (iii) in anticipation of representing a student-athlete for a purpose related to the student-athlete’s participation in athletics (a) gives consideration to the student-athlete or another person, (b) serves the student-athlete in an advisory capacity on a matter related to finances, business pursuits, or career management decisions, or (c) manages the business affairs of the student-athlete by providing assistance with bills, payments, contracts, or taxes. “Athlete agent” does not include an individual who (a) acts solely on behalf of a professional sports team or organization or (b) is a licensed, registered, or certified professional and offers or provides services to a student-athlete customarily provided by members of the profession, unless the individual (1) also recruits or solicits the student-athlete to enter into an agency contract, (2) also, for compensation, procures employment or offers, promises, attempts, or negotiates to obtain employment for the student-athlete as a professional athlete or member of a professional sports team or organization, or (3) receives consideration for providing the services calculated using a different method than for an individual who is not a student-athlete.

“Athletic director” means the individual responsible for administering the overall athletic program of an educational institution or, if an educational institution has separately administered athletic programs for male students and female students, the athletic program for males or the athletic program for females, as appropriate.

“Director” means the Director of the Department of Professional and Occupational Regulation.

“Educational institution” means a public or private (i) elementary school, (ii) secondary school, (iii) technical or vocational school, (iv) community college, or (v) institution of higher education.

“Endorsement contract” means an agreement under which a student-athlete is employed or receives consideration to use on behalf of the other party any value that the student-athlete may have because of publicity, reputation, following, or fame obtained because of athletic ability or performance.

“Enrolled” or “enrolls” means registered for courses and attending athletic practice or class.

“Intercollegiate sport” means a sport played at the collegiate level for which eligibility requirements for participation by a student-athlete are established by a national association that promotes or regulates collegiate athletics.

“Interscholastic sport” means a sport played between educational institutions that are not community colleges or institutions of higher education.

“Licensed, registered, or certified professional” means an individual, other than an athlete agent, who is licensed, registered, or certified as an attorney, dealer in securities, financial planner, insurance agent, real estate broker or sales agent, tax consultant, accountant, or member of a profession by the Commonwealth or a nationally recognized organization that licenses, registers, or certifies members of the profession on the basis of experience, education, or testing.

“Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality or other legal entity.

“Professional sports services contract” means an agreement under which an individual is employed as a professional athlete or agrees to render services as a player on a professional sports team or with a professional sports organization.

“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

“Recruit or solicit” means an attempt to influence the choice of an athlete agent by a student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete. “Recruit or solicit” does not include giving advice on the selection of a particular agent in a family, coaching, or social situation unless the individual giving the advice does so because of the receipt or anticipated receipt of an economic benefit, directly or indirectly, from the agent.

“Registration” means registration as an athlete agent.

“Sign” means, with present intent to authenticate or adopt a record, (i) to execute or adopt a tangible symbol or (ii) to attach to or logically associate with the record an electronic symbol, sound, or process.

“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

“Student-athlete” means an individual who is eligible to attend an educational institution and engages in, is eligible to engage in, or may be eligible in the future to engage in any interscholastic or intercollegiate sport. “Student-athlete” does not include, for a particular interscholastic or intercollegiate sport, an individual permanently ineligible to participate in that sport.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-519.

Editor’s note.

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. 1289, cl. 18, as amended by Acts 2020, Sp. Sess. I, c. 56, Acts 2021, Sp. Sess. I, c. 552, and as added by Acts 2021, Sp. Sess. II, c. 1, effective for the biennium ending June 30, 2022, provides:

“a. That no institution or an agent thereof; athletic association; athletic conference; or other organization with authority over intercollegiate athletics shall:

“1. Provide a prospective or current student-athlete with compensation for the use of his or her name, image, or likeness;

“2. Prohibit or prevent a student-athlete from earning compensation for the use of his or her name, image, or likeness, except as set forth in this subsection;

“3. Prohibit or prevent a student-athlete from obtaining professional representation by an athlete agent licensed pursuant to Chapter 5.2 (§ 54.1-526 et seq.) of Title 54.1 of the Code of Virginia, or legal representation by an attorney licensed to practice law in the Commonwealth, for issues related to name, image, or likeness;

“4. Declare ineligible for competition or reduce, cancel or not renew an athletic scholarship because a student-athlete earns compensation for the use of his or her name, image, or likeness; or

“5. Prevent an institution from participating in intercollegiate athletics because a student-athlete earns compensation for the use of his or her name, image or likeness, or obtains representation for related issues.

“b. An institution may prohibit a student-athlete from earning compensation for the use of his or her name, image or likeness while the individual is engaged in academic, official team, or department activities, including competition, practice, travel, academic services, community service, and promotional activities.

“c. An institution may prohibit a student-athlete from using his or her name, image or likeness to earn compensation if the proposed use conflicts with an existing agreement between the institution and a third party.

“d. A student-athlete shall be prohibited from earning compensation for the use of his or her name, image or likeness in connection with any of the following:

“1. Casinos or gambling, including sports betting;

“2. Alcohol products;

“3. Adult entertainment;

“4. Cannabis, cannabinoids, cannabidiol, or other derivatives;

“5. Dangerous or controlled substances;

“6. Performance enhancing drugs or substances (e.g., steroids, human growth hormone);

“7. Drug paraphernalia;

“8. Tobacco and electronic smoking products and devices; and

“9. Weapons, including firearms and ammunition.

“e. Any agreement entered into by a student athlete that provides compensation for the use of a student-athlete's name, image, or likeness shall be disclosed prior to execution of the agreement by such student-athlete in a manner designated by the institution the student-athlete is attending. If a student-athlete discloses a potential agreement that conflicts with an existing institutional agreement, the institution shall disclose the relevant terms of the conflicting agreement to the student-athlete.

“f. A student-athlete shall not earn compensation for the use of his or her name, image, or likeness in exchange for attendance at an institution or pay-for-performance.

“g. A student-athlete shall not use an institution's facilities or uniforms, or the institution's intellectual property, including logos, indicia, registered and unregistered trademarks, or products protected by copyright, unless otherwise permitted by the institution.

“h. For the purposes of this subsection:

“ ‘Institution’ means a private institution of higher education, associate-degree-granting public institution of higher education, or baccalaureate public institution of higher education.

“ ‘Pay-for-performance’ means payments and compensation provided to student-athletes that is contingent on the student athlete's achieving certain performance goals or objectives.

“ ‘Student-athlete’ means an individual enrolled at an institution who participates in intercollegiate athletics.”

The 2022 amendments.

The 2022 amendments by cc. 510 and 638 are identical, and inserted clause (iv) in the third paragraph.

§ 54.1-526. (Effective July 1, 2022) Definitions.

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

“Agency contract” means an agreement in which a student-athlete authorizes a person to negotiate or solicit on behalf of the student-athlete a professional sports services contract or endorsement contract.

“Athlete agent” means an individual, whether or not registered under this chapter, who (i) directly or indirectly recruits or solicits a student-athlete to enter into an agency contract or, for compensation, procures employment or offers, promises, attempts, or negotiates to obtain employment for a student-athlete as a professional athlete or member of a professional sports team or organization; (ii) for compensation or in anticipation of compensation related to a student-athlete’s participation in athletics (a) serves the student-athlete in an advisory capacity on a matter related to finances, business pursuits, or career management decisions, unless the individual is an employee of an educational institution acting exclusively as an employee of the institution for the benefit of the institution, or (b) manages the business affairs of the student-athlete by providing assistance with bills, payments, contracts, or taxes; (iii) in anticipation of representing a student-athlete for a purpose related to the student-athlete’s participation in athletics (a) gives consideration to the student-athlete or another person, (b) serves the student-athlete in an advisory capacity on a matter related to finances, business pursuits, or career management decisions, or (c) manages the business affairs of the student-athlete by providing assistance with bills, payments, contracts, or taxes; or (iv) represents a student-athlete in connection with issues related to name, image, or likeness, including negotiating, securing, obtaining, arranging, and managing name, image, or likeness opportunities. “Athlete agent” does not include an individual who (a) acts solely on behalf of a professional sports team or organization or (b) is a licensed, registered, or certified professional and offers or provides services to a student-athlete customarily provided by members of the profession, unless the individual (1) also recruits or solicits the student-athlete to enter into an agency contract, (2) also, for compensation, procures employment or offers, promises, attempts, or negotiates to obtain employment for the student-athlete as a professional athlete or member of a professional sports team or organization, or (3) receives consideration for providing the services calculated using a different method than for an individual who is not a student-athlete.

“Athletic director” means the individual responsible for administering the overall athletic program of an educational institution or, if an educational institution has separately administered athletic programs for male students and female students, the athletic program for males or the athletic program for females, as appropriate.

“Director” means the Director of the Department of Professional and Occupational Regulation.

“Educational institution” means a public or private (i) elementary school, (ii) secondary school, (iii) technical or vocational school, (iv) community college, or (v) institution of higher education.

“Endorsement contract” means an agreement under which a student-athlete is employed or receives consideration to use on behalf of the other party any value that the student-athlete may have because of publicity, reputation, following, or fame obtained because of athletic ability or performance.

“Enrolled” or “enrolls” means registered for courses and attending athletic practice or class.

“Intercollegiate sport” means a sport played at the collegiate level for which eligibility requirements for participation by a student-athlete are established by a national association that promotes or regulates collegiate athletics.

“Interscholastic sport” means a sport played between educational institutions that are not community colleges or institutions of higher education.

“Licensed, registered, or certified professional” means an individual, other than an athlete agent, who is licensed, registered, or certified as an attorney, dealer in securities, financial planner, insurance agent, real estate broker or sales agent, tax consultant, accountant, or member of a profession by the Commonwealth or a nationally recognized organization that licenses, registers, or certifies members of the profession on the basis of experience, education, or testing.

“Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality or other legal entity.

“Professional sports services contract” means an agreement under which an individual is employed as a professional athlete or agrees to render services as a player on a professional sports team or with a professional sports organization.

“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

“Recruit or solicit” means an attempt to influence the choice of an athlete agent by a student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete. “Recruit or solicit” does not include giving advice on the selection of a particular agent in a family, coaching, or social situation unless the individual giving the advice does so because of the receipt or anticipated receipt of an economic benefit, directly or indirectly, from the agent.

“Registration” means registration as an athlete agent.

“Sign” means, with present intent to authenticate or adopt a record, (i) to execute or adopt a tangible symbol or (ii) to attach to or logically associate with the record an electronic symbol, sound, or process.

“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

“Student-athlete” means an individual who is eligible to attend an educational institution and engages in, is eligible to engage in, or may be eligible in the future to engage in any interscholastic or intercollegiate sport. “Student-athlete” does not include, for a particular interscholastic or intercollegiate sport, an individual permanently ineligible to participate in that sport.

History. 2020, c. 481; 2022, cc. 510, 638.

§ 54.1-527. Authority; procedure.

  1. The Director shall administer and enforce the provisions of this chapter. In addition to the powers and duties otherwise authorized by law, the Director shall have the powers and duties of a regulatory board authorized by § 54.1-202 that are consistent with this chapter and shall have the power and duty to (i) promulgate such regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) as are necessary to implement this chapter, (ii) charge each applicant for registration or renewal of registration a nonrefundable fee subject to the provisions of § 54.1-113 , and (iii) issue cease and desist orders and otherwise seek to prevent continuing violations of this chapter.
  2. This chapter, and any existing relevant regulations that are consistent with this chapter, shall govern the regulation of athlete agents in the Commonwealth unless and until the Director promulgates new or revised regulations pursuant to subsection A.
  3. By acting as an athlete agent in the Commonwealth, a nonresident individual appoints the Secretary of the Commonwealth as the individual’s agent for service of process in any civil action in the Commonwealth related to the individual acting as an athlete agent in the Commonwealth.
  4. The Director may issue a subpoena for material that is relevant to the administration of this chapter.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-520.

§ 54.1-528. Athlete agent; registration required; void contract.

  1. Except as otherwise provided in subsection B, an individual may not act as an athlete agent in the Commonwealth without holding a valid certificate of registration under this chapter.
  2. Before being issued a certificate of registration under this chapter, an individual may act as an athlete agent in the Commonwealth for all purposes except signing an agency contract if (i) a student-athlete or another person acting on behalf of the student-athlete initiates communication with the individual and (ii) not later than seven days after an initial act that requires the individual to register as an athlete agent under this chapter, the individual submits an application for registration as an athlete agent in the Commonwealth.
  3. An agency contract resulting from conduct in violation of this section is void, and the athlete agent shall return any consideration received under the contract.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-521.

§ 54.1-529. Registration as athlete agent; application; requirements; reciprocal registration; penalty.

  1. An applicant for registration as an athlete agent shall submit an application for registration to the Director in a form prescribed by the Director. The applicant shall be an individual, and the application shall be signed by the applicant under penalty of perjury and shall contain at least the following:
    1. The name and date and place of birth of the applicant and the following contact information for the applicant: (i) the address of the applicant’s principal place of business; (ii) work and mobile telephone numbers; and (iii) any means of communicating electronically, including a facsimile number, email address, and personal and business or employer websites;
    2. The name of the applicant’s business or employer, if applicable, including for each business or employer, its mailing address, telephone number, organization form, and the nature of the business;
    3. Each social media account with which the applicant or the applicant’s business or employer is affiliated;
    4. Each business or occupation in which the applicant engaged within five years before the date of the application, including self-employment and employment by others, and any professional or occupational license, registration, or certification held by the applicant during that time;
    5. A description of the applicant’s (i) formal training as an athlete agent, (ii) practical experience as an athlete agent, and (iii) educational background relating to the applicant’s activities as an athlete agent;
    6. The name of each student-athlete for whom the applicant acted as an athlete agent within five years before the date of the application or, if the student-athlete is a minor, the name of the parent or guardian of the student-athlete, together with the student-athlete’s sport and last known team;
    7. The name and address of each person that (i) is a partner, member, officer, manager, associate, or profit sharer or directly or indirectly holds an equity interest of five percent or greater of the athlete agent’s business if it is not a corporation and (ii) is an officer or director of a corporation employing the athlete agent or a shareholder having an interest of five percent or greater in the corporation;
    8. A description of the status of any application by the applicant, or any person named under subdivision 7, for a state or federal business, professional, or occupational license, other than as an athlete agent, from a state or federal agency, including any denial, refusal to renew, suspension, withdrawal, or termination of the license and any reprimand or censure related to the license;
    9. Whether the applicant, or any person named under subdivision 7, has pleaded guilty or no contest to, has been convicted of, or has charges pending for a crime that would involve moral turpitude or be a felony if committed in the Commonwealth and, if so, identification of (i) the crime, (ii) the law-enforcement agency involved, and (iii) if applicable, the date of the conviction and the fine or penalty imposed;
    10. Whether, within 15 years before the date of application, the applicant, or any person named under subdivision 7, has been a defendant or respondent in a civil proceeding, including a proceeding seeking an adjudication of legal incompetence, and, if so, the date and a full explanation of each proceeding;
    11. Whether the applicant, or any person named under subdivision 7, has an unsatisfied judgment or a judgment of continuing effect, including alimony or a domestic order in the nature of child support, which is not current at the date of the application;
    12. Whether, within 10 years before the date of application, the applicant, or any person named under subdivision 7, was adjudicated bankrupt or was an owner of a business that was adjudicated bankrupt;
    13. Whether there has been any administrative or judicial determination that the applicant, or any person named under subdivision 7, made a false, misleading, deceptive, or fraudulent representation;
    14. Each instance in which conduct of the applicant, or any person named under subdivision 7, resulted in the imposition of a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event of a student-athlete or a sanction on an educational institution;
    15. Each sanction, suspension, or disciplinary action taken against the applicant, or any person named under subdivision 7, arising out of occupational or professional conduct;
    16. Whether there has been a denial of an application for, suspension or revocation of, refusal to renew, or abandonment of, the registration of the applicant, or any person named under subdivision 7, as an athlete agent in any state;
    17. Each state in which the applicant currently is registered as an athlete agent or has applied to be registered as an athlete agent;
    18. If the applicant is certified or registered by a professional league or players association, (i) the name of the league or association; (ii) the date of certification or registration and the date of expiration of the certification or registration, if any; and (iii) if applicable, the date of any denial of an application for, suspension or revocation of, refusal to renew, withdrawal of, or termination of the certification or registration or any reprimand or censure related to the certification or registration;
    19. Whether the applicant is seeking an annual or two-year license; and
    20. Any additional information required by the Director.
  2. Instead of proceeding under subsection A, an individual registered as an athlete agent in another state may apply for registration as an athlete agent in the Commonwealth by submitting to the Director (i) a copy of the application for registration in the other state; (ii) a statement that identifies any material change in the information on that application or verifies there is no material change in the information, signed under penalty of perjury; and (iii) a copy of the certificate of registration from the other state.
  3. The Director shall issue a certificate of registration to an individual who applies for registration under subsection B if the Director determines that (i) the application and registration requirements of the other state are substantially similar to or more restrictive than the requirements in this chapter and (ii) the registration has not been revoked or suspended and no action involving the individual’s conduct as an athlete agent is pending against the individual or the individual’s registration in any state.
  4. For purposes of implementing subsection C, the Director shall (i) cooperate with national organizations concerned with athlete agent issues and agencies in other states that register athlete agents to develop a common registration form and determine which states have laws that are substantially similar to or more restrictive than this chapter and (ii) exchange information, including information related to actions taken against registered athlete agents or their registrations, with those organizations and agencies.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-522.

§ 54.1-530. Certificate of registration; issuance or denials; renewal.

  1. Except as otherwise provided in subsection B, the Director shall issue a certificate of registration to an applicant for registration who complies with subsection A of § 54.1-529 .
  2. The Director may refuse to issue a certificate of registration to an applicant for registration under subsection A of § 54.1-529 if the Director determines that the applicant has engaged in conduct that significantly adversely reflects on the applicant’s fitness to act as an athlete agent. In making the determination, the Director may consider whether the applicant has (i) pleaded guilty or no contest to, has been convicted of, or has charges pending for a crime that would involve moral turpitude or be a felony if committed in the Commonwealth; (ii) made a materially false, misleading, deceptive, or fraudulent representation in the application or as an athlete agent; (iii) engaged in conduct that would disqualify the applicant from serving in a fiduciary capacity; (iv) engaged in conduct prohibited by § 54.1-538 ; (v) had a registration as an athlete agent suspended, revoked, or denied in any state; (vi) been refused renewal of registration as an athlete agent in any state; (vii) engaged in conduct resulting in imposition of a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event of a student-athlete or a sanction on an educational institution; or (viii) engaged in conduct that adversely reflects on the applicant’s credibility, honesty, or integrity.
  3. In making a determination under subsection B, the Director shall consider (i) how recently the conduct occurred, (ii) the nature of the conduct and the context in which it occurred, and (iii) other relevant conduct of the applicant.
  4. An athlete agent registered under subsection A may apply to renew the registration by submitting an application for renewal in a form prescribed by the Director. The applicant shall sign the application for renewal under penalty of perjury and include current information on all matters required in an original application for registration.
  5. An athlete agent registered under subsection C of § 54.1-529 may renew the registration by proceeding under subsection D or, if the registration in the other state has been renewed, by submitting to the Director copies of the application for renewal in the other state and the renewed registration from the other state. The Director shall renew the registration if the Director determines (i) the registration requirements of the other state are substantially similar to or more restrictive than the requirements in this chapter and (ii) the renewed registration has not been suspended or revoked and no action involving the individual’s conduct as an athlete agent is pending against the individual or the individual’s registration in any state.
  6. A certificate of registration or renewal of registration under this chapter is valid for one or two years, as indicated in the applicant’s application.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-523.

§ 54.1-531. Suspension, revocation, or refusal to renew registration.

  1. The Director may limit, suspend, revoke, or refuse to renew a registration of an individual registered under subsection A of § 54.1-530 for conduct that would have justified refusal to issue a certificate of registration under subsection B of § 54.1-530 .
  2. The Director may suspend or revoke the registration of an individual registered under subsection C of § 54.1-529 or renewed under subsection E of § 54.1-530 for any reason for which the Director could have refused to grant or renew registration or for conduct that would justify refusal to issue a certificate of registration under subsection B of § 54.1-530 .

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-524.

§ 54.1-532. Temporary registration.

The Director may issue a temporary certificate of registration as an athlete agent while an application for registration or renewal of registration is pending.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-525.

§ 54.1-533. Registration and renewal fees.

An application for registration or renewal of registration as an athlete agent shall be accompanied by a nonrefundable fee for each of the following: (i) an initial application for registration, (ii) an application for registration based on a certificate of registration or its equivalent issued by another state, (iii) an application for renewal of registration, and (iv) an application for renewal of registration based on a renewal of registration or its equivalent in another state.

That fee shall be:

  1. For a one-year registration or renewal, in the amount of $700;
  2. For a two-year registration or renewal, in the amount of $1,150; or
  3. For the fee set forth in subdivision 1 or 2, or both, of this section, a higher or lower fee that the Director determines by regulation is necessary and consistent with § 54.1-113 .

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-526 .

§ 54.1-534. Required form of agency contract.

  1. An agency contract shall be in a record signed by the parties.
  2. An agency contract shall contain:
    1. A statement that the athlete agent is registered as an athlete agent in the Commonwealth and a list of any other states in which the agent is registered as an athlete agent;
    2. The amount and method of calculating the consideration to be paid by the student-athlete for services to be provided by the agent under the contract and any other consideration the agent has received or will receive from any other source for entering into the contract or providing the services;
    3. The name of any person not listed in the agent’s application for registration or renewal of registration which will be compensated because the student-athlete signed the contract;
    4. A description of any expenses the student-athlete agrees to reimburse;
    5. A description of the services to be provided to the student-athlete;
    6. The duration of the contract; and
    7. The date of execution.
  3. Subject to subsection G, an agency contract shall contain a conspicuous notice in boldface type and in substantially the following form:
  4. An agency contract shall be accompanied by a separate record signed by the student-athlete or, if the student-athlete is a minor, the parent or guardian of the student-athlete acknowledging that signing the contract may result in the loss of the student-athlete’s eligibility to participate in the student-athlete’s sport.
  5. A student-athlete or, if the student-athlete is a minor, the parent or guardian of the student-athlete may void an agency contract that does not conform to this section. If the contract is voided, any consideration received from the athlete agent under the contract to induce entering into the contract is not required to be returned.
  6. At the time an agency contract is executed, the athlete agent shall give the student-athlete or, if the student-athlete is a minor, the parent or guardian of the student-athlete a copy in a record of the contract and the separate acknowledgement required by subsection D.
  7. If a student-athlete is a minor, an agency contract shall be signed by the parent or guardian of the student-athlete and the notice required by subsection C shall be revised accordingly.

“WARNING TO STUDENT-ATHLETE IF YOU SIGN THIS CONTRACT:

  1. YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT-ATHLETE IN YOUR SPORT;
  2. IF YOUR EDUCATIONAL INSTITUTION HAS AN ATHLETIC DIRECTOR, WITHIN 72 HOURS OF SIGNING THIS CONTRACT OR BEFORE THE NEXT SCHEDULED ATHLETIC EVENT IN WHICH YOU PARTICIPATE, WHICHEVER OCCURS FIRST, BOTH YOU AND YOUR ATHLETE AGENT MUST NOTIFY YOUR ATHLETIC DIRECTOR THAT YOU HAVE ENTERED INTO THIS CONTRACT AND PROVIDE THE NAME AND CONTACT INFORMATION OF THE ATHLETE AGENT; AND
  3. YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS. HOWEVER, CANCELLATION OF THIS CONTRACT DOES NOT GUARANTEE REINSTATEMENT OF YOUR ELIGIBILITY AS A STUDENT-ATHLETE IN YOUR SPORT.”

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-527 .

§ 54.1-535. Notice to educational institution.

  1. For purposes of this section, “communication or attempt to communicate” or any variation thereof means contacting or attempting to contact by an in-person meeting, a record, or any other method that conveys or attempts to convey a message.
  2. Not later than 72 hours after entering into an agency contract or before the next scheduled athletic event in which the student-athlete may participate, whichever occurs first, the athlete agent shall give notice in a record of the existence of the contract to the athletic director of the educational institution at which the student-athlete is enrolled or at which the agent has reasonable grounds to believe the student-athlete intends to enroll.
  3. Not later than 72 hours after entering into an agency contract or before the next scheduled athletic event in which the student-athlete may participate, whichever occurs first, the student-athlete shall inform the athletic director of the educational institution at which the student-athlete is enrolled that the student-athlete has entered into an agency contract and the name and contact information of the athlete agent.
  4. If an athlete agent enters into an agency contract with a student-athlete and the student-athlete subsequently enrolls at an educational institution, the agent shall notify the athletic director of the institution of the existence of the contract not later than 72 hours after the agent knew or should have known the student-athlete enrolled.
  5. If an athlete agent has a relationship with a student-athlete before the student-athlete enrolls in an educational institution and receives an athletic scholarship from the institution, the agent shall notify the institution of the relationship not later than 10 days after the enrollment if the agent knows or should have known of the enrollment and (i) the relationship was motivated in whole or in part by the intention of the agent to recruit or solicit the student-athlete to enter an agency contract in the future or (ii) the agent directly or indirectly recruited or solicited the student-athlete to enter an agency contract before the enrollment.
  6. An athlete agent shall give notice in a record to the athletic director of any educational institution at which a student-athlete is enrolled before the agent communicates or attempts to communicate with (i) the student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete to influence the student-athlete or parent or guardian to enter into an agency contract or (ii) another individual to have that individual influence the student-athlete or, if the student-athlete is a minor, the parent or guardian of the student-athlete to enter into an agency contract.
  7. If a communication or attempt to communicate with an athlete agent is initiated by a student-athlete or another individual on behalf of the student-athlete, the agent shall notify in a record the athletic director of any educational institution at which the student-athlete is enrolled. The notification shall be made not later than 10 days after the communication or attempt to communicate.
  8. An educational institution that becomes aware of a violation of this chapter by an athlete agent shall notify the Director and any professional league or players association with which the institution is aware the agent is licensed or registered of the violation.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-528 .

§ 54.1-536. Student-athlete’s right to cancel.

  1. A student-athlete or, if the student-athlete is a minor, the parent or guardian of the student-athlete may cancel an agency contract by giving notice in a record of cancellation to the athlete agent not later than 14 days after the contract is signed.
  2. A student-athlete or, if the student-athlete is a minor, the parent or guardian of the student-athlete may not waive the right to cancel an agency contract.
  3. If a student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete cancels an agency contract, the student-athlete or, if the student-athlete is a minor, the parent or guardian of the student-athlete is not required to pay any consideration under the contract or return any consideration received from the athlete agent to influence the student-athlete to enter into the contract.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-529 .

§ 54.1-537. Required records.

  1. An athlete agent shall create and retain for five years records of the following:
    1. The name and address of each student-athlete represented by the agent;
    2. Each agency contract entered into by the agent; and
    3. The direct costs incurred by the agent in the recruitment or solicitation of each student-athlete to enter into an agency contract.
  2. Records described in subsection A shall be open to inspection by the Director during normal business hours.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-530 .

§ 54.1-538. Prohibited conduct.

An athlete agent may not intentionally:

  1. Give a student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete materially false or misleading information or make a materially false promise or representation with the intent to influence the student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete to enter into an agency contract;
  2. Furnish anything of value to a student-athlete or another individual, if to do so may result in loss of the student-athlete’s eligibility to participate in the student-athlete’s sport, unless (i) the agent notifies the athletic director of the educational institution at which the student-athlete is enrolled or at which the agent has reasonable grounds to believe the student-athlete intends to enroll, not later than 72 hours after giving the thing of value and (ii) the student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete acknowledges to the agent in a record that receipt of the thing of value may result in loss of the student-athlete’s eligibility to participate in the student-athlete’s sport;
  3. Initiate contact, directly or indirectly, with a student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete to recruit or solicit the student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete to enter an agency contract unless registered under this chapter;
  4. Fail to create, retain, or permit inspection of the records required by § 54.1-537 ;
  5. Fail to register when required by § 54.1-528 ;
  6. Provide materially false or misleading information in an application for registration or renewal of registration;
  7. Predate or postdate an agency contract;
  8. Fail to notify a student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete before the student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete signs an agency contract for a particular sport that the signing may result in loss of the student-athlete’s eligibility to participate in the student-athlete’s sport;
  9. Encourage another individual to do any of the acts described in subdivisions 1 through 8 on behalf of the agent; or
  10. Encourage another individual to assist any other individual in doing any of the acts described in subdivisions 1 through 8 on behalf of the agent.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-531 .

§ 54.1-539. Criminal penalty.

An athlete agent who violates § 54.1-538 is guilty of a Class 1 misdemeanor and in addition, the Director may suspend the agent’s certificate of registration for no more than 12 months.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-532 .

§ 54.1-540. Civil remedy; penalty.

  1. An educational institution or student-athlete may bring an action for damages against an athlete agent if the institution or student-athlete is adversely affected by an act or omission of the agent in violation of this chapter. An educational institution or student-athlete is adversely affected by an act or omission of the agent only if, because of the act or omission, the institution or an individual who was a student-athlete at the time of the act or omission and enrolled in the institution (i) is suspended or disqualified from participation in an interscholastic or intercollegiate sports event by or under the rules of a state or national federation or association that promotes or regulates interscholastic or intercollegiate sports or (ii) suffers financial damage.
  2. A plaintiff that prevails in an action under this section may recover actual damages, punitive damages, costs, and reasonable attorney fees. An athlete agent found liable under this section forfeits any right of payment for anything of benefit or value provided to the student-athlete and shall refund any consideration paid to the agent by or on behalf of the student-athlete.
  3. A violation of this chapter also shall constitute a violation of the Virginia Consumer Protection Act (§ 59.1-196 et seq.).
  4. The Director may assess a civil penalty against an athlete agent not to exceed $50,000 for a violation of this chapter.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-533 .

§ 54.1-541. Uniformity of application of construction.

Consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact substantially similar laws.

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-534 .

§ 54.1-542. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede § 101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that act, 15 U.S.C. § 7003(c).

History. 2020, c. 481.

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 54.1-535 .

Chapter 6. Auctioneers.

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Auctions and Auctioneers, §§ 2, 6.

§ 54.1-600. Definitions.

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

“Absolute auction” means an auction where at the time of the auction sale the real or personal property to be sold will pass to the highest bidder regardless of the amount of the highest and last bid.

“Auction” means the sale of goods or real estate by means of exchanges between an auctioneer and members of his audience, the exchanges consisting of a series of invitations for offers made by the auctioneer, offers made by members of the audience, and acceptance by the auctioneer of the highest or most favorable offer.

“Auction firm” means any corporation, partnership or entity, except a sole proprietorship, performing any of the acts of an auctioneer as defined in this section.

“Auctioneer” means any person who conducts or offers to conduct an auction.

“Board” means the Auctioneers Board.

“Director” means the Director of the Department of Professional and Occupational Regulation.

“Goods” means any chattels, merchandise, real or personal property, or commodities of any form or type which may be lawfully kept or offered for sale.

“Person” means any natural person, association, partnership, or corporation, and the officers, directors, and employees of a corporation.

“Virginia licensed auctioneer” means any auctioneer who meets the requirements for licensure as prescribed by the Board.

History. 1982, c. 538, § 54-824.2; 1983, c. 522; 1986, c. 61; 1988, c. 765; 1991, c. 299; 2003, c. 367.

The 2003 amendments.

The 2003 amendment by c. 367 added the definition of “Absolute auction.”

Research References.

Virginia Forms (Matthew Bender). No. 8A-1801 Contract to Conduct Auction; No. 8A-1805 Contract to Conduct Auction — Another Form.

CASE NOTES

Fees for appraisal work. —

For case holding that a city ordinance taxing auctioneers was not applicable to fees earned for appraisal work, see City of Richmond v. Valentine, 203 Va. 642 , 125 S.E.2d 854, 1962 Va. LEXIS 199 (1962) (decided under prior law).

§ 54.1-601. Exemptions.

The provisions of this chapter and the terms “Virginia licensed auctioneer,” “auctioneer” or “auction firm,” as defined in § 54.1-600 , shall not apply to:

  1. Any person who auctions his own property, whether owned or leased, provided his regular business is not as an auctioneer;
  2. Any person who is acting as a receiver, trustee in bankruptcy, guardian, conservator, administrator, or executor, or any person acting under order of a court;
  3. A trustee acting under a trust agreement, deed of trust, or will;
  4. An attorney-at-law licensed to practice in the Commonwealth of Virginia acting pursuant to a power of attorney;
  5. Sales at auction conducted by or under the direction of any public authority, or pursuant to any judicial order or decree;
  6. Sale of livestock at a public livestock market authorized by the Commissioner of Agriculture and Consumer Services;
  7. Leaf tobacco sales conducted in accordance with the provisions of former § 3.1-336;
  8. Sale at auction of automobiles conducted under the provisions of § 46.2-644.03 or by a motor vehicle dealer licensed under the provisions of Chapter 15 (§ 46.2-1500 et seq.) of Title 46.2;
  9. Sale at auction of a particular brand of livestock conducted by an auctioneer of a livestock trade association;
  10. Sales conducted by and on behalf of any charitable, religious, civic club, fraternal, or political organization if the person conducting the sale receives no compensation, either directly or indirectly, therefor and has no ownership interest in the merchandise being sold or financial interest in the entity providing such merchandise;
  11. Sales, not exceeding one sale per year, conducted by or on behalf of (i) a civic club or (ii) a charitable organization granted tax-exempt status under § 501(c)(3) of the Internal Revenue Code; or
  12. Sales of collateral, sales conducted to enforce carriers’ or warehousemen’s liens, bulk sales, sales of goods by a presenting bank following dishonor of a documentary draft, resales of rightfully rejected goods, resales of goods by an aggrieved seller, or other resales conducted pursuant to Titles 8.1 A through 8.10 and the Virginia Self-Service Storage Act (§ 55.1-2900 et seq.).

History. 1982, c. 538, § 54-824.3; 1983, cc. 261, 522; 1986, c. 61; 1988, c. 765; 1991, c. 299; 1995, c. 227; 1997, c. 801; 2009, c. 664; 2014, cc. 21, 684.

Editor’s note.

Section 3.1-336, referred to in subdivision 7, concerning auction sales of tobacco, was deleted during the recodification of Title 3.1 by Acts 2008, c. 860, effective October 1, 2008. For requirements related to tobacco product manufacturers in general, see § 3.2-4200 et seq.

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 Self-Service Storage Act (§ 55.1-2900 et seq.)” for “Chapter 23 (§ 55-416 et seq.) of Title 55.”

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.”

Acts 2009, c. 664, cl. 3 provides: “That the provisions of this act shall become effective on October 1, 2009.”

The 1997 amendment, effective January 1, 1998, inserted “conservator” in subdivision 2.

The 2009 amendments.

The 2009 amendment by c. 664, effective October 1, 2009, substituted “§ 46.2-644.03 ” for “§ 43-34 ” in subdivision 8.

The 2014 amendments.

The 2014 amendments by cc. 21 and 684 are identical, and in subdivision 11, inserted “(i),” “(ii) a charitable,” and “granted tax-exempt status under § 501(c)(3) of the Internal Revenue Code.”

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Auctions and Auctioneers, § 2; 3C M.J. Commercial Law, § 99.

§ 54.1-602. Auctioneers Board; membership, meetings and powers.

  1. The Auctioneers Board shall be composed of five members as follows: three shall be Virginia licensed auctioneers and two shall be citizen members. Board members shall serve four-year terms.The Board shall meet at least once each year for the purpose of transacting business. Special meetings of the Board may be held at the discretion of the Director.
  2. The Board shall have the following authority and responsibilities:
    1. Establish regulations to obtain and retain licensure of auctioneers.
    2. Make all case decisions regarding eligibility for initial licensure and renewal thereof.
    3. To fine, suspend, deny renewal or revoke for cause, as defined in regulation, any license.
    4. To examine auctioneers for licensure.

History. 1982, c. 538, §§ 54-824.4, 54-824.7; 1983, c. 522, § 54-824.9:3; 1988, cc. 42, 765; 1991, c. 299; 2012, c. 522.

The 2012 amendments.

The 2012 amendment by c. 522 substituted “at least once each year” for “at least twice each year” in the second paragraph of subsection A.

CASE NOTES

Applicability. —

Although §§ 54.1-200 and 54.1-602 A have similar wording, subsection A of § 54.1-602 specifically addresses the Virginia Auctioneers Board and applied to the Board’s actions to impose monetary penalties and to suspend an auctioneer’s license; “shall” as used in subsection A of § 54.1-602 was directory, rather than mandatory, and the Board properly acted under § 54.1-105 with a majority of three, even though only four members of the Board had been appointed at the time of the Board’s actions. Khan v. Commonwealth, 42 Va. App. 469, 592 S.E.2d 755, 2004 Va. App. LEXIS 78 (2004).

§ 54.1-603. License required; requirements for licensure; nonresident applicants.

  1. Unless exempted by § 54.1-601 , no person or firm shall sell at auction without being licensed by the Board.
  2. Any auctioneer desiring to obtain a license may apply to the Board and shall establish to the satisfaction of the Board that he:
    1. Is a resident of Virginia and meets the application fee requirements set by the Board;
    2. Is covered by a surety bond, executed by a surety company authorized to do business in this Commonwealth, in a reasonable amount to be fixed by the Board, conditioned upon the faithful and honest conduct of his business or employment;
    3. Has successfully completed a course of study at a school of auctioneering which has obtained course approval from the Board or an equivalent course; and
    4. Has passed the Virginia Licensed Auctioneer’s Examination, administered by the Auctioneers Board.
  3. A nonresident of the Commonwealth may be licensed as an auctioneer by meeting one of the following requirements: (i) conform to the provisions of this chapter and regulations of the Board with reference to resident auctioneers or (ii) hold a valid auctioneer’s license or certificate in another state with which reciprocity has been established by the Board. Nonresident applicants shall also file with the Board an irrevocable consent that service of process upon the Director is as valid and binding as service of process upon the applicant.Any process or pleading served upon the Director shall be filed by the Director in his office and a copy thereof immediately forwarded by registered mail to the main office of the auctioneer at the last known address.

History. 1983, c. 522, § 54-824.9:1; 1986, c. 61; 1988, c. 765; 1991, c. 299; 1996, cc. 438, 822; 1997, c. 281; 2010, c. 91.

The 1997 amendment deleted “or conducted at least twenty-five auctions within the past eight years at which the applicant has cried the bids” following “equivalent course” in subdivision B 3.

The 2010 amendments.

The 2010 amendment by c. 91 deleted the former second sentence of subsection A, which read: “Any applicant for licensure who was certified by or registered with the Board prior to July 1, 1991, shall be exempt from the requirements of subsection B of this section if he applies prior to January 1, 1992.”

CASE NOTES

Former section was purely a revenue measure. —

Former § 54-792, requiring auctioneers to be licensed, was not intended to protect the public from any evil, real or fancied. It was purely a revenue measure. Associates Disct. Corp. v. Lunsford, 204 Va. 1 , 128 S.E.2d 924, 1963 Va. LEXIS 107 (1963) (decided under prior law).

And was inapplicable to third parties. —

Where a person sells at auction without a license, the question is one between the State and the auctioneer. Third parties are not concerned. Associates Disct. Corp. v. Lunsford, 204 Va. 1 , 128 S.E.2d 924, 1963 Va. LEXIS 107 (1963) (decided under former § 54-792).

§ 54.1-603.1. Continuing education.

  1. The Board shall promulgate regulations governing continuing education requirements for auctioneers licensed by the Board. Such regulations shall require the completion of the equivalent of at least six hours of Board-approved continuing education courses for any license renewal or reinstatement, except that no continuing education shall be required for any auctioneer licensed by the Board for 25 years or more and who is 70 years of age or older. The Board shall establish criteria for continuing education courses, including but not limited to (i) content and subject matter of continuing education courses; (ii) curriculum of required continuing education courses; (iii) standards and procedures for the approval of courses, course sponsors, and course instructors; (iv) methods of instruction for continuing education courses; and (v) the computation of course credit. Any continuing education courses completed by an auctioneer pursuant to a requirement of the Certified Auctioneers Institute or participation in the educational programs sponsored by the National Auctioneers Association or Virginia Auctioneers Association shall satisfy the continuing education requirement of this section.
  2. The Board may grant exemptions or waive or reduce the number of continuing education hours required in cases of certified illness or undue hardship.

History. 2004, c. 956; 2016, c. 504.

The 2016 amendments.

The 2016 amendments by c. 504, in subsection A, inserted “except that no continuing education shall be required for any auctioneer licensed by the Board for 25 years or more and who is 70 years of age or older”; and substituted “Auctioneers” for “Auctioneer’s” three times.

§ 54.1-604. Repealed by Acts 1991, c. 299.

Cross references.

For present provision relating to requirements for licensure, see § 54.1-603 .

§ 54.1-605. Taxation of auctioneer.

An auctioneer may not have a local license tax imposed by any county, city, or town except that in which his office is maintained. If a branch office is maintained elsewhere in Virginia, a local license tax may be imposed by the county, city or town in which the branch office is located, pursuant to former § 58.1-3707 and § 58.1-3709 .

History. 1982, c. 538, § 54-824.15; 1988, c. 765.

Editor’s note.

Section 58.1-3707 , referred to in this section, was repealed by Acts 1996, cc. 715 and 720, effective January 1, 1997.

CASE NOTES

No tax as to exempt items. —

A city was prohibited by the laws of the Commonwealth from taxing an auctioneer with respect to the items made exempt by former § 54-792. City of Richmond v. Valentine, 203 Va. 642 , 125 S.E.2d 854, 1962 Va. LEXIS 199 (1962) (decided under prior law).

Under subdivision (1) of former § 54-792, the estate of a decedent could be sold at auction by his personal representative or that representative’s agent without a license; hence, a city could not include an auctioneer’s income from such source in the amount on which it based its auctioneer’s license fee. City of Richmond v. Valentine, 203 Va. 642 , 125 S.E.2d 854, 1962 Va. LEXIS 199 (1962) (decided under prior law).

§ 54.1-606. Unlawful to advertise as an auctioneer.

It shall be unlawful for any person not licensed under the provisions of this chapter to advertise that he is in the auction business or to hold himself out to the public as an auctioneer.

History. 1982, c. 538, § 54-824.19; 1983, c. 522; 1988, c. 765; 1991, c. 299.

Research References.

Virginia Forms (Matthew Bender). No. 8A-1103 Consignment to Auctioneer; No. 8A-1801 et seq., Contract to Conduct Auction.

§ 54.1-607. Advertising; absolute auctions involving real property.

  1. No advertisements for any auction sale of personal or real property shall contain false, misleading, or deceptive statements, with respect to types or conditions of merchandise offered at auction, why merchandise is being sold, who has ownership, where the merchandise was obtained, or the terms and conditions of the auction and sale.
  2. No auctioneer shall advertise an auction sale of real property as “absolute” unless all lots included in the sale meet that criteria.

History. 2003, c. 367.

Cross references.

As to definition of “absolute auction,” see § 54.1-600 .

Chapter 7. Barbers and Cosmetologists.

Michie’s Jurisprudence.

For related discussion, see 3A M.J. Barbers and Cosmetologists, §§ 2, 3.

§ 54.1-700. Definitions.

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

“Barber” means any person who shaves, shapes or trims the beard; cuts, singes, or dyes the hair or applies lotions thereto; applies, treats or massages the face, neck or scalp with oils, creams, lotions, cosmetics, antiseptics, powders, clays or other preparations in connection with shaving, cutting or trimming the hair or beard, and practices barbering for compensation and when such services are not performed for the treatment of disease.

“Barbering” means any one or any combination of the following acts, when done on the human body for compensation and not for the treatment of disease, shaving, shaping and trimming the beard; cutting, singeing, or dyeing the hair or applying lotions thereto; applications, treatment or massages of the face, neck or scalp with oils, creams, lotions, cosmetics, antiseptics, powders, clays, or other preparations in connection with shaving, cutting or trimming the hair or a beard. The term “barbering” shall not apply to the acts described hereinabove when performed by any person in his home if such service is not offered to the public.

“Barber instructor” means any person who has been certified by the Board as having completed an approved curriculum and who meets the competency standards of the Board as an instructor of barbering.

“Barbershop” means any establishment or place of business within which the practice of barbering is engaged in or carried on by one or more barbers.

“Board” means the Board for Barbers and Cosmetology.

“Body-piercer” means any person who for remuneration penetrates the skin of a person to make a hole, mark, or scar, generally permanent in nature.

“Body-piercing” means the act of penetrating the skin of a person to make a hole, mark, or scar, generally permanent in nature.

“Body-piercing salon” means any place in which a fee is charged for the act of penetrating the skin of a person to make a hole, mark, or scar, generally permanent in nature.

“Body-piercing school” means a place or establishment licensed by the Board to accept and train students in body-piercing.

“Cosmetologist” means any person who administers cosmetic treatments; manicures or pedicures the nails of any person; arranges, dresses, curls, waves, cuts, shapes, singes, waxes, tweezes, shaves, bleaches, colors, relaxes, straightens, or performs similar work, upon human hair, or a wig or hairpiece, by any means, including hands or mechanical or electrical apparatus or appliances unless such acts as adjusting, combing, or brushing prestyled wigs or hairpieces do not alter the prestyled nature of the wig or hairpiece, and practices cosmetology for compensation. The term “cosmetologist” shall not include hair braiding upon human hair, or a wig or hairpiece.

“Cosmetology” includes, but is not limited to, the following practices: administering cosmetic treatments; manicuring or pedicuring the nails of any person; arranging, dressing, curling, waving, cutting, shaping, singeing, waxing, tweezing, shaving, bleaching, coloring, relaxing, straightening, or similar work, upon human hair, or a wig or hairpiece, by any means, including hands or mechanical or electrical apparatus or appliances, but shall not include hair braiding upon human hair, or a wig or hairpiece, or such acts as adjusting, combing, or brushing prestyled wigs or hairpieces when such acts do not alter the prestyled nature of the wig or hairpiece.

“Cosmetology instructor” means a person who has been certified by the Board as having completed an approved curriculum and who meets the competency standards of the Board as an instructor of cosmetology.

“Cosmetology salon” means any commercial establishment, residence, vehicle or other establishment, place or event wherein cosmetology is offered or practiced on a regular basis for compensation and may include the training of apprentices under regulations of the Board.

“Esthetician” means a person who engages in the practice of esthetics for compensation.

“Esthetics” includes, but is not limited to, the following practices of administering cosmetic treatments to enhance or improve the appearance of the skin: cleansing, toning, performing effleurage or other related movements, stimulating, exfoliating, or performing any other similar procedure on the skin of the human body or scalp by means of cosmetic preparations, treatments, or any nonlaser device, whether by electrical, mechanical, or manual means, for care of the skin; applying make-up or eyelashes to any person, tinting or perming eyelashes and eyebrows, and lightening hair on the body except the scalp; and removing unwanted hair from the body of any person by the use of any nonlaser device, by tweezing, or by use of chemical or mechanical means. However, “esthetics” is not a healing art and shall not include any practice, activity, or treatment that constitutes the practice of medicine, osteopathic medicine, or chiropractic. The terms “healing arts,” “practice of medicine,” “practice of osteopathic medicine,” and “practice of chiropractic” shall mean the same as those terms are defined in § 54.1-2900 .

“Esthetics instructor” means a licensed esthetician who has been certified by the Board as having completed an approved curriculum and who meets the competency standards of the Board as an instructor of esthetics.

“Esthetics spa” means any commercial establishment, residence, vehicle, or other establishment, place, or event wherein esthetics is offered or practiced on a regular basis for compensation under regulations of the Board.

“Master barber” means a licensed barber who, in addition to the practice of barbering, performs waving, shaping, bleaching, relaxing, or straightening upon human hair; performs similar work on a wig or hairpiece; or performs waxing limited to the scalp.

“Master esthetician” means a licensed esthetician who, in addition to the practice of esthetics, offers to the public for compensation, without the use of laser technology, lymphatic drainage, chemical exfoliation, or microdermabrasion, and who has met such additional requirements as determined by the Board to practice lymphatic drainage, chemical exfoliation with products other than Schedules II through VI controlled substances as defined in the Drug Control Act (§ 54.1-3400 et seq.), and microdermabrasion of the epidermis.

“Nail care” means manicuring or pedicuring natural nails or performing artificial nail services.

“Nail salon” means any commercial establishment, residence, vehicle or other establishment, place or event wherein nail care is offered or practiced on a regular basis for compensation and may include the training of apprentices under regulations of the Board.

“Nail school” means a place or establishment licensed by the board to accept and train students in nail care.

“Nail technician” means any person who for compensation manicures or pedicures natural nails, or who performs artificial nail services for compensation, or any combination thereof.

“Nail technician instructor” means a licensed nail technician who has been certified by the Board as having completed an approved curriculum and who meets the competency standards of the Board as an instructor of nail care.

“Physical (wax) depilatory” means the wax depilatory product or substance used to remove superfluous hair.

“School of cosmetology” means a place or establishment licensed by the Board to accept and train students and which offers a cosmetology curriculum approved by the Board.

“School of esthetics” means a place or establishment licensed by the Board to accept and train students and which offers an esthetics curriculum approved by the Board.

“Tattoo parlor” means any place in which tattooing is offered or practiced.

“Tattoo school” means a place or establishment licensed by the Board to accept and train students in tattooing.

“Tattooer” means any person who for remuneration practices tattooing.

“Tattooing” means the placing of designs, letters, scrolls, figures, symbols or any other marks upon or under the skin of any person with ink or any other substance, resulting in the permanent coloration of the skin, including permanent make-up or permanent jewelry, by the aid of needles or any other instrument designed to touch or puncture the skin.

“Wax technician” means any person licensed by the Board who removes hair from the hair follicle using a physical (wax) depilatory or by tweezing.

“Wax technician instructor” means a licensed wax technician who has been certified by the Board as having completed an approved curriculum and who meets the competency standards of the Board as an instructor of waxing.

“Waxing” means the temporary removal of superfluous hair from the hair follicle on any area of the human body through the use of a physical (wax) depilatory or by tweezing.

“Waxing salon” means any commercial establishment, residence, vehicle or other establishment, place or event wherein waxing is offered or practiced on a regular basis for compensation and may include the training of apprentices under regulations of the Board.

“Waxing school” means a place or establishment licensed by the Board to accept and train students in waxing.

History. 1962, c. 639, § 1, § 54-83.2; 1966, c. 610; 1973, c. 86; 1974, c. 534; 1988, c. 765; 2000, c. 726; 2002, cc. 797, 869; 2003, c. 600; 2005, c. 829; 2012, cc. 803, 835; 2017, c. 390; 2018, cc. 219, 231, 237, 404.

Editor’s note.

Acts 2002, c. 869, cl. 3 provides: “That the Board shall adopt final regulations to implement the provisions of this act to be effective by July 1, 2004.”

Acts 2005, c. 829, cl. 3 provides: “That the Board for Barbers and Cosmetology shall adopt final regulations to implement the provisions of this act to be effective on or before July 1, 2007.”

The 2002 amendments.

The 2002 amendment by c. 797 added definitions for “physical (wax) depilatory,” “wax technician,” “wax technician instructor,” “waxing,” “waxing salon,” and “waxing school.”

The 2002 amendments.

The 2002 amendment by c. 869, effective July 1, 2004, added definitions of “body-piercer,” “body-piercing,” “body-piercing salon,” “body-piercing school,” “tattoo parlor,” “tattoo school,” “tattooer,” and “tattooing.”

The 2005 amendments.

The 2005 amendment by c. 829, effective July 1, 2007, added the definitions of “esthetician,” “esthetics,” “esthetics instructor,” “esthetics spa,” “master esthetician” and “school of esthetics.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 53, are identical, and deleted the definitions of “Braiding salon,” “Braiding school,” “Hair braider,” and “Hair braiding”; in the definition of “Cosmetologist,” deleted “braids” following “arranges”; and in the definition of “Cosmetology,” deleted “braiding” following “arranging” and inserted “hair braiding or” following “but shall not include.”

The 2017 amendments.

The 2017 amendment by c. 390, in the definition of “Esthetics,” substituted “whether by electrical, mechanical, or manual means” for “electrical, mechanical, or manual” and “any nonlaser device, by tweezing, or by use of” for “tweezing,” and made stylistic changes.

The 2018 amendments.

The 2018 amendment by c. 219 added the last sentence in the definition of “Cosmetologist”; in the definition of “Cosmetology,” inserted “upon human hair, or a wig or hairpiece”; and made a stylistic change.

The 2018 amendments by cc. 231 and 237, effective March 9, 2018, are identical, and inserted the definition of “Master barber.”

The 2018 amendment by c. 404, in the definition of “Barber,” deleted “shampoos”; in the definition of “Barbering,” deleted “shampooing”; in the definition of “Cosmetologist,” deleted “cleanses”; in the definition of “Cosmetology,” deleted “cleansing.”

§ 54.1-701. Exemptions.

The provisions of this chapter shall not apply to:

  1. Persons authorized by the laws of the Commonwealth to practice medicine and surgery or osteopathy or chiropractic;
  2. Registered nurses licensed to practice in the Commonwealth;
  3. Persons employed in state or local penal or correctional institutions, rehabilitation centers, sanatoria, or institutions for care and treatment of individuals with mental illness or intellectual disability, or for care and treatment of geriatric patients, as barbers, cosmetologists, wax technicians, nail technicians, estheticians, barber instructors, cosmetology instructors, wax technician instructors, nail technician instructors, or esthetics instructors who practice only on inmates of or patients in such sanatoria or institutions;
  4. Persons licensed as funeral directors or embalmers in the Commonwealth;
  5. Gratuitous services as a barber, nail technician, cosmetologist, wax technician, tattooer, body-piercer, or esthetician;
  6. Students enrolled in an approved school taking a course in barbering, nail care, cosmetology, waxing, tattooing, body-piercing, or esthetics;
  7. Persons working in a cosmetology salon whose duties are expressly confined to the blow drying, arranging, dressing, curling, or cleansing of human hair;
  8. Apprentices serving in a barbershop, nail salon, waxing salon, cosmetology salon, or esthetics spa licensed by the Board in accordance with the Board’s regulations;
  9. Schools of barbering, nail care, waxing, or cosmetology in public schools; and
  10. Persons whose activities are confined solely to applying make-up, including such activities that are ancillary to applying make-up.

History. 1962, c. 639, § 4, § 54-83.5; 1968, c. 622; 1988, c. 765; 2000, c. 726; 2002, cc. 797, 869; 2003, c. 600; 2005, c. 829; 2012, cc. 476, 507, 803, 835; 2018, c. 404.

The 2000 amendments.

The 2000 amendment by c. 726 deleted former subdivision 3, which read: “Cosmetologists”; redesignated former subdivisions 4 and 5 as present subdivisions 3 and 4; and added subdivisions 5

The 2002 amendments.

The 2002 amendment by c. 797 substituted “the Commonwealth” for “this Commonwealth” in subdivisions 1, 2 and 4; inserted “wax technicians” and “wax technician instructors” in subdivision 3; inserted “or wax technician” in subdivision 5; inserted “or waxing” in subdivision 6; inserted ‘’waxing salon” in subdivision 8; inserted “waxing” in subdivision 9; and made minor, related changes.

The 2002 amendments.

The 2002 amendment by c. 869, effective July 1, 2004, substituted “the Commonwealth” for “this Commonwealth” in subdivisions 1, 2 and 4; added “tattooer” and “body-piercer” to the list of gratuitous services in subdivision 5; added “tattooing” and “body-piercing” to the list of courses in subdivision 6; and made minor, related changes.

The 2003 amendments.

The 2003 amendment by c. 600, effective March 18, 2003, inserted “hair braiders” in subdivision 3; inserted “hair braider” in subdivision 5; inserted “hair braider” in subdivision 6; substituted “hair braiding or the” for “the” in subdivision 7; substituted “cosmetology salon, or hair braiding salon” for “or, cosmetology salon” in subdivision 8; and in subdivision 9, substituted “cosmetology, or hair braiding” for “or, cosmetology.”

The 2005 amendments.

The 2005 amendment by c. 829, effective July 1, 2007, added “or esthetician” at the end of subdivision 6; added “or esthetics” at the end of subdivision 5; inserted “or esthetics spa” in subdivision 8; added subdivision 10; and made related stylistic changes.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals with mental illness or intellectual disability” for “the mentally ill or mentally deficient” in subdivision 3.

The 2012 amendments by cc. 803 and 835, cl. 53, are identical, and deleted “hair braiders” following “nail technicians” in subsection 3; deleted “hair braider” following “wax technician” in subsection 5; deleted “hair braiding” following “waxing” in subsection 6; deleted “hair braiding or” following “confined to” in subsection 7; deleted “hair braiding salon” following “cosmetology salon” in subsection 8; and substituted “or cosmetology” for “cosmetology, or hair braiding” in subsection 9.

The 2018 amendments.

The 2018 amendment by c. 404 substituted “blow drying, arranging, dressing, curling, or cleansing of human hair” for “shampooing and cleansing of human hair under the direct supervision of a cosmetologist or barber” in subdivision 7.

§ 54.1-702. Board for Barbers and Cosmetology; membership; officers; quorum.

The Board for Barbers and Cosmetology shall be composed of 10 members as follows: two members shall be licensed barbers, one of whom may be an owner or operator of a barber school; two members shall be licensed cosmetologists, at least one of whom shall be a salon owner and one of whom may be an owner or operator of a cosmetology school; one member shall be a licensed nail technician or a licensed cosmetologist engaged primarily in the practice of nail care, each of whom shall have been licensed in their respective professions for at least three years immediately prior to appointment; one member shall be either a licensed tattooer or a licensed body-piercer; two members shall be licensed estheticians, at least one of whom shall be an esthetics salon owner and one of whom may be an owner, operator, or designated representative of a licensed esthetics school; and two citizen members. The terms of Board members shall be four years. No member shall serve for more than two full successive terms. The Board shall elect a chairman and a vice-chairman. A majority of the Board shall constitute a quorum.

History. 1962, c. 639, § 21, § 54-83.22; 1974, c. 534; 1979, c. 327; 1981, c. 447; 1988, cc. 42, 765; 2000, c. 726; 2002, c. 869; 2004, c. 945; 2005, c. 829; 2010, c. 91.

Cross references.

As to appointments, removals, and limitation of terms of members of regulatory boards, see § 54.1-107 .

Editor’s note.

Acts 2004, c. 945, cl. 2 provides: “That this act shall not be construed to affect existing appointments for which the terms have not expired. However, any new appointments made after July 1, 2004, shall be made in accordance with the provisions of this act.”

The 2000 amendments.

The 2000 amendment by c. 726 rewrote subsection A and added subsections B, C, and D.

The 2002 amendments.

The 2002 amendment by c. 869, in the first sentence in subsection A, substituted “eight members” for “seven members” and inserted “one member who shall be either a licensed tattooer or a licensed body-piercer”; and added subsection E.

The 2004 amendments.

The 2004 amendment by c. 945 deleted subsection designation A and subsections B through E, which established appointments to the Board that were made or that expired in 2000, 2001 and 2002.

The 2005 amendments.

The 2005 amendment by c. 829 added subsection designations; rewrote present subsection A; and added subsection B.

The 2010 amendments.

The 2010 amendment by c. 91 deleted the subsection A designator and subsection B.

§ 54.1-703. License required.

No person shall offer to engage in or engage in barbering, cosmetology, nail care, waxing, tattooing, body-piercing, or esthetics without a valid license issued by the Board, except as provided in § 54.1-701 .

History. 1979, c. 408, § 54-83.22:1; 1988, c. 765; 2000, c. 726; 2002, cc. 797, 869; 2003, c. 600; 2005, c. 829; 2012, cc. 803, 835.

The 2000 amendments.

The 2000 amendment by c. 726, inserted “offer to engage in or” and “cosmetology or nail care” and added “except as provided in § 54.1-701 ,” and deleted the former second paragraph, which read: “No person otherwise qualified to be licensed as a barber or barber teacher shall be denied licensure solely for failure to produce a certificate from a licensed physician stating that he is free from any infectious disease in a communicable state. Nor shall a certificate be required for the issuance of a renewal license as a barber or barber teacher. No person shall be denied admission to any school or college of barbering solely for failure to produce such a certificate.”

The 2002 amendments.

The 2002 amendment by c. 797 added “waxing” to the list of gratuitous services and made minor, related changes.

The 2002 amendments.

The 2002 amendment by c. 869, effective July 1, 2004, added “tattooing” and “body-piercing” to the list of services and made minor, related changes.

The 2003 amendments.

The 2003 amendment by c. 600, effective March 18, 2003, inserted “hair braiding.”

The 2005 amendments.

The 2005 amendment by c. 829, effective July 1, 2007, deleted “or” preceding “body-piercer” and inserted “or esthetics.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 53, are identical, and deleted “hair braiding” following “waxing.”

§ 54.1-703.1. Waiver of examination; wax technicians.

The Board shall waive the examination requirements for licensure as a wax technician for any individual who (i) makes application for licensure between July 1, 2002, and July 1, 2003; (ii) otherwise complies with Board regulations relating to moral turpitude; and (iii) meets any of the following conditions:

  1. Has at least three years of documented work experience as a wax technician that is deemed satisfactory by the Board;
  2. Has completed a training program that is deemed satisfactory by the Board; or
  3. Holds an unexpired certificate of registration, certification, or license as a wax technician issued to him on the basis of comparable requirements by a proper authority of a state, territory, or possession of the United States or the District of Columbia.

History. 2002, c. 797.

§ 54.1-703.2. Repealed by Acts 2012, cc. 803 and 835, cl. 54.

Editor’s note.

Former § 54.1-703.2 , pertaining to waiver of examination; hair braiders, derived from 2003, c. 600.

§ 54.1-703.3. Waiver of examination; estheticians.

The Board shall waive the examination requirements for licensure as an esthetician or master esthetician for any individual who (i) makes application for licensure by July 31, 2009; (ii) otherwise complies with Board regulations relating to moral turpitude; and (iii) meets any of the following conditions:

  1. Has at least three years of documented work experience as an esthetician or a master esthetician completed prior to July 1, 2008, that is deemed satisfactory by the Board;
  2. Has completed a training program prior to July 1, 2008, that is deemed satisfactory by the Board; or
  3. Holds an unexpired certificate of registration, certification, or license as an esthetician or a master esthetician issued to him prior to July 1, 2008, on the basis of comparable requirements by a proper authority of a state, territory, or possession of the United States, or the District of Columbia.

History. 2005, c. 829; 2009, cc. 166, 328.

Editor’s note.

Acts 2005, c. 829, cl. 2 provides: “That the provisions of this act shall become effective on July 1, 2007, except that § 54.1-702 of this act shall become effective on July 1, 2005.”

Acts 2009, cc. 166 and 328, cl. 3 provides: “That, notwithstanding the language § 54.1-703.3 , the provisions of this Act shall not apply to applications for licensure submitted to the Board for Barbers and Cosmetology prior to the effective date of this Act [March 23, 2009].”

Acts 2009, cc. 166 and 328, cl. 4 provides: “That the Department of Professional and Occupational Regulation shall, to the extent reasonably practicable, provide widespread notification to those affected by the provisions of this Act.”

The 2009 amendments.

The 2009 amendments by c. 166, effective March 23, 2009, and c. 328, effective March 27, 2009, are identical and substituted “by July 31, 2009” for “between July 1, 2007, and July 1, 2008” in clause (i) of the introductory language; inserted “completed prior to July 1, 2008” in subdivision 1; and inserted “prior to July 1, 2008” in subdivisions 2 and 3.

§ 54.1-704. Temporary licenses.

The Board may issue a temporary license to any person who is eligible for examination. Persons issued a temporary license shall be subject to the regulations of the Board.

The Board shall promulgate regulations consistent with this section to permit individuals to be granted temporary licenses for a specified period of time.

History. 1984, c. 220, § 54-83.22:2; 1988, c. 765; 2000, c. 726.

The 2000 amendments.

The 2000 amendment by c. 726 deleted “to engage in barbering” following “temporary license” in the first sentence of the first paragraph, and deleted the former last sentence of the second paragraph, which read: “The regulations shall provide for issuance of a temporary license only until the holder sits for the next examination for which he is eligible and the results reported.”

§ 54.1-704.1. License required for barbershop, cosmetology salon, nail care salon, waxing salon, tattoo parlor, body-piercing salon, and esthetics spa.

No individual or entity shall operate a barbershop, cosmetology salon, nail care salon, waxing salon, tattoo parlor, body-piercing salon, or esthetics spa without a valid license issued by the Board.

The provisions of this section shall not apply to a licensed barber, cosmetologist, nail technician, waxing technician, tattooer, body-piercer, or esthetician who does not have an ownership interest in a licensed barbershop, cosmetology salon, nail care salon, waxing salon, tattoo parlor, body-piercing salon, or esthetics spa in which he is employed.

History. 2000, c. 726; 2002, cc. 797, 869; 2003, c. 600; 2005, c. 829; 2012, cc. 803, 835.

Editor’s note.

Acts 2002, c. 869, cl. 3, provides: “That the Board shall adopt final regulations to implement the provisions of this act to be effective by July 1, 2004.”

The 2002 amendments.

The 2002 amendment by c. 797 added “waxing salon” to the list of businesses in the section catchline and in both paragraphs, added “waxing technician” to the list of services in the second paragraph, and made minor, related changes.

The 2002 amendments.

The 2002 amendment by c. 869, effective July 1, 2004, added “tattoo parlor” and “body-piercing salon” to the list of businesses in the section catchline and in both paragraphs, added “tattooer” and “body-piercer” to the list of services in the second paragraph, and made minor, related changes.

The 2003 amendments.

The 2003 amendment by c. 600, effective March 18, 2003, inserted “hair braiding salon” in both paragraphs.

The 2005 amendments.

The 2005 amendment by c. 829, effective July 1, 2007, inserted “or esthetics spa” in the first paragraph; in the second paragraph, inserted “or esthetician” and “or esthetics spa”; and made related stylistic changes.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 53, are identical, and deleted “hair braiding salon” following “waxing salon” in the first and last paragraph.

§ 54.1-704.2. License required for schools of barbering, cosmetology, nail care, waxing, tattooing, body-piercing, or esthetics.

Except as provided in § 54.1-701 , no person, firm or corporation shall operate or attempt to operate a school of barbering, cosmetology, nail care, waxing, tattooing, body-piercing, or esthetics unless licensed by the Board pursuant to its regulations.

History. 2000, c. 726; 2002, cc. 797, 869; 2003, c. 600; 2005, c. 829; 2012, cc. 803, 835.

The 2002 amendments.

The 2002 amendment by c. 797 added “waxing” to the list of schools in the section catchline and in the text of the section, and made minor, related changes.

The 2002 amendments.

The 2002 amendment by c. 869, effective July 1, 2004, added “tattooing” and “body-piercing” to the list of schools in the section catchline and in the text of the section, and made minor, related changes.

The 2003 amendments.

The 2003 amendment by c. 600, effective March 18, 2003, inserted “hair braiding.”

The 2005 amendments.

The 2005 amendment by c. 829, effective July 1, 2007, deleted “or” preceding “body-piercer”; and inserted “or esthetics.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 53, are identical, and deleted “hair braiding” following “waxing.”

§ 54.1-705. Inspections.

  1. Inspectors and sanitarians of the State Department of Health, or an affiliated local health department, may inspect each barbershop, cosmetology salon, waxing salon, nail care salon, tattoo parlor, body-piercing salon, and esthetics spa in the Commonwealth regularly. Any infractions shall be immediately reported to the Health Department and the Director of the Department of Professional and Occupational Regulation for disciplinary action.
  2. The Board may inspect barbershops, barber schools, cosmetology salons and schools, waxing salons and schools, nail care salons and schools, tattoo parlors and schools, body-piercing salons and schools, and esthetics spas and schools for compliance with regulations promulgated by the Board.
  3. The Board shall specify procedures for enforcement of compliance with the disease control and disclosure requirements of § 18.2-371.3 , including unannounced inspections by appropriate personnel.
  4. The Board or the Virginia Department of Health, or an affiliated local health department, may regulate the sanitary condition of the personnel, equipment and premises of tattoo parlors and body-piercing salons.

History. 1962, c. 639, § 26, § 54-83.27; 1974, c. 534; 1988, c. 765; 1993, c. 499; 2000, c. 726; 2002, cc. 797, 869; 2003, c. 600; 2005, c. 829; 2012, cc. 803, 835.

The 2000 amendments.

The 2000 amendment by c. 726, in the first sentence, substituted “may” for “shall” and inserted “cosmetology salon and nail care salon”; and added the last sentence.

The 2002 amendments.

The 2002 amendment by c. 797 inserted “waxing salon” in the first sentence and inserted “waxing salons and schools” in the last sentence.

The 2002 amendments.

The 2002 amendment by c. 869, effective July 1, 2004, added the subsection A and B designations; substituted “nail care salon, tattoo parlor, and body-piercing salon” for “and nail care salon” in subsection A; substituted “nail care salons and schools, tattoo parlors and schools, and body-piercing salons and schools” for “and nail care salons and schools” in subsection B; and added subsections C and D.

The 2003 amendments.

The 2003 amendment by c. 600, effective March 18, 2003, inserted “hair braiding salon” in subsection A; and inserted “hair braiding salons and schools” in subsection B.

The 2005 amendments.

The 2005 amendment by c. 829, effective July 1, 2007, inserted “and esthetics spa” in subsection A; inserted “and esthetics spas and schools” in subsection B; and made related stylistic changes.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 53, are identical, and deleted “hair braiding salon” following “nail care salon” in subsection A; and deleted “hair braiding salons and schools” following “nail care salons and schools” in subsection B.

§ 54.1-706. Different requirements for licensure.

  1. The Board shall have the discretion to impose different requirements for licensure for the practice of barbering, cosmetology, nail care, waxing, tattooing, body-piercing, and esthetics.
  2. The Board shall issue a license to practice as a master barber in the Commonwealth to:
    1. An individual who holds a valid, unexpired license as a barber issued by the Board prior to December 8, 2017; or
    2. An applicant who has successfully (i) completed the educational requirements as required by the Board, (ii) completed the experience requirements as required by the Board, and (iii) passed the examination approved by the Board.

History. 2000, c. 726; 2002, cc. 797, 869; 2003, c. 600; 2005, c. 829; 2012, cc. 803, 835; 2018, cc. 231, 237.

The 2002 amendments.

The 2002 amendment by c. 797 added “waxing” to the list of practices and made minor, related changes.

The 2002 amendments.

The 2002 amendment by c. 869, effective July 1, 2004, added “tattooing” and “body-piercing” to the list of practices, and made minor, related changes.

The 2003 amendments.

The 2003 amendment by c. 600, effective March 18, 2003, inserted “hair braiding.”

The 2005 amendments.

The 2005 amendment by c. 829, effective July 1, 2007, deleted “and” preceding “body-piercing” and inserted “and esthetics.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 53, are identical, and deleted “hair braiding” following “waxing.”

The 2018 amendments.

The 2018 amendments by cc. 231 and 237, effective March 9, 2018, are identical, and designated the existing paragraph as subsection A and added subsection B.

Chapter 8. Boxing and Wrestling Matches.

§§ 54.1-800 through 54.1-827.

Repealed by Acts 1998, c. 895.

Chapter 8.1. Boxing and Wrestling Events.

§ 54.1-828. Definitions.

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

“Amateur” means an individual who has never participated in a boxing, martial arts, or professional wrestling event for money, compensation, or reward other than a suitably inscribed memento.

“Boxer” means a person competing in the sport of boxing.

“Boxing” means the contact sport of attack or defense using fists.

“Cable television system” means any facility consisting of a set of closed transmission paths and associated equipment designed to provide video programming to multiple subscribers when subscriber interaction is required to select a specific video program for an access fee established by the cable television system for that specific video program.

“Contractor” means any person who has been recognized by the Director, through a contract pursuant to § 54.1-832 , as an appropriate responsible party to provide services to assist the Commonwealth in complying with the provisions of this chapter.

“Department” means the Department of Professional and Occupational Regulation or its successor.

“Director” means the Director of the Department of Professional and Occupational Regulation.

“Event” means any boxing, martial arts, or professional wrestling show that includes one or more bouts, contests, or matches.

“Exhibition” means any occurrence in which boxers or martial artists show or display skills without striving to win.

“Manager” means any person who serves as a representative or agent of a boxer, martial artist, or professional wrestler to arrange for his participation in an event.

“Martial artist” means a person competing in the sport of martial arts.

“Martial arts” or “mixed martial arts” means any of several Asian arts of combat or self-defense, alone or in combination, including but not limited to aikido, karate, judo, muay thai, or tae kwon do, usually practiced as sport and which may involve the use of striking weapons.

“Matchmaker” means any person who proposes, selects, arranges for, or in any manner procures specific individuals to be contestants in an event.

“Person” means a natural person, corporation, partnership, sole proprietorship, firm, enterprise, franchise, association or any other entity.

“Professional” means a person who participates or has ever participated for money, compensation, or reward other than a suitably inscribed memento in any boxing, martial arts, or professional wrestling event.

“Professional wrestler” means any professional participating in professional wrestling.

“Professional wrestling” means an event in which contestants incorporate the sport of wrestling into choreographed performances.

“Promote” or “promotion” means to organize, arrange, publicize, or conduct an event or exhibition in the Commonwealth.

“Promoter” means any person who undertakes to promote an event or exhibition.

“Regulant” means any person required by this chapter to obtain a prior authorization from the Department.

“Sanctioning organization” means an entity approved by the Director pursuant to § 54.1-829.1 .

“Trainer,” “second” or “cut man” means an individual who undertakes to assure the well-being of a boxer or martial artist by providing instruction or advice concerning techniques or strategies of boxing or martial arts, and who may work in the corner with a boxer or martial artist between the rounds of a match to assure his well-being and provide necessary equipment and advice concerning match participation.

“Wrestler” means any person competing or participating as an opponent in wrestling.

“Wrestling” means any of several styles of physical competition in which individuals attempt to subdue or unbalance an opponent, including Greco-Roman, freestyle, grappling, or submission, usually practiced as a sport.

History. 1998, c. 895; 2005, c. 287; 2015, cc. 216, 264; 2016, c. 756.

Editor’s note.

Acts 2015, cc. 216 and 264, cl. 4 provides: “That the Director of the Department of Professional and Occupational Regulation shall convene a work group of interested parties affected by the provisions of this act to determine an appropriate method for holding professional-amateur events.”

The 2005 amendments.

The 2005 amendment by c. 287 inserted “martial arts” in the definition of “Boxing”; and inserted the definition of “Martial arts.”

The 2015 amendments.

The 2015 amendments by cc. 216 and 264, effective October 1, 2015, are identical, and added the definitions for “amateur,” “exhibition,” “licensee,” “martial artist,” “professional,” “professional wrestler,” “professional wrestling” and “sanctioning organization”; in the definition for “boxer” inserted “or martial arts”; in the definition for “boxing” deleted “professional” preceding “kick boxing”; in the definition for “event” substituted “boxing, martial arts, or professional wrestling show that” for “professional boxing or wrestling show which”; in the definition for “license,” substituted “boxing, martial arts, or professional wrestling” for “boxing or wrestling”; in the definition for “manager,” substituted “serves” for “receives compensation for service” and “boxer, martial artist, or professional wrestler” for “boxer or wrestler”; in the definition for “martial arts,” inserted “or ‘mixed martial arts’,” “alone or in combination” and “muay thai”; in the definitions for “promote” and “promoter” inserted “or exhibition”; in the definition for “trainer,” twice inserted “or martial artist,” and “or martial arts”; and in the definition for “wrestling,” substituted “of several styles of physical competition” for “contact sport or exhibition” and inserted “including Greco-Roman, freestyle, grappling, or submission, usually practiced as a sport.”

The 2016 amendments.

The 2016 amendment by c. 756, effective April 20, 2016, deleted “or martial arts” from the end of the definition of “Boxer”; deleted “feet, or both, including kick boxing, boxing, martial arts, or any similar contest” from the end of the definition of “Boxing”; inserted “pursuant to § 54.1-832 ” in the definition of “Contractor”; inserted “bouts” in the definition of “Event”; deleted the definitions of “License” and “Licensee,” which read: “ ‘License’ means a method of regulation whereby any person arranging, conducting or participating in boxing, martial arts, or professional wrestling activities is required to obtain a prior authorization from the Department” and “ ‘Licensee’ means any person holding a valid license under the provisions of this chapter”; and added the definition of “Regulant.”

§ 54.1-829. Authorization from Director required; bond; physical examination; emergency medical services vehicles; physician; and health insurance.

  1. No person shall act as a promoter, matchmaker, trainer, boxer, martial artist, or professional wrestler in the Commonwealth without first having obtained authorization for such activity from the Department or sanctioning organization approved by the Director pursuant to § 54.1-829.1 and such authorization remains in full force and effect.
  2. No authorization to act as a promoter shall be granted unless the applicant executes and files with the Department a bond, in such penalty as the Department shall determine through regulation, conditioned on the payment of the fees and penalties imposed by this chapter and for the fulfillment of contracts made with professional contestants in accordance with Department regulations. This subsection shall not apply to a promoter applying to conduct an amateur-only event under the authority of a sanctioning organization approved by the Director pursuant to § 54.1-829.1 .
  3. Each boxer and martial artist shall, and each professional wrestler may, be examined prior to entering the ring by a physician who has been licensed to practice medicine in the Commonwealth for at least five years. The physician shall be appointed by the Department or sanctioning organization and shall certify in writing that the contestant’s physical condition is such that he is physically able to engage in the contest.
  4. No event in which boxers or martial artists are contestants shall be conducted without the continuous presence at ringside of a physician who has been licensed to practice medicine in the Commonwealth for at least five years, and unless an emergency medical services vehicle is at the site of the event.
  5. No boxer or martial artist shall participate in any event unless covered by a health insurance policy with minimum coverage in an amount determined by Department regulation.

History. 1998, c. 895; 2007, c. 853; 2015, cc. 216, 264, 502, 503; 2016, c. 756.

The 2007 amendments.

The 2007 amendment by c. 853 inserted “martial arts” following “or conduct a boxing” in subsection A.

The 2015 amendments.

The 2015 amendments by cc. 216 and 264, effective October 1, 2015, are identical, and in subsections A and B deleted “Unless exempted by § 54.1-830 ,” at the beginning; inserted “professional” in subsection A; in subsection B, substituted “boxer, martial artist, or professional wrestler” for “boxer or wrestler”; in subsection C, substituted “professional contestants” for “boxers and wrestlers” and added the second sentence; in subsection D, inserted “and martial artist” and “professional” in the first sentence and “or sanctioning organization” in the second sentence; in subsection E, substituted “event in which boxers or martial artists are contestants” for “boxing event” and deleted “boxing” preceding “event” at the end; and inserted “or martial artist” in subsection F.

The 2015 amendments by cc. 502 and 503 are identical and substituted “emergency medical services vehicle” for “ambulance” in subsection E.

The 2016 amendments.

The 2016 amendment by c. 756 deleted former subsection A, which read: “No person shall promote or conduct a boxing, martial arts, or professional wrestling event in the Commonwealth without first having obtained a license for such event from the Department. No such license shall be granted except to a licensed promoter” and redesignated the remaining subsections accordingly; in subsection A, substituted “authorization” for “license” twice and inserted “or sanctioning organization approved by the Director pursuant to § 54.1-829.1 ”; and in subsection B, substituted “authorization” for “license” and added “pursuant to § 54.1-829.1 ” at the end.

§ 54.1-829.1. Sanctioning organization; amateur martial arts events.

  1. No event in which amateur participants compete in martial arts shall be authorized in the Commonwealth unless the amateur event is conducted by a sanctioning organization approved by the Director. Only the results of amateur events conducted by a sanctioning organization in good standing and in compliance with this section shall be recognized for purposes of reporting bout results to a national database or official registry. Every sanctioning organization, insofar as practicable, shall observe and apply the unified rules adopted by the Association of Boxing Commissions. Notwithstanding any other provision of law or regulation, for purposes of amateur martial arts events, weight classes and bout rules governing round length, judging, and scoring shall conform with the Association of Boxing Commissions unified rules.
  2. No amateur martial artist shall compete in an event who has:
    1. Not attained the age of 18 years;
    2. Been knocked out in the 60 days immediately preceding the date of the event;
    3. Been technically knocked out in the 30 days preceding the date of the event;
    4. Been a contestant in an event consisting of (i) more than six rounds during the 15 days preceding the date of the event or (ii) six or fewer rounds during the seven days preceding the event;
    5. Suffered a cerebral hemorrhage or other serious physical injury;
    6. Been found to be blind or vision impaired in one or both eyes;
    7. Been denied a license or approval to compete by another jurisdiction for medical reasons;
    8. Failed to provide negative test results, dated within 180 days preceding the date of the event, for the following: (i) antibodies to the human immunodeficiency virus; (ii) hepatitis B surface antigen (HBsAg); and (iii) antibodies to the hepatitis C virus; or
    9. Failed to provide written certification from a licensed physician, dated within 180 days preceding the date of the event, attesting to the contestant’s good physical health and absence of any preexisting conditions or observed abnormalities that would prevent participation in the event. The examination performed by the ringside physician at the event pursuant to clause (ii) of subdivision C 3 shall not satisfy this requirement.
  3. For each amateur martial arts event, the sanctioning organization shall:
    1. Review the records, experience, and consecutive losses for each amateur martial artist prior to each event to determine, to the extent possible, that contestants scheduled to compete are substantially equal in skills and ability;
    2. Verify that each amateur martial artist scheduled to compete is covered by health insurance;
    3. Appoint a physician licensed to practice medicine in the Commonwealth for at least five years to remain at ringside on a continuous basis. Duties of the ringside physician shall include (i) conducting a physical examination of each referee immediately prior to the event to assure his fitness to act in such capacity, (ii) conducting a physical examination and taking a medical history of each amateur martial artist prior to the contestant’s entering the ring and certifying the contestant’s physical condition, (iii) signaling the referee immediately in the event that an injury is observed, (iv) rendering immediate medical aid to any amateur martial artist injured during an event, and (v) ensuring that all substances in the possession of seconds, trainers, or cut men are appropriate for use on amateur martial artists during the course of the event;
    4. Assign a sufficient number of qualified officials, including locker room inspectors, judges, timekeepers, and referees, to protect the health and safety of amateur martial artists and the public. Duties of the referee shall include (i) providing prefight instructions to the contestants; (ii) ensuring that each amateur martial artist is wearing gloves supplied by the sanctioning organization or event promoter that are in new or good condition, weighing between four and six ounces; (iii) exercising supervision over the conduct of the bout and taking immediate corrective action when necessary; (iv) immediately stopping any bout when, in his judgment, one contestant is outclassed by the other, injured, or otherwise unable to continue safely; (v) striving to perform his duties in a manner that does not impede the fair participation of either contestant; (vi) consulting, when he deems appropriate, with the ringside physician on the advisability of stopping the bout if either contestant appears injured or unable to continue; (vii) counting for knockdowns and knockouts, determining fouls and stopping contests, and immediately stopping any bout if one or both contestants are not putting forth their best effort; and (viii) ensuring the health and well-being of the amateur martial artists to the greatest extent possible; and
    5. Require a fully equipped emergency medical services vehicle with a currently trained ambulance crew at the site of every amateur event for its entire duration.
  4. Any sanctioning organization seeking approval under this section shall make a written application on a form prescribed by the Director. The application shall be accompanied by a fee of $500. The Director shall annually approve sanctioning organizations whose applications satisfactorily demonstrate evidence of standards and operations in place that are at least as rigorous as and limited to those required by this section. Following an informal fact-finding proceeding conducted pursuant to § 2.2-4019 , the Director may withdraw his approval of any sanctioning organization that has failed to comply with this section based on (i) the review of the annual report submitted by the sanctioning organization or (ii) review of a complaint received pursuant to subdivision A 8 of § 54.1-201 or § 54.1-307.1 .
  5. A sanctioning organization seeking approval from the Director shall provide documented evidence (i) of operation as a business for at least the immediately preceding three years; (ii) of at least five years of experience as a sanctioning organization representing at least two different promotions during such five-year period or that the principal officers have at least eight years of experience working as a referee or head official for an established sanctioning organization without adverse financial or disciplinary action in any jurisdiction; (iii) indicating that none of its officers, employees, or agents, directly or indirectly, has any pecuniary interest in, or holds any position with, any business associated with a promoter or otherwise operates for the sole benefit of a single promoter; and (iv) of assurance that events will be conducted in a fair and impartial manner with avoidance of any impropriety or appearance of impropriety.
  6. Each approved sanctioning organization shall submit an annual report to the Director on or before February 1, with a summary of the events conducted for the preceding calendar year. The Director may address any operational or compliance issues with the sanctioning organization consistent with and in furtherance of the objectives of this section. The Director shall not intervene in the internal activities of a sanctioning organization except to the extent necessary to prevent or cure violations of this section or any statute governing the persons or activities regulated pursuant to this chapter.
  7. The Commonwealth, the Director, the Department, and any employee or representative shall be indemnified and held harmless from any liability resulting from or caused by a sanctioning organization or persons conducting activities on behalf of such regulant.

History. 2015, cc. 216, 264; 2016, c. 756.

The 2016 amendments.

The 2016 amendment by c. 756, rewrote section.

§ 54.1-830. Exemptions.

The provisions of this chapter shall not apply to:

  1. Amateur wrestling bouts;
  2. Amateur exhibitions and the amateur participants therein;
  3. Engagements involving amateur martial arts that are conducted by or held under the sponsorship of (i) any elementary or secondary school or public or private institution of higher education located in the Commonwealth, (ii) the Department of Corrections involving inmates of any state correctional institution, or (iii) the United States Olympic Committee; or
  4. Amateur boxing.

History. 1998, c. 895; 2015, cc. 216, 264; 2016, c. 756.

The 2015 amendments.

The 2015 amendments by cc. 216 and 264, effective October 1, 2015, are identical, and rewrote the section, which read “Amateur exhibitions and the participants therein shall be exempt from the provisions of this chapter provided the participants receive no money, compensation or reward other than a suitably inscribed memento for their participation.”

The 2016 amendments.

The 2016 amendment by c. 756, effective April 20, 2016, in subdivision 3, deleted “boxing or” following “amateur,” added clause (iii), and made related changes; and added subdivision 4 and made related changes.

§ 54.1-831. Powers and duties of the Department.

The Department shall administer and enforce the provisions of this chapter. In addition to the powers and duties otherwise conferred by law, the Director shall have the powers and duties of a regulatory board as contained in §§ 54.1-201 and 54.1-202 , and shall have the power and duty to:

  1. Promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) which implement the federal Professional Boxing Safety Act of 1996 (15 U.S.C. § 6301 et seq.) and protect the public against incompetent, unqualified, unscrupulous or unfit persons engaging in the activities regulated by this chapter.The regulations shall include requirements for (i) initial authorization and renewal of the authorization; (ii) authorization and conduct of events; (iii) standards of practice for persons arranging, promoting, conducting, supervising, and participating in events; (iv) grounds for disciplinary actions against regulants; (v) records to be kept and maintained by regulants; (vi) the manner in which fees are to be accounted for and submitted to the Department, provided, however, that no gate fee shall be required for amateur-only events conducted by a sanctioning organization approved by the Director pursuant to § 54.1-829.1 ; and (vii) minimum health coverage for injuries sustained in a boxing or martial arts match. The Department shall have direct oversight of professional events to assure the safety and well-being of boxers, martial artists, and professional wrestlers, except that those portions of an event containing amateur bouts shall be conducted under the oversight of a sanctioning organization. Sanctioning organizations shall have sole responsibility for direct oversight of amateur-only events in which martial artists compete.
  2. Charge each applicant for authorization and for renewals of authorization a nonrefundable fee subject to the provisions of § 54.1-113 and subdivision A 4 of § 54.1-201 . A sanctioning organization shall be subject to the application fee provisions of subsection D of § 54.1-829.1 .
  3. Conduct investigations to determine the suitability of applicants for authorization and to determine the regulant’s compliance with applicable statutes and regulations.
  4. Conduct investigations as to whether monopolies, combinations, or other circumstances exist to restrain matches or exhibitions of boxing, martial arts, or professional wrestling anywhere in the Commonwealth. The Attorney General may assist investigations at the request of the Department.
  5. Exercise jurisdiction over all boxing, martial arts, and professional wrestling conducted within the Commonwealth by any person, except where otherwise exempted.

History. 1998, c. 895; 2010, c. 764; 2012, c. 769; 2015, cc. 216, 264; 2016, c. 756.

Editor’s note.

Acts 2015, cc. 216 and 264, cl. 4 provides: “That the Director of the Department of Professional and Occupational Regulation shall convene a work group of interested parties affected by the provisions of this act to determine an appropriate method for holding professional-amateur events.”

At the direction of the Virginia Code Commission, “subsection D of § 54.1-829.1 ” was substituted for “subsection C of § 54.1-829.1 ” in subdivision 2 to conform to Acts 2016, c. 756.

The 2010 amendments.

The 2010 amendment by c. 764 inserted the reference to § 54.1-202 in the introductory paragraph.

The 2012 amendments.

The 2012 amendment by c. 769 substituted “A 4 of § 54.1-201 ” for “4 of § 54.1-201 ” in subsection 2.

The 2015 amendments.

The 2015 amendments by cc. 216 and 264, effective October 1, 2015, are identical, and in the second paragraph of subdivision 1, inserted “or martial arts” in clause (vii) of the first sentence and substituted “boxers, martial artists, and professional wrestlers” for “boxers and wrestlers” in the last sentence; in subdivision 4, substituted “boxing, martial arts, or professional wrestling” for “professional boxing or wrestling”; and substituted “boxing, martial arts, and professional wrestling” for “wrestling and boxing” in subdivision 5.

The 2016 amendments.

The 2016 amendment by c. 756, in the second paragraph of subdivision 1, in the first sentence, inserted “authorization” the first time it appears, and substituted “renewal of the authorization” for “renewal licensure” in clause (i), substituted “authorization” for “licensure” in clause (ii), substituted “regulants” for “licensees” in clauses (iv) and (v), and added the proviso in clause (vi), inserted “professional” in the second sentence, added the exception at the end of the third sentence, and added the last sentence; in subdivision 2, substituted “authorization” for “licensure” twice and added the last sentence; in subdivision 3, substituted “authorization” for “licensure” and “regulant’s” for “licensee’s”; and made minor stylistic changes.

§ 54.1-831.01. Boxing, Martial Arts, and Professional Wrestling Advisory Board.

  1. The Boxing, Martial Arts, and Professional Wrestling Advisory Board (the Board) is established as an advisory board, within the meaning of § 2.2-2100 , in the executive branch of state government to advise the Director on matters relating to boxing, martial arts, and professional wrestling events in the Commonwealth.
  2. The Board shall consist of seven members appointed by the Director as follows: one representative of the sport of boxing; one representative of the sport of professional wrestling; one representative of the sport of martial arts; one representative of either the sport of boxing, martial arts, or professional wrestling; one member who is a martial arts instructor who has obtained the rank of black belt or higher; and two citizen members. All members shall be residents of the Commonwealth. All appointments shall be for terms of four years, except that appointments to fill vacancies shall be for the unexpired terms. No person shall be eligible to serve for more than two successive full terms.
  3. The Board shall elect its chairman and vice-chairman from among its members. The Board shall meet at least once each year to conduct its business and upon the call of the Director or chair of the Board. Four members shall constitute a quorum.
  4. Members of the Board shall receive no compensation for their services, but shall be reimbursed for all reasonable and necessary expenses incurred in the discharge of their duties as provided in § 2.2-2825 .
  5. Such staff support as is necessary for the conduct of the Board’s business shall be furnished by the Department.

History. 2007, c. 853; 2012, c. 522; 2015, cc. 216, 264.

Editor’s note.

Acts 2007, c. 853, cl. 2 provides: “That the initial appointments of the Professional Boxing, Wrestling and Martial Arts Advisory Board members in accordance with this act shall be staggered as follows: two members shall be appointed for two-year terms, three members shall be appointed for three-year terms, and two members shall be appointed for four-year terms.”

The 2012 amendments.

The 2012 amendment by c. 522 substituted “meet at least once each year to conduct its business and upon” for “meet monthly to conduct its business or upon” in subsection C.

The 2015 amendments.

The 2015 amendments by cc. 216 and 264, effective October 1, 2015, are identical, and in subsection A, substituted “The Boxing, Martial Arts, and Professional Wrestling Advisory Board” for “The Professional Boxing, Wrestling and Martial Arts Advisory Board” and “boxing, martial arts, and professional wrestling events” for “professional boxing and wrestling events and martial arts competitions”; in subsection B, inserted “professional,” deleted “nontraditional mixed” preceding “martial arts,” and substituted “martial arts, or professional wrestling” for “wrestling or nontraditional mixed martial arts” in the first sentence and deleted “After the original appointments” at the beginning of the third sentence

§ 54.1-831.1. Summary suspension of boxing license.

When required in order to comply with applicable federal law, the Department may suspend the license of any person holding a license as a boxer on medical grounds or when there is substantial danger to the public health or safety without a hearing or informal fact-finding conference. Institution of a proceeding for a hearing or conference shall be provided simultaneously with the summary suspension. The hearing or conference shall be scheduled within a reasonable time of the date of the summary suspension. The suspension shall remain in effect only so long as the medical grounds or danger to the public health or safety shall exist.

History. 2002, c. 33.

§ 54.1-832. Director authorized to contract for certain services; award of contract; authority when no contract is in effect.

  1. The Director may contract with a private person, firm, corporation or association to provide any or all of the following services on behalf of the Department: examining and recommending licensure, investigating and ensuring that events are conducted in compliance with statutes and regulations, performing clerical duties, collecting fees, maintaining records, developing proposed regulations in accordance with Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act, and recommending enforcement actions in accordance with Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act.
  2. The Director shall procure any or all of such services in accordance with the provisions of the Virginia Public Procurement Act (§ 2.2-4300 et seq.). Prior to the award of such contract, a proposer shall demonstrate, to the satisfaction of the Director:
    1. Personnel and financial resources necessary to carry out the provisions of the contract;
    2. Adequate indemnification to protect the Commonwealth and its agencies and instrumentalities from all claims and losses incurred as a result of the contract;
    3. Compliance with all applicable federal, state, and local laws;
    4. Ability to develop, implement, and maintain the internal operations necessary to carry out the provisions of the contract; and
    5. Ability to meet any other qualifications the Director deems appropriate in the procurement process.
  3. Any contract awarded in accordance with this section shall not exceed a three-year term, but may be renewed annually upon the approval of the Director. The Director shall be the signatory to the contract on behalf of the Commonwealth.
  4. Nothing herein is intended to deprive the contractor or the Commonwealth of the benefits of any law limiting exposure to liability or setting a limit on damages.
  5. Nothing herein is intended to deprive the Director of his authority to carry out the requirements of this chapter when no contract is in effect.

History. 1998, c. 895.

§ 54.1-833. Reports; cable television systems; fee on receipts.

  1. Each promoter shall furnish to the Department, within twenty-four hours after the completion of each event, a written and verified report on the form provided by the Department showing the number of tickets sold, unsold and given away and the amount of gross proceeds thereof for such events originating in the Commonwealth, and its total gross receipts from the sale of rights to distribute in any manner such event by any video, telephonic or other communication method involving the control of electrons or other charge carriers for such live events originating in the Commonwealth. Within the twenty-four-hour period, the promoter shall pay to the Department a fee of (i) five percent of the first $100,000 of its total gross receipts; and (ii) two and one-half percent of the remainder of its total gross receipts. Records of the promoter shall be subject to audit by the Department.
  2. Each cable television system or other multichannel video programming service shall report to the Department in writing the name and address of each person from whom it obtains the rights to provide a live event originating in the Commonwealth.
  3. The Department shall hold all license fees in a special fund of the state treasury subject to appropriation of the General Assembly. Payments from this fund shall be made to the contractors for their services on behalf of the Commonwealth. No payment shall exceed the balance of the fund. The Department shall draw from the fund to cover any expenses associated with the provisions of this chapter.

History. 1998, c. 895; 2015, cc. 216, 264.

The 2015 amendments.

The 2015 amendments by cc. 216 and 264, effective October 1, 2015, are identical, and inserted “or other multichannel video programming service” in subsection B.

§ 54.1-834. Prohibited activities; penalties.

  1. No betting or wagering shall be permitted at an event or exhibition before, during, or after the event in the building where the event is held.
  2. No person shall participate in a sham or fake boxing or martial arts contest. The Department shall have the authority to order, without a hearing, the person controlling the purse to hold the distribution to contestants, promoters, and trainers pending a public hearing by the Department. The Department shall, simultaneously with the issuance of such order to retain the share or purse, institute proceedings for a hearing to determine whether a sham or fake boxing or martial arts contest has occurred.
  3. It shall be a Class 1 misdemeanor for any person to violate this section or any statute or regulation governing the persons or activities regulated pursuant to this chapter.
  4. The third or any subsequent conviction for violating any provision of this section during a 36-month period shall constitute a Class 6 felony.

History. 1998, c. 895; 2015, cc. 216, 264; 2016, c. 756.

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 2015 amendments.

The 2015 amendments by cc. 216 and 264, effective October 1, 2015, are identical, and substituted “No betting or wagering shall be permitted at an event or exhibition authorized to be conducted by a promoter or other licensee” for “No person licensed to conduct an event shall permit betting or wagering” in subsection A; substituted “No licensee” for “No boxer, promoter or trainer” at the beginning of subsection B; rewrote subsection C, which read “Any person convicted of a violation of this section shall be guilty of a Class 1 misdemeanor”; and added subsection D.

The 2016 amendments.

The 2016 amendment by c. 756, in subsection A, deleted “authorized to be conducted by a promoter or other licensee” following “exhibition”; in subsection B, substituted “person” for “licensee” and inserted “or martial arts” twice; substituted “the person or activities” for “a profession” in subsection C; and made minor stylistic changes.

§ 54.1-835. Repealed by Acts 2015, cc. 216 and 264, cl. 2, effective October 1, 2015.

Editor’s note.

Former § 54.1-835 , pertaining to other penalties, derived from Acts 1998, c. 895.

Chapter 9. Branch Pilots.

Article 1. Board for Branch Pilots.

§ 54.1-900. Definitions.

For the purposes of this chapter, unless the context requires a different meaning:

“Board” means the Board for Branch Pilots.

“Branch pilots” means pilots who have qualified and been licensed in accordance with the provisions of § 54.1-905 .

“Limited branch pilots” means pilots who have qualified and been licensed in accordance with the provisions of § 54.1-909 .

“Pilot” means branch pilot and limited branch pilot.

History. Code 1950, § 54-525; 1988, c. 765.

CASE NOTES

As to Virginia Pilot Association, see Virginia Pilot Ass’n v. Commonwealth, 145 Va. 757 , 134 S.E. 682 (1926). As to liability of members of Association for the negligence of each other, see Guy v. Donald, 203 U.S. 399, 27 S. Ct. 63, 51 L. Ed. 245, 1906 U.S. LEXIS 1604 (1906) (both decided under prior law).

§ 54.1-901. Appointment and removal of members; quorum; clerk.

The Board for Branch Pilots shall consist of nine members to be appointed as follows: the Circuit Court of the City of Hampton shall appoint three persons, only one of whom shall be a branch pilot, and the Circuit Court of the City of Norfolk shall appoint four persons, only two of whom shall be branch pilots, and the Circuit Court of the City of Portsmouth shall appoint two persons, only one of whom shall be a branch pilot. The court which appointed a member may remove him for incapacity, neglect of duty or misconduct and may fill the vacancy.

Four members of the Board shall constitute a quorum. The Board shall appoint a clerk, who shall keep a record of the Board’s proceedings.

History. Code 1950, §§ 54-527, 54-528, 54-530, 54-531; 1978, c. 834; 1988, c. 765.

§ 54.1-902. Regulations; suspension or revocation of license; penalty for violation.

  1. The Board is authorized to promulgate regulations necessary for the proper government and regulation of pilots and to prescribe penalties for the violation of regulations in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).  Regulations may include the right to suspend or revoke the branch of any pilot.  Such suspension or revocation may be in addition to any other penalty imposed by law for the violation.Reasonable notice and an opportunity to be heard in accordance with the Administrative Process Act shall be given before the Board shall take any action to revoke or suspend the license of any licensee.
  2. The Board may suspend a license of any person without a hearing, simultaneously with the institution of proceedings for a hearing, if it finds that there is substantial danger to the public health or safety which warrants such action. The Board may meet by telephone conference call when summarily suspending a license, if a good faith effort to assemble a quorum of the Board has failed and in the judgment of a majority of the members of the Board, the continued practice of the licensee constitutes a substantial danger to the public health or safety. Institution of proceeding for a hearing shall be provided simultaneously with the summary suspension. The hearing shall be scheduled within a reasonable time of the date of the summary suspension.
  3. Before any penalty for violation of the regulations may be imposed, a printed copy of the regulations shall be furnished to each pilot.

History. Code 1950, § 54-529; 1988, c. 765; 1989, c. 584.

§ 54.1-903. Decisions of controversies between pilots and masters, etc.; judgment of Board.

The Board may decide any controversy between pilots or between a pilot and the master, owner, or consignee of any vessel, which may arise under any law concerning pilots in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). If the decision requires the payment of money, the Board shall enter a judgment therefor on the record of its proceedings. When an authorized officer receives a copy of the judgment, he shall enforce the payment as if it were an execution against the property of the debtor.

History. Code 1950, §§ 54-533, 54-534; 1988, c. 765.

§ 54.1-904. Limitation of powers of Board.

Nothing in this chapter shall authorize the Board to decide upon the liability of a pilot or his apprentice to any person injured by his negligence or misconduct, or to prevent such person from recovering for any damage occasioned thereby.

History. Code 1950, § 54-535; 1988, c. 765.

Article 2. Examination and Licensure.

§ 54.1-905. Examination of pilots; issuance of license; bonds and oath of office.

Applicants for examination shall submit to the Board a certificate from the circuit court in the county or city of their residence stating that the applicant is of good character and a resident of the Commonwealth. The applicant shall also submit proof that he has served as an apprentice for five years, including three years as a limited branch pilot. If the Board finds the applicant qualified to act as a branch pilot it shall issue him a license, and he shall thereupon become a state officer, to be known as a branch pilot and shall hold office as such for one year next ensuing. Before he may perform any of the duties of his office he shall give bond before the clerk of the circuit court of the county or city in which he resides in the penalty of $500, conditioned for the faithful performance of his duties and he shall take the oath of office required by § 49-1 .

Branch pilots may conduct and pilot any vessel.

History. Code 1950, §§ 54-536, 54-555; 1988, c. 765.

§ 54.1-906. Expiration and renewal of licenses.

All licenses issued by the Board shall expire on December 31 of the year in which issued. Every pilot who holds a license as a branch pilot shall appear before the Board every twelve months, and, if the Board deems him qualified, it shall renew his license, which shall continue his term of office for one year following each renewal. Upon each renewal he shall appear before the clerk before whom he originally qualified, and renew his oath of office, but the bond given by him shall remain in force.

History. Code 1950, §§ 54-537, 54-538; 1988, c. 765.

§ 54.1-907. Fee for original license and license renewal.

Upon the application for license as a branch pilot and each renewal thereof, the applicant for license or license renewal shall pay a fee established by the Board pursuant to § 54.1-113 .

History. Code 1950, §§ 54-539, 54-540; 1988, c. 765; 1990, c. 72.

§ 54.1-908. State and local licenses prohibited.

No state, city, town or county licenses shall be assessed against any branch pilot.

History. Code 1950, § 54-541; 1988, c. 765.

§ 54.1-909. License as limited branch pilot.

Any apprentice may apply to the Board for a license as a limited branch pilot. The Board may grant him a license after proper examination if in the opinion of the Board the applicant is qualified. The Board may endorse on the license such limitations as it deems proper, and a limited branch pilot shall perform his duties of piloting and conducting vessels within the limitations imposed by his license.

History. Code 1950, §§ 54-542, 54-543, 54-556; 1988, c. 765; 2007, cc. 326, 559.

The 2007 amendments.

The 2007 amendments by cc. 326 and 559 are identical, and substituted “such limitations as it deems” for “a limitation of draft or ship units as deemed”; and substituted “limitations” for “limitation” in the second sentence.

Article 3. Duties and Liabilities of Master, etc.

§ 54.1-910. What vessels to take pilots and where.

The master of every vessel, other than vessels exclusively engaged in the coastwise trade and those made exempt by United States statutes, inward bound from sea to any port in Virginia or any intermediate or other point in Hampton Roads, the Virginia waters of Chesapeake Bay, or in any navigable river in Virginia which flows into Chesapeake Bay or Hampton Roads, shall take the first Virginia pilot that offers his services. Any such vessel outward bound, or bound from one port or point in Virginia to another port or point, shall take the first Virginia pilot that offers his services at the port, point, or place of departure or sailing. Any master refusing to do so shall immediately pay to such pilot full pilotage from the point where the services are offered to the point of destination of the vessel.

History. Code 1950, § 54-544; 1988, c. 765.

§ 54.1-911. Notice to pilot officers.

The master, agent or consignee of any vessel requiring a pilot shall give at least two hours’ notice of the need for a pilot to the pilot officers.

History. Code 1950, § 54-547; 1988, c. 765.

§ 54.1-912. Employing unlicensed pilots.

No master shall employ any person who is not licensed as a pilot to act as a pilot of his vessel.

History. Code 1950, § 54-548; 1988, c. 765.

§ 54.1-913. Concealing name of vessel.

The master of a vessel shall not conceal or obscure or refuse to disclose the name of his vessel when spoken to by a pilot.

History. Code 1950, § 54-549; 1988, c. 765.

Article 4. Duties, Rights and Powers of Pilots.

§ 54.1-914. Keeping pilot boat.

Every pilot, or the company to which he belongs, shall keep one sufficient boat of at least thirty feet keel.

History. Code 1950, § 54-550; 1988, c. 765.

§ 54.1-915. Pilot first meeting vessel at sea to have preference.

The first pilot who meets a vessel coming in, which his branch entitles him to conduct, shall have the right to take charge of and conduct her into port.

History. Code 1950, § 54-554; 1988, c. 765.

§ 54.1-916. Discretion of pilot piloting vessel.

Any pilot piloting a vessel shall have full discretion as to when the vessel shall be piloted to or from sea, or to or from any port or place within the Commonwealth or situated within any of the waters referred to in § 54.1-910 . The pilot’s discretion shall be exercised in a reasonable way, with a view to the vessel’s safety as well as with a view to the safety of the Commonwealth’s waters and ports.

History. Code 1950, § 54-558; 1988, c. 765.

§ 54.1-917. Enforcement of suspension.

If any individual whose pilot’s license has been suspended is found on board any vessel as a pilot, or offers to conduct any vessel, he may be dismissed from the vessel by any licensed pilot, to whom all the pilotage shall be paid. The Board may proceed against the individual under the provisions of § 54.1-924 as if the individual had never been licensed. An individual whose pilot’s license has been suspended may also be proceeded against under § 54.1-111 .

History. Code 1950, § 54-561; 1988, c. 765.

Article 5. Fees and Charges.

§ 54.1-918. State Corporation Commission to prescribe and enforce rates of pilotage and other charges.

The State Corporation Commission shall prescribe and enforce the rates of pilotage and other charges to be observed in the business of pilotage, but before the Commission fixes or prescribes rates or charges it shall give ten days’ notice of the time and place of a hearing by publication in a newspaper of general circulation in each of the Cities of Norfolk, Portsmouth and Newport News. For the purpose of determining the fair basis of such rates and charges, the Commission shall, for the two years next preceding, have access to the books and records of the individual pilots who have no organized association, and of any association of pilots who have an organized association whose rates are to be fixed by the Commission, and shall have the same powers given by law in fixing rates and charges of transportation companies.

The Commission shall fix amounts that will be a fair charge for the service rendered. The Commission shall have due regard for necessary operating expenses, maintenance of, depreciation on, and return on investment in properties used and useful in the business of pilotage, and the rates and charges of pilotage at comparable and competing ports of the United States.

When such rates and charges have been fixed and prescribed by the Commission, they shall be the legal rates and charges of pilotage in Virginia, and shall be enforced as provided by law, and the Commission shall have the power to change or alter rates or charges after notice and hearing as provided in this section.

History. Code 1950, § 54-562; 1988, c. 765; 1992, c. 10.

CASE NOTES

The Corporation Commission exercises a delegated legislative function in fixing rates of pilotage, and is not bound by all the limitations of courts of record in exercising their judicial functions. Virginia Pilot Ass'n v. Commonwealth, 145 Va. 757 , 134 S.E. 682 , 1926 Va. LEXIS 433 (1926) (decided under prior law).

As to authority of Commission to correct its own mistakes in fixing rates, see Virginia Pilot Ass'n v. Commonwealth, 145 Va. 757 , 134 S.E. 682 , 1926 Va. LEXIS 433 (1926) (decided under prior law).

§ 54.1-919. Appeal from action of Commission.

From any action of the State Corporation Commission under § 54.1-918 , an appeal may be taken by the individual pilots, company or association affected, or by any other person, firm or corporation aggrieved by such action, in the manner prescribed in Article IX, Section 4 of the Constitution of Virginia.

History. Code 1950, § 54-563; 1971, Ex. Sess., c. 37; 1988, c. 765.

§ 54.1-920. Detention on seagoing vessel.

If a pilot is detained on board any seagoing vessel he shall be paid by the master, owner, or consignee of the vessel the rate prescribed by the State Corporation Commission for a day’s detention for each day detained. If any pilot is carried beyond the limits of the Commonwealth against his will, he shall be entitled to recover $300 from the master or owner of the vessel upon which he has been carried away.

History. Code 1950, § 54-564; 1988, c. 765.

§ 54.1-921. Quarantine detention.

If any pilot is permitted to go on board a vessel without being informed of a contagious or infectious disease on board, and is obligated to remain on board, or perform quarantine in consequence thereof he shall be paid for each day’s detention in accordance with the rate prescribed for a day’s detention by the State Corporation Commission.

History. Code 1950, § 54-565; 1988, c. 765.

§ 54.1-922. Liability for pilotage and other allowances.

The master and the owner of every vessel shall each be liable to the pilot for his pilotage and other allowances, and also the consignee or supercargo of any vessel not owned by a resident of the Commonwealth. If the consignee or supercargo refuses to become responsible to the pilot for his fees, the master or owner of the vessel shall, before she leaves her port of departure, deposit with some responsible person, subject to the order of the pilot, the amount of the pilotage due him.

History. Code 1950, § 54-566; 1988, c. 765.

§ 54.1-923. When pilot to produce branch.

Every pilot shall, if required, produce his branch at the time of demanding his fees, before he shall be entitled to receive the same.

History. Code 1950, § 54-569; 1988, c. 765.

Article 6. Offenses and Penalties Generally.

§ 54.1-924. Piloting, etc., vessel without license; how offenders proceeded against.

No person shall conduct or pilot a vessel to or from sea, or to or from any port or place in Virginia unless he is licensed under this chapter.

Warrants for persons violating this section may be issued by any magistrate, upon the oath of any party complaining, and shall be returnable to the Circuit Court of the City of Norfolk. After a bond hearing held pursuant to Chapter 9 (§ 19.2-119 et seq.) of Title 19.2, the bond shall be returned by the judicial officer to the circuit court of the City of Norfolk, which shall have jurisdiction for trial of such misdemeanor.

History. Code 1950, § 54-571; 1988, c. 765.

§ 54.1-925. Exception as to vessels in distress.

Section 54.1-924 shall not prevent any person from assisting a vessel in distress.

History. Code 1950, § 54-572; 1988, c. 765.

§ 54.1-926. Pilot receiving unlawful fees.

No pilot shall demand or receive other than the lawful fee for any service. Any pilot who violates this section may be suspended by the Board for up to six months.

History. Code 1950, § 54-573; 1988, c. 765.

§ 54.1-927. Violation of chapter a misdemeanor.

Any person who violates any of the provisions of this chapter shall be guilty of a Class 1 misdemeanor.

History. 1988, c. 765.

Cross references.

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

Chapter 10. Commercial Driver Training Schools.

§§ 54.1-1000 through 54.1-1003.

Repealed by Acts 1990, c. 466.

Cross references.

As to present provisions relating to commercial driver training schools, see § 46.2-1700 et seq.

Chapter 11. Contractors.

Article 1. Regulation of Contractors.

§ 54.1-1100. Definitions.

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

“Board” means the Board for Contractors.

“Class A contractors” perform or manage construction, removal, repair, or improvements when (i) the total value referred to in a single contract or project is $120,000 or more, or (ii) the total value of all such construction, removal, repair, or improvements undertaken by such person within any 12-month period is $750,000 or more.

“Class B contractors” perform or manage construction, removal, repair, or improvements when (i) the total value referred to in a single contract or project is $10,000 or more, but less than $120,000, or (ii) the total value of all such construction, removal, repair or improvements undertaken by such person within any 12-month period is $150,000 or more, but less than $750,000.

“Class C contractors” perform or manage construction, removal, repair, or improvements when (i) the total value referred to in a single contract or project is over $1,000 but less than $10,000, or (ii) the total value of all such construction, removal, repair, or improvements undertaken by such person within any 12-month period is less than $150,000. The Board shall require a master tradesmen license as a condition of licensure for electrical, plumbing and heating, ventilation and air conditioning contractors.

“Contractor” means any person, that for a fixed price, commission, fee, or percentage undertakes to bid upon, or accepts, or offers to accept, orders or contracts for performing, managing, or superintending in whole or in part, the construction, removal, repair or improvement of any building or structure permanently annexed to real property owned, controlled, or leased by him or another person or any other improvements to such real property. For purposes of this chapter, “improvement” shall include (i) remediation, cleanup, or containment of premises to remove contaminants or (ii) site work necessary to make certain real property usable for human occupancy according to the guidelines established pursuant to § 32.1-11.7 .

“Department” means the Department of Professional and Occupational Regulation.

“Designated employee” means the contractor’s full-time employee, or a member of the contractor’s responsible management, who is at least 18 years of age and who has successfully completed the oral or written examination required by the Board on behalf of the contractor.

“Director” means the Director of the Department of Professional and Occupational Regulation.

“Fire sprinkler contractor” means a contractor that provides for the installation, repair, alteration, addition, testing, maintenance, inspection, improvement, or removal of sprinkler systems using water as a means of fire suppression when annexed to real property. “Fire sprinkler contracting” does not include the installation, repair, or maintenance of other types of fire suppression systems.

“Owner-developer” means any person who, for a third party purchaser, orders or supervises the construction, removal, repair, or improvement of any building or structure permanently annexed to real property owned, controlled, or leased by the owner-developer, or any other improvement to such property and who contracts with a person licensed in accordance with this chapter for the work undertaken.

“Person” means any individual, firm, corporation, association, partnership, joint venture, or other legal entity.

“Value” means fair market value. When improvements are performed or supervised by a contractor, the contract price shall be prima facie evidence of value.

History. Code 1950, § 54-113; 1954, c. 428; 1970, c. 319; 1972, c. 771; 1977, c. 640; 1978, c. 521; 1980, c. 634; 1984, c. 434; 1987, c. 358; 1988, c. 765; 1990, c. 911; 1992, cc. 330, 713, 715, 812; 1993, cc. 499, 815; 1994, cc. 601, 754; 1995, c. 581; 1997, c. 885; 1998, c. 754; 2005, c. 348; 2010, c. 62; 2016, c. 527; 2019, c. 726.

Cross references.

For the Neighborhood Assistance Act Tax Credit, see § 58.1-439.18 et seq.

Editor’s note.

Acts 2019, c. 726, cl. 3 provides: “That the Board for Contractors (the Board) shall promulgate regulations to implement (i) the provisions of this act that shall become effective in due course, with such regulations to become effective no later than December 1, 2019, and (ii) the provisions of this act that shall become effective on July 1, 2021, with such regulations to become effective no later than July 1, 2021. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

The 1997 amendment rewrote the second sentence in the paragraph defining “Class C contractors,” which formerly read: “The Board shall require master certification as a condition of licensure or certification of electrical, plumbing and heating, ventilation and air conditioning contractors.”

The 1998 amendment, in the paragraph defining “Class C contractors,” in the first sentence, substituted “less” for “no more” in two places, in the paragraph defining “Contractor,” inserted “him or,” deleted the former paragraph defining “Owner-developer,” and deleted the former paragraph which defined for purposes of this section, “immediate family.”

The 2005 amendments.

The 2005 amendment by c. 348, in the definitions of “Class A contractors” and “Class B contractors,” substituted “$120,000” for “$70,000” and “$750,000” for “$500,000”; inserted “or a member of the contractor’s responsible management” in the definition of “Designated employee”; inserted the definition of “Owner-developer”; and made minor stylistic changes.

The 2010 amendments.

The 2010 amendment by c. 62 substituted “$10,000” for “$7,500” in the paragraphs defining “Class B contractors” and “Class C contractors.”

The 2016 amendments.

The 2016 amendment by c. 527 added the last sentence in the definition of “Contractor.”

The 2019 amendments.

The 2019 amendment by c. 726 inserted the definition for “Fire sprinkler contractor.”

Law Review.

For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

Research References.

Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 9 The Mechanic’s Lien. § 9.12 Misappropriation of Construction Funds by the Contractor. Rendleman.

Virginia Forms (Matthew Bender). No. 13-313 Contract to Build a House, etc.; No. 16-4008 Owner’s and Contractor’s Affidavit and Release of Liens for Construction in Progress, etc.

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Mechanic’s Liens, § 13.

CASE NOTES

  • Analysis
  • I.General Consideration.

    Editor’s note. —

    Most of the cases annotated below were decided under prior law.

    This chapter is constitutional. F.S. Bowen Elec. Co. v. Foley, 194 Va. 92 , 72 S.E.2d 388, 1952 Va. LEXIS 210 (1952); City of Portsmouth v. Fred C. Gardner Co., 215 Va. 491 , 211 S.E.2d 259, 1975 Va. LEXIS 177 (1975).

    As a valid exercise of the police power. —

    Necessity of regulating the business of contractors is now widely recognized, and such regulations are a valid exercise of the police power of the State. F.S. Bowen Elec. Co. v. Foley, 194 Va. 92 , 72 S.E.2d 388, 1952 Va. LEXIS 210 (1952).

    This chapter, designed to protect the public from inexperienced, unscrupulous, irresponsible, and incompetent contractors, is a valid exercise of the police power of the State. Bacigalupo v. Fleming, 199 Va. 827 , 102 S.E.2d 321, 1958 Va. LEXIS 130 (1958).

    And is designed for protection of the public. —

    This chapter is designed to protect the public from inexperienced, unscrupulous, irresponsible, or incompetent contractors; to effectuate this purpose, it requires a demonstration of ability, character, and financial responsibility, as well as a good record of past performance. F.S. Bowen Elec. Co. v. Foley, 194 Va. 92 , 72 S.E.2d 388, 1952 Va. LEXIS 210 (1952); City of Portsmouth v. Fred C. Gardner Co., 215 Va. 491 , 211 S.E.2d 259, 1975 Va. LEXIS 177 (1975).

    Purpose of requiring registration of certain contractors is to protect the public from inexperienced, unscrupulous, irresponsible, or incompetent contractors, and in particular those who would enter into certain contracts with such contractors. Sutton Co. v. Wise Contracting Co., 197 Va. 705 , 90 S.E.2d 805, 1956 Va. LEXIS 142 (1956).

    Chapter must be strictly construed. —

    This chapter was enacted in the exercise of the State’s police power; though it has remedial features, it imposes restrictions upon a common trade or occupation, and being in derogation of the common law, it must be strictly construed. Sellers v. Bles, 198 Va. 49 , 92 S.E.2d 486, 1956 Va. LEXIS 174 (1956).

    Regulatory character of chapter. —

    This chapter is regulatory in character, as distinguished from Title 58.1 which deals with revenue. City of Portsmouth v. Fred C. Gardner Co., 215 Va. 491 , 211 S.E.2d 259, 1975 Va. LEXIS 177 (1975).

    Compliance with this chapter as well as revenue statutes required. —

    One who engages in a regulated business or profession must comply with both regulatory and revenue statutes. City of Portsmouth v. Fred C. Gardner Co., 215 Va. 491 , 211 S.E.2d 259, 1975 Va. LEXIS 177 (1975).

    Substantial construction contracts not forbidden by chapter. —

    There is nothing immoral or contrary to public policy in a construction contract involving $30,000 or more, and this chapter does not expressly or impliedly forbid such a contract; it merely prohibits unqualified persons, that is, those who have not registered or taken out the required license, from entering into such a contract. Sellers v. Bles, 198 Va. 49 , 92 S.E.2d 486, 1956 Va. LEXIS 174 (1956).

    Municipal tax on contractor’s gross receipts upheld. —

    Tax imposed by city on contractors, calculated upon the gross receipts of a contractor’s business, although denominated a license tax under Virginia law, met the definition of an income tax under the federal Buck Act (4 U.S.C., §§ 105-110) and could therefore be imposed validly by city. City of Portsmouth v. Fred C. Gardner Co., 215 Va. 491 , 211 S.E.2d 259, 1975 Va. LEXIS 177 (1975).

    General Assembly has clearly authorized city, as a revenue measure, to levy and collect a license tax upon contractors who engage in that business in the city. City of Portsmouth v. Fred C. Gardner Co., 215 Va. 491 , 211 S.E.2d 259, 1975 Va. LEXIS 177 (1975).

    II.Persons Covered by Chapter.

    Classification “any person” is comprehensive, broad, unlimited, unrestricted, and indiscriminative of whatever kind. Bacigalupo v. Fleming, 199 Va. 827 , 102 S.E.2d 321, 1958 Va. LEXIS 130 (1958).

    And includes anyone who undertakes what is specified by chapter. —

    Term “any person” includes any person, whether he be an architect, an engineer, an agent, a servant, a superintendent, a supervisor, or a contractor, independent or dependent, who undertakes to do the things specified by this chapter, regardless of what the person calls himself. If he does what is specified by the statute, then the statute fixes his classification. Bacigalupo v. Fleming, 199 Va. 827 , 102 S.E.2d 321, 1958 Va. LEXIS 130 (1958).

    To have a mechanic’s lien one need not be a contractor or subcontractor within the meaning of this section. West Alexandria Properties, Inc. v. First Va. Mtg. & Real Estate Inv. Trust, 221 Va. 134 , 267 S.E.2d 149, 1980 Va. LEXIS 224 (1980).

    Standing. —

    Circuit court properly dismissed an owner’s appeal of the Board for Contractors’ decision denying him standing as a party in a disciplinary proceeding against a contractor because he did not establish that he was aggrieved, the Board lacked authority to determine who was responsible for correcting the violations in the owner’s residence, the owner’s right to pursue direct relief with the City Code Administration was not affected, and, while he had an immediate, pecuniary, and substantial interest in seeing the contractor held responsible for the violations, that interest was not related to the proceeding before the Board. Holmes v. Culver Design Build, Inc., 2015 Va. App. LEXIS 26 (Va. Ct. App. Jan. 27, 2015).

    Plaintiff held to be a general contractor. —

    The record as a whole, the allegations in the motion for judgment, the provisions of the written contract, the specifications, and the evidence, clearly and conclusively showed that plaintiff was a “general contractor” as defined in this section. Bacigalupo v. Fleming, 199 Va. 827 , 102 S.E.2d 321, 1958 Va. LEXIS 130 (1958).

    Electrical company suing on mechanic’s lien covered by chapter. —

    Claim of nonresident electrical company which had not registered under this chapter, in bringing suit to enforce mechanic’s lien for work performed, that it was not a general contractor and did not sue on a construction contract was untenable, as the essence of the mechanic’s lien was that the company must have been a contractor or subcontractor and must have done work on the structure on which the lien was claimed. F.S. Bowen Elec. Co. v. Foley, 194 Va. 92 , 72 S.E.2d 388, 1952 Va. LEXIS 210 (1952) (commented on in 39 Va. L. Rev. 132 (1953)).

    Retailer selling major appliances not a contractor. —

    Retailer, which sold a gas dryer to a customer, was not required to hold a contractor’s license with a gas fitting specialty, because the retailer, which contracted with a contractor to retain a subcontractor to install the dryer, was not a “contractor.” Dep't of Prof'l & Occupational Regulation v. Best Buy Stores, LP, 2014 Va. App. LEXIS 30 (Va. Ct. App. Feb. 4, 2014).

    Cost of work determinative. —

    It is the cost of the work to be done on a given project which determines whether or not the contractor is subject to the provisions of this chapter, and not the number of contracts; the limiting factor is the cost of the work bid upon or performed. F.S. Bowen Elec. Co. v. Foley, 194 Va. 92 , 72 S.E.2d 388, 1952 Va. LEXIS 210 (1952) (decided prior to the 1970 amendment).

    Neither general contractor nor subcontractor was required to take an examination and qualify unless the work that he personally bid upon or undertook amounted to $20,000 or more. Sellers v. Bles, 198 Va. 49 , 92 S.E.2d 486, 1956 Va. LEXIS 174 (1956) (decided prior to the 1970 amendment).

    III.Enforceability of Contracts in Violation of Chapter.
    A.By Contractor.

    Editor’s note.

    Most of the cases annotated below were decided under prior law.

    Contract violating chapter made unenforceable. —

    This chapter is a police statute as distinguished from a revenue statute, and a contract made in violation of its provisions is void; there can be no recovery thereon. F.S. Bowen Elec. Co. v. Foley, 194 Va. 92 , 72 S.E.2d 388, 1952 Va. LEXIS 210 (1952) (commented on in 39 Va. L. Rev. 132 (1953)).

    Contract made in violation of this chapter is void, and there can be no recovery thereon. Bacigalupo v. Fleming, 199 Va. 827 , 102 S.E.2d 321, 1958 Va. LEXIS 130 (1958).

    Contractor who is not licensed and registered under this chapter cannot recover the balance claimed to be due for work performed when the cost of the undertaking was more than the amount specified in this section. Surf Realty Corp. v. Standing, 195 Va. 431 , 78 S.E.2d 901, 1953 Va. LEXIS 215 (1953).

    This chapter requires that any person who undertakes to bid upon or to construct any building or other thing, if the undertaking is to cost a specified amount, secure a license before engaging in the undertaking, and failure to comply with this chapter precludes recovery by a contractor on his contract. Rohanna v. Vazzana, 196 Va. 549 , 84 S.E.2d 440, 1954 Va. LEXIS 251 (1954).

    On either contract or quantum meruit. —

    Contractor who enters into a contract and fails to register as required by this chapter cannot recover either the agreed price under the contract or the reasonable value of the work on a quantum meruit basis. F.N. Thompson, Inc. v. Anchor Inv. Co., 239 F.2d 470, 1956 U.S. App. LEXIS 4183 (4th Cir. 1956).

    Unregistered subcontractor could not avoid the force and effect of this chapter by contending that his suit was not brought upon unlawful written subcontract but upon unlawful contract which arose with regard to extra work necessitated by faulty construction on the part of the main contractor. F.N. Thompson, Inc. v. Anchor Inv. Co., 239 F.2d 470, 1956 U.S. App. LEXIS 4183 (4th Cir. 1956).

    Denial of enforcement designed as penalty. —

    Enforcement of the contract is denied the unregistered contractor not because of the nature of the transaction, but as a penalty for failing to comply with this chapter. Bacigalupo v. Fleming, 199 Va. 827 , 102 S.E.2d 321, 1958 Va. LEXIS 130 (1958).

    To effectuate the purpose of this chapter, enforcement of the contract is denied the unregistered contractor, not because of the nature of the transaction, but as a penalty for failing to comply with the registration statutes. Sutton Co. v. Wise Contracting Co., 197 Va. 705 , 90 S.E.2d 805, 1956 Va. LEXIS 142 (1956).

    Right of assignee of an unregistered contractor could rise no higher than that of assignor; hence, where under the facts there was no basis for estoppel against the other contracting parties assignee could not maintain a suit to enforce a mechanic’s lien against the property of one of such other parties. Sutton Co. v. Wise Contracting Co., 197 Va. 705 , 90 S.E.2d 805, 1956 Va. LEXIS 142 (1956).

    Unenforceable agreement not validated by subsequent registration. —

    Agreement which is invalid and unenforceable at the time of its execution is not validated by subsequent registration and procurement of a license. Enlow & Son v. Higgerson, 201 Va. 780 , 113 S.E.2d 855, 1960 Va. LEXIS 160 (1960).

    B.By Innocent Party.

    Editor’s note.

    Most of the cases annotated below were decided under prior law.

    Right of innocent party to maintain action for breach. —

    Under this chapter an innocent party may maintain an action for damages for breach of a contract entered into between him and an unlicensed contractor. Cohen v. Mayflower Corp., 196 Va. 1153 , 86 S.E.2d 860, 1955 Va. LEXIS 185 (1955).

    Whereas the unregistered contractor is denied recovery by way of penalty, the other party to the contract, who is innocent of any wrongdoing, may enforce it. Sutton Co. v. Wise Contracting Co., 197 Va. 705 , 90 S.E.2d 805, 1956 Va. LEXIS 142 (1956).

    To deny relief to innocent party would defeat purpose of this chapter and penalize the person intended to be protected thereby. Cohen v. Mayflower Corp., 196 Va. 1153 , 86 S.E.2d 860, 1955 Va. LEXIS 185 (1955).

    To deny relief to a licensed contractor who has entered into a contract with an unlicensed contractor would not further the purposes of this chapter, but would benefit the primary wrongdoer. Enlow & Son v. Higgerson, 201 Va. 780 , 113 S.E.2d 855, 1960 Va. LEXIS 160 (1960).

    Unless § 54.1-113 (see now § 54.1-1115 ) is applicable, licensed contractor who contracts with unlicensed contractor is not in pari delicto with the wrongdoer and therefore is entitled to enforce the contract. Enlow & Son v. Higgerson, 201 Va. 780 , 113 S.E.2d 855, 1960 Va. LEXIS 160 (1960).

    Surety who guarantees performance of contract by unlicensed person will be held liable for damages for the principal’s breach of the contract. Cohen v. Mayflower Corp., 196 Va. 1153 , 86 S.E.2d 860, 1955 Va. LEXIS 185 (1955); Enlow & Son v. Higgerson, 201 Va. 780 , 113 S.E.2d 855, 1960 Va. LEXIS 160 (1960).

    CIRCUIT COURT OPINIONS

    Persons covered by chapter. —

    Duties to be performed under the contract plaintiff allegedly had held to be the duties of a contractor, which required it to be licensed as such, and not those of a construction manager. Bowers Family Enters., L.L.C. v. Davis Bros. Const. Co., 55 Va. Cir. 11, 2001 Va. Cir. LEXIS 230 (Richmond Feb. 8, 2001).

    Relationship to Virginia Consumer Protection Act. —

    Owners alleged sufficient facts in their counterclaim to survive a contractor’s demurrer to their claims of fraud in the inducement and violation of the Virginia Consumer Protection Act because they claimed fraud in the inducement of the contract, rather than fraud in the performance of the contract, the contractor was bound by and limited to the grounds stated in the demurrer, the statutory regulation of contractors was insufficient to exempt them from the scope of the Act, and the owners’ allegations were contemplated by and were actionable under the Act. Interbuild, Inc. v. Sayres, 94 Va. Cir. 261, 2016 Va. Cir. LEXIS 168 (Loudoun County Sept. 8, 2016).

    False claim of having license as fraud. —

    Where a contractor who was required to have a Class B contractor’s license and was eligible to obtain one, but failed to do so, told home owners he was licensed, the owners did not prove fraud by clear and convincing evidence because: (1) they did not hire the contractor solely because he said he was licensed; and (2) they did not show how his lack of a license contributed to their damages from his breach of contract. Mock v. Boczar, 64 Va. Cir. 260, 2004 Va. Cir. LEXIS 159 (Loudoun County Mar. 19, 2004).

    OPINIONS OF THE ATTORNEY GENERAL

    Definition of “contractor.” —

    The terms of the home service contract dictate whether a home service contract provider is considered to be a contractor. Should a provider be considered to be a contractor, he must be licensed as a contractor pursuant to Chapter 11 of Title 54.1. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates, Senate of Virginia, 10-027, 2010 Va. AG LEXIS 29 (5/20/10).

    When home service contract providers are considered to be contractors, they must comply with Chapter 11 when they manage and superintend contractors and subcontractors to perform work under the home service contracts they administer. They are not required to comply with Chapter 11 merely by hiring a contractor or subcontractor. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates, Senate of Virginia, 10-027, 2010 Va. AG LEXIS 29 (5/20/10).

    § 54.1-1101. (Effective until July 1, 2022) Exemptions; failure to obtain certificate of occupancy; penalties.

    1. The provisions of this chapter shall not apply to:
      1. Any governmental agency performing work with its own forces;
      2. Work bid upon or undertaken for the armed services of the United States under the Armed Services Procurement Act;
      3. Work bid upon or undertaken for the United States government on land under the exclusive jurisdiction of the federal government either by statute or deed of cession;
      4. Work bid upon or undertaken for the Department of Transportation on the construction, reconstruction, repair or improvement of any highway or bridge;
      5. Any other persons who may be specifically excluded by other laws but only to such an extent as such laws provide;
      6. Any material supplier who renders advice concerning use of products sold and who does not provide construction or installation services;
      7. Any person who performs or supervises the construction, removal, repair or improvement of no more than one primary residence owned by him and for his own use during any 24-month period;
      8. Any person who performs or supervises the construction, removal, repair or improvement of a house upon his own real property as a bona fide gift to a member of his immediate family provided such member lives in the house. For purposes of this section, “immediate family” includes one’s mother, father, son, daughter, brother, sister, grandchild, grandparent, mother-in-law and father-in-law;
      9. Any person who performs or supervises the repair or improvement of industrial or manufacturing facilities, or a commercial or retail building, for his own use;
      10. Any person who performs or supervises the repair or improvement of residential dwelling units owned by him that are subject to the Virginia Residential Landlord and Tenant Act (§ 55.1-1200 et seq.);
      11. Any owner-developer, provided that any third-party purchaser is made a third-party beneficiary to the contract between the owner-developer and a licensed contractor whereby the contractor’s obligation to perform the contract extends to both the owner-developer and the third party;
      12. Work undertaken by students as part of a career and technical education project as defined in § 22.1-228 established by any school board in accordance with Article 5 (§ 22.1-228 et seq.) of Chapter 13 of Title 22.1 for the construction of portable classrooms or single family homes;
      13. Any person who performs the removal of building detritus or provides janitorial, cleaning, or sanitizing services incidental to the construction, removal, repair, or improvement of real property;
      14. Any person who is performing work directly under the supervision of a licensed contractor and is (i) a student in good standing and enrolled in a public or private institution of higher education, (ii) a student enrolled in a career training or technical education program, or (iii) an apprentice as defined in § 40.1-120 ; and
      15. Work undertaken by a person providing construction, remodeling, repair, improvement, removal, or demolition valued at $5,000 or less per project on behalf of a properly licensed contractor, provided that such contractor holds a valid license in the (i) residential building, (ii) commercial building, or (iii) home improvement building contractor classification. However, any construction services that require an individual license or certification shall be rendered only by an individual licensed or certified in accordance with this chapter.All other contractors performing work for any government or for any governmental agency are subject to the provisions of this chapter and are required to be licensed as provided herein.
    2. Any person who is exempt from the provisions of this chapter as a result of subdivision A 7, 10, 11, or 12 shall obtain a certificate of occupancy for any building constructed, repaired or improved by him prior to conveying such property to a third-party purchaser, unless such purchaser has acknowledged in writing that no certificate of occupancy has been issued and that such purchaser consents to acquire the property without a certificate of occupancy.
    3. Any person who is exempt from the provisions of this chapter as a result of subdivision 7, 8, 9, 10, 11, 12, or 14 of subsection A shall comply with the provisions of the Uniform Statewide Building Code (§ 36-97 et seq.).
    4. Any person who violates the provisions of subsection B or C shall be guilty of a Class 1 misdemeanor. The third or any subsequent conviction of violating subsection B or C during a 36-month period shall constitute a Class 6 felony.

    History. Code 1950, § 54-141; 1970, c. 319; 1980, c. 634; 1988, c. 765; 1990, c. 911; 1998, c. 754; 2003, c. 1025; 2004, c. 189; 2005, c. 348; 2007, c. 332; 2016, c. 527; 2017, cc. 132, 135; 2018, c. 767.

    Cross references.

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

    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 “55.1-1200” for “55-248.2.”

    The 1998 amendment, in subdivision 5, deleted “and” following “such laws provide,” and added subdivisions 7 through 9.

    The 2003 amendments.

    The 2003 amendment by c. 1025 inserted the subsection A designation; substituted “24” for “twenty-four” in subdivision A 7; and added subsection B.

    The 2004 amendments.

    The 2004 amendment by c. 189, in subdivision A 7, substituted “primary” for “building for retail use, one building for commercial use and one” and “owned by him” for “upon his own real property”; in subdivision A 9, deleted “construction, removal” following “supervises the” and inserted “or a commercial or retail building”; added subdivision A 10; redesignated the former second and last sentences in subsection B as D; substituted “subdivisions 7 or 10 of subsection A” for “(A) (7) of this section” in subsection B; added subsection C; substituted “subsections B or C” for “this subsection B” twice in subsection D; and made minor stylistic changes.

    The 2005 amendments.

    The 2005 amendment by c. 348 added subdivision A 11; substituted “7, 10 or 11” for “7 or 10” in subsection B; substituted “7, 8, 9, 10, or 11” for “7, 8, 9 or 10” in subsection C; and made related changes.

    The 2007 amendments.

    The 2007 amendment by c. 332 added subdivision A 12; and in subsections B and C, inserted “or 12” following “11” and made related changes.

    The 2016 amendments.

    The 2016 amendment by c. 527 added subdivision A 13 and made related changes.

    The 2017 amendments.

    The 2017 amendments by cc. 132 and 135 are identical, and inserted subdivision A 14; and made minor stylistic changes.

    The 2018 amendments.

    The 2018 amendment by c. 767, inserted subdivision A 14 and redesignated former subdivision A 14 as A 15; in subdivision A 15, substituted “$5,000” for “$2,500” and “(i) residential building, (ii) commercial building, or (iii) home improvement building contractor” for “residential or commercial building contractor”; in subsection C, inserted “or 14”; and made stylistic changes.

    The 2022 amendments.

    The 2022 amendment by c. 149 substituted “$25,000” for “$5,000” in subdivision A 15 in the first paragraph.

    OPINIONS OF THE ATTORNEY GENERAL

    Requirement for certificates of occupancy following renovations and repairs

    to commercial structures used by owners for their businesses is not exempted by Subdivision A 9 of this section. However, the Virginia Uniform Statewide Building Code regulations permit the approval of a final inspection to serve as a new certificate of occupancy for additions or alterations to existing commercial buildings. See opinion of Attorney General to Mr. Henry A. Thompson, Sr., Sussex County Attorney, 08-097, 2009 Va. AG LEXIS 10 (2/2/09).

    Definition of “contractor.” —

    The terms of the home service contract dictate whether a home service contract provider is considered to be a contractor. Should a provider be considered to be a contractor, he must be licensed as a contractor pursuant to Chapter 11 of Title 54.1. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates, Senate of Virginia, 10-027, 2010 Va. AG LEXIS 29 (5/20/10).

    § 54.1-1101. (Effective July 1, 2022) Exemptions; failure to obtain certificate of occupancy; penalties.

    1. The provisions of this chapter shall not apply to:
      1. Any governmental agency performing work with its own forces;
      2. Work bid upon or undertaken for the armed services of the United States under the Armed Services Procurement Act;
      3. Work bid upon or undertaken for the United States government on land under the exclusive jurisdiction of the federal government either by statute or deed of cession;
      4. Work bid upon or undertaken for the Department of Transportation on the construction, reconstruction, repair, or improvement of any highway or bridge;
      5. Any other persons who may be specifically excluded by other laws but only to such an extent as such laws provide;
      6. Any material supplier who renders advice concerning use of products sold and who does not provide construction or installation services;
      7. Any person who performs or supervises the construction, removal, repair, or improvement of no more than one primary residence owned by him and for his own use during any 24-month period;
      8. Any person who performs or supervises the construction, removal, repair, or improvement of a house upon his own real property as a bona fide gift to a member of his immediate family provided such member lives in the house. For purposes of this section, “immediate family” includes one’s mother, father, son, daughter, brother, sister, grandchild, grandparent, mother-in-law, and father-in-law;
      9. Any person who performs or supervises the repair or improvement of industrial or manufacturing facilities, or a commercial or retail building, for his own use;
      10. Any person who performs or supervises the repair or improvement of residential dwelling units owned by him that are subject to the Virginia Residential Landlord and Tenant Act (§ 55.1-1200 et seq.);
      11. Any owner-developer, provided that any third-party purchaser is made a third-party beneficiary to the contract between the owner-developer and a licensed contractor whereby the contractor’s obligation to perform the contract extends to both the owner-developer and the third party;
      12. Work undertaken by students as part of a career and technical education project as defined in § 22.1-228 established by any school board in accordance with Article 5 (§ 22.1-228 et seq.) of Chapter 13 of Title 22.1 for the construction of portable classrooms or single family homes;
      13. Any person who performs the removal of building detritus or provides janitorial, cleaning, or sanitizing services incidental to the construction, removal, repair, or improvement of real property;
      14. Any person who is performing work directly under the supervision of a licensed contractor and is (i) a student in good standing and enrolled in a public or private institution of higher education, (ii) a student enrolled in a career training or technical education program, or (iii) an apprentice as defined in § 40.1-120 ; and
      15. Work undertaken by a person providing construction, remodeling, repair, improvement, removal, or demolition valued at $25,000 or less per project on behalf of a properly licensed contractor, provided that such contractor holds a valid license in the (i) residential building, (ii) commercial building, or (iii) home improvement building contractor classification. However, any construction services that require an individual license or certification shall be rendered only by an individual licensed or certified in accordance with this chapter. All other contractors performing work for any government or for any governmental agency are subject to the provisions of this chapter and are required to be licensed as provided herein.
    2. Any person who is exempt from the provisions of this chapter as a result of subdivision A 7, 10, 11, or 12 shall obtain a certificate of occupancy for any building constructed, repaired or improved by him prior to conveying such property to a third-party purchaser, unless such purchaser has acknowledged in writing that no certificate of occupancy has been issued and that such purchaser consents to acquire the property without a certificate of occupancy.
    3. Any person who is exempt from the provisions of this chapter as a result of subdivision 7, 8, 9, 10, 11, 12, or 14 of subsection A shall comply with the provisions of the Uniform Statewide Building Code (§ 36-97 et seq.).
    4. Any person who violates the provisions of subsection B or C shall be guilty of a Class 1 misdemeanor. The third or any subsequent conviction of violating subsection B or C during a 36-month period shall constitute a Class 6 felony.

    History. Code 1950, § 54-141; 1970, c. 319; 1980, c. 634; 1988, c. 765; 1990, c. 911; 1998, c. 754; 2003, c. 1025; 2004, c. 189; 2005, c. 348; 2007, c. 332; 2016, c. 527; 2017, cc. 132, 135; 2018, c. 767; 2022, c. 149.

    § 54.1-1102. Board for Contractors membership; offices; meetings; seal; record.

    1. The Board for Contractors shall be composed of 16 members as follows: one member shall be a licensed Class A general contractor; the larger part of the business of one member shall be the construction of utilities; the larger part of the business of one member shall be the construction of commercial and industrial buildings; the larger part of the business of one member shall be the construction of single-family residences; the larger part of the business of one member shall be the construction of home improvements; one member shall be a subcontractor as generally regarded in the construction industry; one member shall be in the business of sales of construction materials and supplies; one member shall be a local building official; one member shall be a licensed plumbing contractor; one member shall be a licensed electrical contractor; one member shall be a licensed heating, ventilation and air conditioning contractor; one member shall be a certified elevator mechanic or a licensed elevator contractor; one member shall be a certified water well systems provider; one member shall be a professional engineer licensed in accordance with Chapter 4 (§ 54.1-400 et seq.); and two members shall be nonlegislative citizen members. The terms of the Board members shall be four years.The Board shall meet at least once each year and at such other times as may be deemed necessary. Annually, the Board shall elect from its membership a chairman and a vice-chairman to serve for a one-year term. Nine members of the Board shall constitute a quorum.
    2. The Board shall promulgate regulations not inconsistent with statute necessary for the licensure of contractors and tradesmen and the certification of backflow prevention device workers, and for the relicensure of contractors and tradesmen and for the recertification of backflow prevention device workers, after license or certificate suspension or revocation. The Board shall include in its regulations a requirement that as a condition for initial licensure as a contractor, the designated employee or a member of the responsible management personnel of the contractor shall have successfully completed a Board-approved basic business course, which shall not exceed eight hours of classroom instruction. In addition, the Board shall (i) require a contractor to appropriately classify all workers as employees or independent contractors, as provided by law and (ii) provide that any contractor who is found to have intentionally misclassified any worker is subject to sanction by the Board.
    3. The Board may adopt regulations requiring all Class A, B, and C residential contractors, excluding subcontractors to the contracting parties and those who engage in routine maintenance or service contracts, to use legible written contracts including the following terms and conditions:
      1. General description of the work to be performed;
      2. Fixed price or an estimate of the total cost of the work, the amounts and schedule of progress payments, a listing of specific materials requested by the consumer and the amount of down payment;
      3. Estimates of time of commencement and completion of the work; and
      4. Contractor’s name, address, office telephone number and license or certification number and class.In transactions involving door-to-door solicitations, the Board may require that a statement of protections be provided by the contractor to the homeowner, consumer or buyer, as the case may be.
    4. The Board shall adopt a seal with the words “Board for Contractors, Commonwealth of Virginia.” The Director shall have charge, care and custody of the seal.
    5. The Director shall maintain a record of the proceedings of the Board.

    History. Code 1950, §§ 54-114, 54-115, 54-119, 54-120, 54-121, 54-123, 54-124; 1954, c. 415; 1970, c. 319; 1977, c. 640; 1979, c. 408; 1980, c. 634; 1981, c. 447; 1988, cc. 42, 765; 1991, c. 659; 1994, c. 895; 1995, c. 771; 1996, cc. 380, 934, 1006; 1997, c. 885; 2006, cc. 454, 475; 2009, cc. 184, 586; 2010, c. 83; 2012, c. 522; 2017, c. 579; 2020, c. 685.

    Cross references.

    As to appointments, removals, and limitation of terms of members of regulatory boards, see § 54.1-107 .

    Editor’s note.

    Acts 1994, c. 895, cl. 4, provides that the Board for Contractors shall promulgate regulations in accordance with Article 3 (§ 54.1-1128 et seq.) of Chapter 11 of Title 54.1 on July 1, 1994.

    Acts 1994, c. 895, cl. 5, provides that the standards for certification of tradesman established by the Board of Housing and Community Development shall remain in effect until such time as the Board for Contractors shall implement standards in accord with Article 3 (§ 54.1-1128 et seq.) of Chapter 11 of Title 54.1.

    Acts 1996, cc. 934 and 1006, cls. 2 provide: “[t]hat, pursuant to the Virginia Administrative Process Act (§ 9-6.14:1 et seq.), the Board for Contractors, with the assistance of an advisory committee comprised of at least three cross connection control inspectors and two plumbing contractors, shall adopt final regulations relating to the certification of backflow prevention device workers on or before April 1, 1998.”

    Acts 2006, cc. 454 and 475, cl. 2 provides: “That the Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

    The 1994 amendment, in subsection A, in the first sentence of the first paragraph, substituted “thirteen members” for “nine members,” inserted “general,” and inserted “one member shall be a local building official; one member shall be a licensed plumbing contractor; one member shall be a licensed electrical contractor; one member shall be a licensed heating, ventilation and air-conditioning contractor”; in the second sentence in the second paragraph, substituted “Annually” for “Each April,” and substituted “one-year term” for “one-year period,” and substituted “Seven members” for “Five members” in the second sentence; and in the third paragraph, substituted “for” for “to regulate,” and substituted “licensure of contractors and the certification of tradesmen.”

    The 1996 amendments.

    The 1996 amendment by c. 380 inserted “and for the re-licensure and re-certification of contractors and tradesmen after license suspension or revocation” at the end of the third paragraph of subsection A.

    The 1996 amendments by cc. 934 and 1006, are identical, and in the third paragraph of subsection A, inserted “and recertification” following “and the certification” and inserted “and the backflow prevention device workers” following “of tradesmen.”

    The 1997 amendment, in subsection A, substituted “air conditioning contractor” for “air-conditioning contractor” near the end of the first paragraph and rewrote the third paragraph which formerly read: “The Board shall promulgate regulations not inconsistent with statute necessary for the licensure or certification of contractors and the certification and the recertification of tradesmen and backflow prevention device workers and for the relicensure and recertification of contractors and tradesmen after license suspension or revocation.”

    The 2006 amendments.

    The 2006 amendments by cc. 454 and 475 are nearly identical, and added the last sentence in the third paragraph in subsection A.

    The 2009 amendments.

    The 2009 amendment by cc. 184 and 586 are identical and, in subsection A, in the first sentence of the first paragraph, substituted “14 members” for “thirteen members” near the beginning and inserted “one member shall be a certified elevator mechanic or a licensed elevator contractor” near the end.

    The 2010 amendments.

    The 2010 amendment by c. 83 substituted “15 members” for “14 members” near the beginning, and inserted “one member shall be a certified water well systems provider,” near the end, of the first sentence of subsection A; and substituted “Eight members” for “Seven members” at the beginning of the third sentence of the second paragraph of subsection A.

    The 2012 amendments.

    The 2012 amendment by c. 522 substituted “meet at least once each year and” for “meet at least four times each year, once in January, April, July and October, and” in the first sentence of the second paragraph of subsection A.

    The 2017 amendments.

    The 2017 amendment by c. 579, in subsection A, in the first sentence of the first paragraph, substituted “16 members” for “15 members,” near the beginning, and inserted “one member shall be a professional engineer licensed in accordance with Chapter 4 (§ 54.1-400 et seq.)” and “nonlegislative” near the end, and substituted “Nine members” for “Eight members” in the second sentence of the second paragraph.

    The 2020 amendments.

    The 2020 amendment by c. 685 added the designations B, C, and D to their respective subsections; redesignated former subsection B as subsection E; and added the last sentence of subsection B.

    CASE NOTES

    Retailer selling major appliances not contractor. —

    Retailer, which sold a gas dryer to a customer, was not required to hold a contractor’s license with a gas fitting specialty, because the retailer, which contracted with a contractor to retain a subcontractor to install the dryer, was not a “contractor.” Dep't of Prof'l & Occupational Regulation v. Best Buy Stores, LP, 2014 Va. App. LEXIS 30 (Va. Ct. App. Feb. 4, 2014).

    § 54.1-1103. Necessity for license; requirements for water well drillers and landscape irrigation contractors; exemption.

    1. No person shall engage in, or offer to engage in, contracting work in the Commonwealth unless he has been licensed under the provisions of this chapter. The Board may waive any provision of this chapter for Habitat for Humanity, its local affiliates or subsidiaries, and any other nonprofit organization exempt from taxation under § 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)) for the purpose of constructing or rehabilitating single-family dwellings that will be given to or sold below the appraised value to low-income persons. Prior to a joint venture engaging in, or offering to engage in, contracting work in the Commonwealth, (i) each contracting party of the joint venture shall be licensed under the provisions of this chapter or (ii) a license shall be obtained in the name of the joint venture under the provisions of this chapter.
    2. Except as provided in § 54.1-1117 , the issuance of a license under the provisions of this chapter shall not entitle the holder to engage in any activity for which a special license is required by law.
    3. When the contracting work is for the purpose of landscape irrigation or the construction of a water well as defined in § 32.1-176.3 , the contractor shall be licensed, regardless of the contract amount, as follows:
      1. A Class C license is required when the total value referred to in a single contract or project is no more than $10,000, or the total value of all such water well or landscape irrigation contracts undertaken within any 12-month period is no more than $150,000;
      2. A Class B license is required when the total value referred to in a single contract is $10,000 or more, but less than $120,000, or the total value of all such water well or landscape irrigation contracts undertaken within any 12-month period is $150,000 or more, but less than $750,000; and
      3. A Class A license is required when the total value referred to in a single contract or project is $120,000 or more, or when the total value of all such water well or landscape irrigation contracts undertaken within any 12-month period is $750,000 or more.
    4. Notwithstanding the other provisions of this section, an architect or professional engineer who is licensed pursuant to Chapter 4 (§ 54.1-400 et seq.) shall not be required to be licensed or certified to engage in, or offer to engage in, contracting work or operate as an owner-developer in the Commonwealth in accordance with this chapter when bidding upon or negotiating design-build contracts or performing services other than construction services under a design-build contract. However, the construction services offered or rendered in connection with such contracts shall only be rendered by a contractor licensed or certified in accordance with this chapter.
    5. Notwithstanding the other provisions of this section, any person licensed under the provisions of Article 4 (§ 9.1-138 et seq.) of Chapter 1 of Title 9.1 as a private security services business shall not be required to be licensed or certified to engage in, or offer to engage in, contracting work in the Commonwealth in accordance with this chapter when bidding upon or performing services to install, service, maintain, design or consult in the design of any electronic security equipment as defined in § 9.1-138 including but not limited to, low voltage cabling, network cabling and computer or systems integration.
    6. Notwithstanding any other provisions of this section, persons bidding upon or performing services to design or undertake public works of art commissioned by the Commonwealth; a political subdivision of the Commonwealth, including any county, city, or town; or a nonprofit corporation exempt from taxation under § 501(c)(3) of the Internal Revenue Code shall not be required to be licensed or certified in accordance with this chapter. However, the installation of the artwork and related construction services offered or rendered in connection with such commission shall only be rendered by a contractor licensed or certified in accordance with this chapter.

    History. Code 1950, § 54-128; 1972, c. 16; 1980, c. 634; 1988, c. 765; 1990, c. 911; 1992, c. 713; 1994, cc. 601, 754; 1995, cc. 581, 771; 1997, c. 885; 1998, cc. 271, 754; 1999, cc. 959, 977, 991; 2002, c. 653; 2004, c. 190; 2005, c. 348; 2010, c. 62; 2012, c. 308; 2013, c. 298.

    Editor’s note.

    Acts 1997, c. 885, cl. 2 provides: “That the provisions of this act shall not effect the validity of any certificate duly issued by the Board for Asbestos Licensing, the Board for Contractors, or the Board for Waste Management Facility Operators before July 1, 1997.”

    The 1997 amendment, in subsection A, deleted “or certified” following “licensed” in the first sentence; in the second sentence, deleted “or certified” following “licensed” in clause (i) and deleted “or certificate” following “license”; deleted “or certificate” following “license” in subsection B; and in subsection C, deleted “or certified” following “licensed” in the introductory paragraph and substituted “Class C license” for “Class C certificate” in subdivision C 1.

    The 1998 amendments.

    The 1998 amendment by c. 271 added present subsection D.

    The 1998 amendment by c. 754, in subsection A, in the first sentence, deleted “or operate as an owner-developer” following “contracting work,” and in the second sentence, deleted “or operate as an owner-developer” following “contracting work.”

    The 1999 amendments, by cc. 959, 977 and 991 are identical, and added the second sentence of subsection A.

    The 2002 amendments.

    The 2002 amendment by c. 653 added subsection E.

    The 2004 amendments.

    The 2004 amendment by c. 190 substituted “12” for “twelve” in subdivisions C 1, C 2, and C 3; and deleted “offered or” preceding “rendered by a contractor” in the last sentence of subsection D.

    The 2005 amendments.

    The 2005 amendment by c. 348, in subdivisions C 2 and 3, substituted “$120,000” for “$70,000” and “$750,000” for “$500,000.”

    The 2010 amendments.

    The 2010 amendment by c. 62 substituted “$10,000” for “$7,500” in subdivisions C 1 and C 2.

    The 2012 amendments.

    The 2012 amendment by c. 308 inserted “or rehabilitating” following “purpose of constructing” in the second sentence of subsection A; and deleted “of this title” following “Chapter 4 (§ 54.1-400 et seq.)” in the first sentence of subsection D.

    The 2013 amendments.

    The 2013 amendment by c. 298 added subsection F.

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Licenses, § 23.

    CASE NOTES

    Effect of failure to obtain required license. —

    Failure to obtain a license when required results in the contractor’s being unable to recover, by legal action, either the contract price or on the basis of quantum meruit. Concrete Ready-Mix of Lynchburg, Inc. v. County Green Ltd. Partnership, 438 F. Supp. 701, 1977 U.S. Dist. LEXIS 14474 (W.D. Va. 1977), rev'd, 604 F.2d 289, 1979 U.S. App. LEXIS 12803 (4th Cir. 1979) (decided under prior law).

    OPINIONS OF THE ATTORNEY GENERAL

    Definition of “contractor.” —

    The terms of the home service contract dictate whether a home service contract provider is considered to be a contractor. Should a provider be considered to be a contractor, he must be licensed as a contractor pursuant to Chapter 11 of Title 54.1. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates, Senate of Virginia, 10-027, 2010 Va. AG LEXIS 29 (5/20/10).

    § 54.1-1104. Register of applicants.

    The Director shall keep a register of all applicants showing their date of application, name, qualifications, place of business, place of residence, and whether such application was approved or refused. The books and register of the Board shall be prima facie evidence of all matters recorded therein.

    History. Code 1950, § 54-125; 1977, c. 640; 1980, c. 634; 1988, c. 765.

    § 54.1-1105. Repealed by Acts 1991, c. 151.

    § 54.1-1106. Application for Class A license; fees; examination; issuance.

    1. Any person desiring to be licensed as a Class A contractor shall file with the Department a written application on a form prescribed by the Board. The application shall be accompanied by a fee set by the Board pursuant to § 54.1-201 . The application shall contain the name, place of employment, and business address of the proposed designated employee, and information on the knowledge, skills, abilities, and financial position of the applicant. The Board shall determine whether the past performance record of the applicant, including his reputation for paying material bills and carrying out other contractual obligations, satisfies the purposes and intent of this chapter. The Board shall also determine whether the applicant has complied with the laws of the Commonwealth pertaining to the domestication of foreign corporations and all other laws affecting those engaged in the practice of contracting as set forth in this chapter.
    2. As proof of financial responsibility, the applicant shall demonstrate compliance with the minimum net worth requirement fixed by the Board in regulation by providing either:
      1. A financial statement on a form prescribed by the Board, subject to additional verification if the Board determines that sufficient questions or ambiguities exist in the applicant’s presentation of financial information; or
      2. A balance sheet reviewed by a certified public accountant licensed in accordance with § 54.1-4409.1 .
    3. In lieu of compliance with subsection B, an applicant may demonstrate financial responsibility by electing to obtain and maintain a bond in the amount of $50,000. Proof of current bond shall come from a corporate surety licensed to do business in the Commonwealth and approved by the Attorney General and shall be filed with the Department.
    4. In addition, if the applicant is a sole proprietor, he shall furnish to the Board his name and address. If the applicant is a member of a partnership, he shall furnish to the Board the names and addresses of all of the general partners of the partnership. If the applicant is a member of an association, he shall furnish to the Board the names and addresses of all of the members of the association. If the applicant is a corporation, it shall furnish to the Board the names and addresses of all officers of the corporation. If the applicant is a joint venture, it shall furnish to the Board the names and addresses of (i) each member of the joint venture and (ii) any sole proprietor, general partner of any partnership, member of any association, or officer of any corporation who is a member of the joint venture. The applicant shall thereafter keep the Board advised of any changes in the above information.
    5. If the application is satisfactory to the Board, the proposed designated employee shall be required by Board regulations to take an oral or written examination to determine his general knowledge of contracting, including the statutory and regulatory requirements governing contractors in the Commonwealth. If the proposed designated employee successfully completes the examination and the applicant meets or exceeds the other entry criteria established by Board regulations, a Class A contractor license shall be issued to the applicant. The license shall permit the applicant to engage in contracting only so long as the designated employee is in the full-time employment of the contractor or is a member of the contractor’s responsible management. No examination shall be required where the licensed Class A contractor changes his form of business entity provided he is in good standing with the Board. In the event the designated employee leaves the full-time employ of the licensed contractor or is no longer a member of the contractor’s responsible management, no additional examination shall be required of such designated employee, except in accordance with § 54.1-1110.1 , and the contractor shall within 90 days of that departure provide to the Board the name of the new designated employee.
    6. The Board may grant a Class A license in any of the following classifications: (i) residential building contractor, (ii) commercial building contractor, (iii) highway/heavy contractor, (iv) electrical contractor, (v) plumbing contractor, (vi) heating, ventilation, and air conditioning contractor, (vii) fire sprinkler contractor, and (viii) specialty contractor.

    History. 1980, c. 634, § 54-129.1; 1984, c. 45; 1988, c. 765; 1990, c. 911; 1992, c. 713; 1994, c. 601; 1996, c. 707; 1998, c. 754; 1999, c. 393; 2003, c. 892; 2005, c. 348; 2007, c. 804; 2013, c. 116; 2017, c. 572; 2019, c. 726.

    Editor’s note.

    Acts 2019, c. 726, cl. 3 provides: “That the Board for Contractors (the Board) shall promulgate regulations to implement (i) the provisions of this act that shall become effective in due course, with such regulations to become effective no later than December 1, 2019, and (ii) the provisions of this act that shall become effective on July 1, 2021, with such regulations to become effective no later than July 1, 2021. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

    The 1998 amendment, in subsection C, in clause (v), substituted “heating, ventilation, and air conditioning” for “HVAC,” and added “and,” in clause (vi) deleted “and” following “contractor,” and deleted clause (vii) which read: “owner-developer.”

    The 1999 amendment added “If the Board determines that sufficient questions or ambiguities exist in an individual applicant’s presentation of his financial information, the Board may require the applicant to provide a balance sheet reviewed by a certified public accountant licensed in accordance with § 54.1-2004” in subsection A.

    The 2003 amendments.

    The 2003 amendment by c. 892, in the third sentence of subsection A, inserted “and” preceding “information on the knowledge,” deleted “and an affidavit stating that the information on the application is correct” following “applicant,” and in subsection B, substituted “90” for “ninety.”

    The 2005 amendments.

    The 2005 amendment by c. 348, in subsection B, added “or is a member of the contractor’s responsible management” at the end of the third sentence and inserted “or is no longer a member of the contractor’s responsible management” in the last sentence.

    The 2007 amendments.

    The 2007 amendment by c. 804 substituted “54.1-4409.1” for “54.1-4409” in subsection A.

    The 2013 amendments.

    The 2013 amendment by c. 116, in subsection C, inserted “residential” at the beginning of clause (i), inserted clause (ii) and redesignated the following clauses accordingly.

    The 2017 amendments.

    The 2017 amendment by c. 572 inserted the subsection B and D designations and added subsection C and redesignated the remaining subsections accordingly; and designated the former sixth sentence in subsection A as subsection B and rewrote the sentence, which read: “If the Board determines that sufficient questions or ambiguities exist in an individual applicant’s presentation of his financial information, the Board may require the applicant to provide a balance sheet reviewed by a certified public accountant licensed in accordance with § 54.1-4409.1 .”

    The 2019 amendments.

    The 2019 amendment by c. 726, in subsection F, inserted clause (vii), redesignated former clause (vii) as (viii); and made stylistic changes.

    § 54.1-1106.1. Violations of certain State Board of Health regulations; penalty.

    The Board for Contractors shall consider violations of regulations of the State Board of Health relating to water wells as violations of this chapter, punishable by a fine of not more than $1,000 or suspension or revocation of license. No contractor shall be subject to the monetary penalties provided by this section if he has been assessed a civil penalty for such violation pursuant to § 32.1-27 .

    History. 1989, c. 241; 1990, c. 911.

    Law Review.

    For survey on construction law in Virginia for 1989, see 23 U. Rich. L. Rev. 541 (1989).

    § 54.1-1106.2. Additional monetary penalty for certain violations.

    1. If the Board finds any person licensed under the provisions of this chapter to be in violation of a statute or regulation involving fraudulent or improper or dishonest conduct as defined in § 54.1-1118 , which violation occurred while engaged in a transaction initiated arising from a declared state of emergency as defined in § 44-146.16, the Board shall impose a monetary penalty of up to $10,000 for each such violation.
    2. The penalty imposed pursuant to this section shall be in addition to that provided in § 54.1-202 .

    History. 2014, c. 508.

    §§ 54.1-1107, 54.1-1107.1. Repealed by Acts 1990, c. 911, effective January 1, 1991.

    § 54.1-1108. Application for Class B license; fees; examination; issuance.

    1. Any person desiring to be licensed as a Class B contractor shall file with the Department a written application on a form prescribed by the Board. The application shall be accompanied by a fee set by the Board pursuant to § 54.1-201 . The application shall contain the name, place of employment, and business address of the proposed designated employee; information on the knowledge, skills, abilities, and financial position of the applicant; and evidence of holding a current local license pursuant to local ordinances adopted pursuant to § 54.1-1117 . The Board shall determine whether the past performance record of the applicant, including his reputation for paying material bills and carrying out other contractual obligations, satisfies the purpose and intent of this chapter. The Board shall also determine whether the applicant has complied with the laws of the Commonwealth pertaining to the domestication of foreign corporations and all other laws affecting those engaged in the practice of contracting as set forth in this chapter.
    2. As proof of financial responsibility, the applicant shall demonstrate compliance with the minimum net worth requirement fixed by the Board in regulation by providing either:
      1. A financial statement on a form prescribed by the Board, subject to additional verification if the Board determines that sufficient questions or ambiguities exist in the applicant’s presentation of financial information; or
      2. A balance sheet reviewed by a certified public accountant licensed in accordance with § 54.1-4409.1 .
    3. In lieu of compliance with subsection B, an applicant may demonstrate financial responsibility by electing to obtain and maintain a bond in the amount of $50,000. Proof of current bond shall come from a corporate surety licensed to do business in the Commonwealth and approved by the Attorney General and shall be filed with the Department.
    4. In addition, if the applicant is a sole proprietor, he shall furnish to the Board his name and address. If the applicant is a member of a partnership, he shall furnish to the Board the names and addresses of all of the general partners of that partnership. If the applicant is a member of an association, he shall furnish to the Board the names and addresses of all of the members of the association. If the applicant is a corporation, it shall furnish to the Board the name and address of all officers of the corporation. If the applicant is a joint venture, it shall furnish to the Board the names and addresses of (i) each member of the joint venture and (ii) any sole proprietor, general partner of any partnership, member of any association, or officer of any corporation who is a member of the joint venture. The applicant shall thereafter keep the Board advised of any changes in the above information.
    5. If the application is satisfactory to the Board, the proposed designated employee shall be required by Board regulations to take an oral or written examination to determine his general knowledge of contracting, including the statutory and regulatory requirements governing contractors in the Commonwealth. If the proposed designated employee successfully completes the examination and the applicant meets or exceeds the other entry criteria established by Board regulations, a Class B contractor license shall be issued to the applicant. The license shall permit the applicant to engage in contracting only so long as the designated employee is in the full-time employment of the contractor and only in the counties, cities, and towns where such person has complied with all local licensing requirements and for the type of work to be performed. No examination shall be required where the licensed Class B contractor changes his form of business entity provided he is in good standing with the Board. In the event the designated employee leaves the full-time employ of the licensed contractor, no additional examination shall be required of such designated employee, except in accordance with § 54.1-1110.1 , and the contractor shall within 90 days of that departure provide to the Board the name of the new designated employee.
    6. The Board may grant a Class B license in any of the following classifications: (i) residential building contractor, (ii) commercial building contractor, (iii) highway/heavy contractor, (iv) electrical contractor, (v) plumbing contractor, (vi) HVAC contractor, (vii) fire sprinkler contractor, and (viii) specialty contractor.

    History. 1980, c. 634, § 54-129.3; 1987, c. 110; 1988, c. 765; 1990, c. 911; 1994, c. 601; 1996, c. 707; 2003, c. 892; 2013, c. 116; 2017, c. 572; 2019, c. 726.

    Editor’s note.

    Acts 2019, c. 726, cl. 3 provides: “That the Board for Contractors (the Board) shall promulgate regulations to implement (i) the provisions of this act that shall become effective in due course, with such regulations to become effective no later than December 1, 2019, and (ii) the provisions of this act that shall become effective on July 1, 2021, with such regulations to become effective no later than July 1, 2021. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

    The 2003 amendments.

    The 2003 amendment by c. 892, in the third sentence of subsection A, inserted “and” preceding “evidence of holding,” deleted “and an affidavit stating that the information on the application is correct” at the end of that sentence, and in subsection B, substituted “90” for “ninety.”

    The 2013 amendments.

    The 2013 amendment by c. 116, in subsection C, inserted “residential” at the beginning of clause (i), inserted clause (ii) and redesignated the following clauses accordingly.

    The 2017 amendments.

    The 2017 amendment by c. 572 inserted subsections B and C and the subsection D designation and redesignated the remaining subsections accordingly.

    The 2019 amendments.

    The 2019 amendment by c. 726, in subsection F, inserted clause (vii), redesignated former clause (vii) as (viii); and made stylistic changes.

    § 54.1-1108.1. Waiver of examination; designated employee; Board regulations.

    1. Any Class A contractor licensed in the Commonwealth of Virginia prior to January 1, 1991, and in business on December 31, 1990, shall provide to the Board in writing the name of one full-time employee or member of the contractor’s responsible management who is at least 18 years of age and that employee shall be deemed to have fulfilled the requirement for examination in § 54.1-1106 , so long as he remains a full-time employee of the contractor or remains a member of the contractor’s responsible management. The designated employee shall not be required to take an examination if the Class A contractor changes his form of business entity and is in good standing with the Board. Upon his leaving the employ of the contractor or his leaving as a member of the contractor’s responsible management, the contractor shall name another full-time employee or member of the contractor’s responsible management in accordance with § 54.1-1106 .Any Class B contractor registered in the Commonwealth prior to January 1, 1991, and in business on December 31, 1990, shall, within its current period of registration, provide on a form prescribed by the Board satisfactory information on the financial position, and knowledge, skills and abilities of the registered firm; and the name of a full-time employee who is at least 18 years of age and that employee shall be deemed to have fulfilled the requirement for examination in § 54.1-1108 , so long as he remains a full-time employee of the contractor. The designated employee shall not be required to take an examination if the Class B contractor changes his form of business entity and is in good standing with the Board. If such employee leaves the employ of the contractor, the contractor shall name another full-time employee in accordance with § 54.1-1108 .
      1. The Board is directed to revise Board regulations to allow multiple individuals from a single firm to sit for the business examination required to be confirmed as the firm’s designated employee. The Board shall also review current regulations and procedures pertaining to the time allowed for a change of the designated employee to determine if the current time for replacement is sufficient and practicable. B. 1. The Board is directed to revise Board regulations to allow multiple individuals from a single firm to sit for the business examination required to be confirmed as the firm’s designated employee. The Board shall also review current regulations and procedures pertaining to the time allowed for a change of the designated employee to determine if the current time for replacement is sufficient and practicable.
      2. As used in this subsection, “firm” means any business entity recognized under the laws of the Commonwealth of Virginia.

    History. 1990, c. 911; 1996, c. 707; 2003, c. 892; 2005, c. 348; 2019, c. 503.

    Editor’s note.

    Acts 2019, c. 503, was codified as subsection B of this section, at the direction of the Virginia Code Commission.

    The 2003 amendments.

    The 2003 amendment by c. 892 substituted “18” for “eighteen” in two places, and in the first sentence of the second paragraph, inserted “and” preceding “the name” and deleted “and an affidavit stating that the information provided on the form is correct” at the end of that sentence.

    The 2005 amendments.

    The 2005 amendment by c. 348, in the first paragraph, inserted “or member of the contractor’s responsible management” in two places, added “or remains a member of the contractor’s responsible management” at the end of the first sentence, and inserted “or his leaving as a member of the contractor’s responsible management” in the last sentence.

    § 54.1-1108.2. Application for Class C license; fees; issuance.

    1. Any person desiring to be licensed as a Class C contractor shall file with the Department a written application on a form prescribed by the Board. The application shall be accompanied by a fee set by the Board pursuant to § 54.1-201 . The application shall contain information concerning the name, location, nature, and operation of the business, and information demonstrating that the applicant possesses the character and minimum skills to properly engage in the occupation of contracting.
    2. The Board may grant a Class C license in any of the following classifications: (i) residential building contractor, (ii) commercial building contractor, (iii) highway/heavy contractor, (iv) electrical contractor, (v) plumbing contractor, (vi) heating, ventilation, and air conditioning contractor, (vii) fire sprinkler contractor, and (viii) specialty contractor.

    History. 1995, c. 771; 1997, c. 885; 1998, c. 754; 2003, c. 892; 2013, c. 116; 2019, c. 726.

    Editor’s note.

    Acts 2019, c. 726, cl. 3 provides: “That the Board for Contractors (the Board) shall promulgate regulations to implement (i) the provisions of this act that shall become effective in due course, with such regulations to become effective no later than December 1, 2019, and (ii) the provisions of this act that shall become effective on July 1, 2021, with such regulations to become effective no later than July 1, 2021. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

    The 1997 amendment substituted “to be licensed” for “to be certified” in the first sentence of subsection A and substituted “Class C license” for “Class C certificate” in subsection B.

    The 1998 amendment, in subsection B, in clause (ii), deleted “and” following “contractor,” added present clause (iii), redesignated former clause (iii) as present clause (vi), and added clauses (iv) and (v).

    The 2003 amendments.

    The 2003 amendment by c. 892, in subsection A, substituted “and” for “as well as” preceding “information demonstrating” and deleted “and an affidavit stating that the information on the application is correct” at the end of that subsection.

    The 2013 amendments.

    The 2013 amendment by c. 116, in subsection B, inserted “residential” at the beginning of clause (i), inserted clause (ii) and redesignated the following clauses accordingly.

    The 2019 amendments.

    The 2019 amendment by c. 726, in subsection B, inserted clause (vii), redesignated former clause (vii) as (viii); and made stylistic changes.

    § 54.1-1109. Expiration and renewal of license or certificate.

    1. A license or certificate issued pursuant to this chapter shall expire as provided in Board regulations. Application for renewal of a license or certificate may be made as provided by Board regulations. The application shall be accompanied by a fee set by the Board pursuant to § 54.1-201 .
    2. With respect to a contractor electing continuous bonding under § 54.1-1106 or 54.1-1108 , proof of current bond is required in order to renew the license or certificate. The bond shall commence no later than the effective date of the license and shall expire no sooner than the date of expiration of the license or certificate.

    History. Code 1950, § 54-131; 1970, c. 319; 1977, c. 640; 1980, c. 634; 1988, c. 765; 1990, c. 911; 1995, c. 771; 1996, c. 1014; 2017, c. 572.

    The 2017 amendments.

    The 2017 amendment by c. 572 inserted the subsection A designation and added subsection B.

    § 54.1-1110. Grounds for denial or revocation of license or certificate.

    The Board shall have the power to require remedial education, suspend, revoke, or deny renewal of the license or certificate of any contractor who is found to be in violation of the statutes or regulations governing the practice of licensed or certified contractors in the Commonwealth.

    The Board may suspend, revoke, or deny renewal of an existing license or certificate, or refuse to issue a license or certificate, to any contractor who is shown to have a substantial identity of interest with a contractor whose license or certificate has been revoked or not renewed by the Board. A substantial identity of interest includes but is not limited to (i) a controlling financial interest by the individual or corporate principals of the contractor whose license or certificate has been revoked or nonrenewed, (ii) substantially identical principals or officers, or (iii) the same designated employee as the contractor whose license or certificate has been revoked or not renewed by the Board.

    Additionally, the Board may suspend, revoke or deny renewal of an existing license or certificate, or refuse to issue a license or certificate to any contractor who violates the provisions of Chapter 5 (§ 60.2-500 et seq.) of Title 60.2 and Chapter 8 (§ 65.2-800 et seq.) of Title 65.2.

    Any person whose license is suspended or revoked by the Board shall not be eligible for a license or certificate under any circumstances or under any name, except as provided by regulations of the Board pursuant to § 54.1-1102 .

    History. 1980, c. 634, § 54-132.1; 1988, c. 765; 1990, c. 911; 1992, c. 243; 1995, c. 771; 1996, c. 380.

    § 54.1-1110.1. Re-examination of designated employee.

    The Board shall have the power to require remedial education or may require a designated employee to retake the examination required by this chapter, in any case where the conduct of the designated employee, while in the employ of a licensed Class A or Class B contractor, has resulted in any disciplinary action by the Board against such contractor.

    History. 1996, c. 707.

    § 54.1-1111. Prerequisites to obtaining business license; building, etc., permit.

    1. Any person applying to the building official or any other authority of a county, city, or town in this Commonwealth, charged with the duty of issuing building or other permits for the construction of any building, highway, sewer, or structure, or any removal, grading or improvement shall furnish prior to the issuance of the permit, either (i) satisfactory proof to such official or authority that he is duly licensed or certified under the terms of this chapter to carry out or superintend the same, or (ii) file a written statement that he is not subject to licensure or certification as a contractor or subcontractor pursuant to this chapter. The applicant shall also furnish satisfactory proof that the taxes or license fees required by any county, city, or town have been paid so as to be qualified to bid upon or contract for the work for which the permit has been applied.It shall be unlawful for the building official or other authority to issue or allow the issuance of such permits unless the applicant has furnished his license or certificate number issued pursuant to this chapter or evidence of being exempt from the provisions of this chapter.The building official, or other such authority, violating the terms of this section shall be guilty of a Class 3 misdemeanor.
    2. Any contractor applying for or renewing a business license in any locality in accordance with Chapter 37 (§ 58.1-3700 et seq.) of Title 58.1 shall furnish prior to the issuance or renewal of such license either (i) satisfactory proof that he is duly licensed or certified under the terms of this chapter or (ii) a written statement, supported by an affidavit, that he is not subject to licensure or certification as a contractor or subcontractor pursuant to this chapter.No locality shall issue or renew or allow the issuance or renewal of such license unless the contractor has furnished his license or certificate number issued pursuant to this chapter or evidence of being exempt from the provisions of this chapter.

    History. Code 1950, § 54-138; 1970, c. 319; 1980, c. 634; 1988, c. 765; 1990, c. 911; 1991, c. 151; 1992, c. 713; 1995, c. 771; 1998, c. 754; 2010, cc. 82, 755; 2018, cc. 37, 88.

    Cross references.

    As to punishment for Class 3 misdemeanors, see § 18.2-11 .

    The 1998 amendment, in the first paragraph, in the first sentence, in clause (ii), inserted “or” following “certification as a contractor,” and deleted “or owner-developer” following “subcontractor.”

    The 2010 amendments.

    The 2010 amendments by cc. 82 and 755 are identical and added the subsection A designator and subsection B.

    The 2018 amendments.

    The 2018 amendments by cc. 37 and 88 are identical, substituted “official” for “inspector” throughout; and in subsection A, deleted “supported by an affidavit” following “written statement” in clause (ii).

    § 54.1-1112. Invitations to bid and specifications to refer to law.

    All architects and engineers preparing plans and specifications for work to be contracted in Virginia shall include in their invitations to the bidder and in their specifications a reference to this chapter so as to convey to the invited bidder prior to the consideration of the bid (i) whether such person is a resident or nonresident of the Commonwealth, (ii) whether the proper license or certificate has been issued to the bidder, and (iii) the information required of the bidder to show evidence of proper licensure or certification under the provisions of this chapter.

    History. Code 1950, § 54-139; 1980, c. 634; 1988, c. 765; 1990, c. 911; 1995, c. 771.

    § 54.1-1113. Nonresident bidders to appoint statutory agent for service of process.

    Before any nonresident person or any foreign corporation bids on any work in this Commonwealth, the nonresident person or foreign corporation, by written power of attorney, shall appoint the Director as his agent upon whom all lawful process against or notice to such nonresident person or foreign corporation may be served, and authorize the Director to enter an appearance on his behalf. Upon the filing of the power of attorney the provisions of §§ 13.1-763 through 13.1-766 , with reference to service of process and notice, and judgments, decrees and orders, shall be applicable as to such nonresident person or foreign corporation.

    History. Code 1950, § 54-140; 1970, c. 319; 1980, c. 634; 1988, c. 765.

    Research References.

    Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 3 Active Jurisdiction. § 3.02 Process. Bryson.

    § 54.1-1114. Filing and hearing of charges.

    Any person may file complaints against any contractor licensed or certified pursuant to this chapter. The Director shall investigate complaints and the Board may take appropriate disciplinary action if warranted. Disciplinary proceedings shall be conducted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). The Board shall immediately notify the Director and the clerk and building official of each city, county or town in the Commonwealth of its findings in the case of the revocation of a license or certificate, or of the reissuance of a revoked license or certificate.

    History. Code 1950, § 54-133; 1970, c. 319; 1975, c. 421; 1977, c. 640; 1980, c. 634; 1988, c. 765; 1990, c. 911; 1995, c. 771.

    § 54.1-1115. Prohibited acts.

    1. The following acts are prohibited and shall constitute the commission of a Class 1 misdemeanor:
      1. Contracting for, or bidding upon the construction, removal, repair or improvements to or upon real property owned, controlled or leased by another person without a license or certificate, or without the proper class of license as defined in § 54.1-1100 for the value of work to be performed.
      2. Attempting to practice contracting in the Commonwealth, except as provided for in this chapter.
      3. Presenting or attempting to use the license or certificate of another.
      4. Giving false or forged evidence of any kind to the Board or any member thereof in an application for the issuance or renewal of a license or certificate.
      5. Impersonating another or using an expired or revoked license or certificate.
      6. Receiving or considering as the awarding authority a bid from anyone whom the awarding authority knows is not properly licensed or certified under this chapter. The awarding authority shall require a bidder to submit his license or certificate number prior to considering a bid.
    2. Any person who undertakes work without (i) any valid Virginia contractor’s license or certificate when a license or certificate is required by this chapter or (ii) the proper class of license as defined in § 54.1-1100 for the work undertaken, shall be fined an amount not to exceed $500 per day for each day that such person is in violation, in addition to the authorized penalties for the commission of a Class 1 misdemeanor. Any violation of clause (i) of this subsection shall also constitute a prohibited practice in accordance with § 59.1-200, provided that the violation involves a consumer transaction as defined in the Virginia Consumer Protection Act (§ 59.1-196 et seq.), and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act.
    3. A construction contract entered into by a person undertaking work without a valid Virginia contractor’s license shall not be enforceable by the unlicensed contractor undertaking the work unless the unlicensed contractor (i) gives substantial performance within the terms of the contract in good faith and (ii) did not have actual knowledge that a license or certificate was required by this chapter to perform the work for which he seeks to recover payment.Failure to renew a license or certificate issued in accordance with this chapter shall create a rebuttable presumption of actual knowledge of such licensing or certification requirements.

    History. Code 1950, § 54-142; 1956, c. 397; 1970, c. 319; 1980, c. 634; 1985, c. 356; 1988, c. 765; 1990, c. 911; 1994, c. 79; 1995, c. 771; 1998, c. 691; 2000, c. 33; 2003, cc. 429, 430; 2004, c. 131; 2008, c. 294; 2018, cc. 43, 653.

    Cross references.

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

    The 1998 amendment, in subsection B, substituted “any valid Virginia contractor’s license” for “a valid license,” substituted “shall” for “may” and substituted “$500” for “$200.”

    The 2000 amendments.

    The 2000 amendment by c. 33 added the second sentence of subdivision A 6.

    The 2003 amendments.

    The 2003 amendment by c. 429 substituted “that a license or certificate was required by this chapter to perform the work for which he seeks to recover payment” for “of the licensure or certification requirements of this chapter” at the end of the first paragraph of subsection C.

    The 2003 amendment by c. 430 inserted “whom the awarding authority knows is” in subdivision A 6.

    The 2004 amendments.

    The 2004 amendment by c. 131 inserted “or without the proper class of license as defined in § 54.1-1100 for the value of work to be performed” at the end of subdivision A 1; and in subsection B, inserted the clause (i) designation and inserted “or (ii) the proper class of license as defined in § 54.1-1100 for the work undertaken.”

    The 2008 amendments.

    The 2008 amendment by c. 294 added the last sentence in subsection B.

    The 2018 amendments.

    The 2018 amendments by cc. 43 and 653 are identical, and rewrote the first paragraph of subsection C, which formerly read “No person shall be entitled to assert the lack of licensure or certification as required by this chapter as a defense to any action at law or suit in equity if the party who seeks to recover from such person gives substantial performance within the terms of the contract in good faith and without actual knowledge that a license or certificate was required by this chapter to perform the work for which he seeks to recover payment.”

    Law Review.

    For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

    Research References.

    Virginia Forms (Matthew Bender). No. 1-808 Complaint — Breach of a Construction Contract, etc.

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Licenses, § 23.

    CASE NOTES

    Legislative purpose. —

    The succession of statutory changes to this section demonstrates a legislative purpose to protect the public by penalizing contractors who are aware that the law applies to the business they are contemplating, but who nevertheless elect to ignore it. The legislative history and the case law together evidence an intention to strike a balance: To penalize those whose violations of the statutory scheme are knowing, but to excuse those who perform in good faith and whose violations are inadvertent. J.W. Woolard Mech. & Plumbing, Inc. v. Jones Dev. Corp., 235 Va. 333 , 367 S.E.2d 501, 4 Va. Law Rep. 2513, 1988 Va. LEXIS 48 (1988) (decided under former § 54-142).

    Unlicensed contractors who act in good faith may recover payment. —

    Pursuant to subsection C of § 54.1-1115 , creditors who performed unlicensed contracting services were permitted to assert their claims against a debtor’s bankruptcy estate because evidence showing: (1) that one creditor was licensed in Maryland and worked on only one residence in Virginia; (2) that the other creditor was a handyman who was unaware of Virginia’s licensing requirements; and (3) that the creditors were informed that they would be working under a general contractor’s license established that the creditors acted in good faith and without knowledge of Virginia’s licensing requirements. In re Anderson, 349 Bankr. 448, 2006 U.S. Dist. LEXIS 62582 (E.D. Va. 2006).

    CIRCUIT COURT OPINIONS

    Defense to suit. —

    Construction companies were entitled to assert the alleged subcontractor’s lack of a license as a defense to alleged subcontractor’s interference with a contract since the alleged subcontractor had not substantially performed the contract. Bowers Family Enters., L.L.C. v. Davis Bros. Const. Co., 55 Va. Cir. 11, 2001 Va. Cir. LEXIS 230 (Richmond Feb. 8, 2001).

    Because there was no evidence that a contractor had actual knowledge of the statutory requirement for licensure, the contractor’s recovery on the contractor’s claims for the provision of flooring services to an apartment complex was not barred by the statutory prohibition on a party engaging in, or offering to engage in, contracting work without holding a contractor’s license. Skipper v. Landmark Prop. Servs., 97 Va. Cir. 1, 2017 Va. Cir. LEXIS 321 (Chesterfield County Feb. 17, 2017).

    OPINIONS OF THE ATTORNEY GENERAL

    Definition of “contractor.” —

    The terms of the home service contract dictate whether a home service contract provider is considered to be a contractor. Should a provider be considered to be a contractor, he must be licensed as a contractor pursuant to Chapter 11 of Title 54.1. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates, Senate of Virginia, 10-027, 2010 Va. AG LEXIS 29 (5/20/10).

    § 54.1-1115.01. Responsibility for contracting with persons lacking the proper credential.

    Any contractor that directly employs or otherwise contracts with a person who is not credentialed by the Board for work requiring a credential under this chapter shall be solely responsible for any monetary penalty or other sanction resulting from the act of employing or contracting with a person who lacks the proper credential based upon such person’s failure to obtain or maintain the required credential.

    History. 2017, cc. 132, 135.

    § 54.1-1115.1. Evidence of violation of the Virginia Uniform Statewide Building Code.

    In any proceeding pursuant to § 54.1-1114 , the Board shall consider any written documentation of a violation of the Uniform Statewide Building Code (§ 36-97 et seq.) provided by a local building official as evidence of a violation of such building code. Such written documentation shall not be prima facie evidence of a building code violation.

    History. 1993, c. 942.

    § 54.1-1116. Repealed by Acts 1993, c. 717.

    § 54.1-1117. Licensing of certain contractors by localities; qualifications and procedure; registration of certain persons engaged in business of home improvement; civil penalty.

    1. Except as to contractors currently licensed under the provisions of § 54.1-1106 ,  any locality shall have the power and authority to adopt ordinances, not inconsistent with the provisions of this chapter, requiring every person who engages in, or offers to engage in, the business of home improvement or the business of constructing single-family or multi-family dwellings, in such locality, to obtain a license from such locality.
    2. The  locality adopting ordinances pursuant to this section may require every applicant for such license, other than those currently licensed under the provisions of § 54.1-1106 , (i) to furnish evidence of his ability and proficiency; and (ii) to successfully complete an examination to determine his qualifications. The locality may designate or establish an agent or board and establish the procedures for an examination according to the standards set forth in this chapter and in the regulations of the Board for Contractors. Except contractors currently licensed under the provisions of § 54.1-1106 , licensure may be refused to any person found not to be qualified. Persons not currently licensed pursuant to § 54.1-1106 may be required to furnish bond in a reasonable penal sum, with reasonable condition, and with surety as the governing body deems necessary. The governing body may provide for the punishment of violations of such ordinances, provided that no such punishment shall exceed that provided for misdemeanors generally.
    3. A locality may by ordinance establish a civil penalty that may be assessed when a person or business falsely represents to a customer or prospective customer that such person or business has a valid contractor’s license issued pursuant to the provisions of § 54.1-1106 . Such civil penalty shall not exceed $2,500.
    4. For the purpose of this section the business of home improvement shall mean the contracting for and/or providing labor and material or labor only for repairs, improvements, and additions to residential buildings or structures accessory thereto where any payment of money or other thing of value is required.

    History. 1958, c. 522, § 54-145.2; 1964, c. 479; 1970, c. 319; 1972, c. 438; 1977, c. 476; 1979, c. 439; 1980, c. 634; 1988, c. 765; 1994, c. 895; 2012, c. 552.

    The 2012 amendments.

    The 2012 amendment by c. 552, in subsection A, substituted “§ 54.1-1106 , any locality shall” for “§ 54.1-1106 , the governing body of every city, county or town shall” and “constructing single-family or multi-family dwellings, in such locality, to obtain a license from such locality” for “constructing single- or multi-family dwellings, in such city, county or town, to obtain a license from such city, county or town”; in subsection B, substituted “The locality adopting” for “The governing body of every city, county or town adopting” at the beginning of the first sentence, and “The locality may” for “The governing body may” at the beginning of the second sentence; and added present subsection C and redesignated former subsection C as present D.

    Article 2. Virginia Contractor Transaction Recovery Act.

    § 54.1-1118. Definitions.

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

    “Act” means the Virginia Contractor Transaction Recovery Act.

    “Biennium” means a two-year period beginning on July 1 of an even-numbered year and continuing through June 30 of the next even-numbered year.

    “Claimant” means any person with an unsatisfied judgment involving residential construction against a regulant, who has filed a verified claim under this Act.

    “Fund” means the Virginia Contractor Transaction Recovery Fund.

    “Improper or dishonest conduct” includes only the wrongful taking or conversion of money, property or other things of value which involves fraud, material misrepresentation or conduct constituting gross negligence, continued incompetence, or intentional violation of the Uniform Statewide Building Code (§ 36-97 et seq.). The term “improper or dishonest conduct” does not include mere breach of contract.

    “Judgment” includes an order of a United States Bankruptcy Court (i) declaring a claim against a regulant who is in bankruptcy to be a “Debt Nondischargeable in Bankruptcy,” (ii) extinguishing a claim against a regulant who is in bankruptcy and for which claim no distribution was made from the regulant’s bankruptcy estate but excluding any such claim disallowed by order of the bankruptcy court, or (iii) extinguishing a claim against a regulant who is in bankruptcy and for which claim only partial distribution was made from the regulant’s bankruptcy estate. An order of dismissal shall not be considered a judgment.

    “Regulant” means any individual, person, firm, corporation, association, partnership, joint venture or any other legal entity licensed by the Board for Contractors. “Regulant” shall not include contractors holding only the commercial building contractor classification or individuals licensed or certified in accordance with Article 3 (§ 54.1-1128 et seq.) or Article 4 (§ 54.1-1140 et seq.).

    “Verified claim” means a completed application, on a form designed by the Board, the truthfulness of which has been attested to by the claimant before a notary public, along with all required supporting documentation, that has been properly received by the Department in accordance with this chapter.

    History. 1980, c. 635, § 54-145.3:1; 1984, c. 270; 1987, c. 555; 1988, cc. 393, 765; 1990, cc. 437, 911; 1994, c. 895; 1995, cc. 771, 784; 1996, cc. 934, 1006; 1997, c. 885; 1999, c. 55; 2013, c. 343; 2015, c. 409.

    Editor’s note.

    Acts 1995, c. 784, cl. 2, provides: “That the provisions of this act shall be applicable to all claims arising on or after January 1, 1992.”

    Acts 1995, c. 784, cl. 3, provides: “That notwithstanding the provisions of § 54.1-1121 A 3, claims (i) satisfying the provisions of the second enactment of this act and (ii) previously denied by the Board because the claimant lacked a judgment then cognizable under the Virginia Contractor Transaction Recovery Act, shall be reconsidered by the Board if such claim is refiled with the Board within six months after the effective date of this act.”

    The 1997 amendment, in the paragraph defining “Regulant,” deleted “or certified” following “licensed” in the first sentence and inserted “licensed or” in the second sentence.

    The 1999 amendment inserted “involving residential construction” in the paragraph defining “claimant.”

    The 2013 amendments.

    The 2013 amendment by c. 343, in the paragraph defining “Regulant,” substituted “contractors holding only the commercial building contractor classification or individuals” for “tradesmen or backflow prevention device workers” and “or Article 4 (§ 54.1-1140 et seq.)” for “of this chapter”; and added the paragraph defining “Verified claim.”

    The 2015 amendments.

    The 2015 amendment by c. 409 inserted “Virginia” in the definition for “Fund”; added clause (iii) and added the last sentence in the definition for “Judgment”; substituted “that” for “which” in the definition for “Verified claim”; and made related changes.

    Law Review.

    For 2000 survey of Virginia construction law, see 34 U. Rich. L. Rev. 683 (2000).

    CASE NOTES

    “Claimant.” —

    Claimant one and claimant two were not separate “claimants” under subsection A of § 54.1-1120 of the Virginia Contractor Transaction Recovery Act, §§ 54.1-1118 through 54.1-1127 , and could not recover two claims from the Virginia Contractor Transaction Recovery Fund as the two claims filed by claimant one and claimant two involved one contract, one unpaid judgment, and a single transaction; claimant one’s reliance on subsection A of § 54.1-1123 was misplaced, and focused too narrowly on one portion of a subsection that limited claims against the Fund. McCatty v. Commonwealth, 2008 Va. App. LEXIS 14 (Va. Ct. App. Jan. 15, 2008).

    “Improper or dishonest conduct.” —

    By use of the disjunctive “or” in the language of this section, the legislature evidenced its intention to hold a regulant liable under the Virginia Contractor Transaction Recovery Act for conduct including but not limited to fraud. Surprenant v. Board for Contractors, 30 Va. App. 165, 516 S.E.2d 220, 1999 Va. App. LEXIS 421 (1999).

    Award of compensatory damages proper. —

    Trial court did not err in reversing the decision of the Commonwealth of Virginia Board of Contractors to deny a property owner’s claim to satisfy a judgment he recovered against a contractor under the Virginia Contractor Transaction Recovery Act, §§ 54.1-1118 through 54.1-1127 , and in awarding the owner compensatory damages and attorney’s fees because in his complaint against the contractor, the owner alleged facts only in the nature of actual monetary loss arising from the contractor’s alleged improper or dishonest conduct in relation to a residential construction contract, as contemplated by the act; based on those allegations, the trial court’s award of compensatory damages to the owner was presumptively limited to an award for actual monetary loss, i.e., an award substantially in accord with the case asserted in the owner’s pleadings, and the trial court found that the owner’s damages arose from the kind of improper conduct the act was designed to redress. Commonwealth v. Gavigan, 2011 Va. App. LEXIS 100 (Va. Ct. App. Mar. 22, 2011).

    Judicial review. —

    It was an abuse of discretion, when reviewing the denial of a claimant’s claim for reimbursement from the Contractor Transaction Recovery Fund, for a trial court to consider evidence that was not submitted to the Commonwealth of Virginia’s Board for Contractors, which denied the claim, because the evidence did not show the Board either decided the case arbitrarily or in bad faith or denied the claimant a fair and impartial review, since the Board offered the claimant an opportunity to properly submit the evidence to the Board, which the claimant declined, knowing that the only evidence before the Board was that the contractor against whom the claimant obtained a judgment owned a van of unknown value, and that the claimant did not take all legally available actions to apply the contractor’s “disclosed assets” to the claimant’s judgment, as § 54.1-1120 required. Commonwealth v. Mathesius, 2012 Va. App. LEXIS 367 (Va. Ct. App. Nov. 20, 2012).

    § 54.1-1119. Assessments by Director; assignment to Fund; minimum balance; notice; penalties; costs of administration.

    1. Each initial regulant, at the time of application, shall be assessed twenty-five dollars, which shall be specifically assigned to the Fund. Initial payments may be incorporated in any application fee payment and transferred to the Fund by the Director within thirty days.All assessments, except initial assessments, for the Fund shall be deposited within three work days after their receipt by the Director, in one or more federally insured banks, savings and loan associations or savings banks located in the Commonwealth. Funds deposited in banks, savings institutions or savings banks, to the extent in excess of insurance afforded by the Federal Deposit Insurance Corporation or other federal insurance agency, shall be secured under the Virginia Security for Public Deposits Act (§ 2.2-4400 et seq.). The deposit of these funds in federally insured banks, savings and loan associations or savings banks located in the Commonwealth shall not be considered investment of such funds for purposes of this section. Funds maintained by the Director may be invested in securities that are legal investments for fiduciaries under the provisions of § 64.2-1502 .
    2. The minimum balance of the Fund shall be $400,000. Whenever the Director determines that the balance of the Fund is or will be less than this minimum balance, the Director shall immediately inform the Board, which shall assess each regulant at the time of his license renewal a sum sufficient to bring the balance of the Fund to an amount of not less than $400,000, when combined with similar assessments of other regulants. No regulant shall be assessed a total amount of more than fifty dollars during any biennium.Notice to regulants of these assessments shall be by first-class mail, and payment of such assessments shall be made by first-class mail addressed to the Director within forty-five days after the mailing of the notice to regulants.
    3. If any regulant fails to remit the required assessment mailed in accordance with subsection B within forty-five days of such mailing, the Director shall notify such regulant by first-class mail at the latest address of record filed with the Board. If no payment has been received by the Director within thirty days after mailing the second notice, the license of the regulant shall be automatically suspended and shall be restored only upon the actual receipt by the Director of the delinquent assessment.Interest earned on the deposits constituting the Fund shall be used for administering the Fund. The remainder of this interest may be used for the purposes of providing educational programs about the Uniform Statewide Building Code (§ 36-97 et seq.), for providing education on subjects of benefit to licensees or members of the public relating to contracting, or shall accrue to the Fund.

    History. 1980, c. 635, § 54-145.3:2; 1984, c. 270; 1987, c. 555; 1988, c. 765; 1990, cc. 3, 437, 911; 1992, c. 810; 1995, c. 771; 1996, c. 96; 1997, c. 885.

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “§ 26-40.01” was changed to “§ 64.2-1502 ” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

    At the direction of the Virginia Code Commission, “Virginia” was inserted preceding “Security for Public Deposits Act” in subsection A to match the short title.

    The 1997 amendment capitalized “fund” throughout the section and deleted “or certificate” following “license” in the second sentence in subsection C.

    § 54.1-1120. Recovery from Fund generally.

    1. The claimant shall be (i) an individual whose contract with the regulant involved contracting for the claimant’s residence located in the Commonwealth or (ii) a property owners’ association as defined in § 55.1-1800 whose contract with the regulant involved contracting for improvements to the common areas owned by the association.The claimant shall not himself be (a) an employee of such judgment debtor, (b) a vendor of such judgment debtor, (c) another licensee, (d) the spouse or child of such judgment debtor or the employee of such spouse or child, or (e) a financial or lending institution or any person whose business involves the construction or development of real property.
    2. Whenever any person is awarded a judgment in a court of competent jurisdiction in the Commonwealth of Virginia against any individual or entity which involves improper or dishonest conduct occurring (i) during a period when such individual or entity was a regulant and (ii) in connection with a transaction involving contracting, the claimant may file a verified claim with the Director to obtain a directive ordering payment from the Fund of the amount unpaid upon the judgment, subject to the following conditions:
      1. If any action is instituted against a regulant by any person, such person shall serve a copy of the complaint upon the Board by certified mail or the equivalent.
      2. A copy of any pleading or document filed subsequent to the initial service of process in the action against a regulant shall be provided to the Board. The claimant shall submit such copies to the Board by certified mail, or the equivalent, upon his receipt of the pleading or document.
      3. A verified claim shall be filed with the Director no later than 12 months after the date of entry of the final judgment from which no further right of appeal exists.
      4. Prior to submitting the verified claim, the claimant shall:
        1. Conduct or make a reasonable attempt to conduct debtor’s interrogatories to determine whether the judgment debtor has any assets that may be sold or applied in whole or partial satisfaction of the judgment; and
        2. Take all legally available actions for the sale or application of any assets disclosed in the debtor’s interrogatories.
    3. If the regulant has filed bankruptcy, the claimant shall file a claim with the proper bankruptcy court. If no distribution is made, or the distribution ordered fails to satisfy the claim, the claimant may then file a claim with the Board. The verified claim shall be received by the Board within 12 months of the date of bankruptcy discharge or dismissal. In the event the judgment is silent as to the conduct of the regulant, the Board shall determine (i) whether the conduct of the regulant that gave rise to the claim was improper or dishonest and (ii) what amount, if any, such claimant is entitled to recover from the Fund.

    History. 1980, c. 635, § 54-145.3:3; 1984, c. 270; 1987, c. 555; 1988, cc. 393, 765; 1990, cc. 215, 437, 911; 1995, c. 784; 1996, c. 96; 1997, c. 885; 1999, cc. 55, 261; 2013, c. 343; 2015, c. 409.

    Editor’s note.

    Acts 1995, c. 784, cl. 2, provides: “That the provisions of this act shall be applicable to all claims arising on or after January 1, 1992.”

    Acts 1995, c. 784, cl. 3, provides: “That notwithstanding the provisions of § 54.1-1121 A 3, claims (i) satisfying the provisions of the second enactment of this act and (ii) previously denied by the Board because the claimant lacked a judgment then cognizable under the Virginia Contractor Transaction Recovery Act, shall be reconsidered by the Board if such claim is refiled with the Board within six months after the effective date of this act.”

    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 “55.1-1800” for “55-509.”

    The 1997 amendment capitalized “fund” in the introductory paragraph of subsection A and in subdivision A 6.

    The 1999 amendments.

    The 1999 amendment by c. 55, in subdivision A 4, inserted “(i),” and inserted “ or (ii) a property owners’ association as defined in § 55-509 whose contract with the regulant involved contracting for improvements to the common area owned by such association.”

    The 1999 amendment by c. 261 inserted “located in the Commonwealth” at the end of subdivision A 4.

    The 2013 amendments.

    The 2013 amendment by c. 343, in subdivision A 1, substituted “complaint upon the Board by certified mail or the equivalent” for “process upon the Board in the manner prescribed by law. Included in such service shall be an affidavit stating all acts constituting improper or dishonest conduct. The provisions of § 8.01-288 shall not be applicable to the service of process required by this subdivision”; rewrote subdivision A 3 which read: “For judgments entered on or after July 1, 1996, a verified claim shall be filed with the Director no later than twelve months after the judgment became final. Such verified claim shall be accompanied by the copies of the order for the underlying judgment, and evidence of compliance with subdivisions 6 and 7 below”; rewrote subdivision A 6 and deleted former subdivision A 7 which read: “A claimant shall not be denied recovery from the Fund due to the fact the order for the judgment filed with the verified claim does not contain a specific finding of ‘improper or dishonest conduct.’ Any language in the order which supports the conclusion that the court found that the conduct of the regulant involved improper or dishonest conduct may be used by the Board to determine eligibility for recovery from the Fund”; and in subsection B, inserted “or the distribution ordered by the bankruptcy court fails to wholly or partially satisfy the claim” and “of the regulant.”

    The 2015 amendments.

    The 2015 amendment by c. 409 added subsection A; redesignated former subsections A and B as subsections B and C; deleted subdivisions B 4 and 5, which read “4. The claimant shall be (i) an individual whose contract with the regulant involved contracting for the claimant’s residence(s) located in the Commonwealth or (ii) a property owners’ association as defined in § 55-509 whose contract with the regulant involved contracting for improvements to the common area owned by such association. 5. The claimant shall not himself be (i) an employee of such judgment debtor, (ii) a vendor of such judgment debtor, (iii) another licensee, (iv) the spouse or child of such judgment debtor nor the employee of such spouse or child, or (v) any financial or lending institution nor anyone whose business involves the construction or development of real property”; redesignated former subdivision B 6 as subdivision B 4; deleted “by the bankruptcy court” preceding “fails to” and “wholly or partially” preceding “satisfy” in the second sentence, added the third sentence and inserted “In the event the judgment is silent as to the conduct of the regulant” at the beginning of the last sentence in subsection C.

    Law Review.

    For survey on construction law in Virginia for 1989, see 23 U. Rich. L. Rev. 541 (1989).

    Research References.

    Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 3 Active Jurisdiction. § 3.02 Process. Bryson.

    CASE NOTES

    Claimants were not separate. —

    Claimant one and claimant two were not separate “claimants” under subsection A of § 54.1-1120 of the Virginia Contractor Transaction Recovery Act, §§ 54.1-1118 through 54.1-1127 , and could not recover two claims from the Virginia Contractor Transaction Recovery Fund as the two claims filed by claimant one and claimant two involved one contract, one unpaid judgment, and a single transaction; claimant one’s reliance on subsection A of § 54.1-1123 was misplaced, and focused too narrowly on one portion of a subsection that limited claims against the Fund. McCatty v. Commonwealth, 2008 Va. App. LEXIS 14 (Va. Ct. App. Jan. 15, 2008).

    Claim of subcontractor is barred. —

    The phrase “vendor of” connotes a linkage between one who sells and one who buys; thus, one who sells building materials to a building contractor is a vendor of the contractor, and the plain meaning of this section bars a subcontractor’s claim. State Bd. for Contractors v. H.B. Sedwick Jr., Bldg. Supply Co., 234 Va. 79 , 360 S.E.2d 169, 4 Va. Law Rep. 462, 1987 Va. LEXIS 249 (1987) (decided under prior law).

    Failure to pursue contractor’s “disclosed assets.” —

    It was an abuse of discretion, when reviewing the denial of a claimant’s claim for reimbursement from the Contractor Transaction Recovery Fund, for a trial court to consider evidence that was not submitted to the Commonwealth of Virginia’s Board for Contractors, which denied the claim, because the evidence did not show the Board either decided the case arbitrarily or in bad faith or denied the claimant a fair and impartial review, since the Board offered the claimant an opportunity to properly submit the evidence to the Board, which the claimant declined, knowing that the only evidence before the Board was that the contractor against whom the claimant obtained a judgment owned a van of unknown value, and that the claimant did not take all legally available actions to apply the contractor’s “disclosed assets” to the claimant’s judgment, as subdivision A 6 c. of § 54.1-1120 required. Commonwealth v. Mathesius, 2012 Va. App. LEXIS 367 (Va. Ct. App. Nov. 20, 2012).

    Pursuant to subdivision A 7, factual findings that builder made material misrepresentation in his contract with homeowner and violated the Virginia Consumer Protection Act, § 59.1-196 et seq., provided a basis for the Board to find improper or dishonest conduct as defined in § 54.1-1118 . Surprenant v. Board for Contractors, 30 Va. App. 165, 516 S.E.2d 220, 1999 Va. App. LEXIS 421 (1999).

    Award of compensatory damages proper. —

    Trial court did not err in reversing the decision of the Commonwealth of Virginia Board of Contractors to deny a property owner’s claim to satisfy a judgment he recovered against a contractor under the Virginia Contractor Transaction Recovery Act, §§ 54.1-1118 through 54.1-1127 , and in awarding the owner compensatory damages and attorney’s fees because in his complaint against the contractor, the owner alleged facts only in the nature of actual monetary loss arising from the contractor’s alleged improper or dishonest conduct in relation to a residential construction contract, as contemplated by the act; based on those allegations, the trial court’s award of compensatory damages to the owner was presumptively limited to an award for actual monetary loss, i.e., an award substantially in accord with the case asserted in the owner’s pleadings, and the trial court found that the owner’s damages arose from the kind of improper conduct the act was designed to redress. Commonwealth v. Gavigan, 2011 Va. App. LEXIS 100 (Va. Ct. App. Mar. 22, 2011).

    CIRCUIT COURT OPINIONS

    Improper or dishonest conduct. —

    Board of Contractors erred by limiting the evidence it considered to a motion for judgment and the final order and by completely ignoring an owner’s evidence. Hill v. Dep't of Prof'l & Occupational Regulation, 97 Va. Cir. 54, 2012 Va. Cir. LEXIS 205 (2012).

    § 54.1-1120.1. Recovery on bond.

    1. If a contractor who elected continuous bonding under § 54.1-1106 or 54.1-1108 fails to satisfy a judgment awarded by a court of competent jurisdiction for improper or dishonest conduct, the judgment creditor shall have a claim against the surety bond for such damages. In order to recover the amount of any unpaid judgment, up to but not exceeding the maximum liability as set forth in § 54.1-1106 or 54.1-1108 , the judgment creditor shall meet the eligibility requirements of subsection A of § 54.1-1120 and bring suit directly on the surety bond no later than 12 months after the judgment becomes final.
    2. The liability of such surety shall be limited to actual monetary loss, court costs, and attorney fees assessed against the contractor as part of the underlying judgment. The liability of such surety shall not include any sums representing interest or punitive damages assessed against the contractor.
    3. The surety company shall notify the Board when a claim is made against a contractor’s bond, when a claim is paid, and when the bond is cancelled. Such notification shall include the amount of claim and the circumstances surrounding the claim. Notification of cancellation shall include the effective date and reason for cancellation. The bond may be cancelled as to future liability by the contractor’s surety upon 30 days’ notice to the Board.

    History. 2017, c. 572.

    § 54.1-1121. Investigations.

    Upon receipt of the notice of proceedings against the regulant, the Department may cause its own investigation to be conducted pursuant to § 54.1-306 .

    History. 1987, c. 555, § 54-145.3:3.1; 1988, c. 765; 2013, c. 343.

    The 2013 amendments.

    The 2013 amendment by c. 343 substituted “Department” for “Board,” and added “pursuant to § 54.1-306 ” at the end.

    § 54.1-1122. Consideration of applications for payment.

    1. The claimant shall submit the following supporting documentation with the claim:
      1. Copies of the contract with the regulant and all written change orders to the contract. If no written contract between the regulant and the claimant is available, the claimant may submit an affidavit attesting to the terms of the agreement, promise, or other contractual obligation;
      2. All pleadings or other documents filed with the court from which judgment was obtained;
      3. All orders and opinions of the court from which judgment was obtained, including the final judgment order;
      4. The transcript of the debtor’s interrogatories, if conducted, or if no transcript is available, a sworn affidavit affirming that debtor’s interrogatories were conducted, or evidence that debtor’s interrogatories were attempted if not conducted; a description of assets of the judgment debtor disclosed in the debtor’s interrogatories; and a description of all steps taken for the sale or application of those disclosed assets in whole or partial satisfaction of the judgment, or a statement why no means are legally available for the sale or application of those disclosed assets, or a statement that the value of the disclosed assets is less than the cost of levying upon and selling such assets including reasonable estimates of the fair market value of the disclosed assets and costs of levying upon selling such assets;
      5. A statement of the balance of the judgment remaining unpaid at the time the claim is submitted to the Department, and a statement that the claimant agrees to notify the Department of any additional payment that may be received in whole or partial satisfaction of the judgment during the pendency of the claim before the Board; and
      6. Any other documentary evidence or exhibits the claimant wishes the Board to consider with the claim.
    2. The Department shall promptly consider the verified claim of the claimant administratively. If the claim form is incomplete or not properly notarized, or if all required supporting documentation is not included with the claim, then the Department may provide the claimant with notice of any deficiency and an additional opportunity to submit a corrected verified claim. The burden shall be on the claimant to comply with all claim requirements and to submit the necessary documentation within 12 months of the initial claim submission. Once the Department confirms that the verified claim is complete, it shall present such verified claim, along with a recommendation regarding payment, to the Board for the Board’s consideration and shall notify the claimant of the Board’s recommendation.
    3. The Department’s and Board’s consideration of the claim shall be based solely on the contents of the verified claim. Neither an informal fact-finding conference pursuant to § 2.2-4019 nor a formal hearing pursuant to § 2.2-4020 shall be required, unless requested by the claimant.
    4. A claimant shall not be denied recovery from the Fund due to the fact that order for judgment filed with the verified claim does not contain a specific finding of “improper or dishonest conduct.” Any language in the order that supports the conclusion that the court found that the conduct of the regulant meets the definition of “improper or dishonest conduct” in § 54.1-1118 shall be used by the Board to determine eligibility for recovery from the Fund. To the extent the judgment order is silent as to the court’s findings on the conduct of the regulant, the Board may determine whether the conduct of the regulant meets the definition of improper or dishonest conduct by substantial evidence in the verified claim.
    5. If the Board finds there has been compliance with the required conditions, the Board shall issue a directive ordering payment from the fund to the claimant the amount remaining unpaid on the judgment, subject to the limitations set forth in § 54.1-1123 . The claimant shall be notified in writing of the findings of the Board. The Board’s findings shall be considered a “case decision” and judicial review of these findings shall be in accordance with § 2.2-4025 of the Administrative Process Act (§ 2.2-4000 et seq.). Notwithstanding any other provision of law, the Board shall have the right to appeal a decision of any court which is contrary to any distribution recommended or authorized by it.

    History. 1980, c. 635, § 54-145.3:4; 1984, c. 270; 1987, c. 555; 1988, c. 765; 2006, c. 723; 2013, c. 343; 2017, c. 572.

    The 2006 amendments.

    The 2006 amendment by c. 723 substituted “Department” for “Board” near the beginning of the first sentence and added the last two sentences.

    The 2013 amendments.

    The 2013 amendment by c. 343 rewrote subsection A; added subsections B through D; and redesignated former subsection B as subsection E.

    The 2017 amendments.

    The 2017 amendment by c. 572 substituted “unless requested by the claimant” for “but an informal fact-finding conference may be held at the discretion of the Department if requested by the claimant within 15 days of the claimant’s receipt of the Department’s recommendation to the Board” in the second sentence of subsection C.

    CASE NOTES

    There is no statutory requirement that the regulant must be notified of the payment. Lux v. Kotvas, 1997 Va. App. LEXIS 464 (Va. Ct. App. July 8, 1997).

    Board not entitled to ignore or reject court’s findings in underlying litigation. —

    While the Commonwealth of Virginia Board of Contractors is authorized under Virginia Contractor Transaction Recovery Act, § 54.1-1122 , to conduct an informal fact-finding conference to determine whether a claimant has qualified for payment on an unsatisfied judgment, the Board is not entitled under the act to ignore or otherwise reject a circuit court’s findings in the underlying litigation. Commonwealth v. Gavigan, 2011 Va. App. LEXIS 100 (Va. Ct. App. Mar. 22, 2011).

    Award of compensatory damages proper. —

    Trial court did not err in reversing the decision of the Commonwealth of Virginia Board of Contractors to deny a property owner’s claim to satisfy a judgment he recovered against a contractor under the Virginia Contractor Transaction Recovery Act, §§ 54.1-1118 through 54.1-1127 , and in awarding the owner compensatory damages and attorney’s fees because in his complaint against the contractor, the owner alleged facts only in the nature of actual monetary loss arising from the contractor’s alleged improper or dishonest conduct in relation to a residential construction contract, as contemplated by the act; based on those allegations, the trial court’s award of compensatory damages to the owner was presumptively limited to an award for actual monetary loss, i.e., an award substantially in accord with the case asserted in the owner’s pleadings, and the trial court found that the owner’s damages arose from the kind of improper conduct the act was designed to redress. Commonwealth v. Gavigan, 2011 Va. App. LEXIS 100 (Va. Ct. App. Mar. 22, 2011).

    § 54.1-1123. Limitations upon recovery from Fund; certain actions not a bar to recovery.

    1. The maximum claim of one claimant against the Fund based upon an unpaid judgment arising out of the improper or dishonest conduct of one regulant in connection with a single transaction involving contracting is limited to $20,000, including any amount paid from a contractor’s surety bond under § 54.1-1120.1 , regardless of the amount of the unpaid judgment of the claimant.
    2. The aggregate of claims against the Fund based upon unpaid judgments arising out of the improper or dishonest conduct of any one regulant involving contracting, is limited by the Board to $40,000 during any biennium. If a claim has been made against the Fund, and the Board has reason to believe there may be additional claims against the Fund from other transactions involving the same regulant, the Board may withhold any payment(s) from the Fund involving such regulant for a period of not more than one year from the date on which the claimant is awarded in a court of competent jurisdiction in the Commonwealth the final judgment on which his claim against the Fund is based. After this one-year period, if the aggregate of claims against the regulant exceeds $40,000, during a biennium, $40,000 shall be prorated by the Board among the claimants and paid from the Fund, less the amount of any applicable contractor’s bond, in proportion to the amounts of their judgments against the regulant remaining unpaid. Claims shall be prorated only after any applicable contractor’s bond has been exhausted.
    3. Excluded from the amount of any unpaid judgment upon which a claim against the Fund is based shall be any sums representing interest, or punitive damages, or any amounts that do not constitute actual monetary loss to the claimants. Such claim against the Fund may include court costs and attorney fees.
    4. If, at any time, the amount of the Fund is insufficient to fully satisfy any claims or claim filed with the Board and authorized by this Act, the Board shall pay such claims, claim, or portion thereof to the claimants in the order that the claims were filed with the Board.
    5. Failure of a claimant to comply with the provisions of subdivisions B 1 and 2 and subsection C of § 54.1-1120 and the provisions of § 54.1-1124 shall not be a bar to recovery under this Act if the claimant is otherwise entitled to such recovery.
    6. The Board shall have the authority to deny any claim which otherwise appears to meet the requirements of the Act if it finds by clear and convincing evidence that the claimant has presented false information or engaged in collusion to circumvent any of the requirements of the Act.

    History. 1980, c. 635, § 54-145.3:5; 1984, c. 270; 1987, cc. 555, 562; 1988, c. 765; 1990, cc. 437, 911; 1997, c. 885; 1999, c. 262; 2005, c. 252; 2015, cc. 409, 710; 2017, c. 572.

    The 1997 amendment capitalized “fund” throughout the section.

    The 1999 amendment substituted “$40,000” for “$20,000” throughout subsection B and inserted “or any amounts that do not constitute actual monetary loss to the claimants” in subsection C.

    The 2005 amendments.

    The 2005 amendment by c. 252 substituted “$20,000” for “$10,000” in subsection A.

    The 2015 amendments.

    The 2015 amendment by c. 409 substituted “attorney” for “attorneys”’ in subsection C and substituted “B 1 and 2 and subsection C” for “A 1 and A 2 and subsection B” in subsection E.

    The 2015 amendment by c. 710, in subsection C, deleted “or exemplary” preceding “damages” in the first sentence; and substituted “attorney fees” for “attorneys’ fees” in the second sentence.

    The 2017 amendments.

    The 2017 amendment by c. 572 inserted “including any amount paid from a contractor’s surety bond under § 54.1-1120.1 ” in subsection A; and in subsection B, inserted “less the amount of any applicable contractor’s bond” in the next-to-last sentence, and added the last sentence.

    Law Review.

    For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

    Research References.

    Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 23 Damages. § 23.05 Punitive Damages. Friend.

    CASE NOTES

    Payment on claimant’s unsatisfied judgment. —

    Because under the Virginia Contractor Transaction Recovery Act, subsection C of § 54.1-1123 , the legislature provided for payment constituting actual monetary loss to the claimants, the payment on a claimant’s unsatisfied judgment is viewed as compensation for the claimant’s “reliance interest,” which is his or her interest in being reimbursed for loss caused by reliance on the contract with the “regulant,” i.e., the contractor, by being put in as good a position as he or she would have been in had the contract not been made; as such, this does not include reimbursement for the claimant’s “expectation interest,” meaning his or her interest in receiving the benefit of his bargain by being put in as good a position as he or she would have been in had the contract been performed. Commonwealth v. Gavigan, 2011 Va. App. LEXIS 100 (Va. Ct. App. Mar. 22, 2011).

    Claimants were not separate. —

    Claimant one and claimant two were not separate “claimants” under § 54.1-1120 of the Virginia Contractor Transaction Recovery Act, and could not recover two claims from the Virginia Contractor Transaction Recovery Fund as the two claims filed by claimant one and claimant two involved one contract, one unpaid judgment, and a single transaction; claimant one’s reliance on subsection A of § 54.1-1123 was misplaced, and focused too narrowly on one portion of a subsection that limited claims against the Fund. McCatty v. Commonwealth, 2008 Va. App. LEXIS 14 (Va. Ct. App. Jan. 15, 2008).

    Contractor bankruptcy not bar to payment of claim. —

    Nothing in the Contractor Transaction Recovery Act precludes the payment of a claim from the fund where a claimant’s unpaid judgment against a contractor was uncollectible because the contractor declared bankruptcy. Lux v. Kotvas, 1997 Va. App. LEXIS 464 (Va. Ct. App. July 8, 1997).

    Award of compensatory damages proper. —

    Trial court did not err in reversing the decision of the Commonwealth of Virginia Board of Contractors to deny a property owner’s claim to satisfy a judgment he recovered against a contractor under the Virginia Contractor Transaction Recovery Act, §§ 54.1-1118 through 54.1-1127 , and in awarding the owner compensatory damages and attorney’s fees because in his complaint against the contractor, the owner alleged facts only in the nature of actual monetary loss arising from the contractor’s alleged improper or dishonest conduct in relation to a residential construction contract, as contemplated by the act; based on those allegations, the trial court’s award of compensatory damages to the owner was presumptively limited to an award for actual monetary loss, i.e., an award substantially in accord with the case asserted in the owner’s pleadings, and the trial court found that the owner’s damages arose from the kind of improper conduct the act was designed to redress. Commonwealth v. Gavigan, 2011 Va. App. LEXIS 100 (Va. Ct. App. Mar. 22, 2011).

    CIRCUIT COURT OPINIONS

    Evidence of two transactions. —

    Because the record did not show the basis of the Virginia Board for Contractors’ decision, and because there was undisputed evidence to support the existence of two transactions, within the meaning of subsection B of § 54.1-1123 , the consumers were entitled to recover the attorney’s fees under § 2.2-4030 . Flournoy & Hughes v. Commonwealth Bd. for Contrs., 79 Va. Cir. 427, 2009 Va. Cir. LEXIS 258 (Ircuit Court Of Henrico County Virginia Oct. 29, 2009).

    § 54.1-1124. Participation by Board or Director in proceeding.

    Upon service of the complaint as provided in subdivision B 1 of § 54.1-1120 , the Board, the Director, or duly authorized representatives of the Board shall then have the right to request leave of court to intervene.

    History. 1980, c. 635, § 54-145.3:6; 1984, c. 270; 1987, c. 555; 1988, c. 765; 2015, c. 409.

    The 2015 amendments.

    The 2015 amendment by c. 409 substituted “the complaint as provided in subdivision B 1” for “process as provided in subdivision 1 of subsection A.”

    § 54.1-1125. Assignment of claimant’s rights to Board; payment of claim.

    1. Subject to the provisions of § 54.1-1123 upon the claimant’s execution and delivery to the Director of an assignment to the Board of his rights against the regulant, to the extent he received satisfaction from the Fund, the Director shall pay the claimant from the Fund the amount ordered by the Board.
    2. The Board may consider any amount owed to the Board for repayment of the Fund by an applicant for a license under this chapter when determining whether to grant such license.

    History. 1980, c. 635, § 54-145.3:7; 1987, c. 555; 1988, c. 765; 1997, c. 885; 2013, c. 343.

    The 1997 amendment capitalized “fund” in two places.

    The 2013 amendments.

    The 2013 amendment by c. 343 added the subsection A designator and added subsection B.

    § 54.1-1126. Repealed by Acts 2013, c. 343, cl. 2.

    Editor’s note.

    Former § 54.1-1126 , pertaining to revocation of license upon payment from Fund, derived from Acts 1980, c. 635, § 54-145.3:8; 1984, c. 270; 1987, c. 555; 1988, c. 765; 1990, c. 911; 1995, c. 771; 1997, c. 885.

    § 54.1-1127. No waiver by Board of disciplinary action against regulant.

    This article shall not limit the authority of the Board to take disciplinary action against any regulant for any violation of this title or the regulations of the Board. Full repayment of the amount paid from the Fund on a regulant’s account shall not nullify or modify the effect of any disciplinary proceeding against that regulant for any violation.

    History. 1980, c. 635, § 54-145.3:9; 1988, c. 765; 1997, c. 885.

    The 1997 amendment substituted “Fund” for “fund” in the second sentence.

    Article 3. Tradesmen, Backflow Prevention Device Workers, and Liquefied Petroleum Gas Fitters.

    § 54.1-1128. Definitions.

    “Backflow prevention device worker” means any individual who engages in, or offers to engage in, the maintenance, repair, testing, or periodic inspection of cross connection control devices, including but not limited to reduced pressure principle backflow preventors, double check-valve assemblies, double-detector check-valve assemblies, pressure type vacuum breaker assemblies, and other such devices designed, installed, and maintained in such a manner so as to prevent the contamination of the potable water supply by the introduction of nonpotable liquids, solids, or gases, thus ensuring that the potable water supply remains unaltered and free from impurities, odor, discoloration, bacteria, and other contaminants which would make the potable water supply unfit or unsafe for consumption and use.

    “Board” means the Board for Contractors.

    “Liquefied petroleum gas fitter” means any individual who engages in, or offers to engage in, work for the general public for compensation in work that includes the installation, repair, improvement, alterations or removal of piping, liquefied petroleum gas tanks and appliances (excluding hot water heaters, boilers and central heating systems which require a heating, ventilation and air conditioning or plumbing certification) annexed to real property.

    “Natural gas fitter provider” means any individual who engages in or offers to engage in work for the general public for compensation in the incidental repair, testing, or removal of natural gas piping or fitting annexed to real property, excluding new installation of gas piping for hot water heaters, boilers, central heating systems, or other natural gas equipment which requires heating, ventilation and air conditioning or plumbing certification.

    “Tradesman” means any individual who engages in, or offers to engage in, work for the general public for compensation in the trades of electrical, plumbing and heating, ventilation and air conditioning.

    “Water well systems provider” means any individual who is certified by the Board in accordance with this article and who is engaged in drilling, installation, maintenance, or repair of water wells, water well pumps, ground source heat exchangers, and other equipment associated with the construction, removal, or repair of water wells, water well systems, and ground source heat pump exchangers to the point of connection to the ground source heat pump.

    History. 1994, c. 895; 1996, cc. 934, 1006; 1997, c. 403; 1999, c. 343; 2005, c. 792; 2011, cc. 743, 744.

    Editor’s note.

    Acts 1994, c. 895, cl. 4, provides that the Board for Contractors shall promulgate regulations in accordance with Article 3 of Chapter 11 of Title 54.1 on July 1, 1994.

    Acts 1994, c. 895, cl. 5, provides that the standards for certification of tradesman established by the Board of Housing and Community Development shall remain in effect until such time as the Board for Contractors shall implement standards in accord with Article 3 of Chapter 11 of Title 54.1.

    The 1997 amendment added the paragraph defining “Liquefied petroleum gas fitter.”

    The 1999 amendment added the fourth paragraph.

    The 2005 amendments.

    The 2005 amendment by c. 792 added the definition of “Water well systems provider.”

    The 2011 amendments.

    The 2011 amendments by cc. 743 and 744 are identical, and in the last paragraph, inserted “ground source heat exchangers,” “and ground source heat pump exchangers to the point of connection to the ground source heat pump” and made related changes.

    OPINIONS OF THE ATTORNEY GENERAL

    City may require that only licensed plumbing contractors or licensed master plumbers

    install backflow prevention devices to prevent contamination of the city’s potable water supply. See opinion of Attorney General to John A. Rupp, City Attorney for the City of Richmond, 02-078, 2002 Va. AG LEXIS 156 (12/6/02).

    § 54.1-1129. Necessity for licensure.

    1. Beginning July 1, 1995, no individual shall engage in, or offer to engage in, work as a tradesman as defined in § 54.1-1128 unless he has been licensed under the provisions of this article. Individuals shall not be subject to licensure as a tradesman when working under the supervision of a tradesman who is licensed in the specialty for which work is being performed. Individuals holding a license in one specialty shall not be required to have a tradesman license in another specialty when performing work which is incidental to work being performed under their own specialty license.
    2. Beginning July 1, 1998, no individual shall present himself as a certified backflow prevention device worker as defined in § 54.1-1128 unless he has been certified under the provisions of this article. Individuals certified as backflow prevention device workers shall not be required to hold any other professional or occupational license or certification; however, nothing in this subsection shall prohibit an individual from holding more than one professional or occupational license or certification. The certification program set forth in this article concerning backflow prevention device workers shall be voluntary and shall not be construed to prevent or affect the practice of backflow prevention device workers by those not certified by the Board, so long as any requirements of the applicable local governing body’s programs relating to backflow prevention device workers are met. All local governing bodies shall accept certification by the Board of backflow prevention device workers as proof of experience and training without requiring additional examination.
    3. Beginning one year after the effective date of the Board’s final regulations, no individual shall engage in, or offer to engage in, work as a liquefied petroleum gas fitter or natural gas fitter provider as defined in § 54.1-1128 unless he has been licensed under the provisions of this article.
    4. Beginning July 1, 2007, no individual shall engage in the drilling, installation, maintenance, or repair of a water well or water well system unless a certified water well systems provider is onsite at all times. Until June 30, 2012, any level of certification shall satisfy this requirement. Beginning July 1, 2012, only a certified individual shall engage in the drilling, installation, maintenance, or repair of a water well or water well system and a then certified master water well systems provider shall be available at all times. Nothing in this subsection shall be construed to prohibit licensed plumbing tradesman from (i) completing work contained in the applicable plumbing code, or (ii) performing normal maintenance and repair on large-diameter bored or hand-dug water table wells provided such wells are 100 feet or less in depth and the work is being performed for an entity granted tax-exempt status under § 501(c)(3) of the Internal Revenue Code.

    History. 1994, c. 895; 1996, cc. 934, 1006; 1997, cc. 403, 885; 1999, c. 343; 2000, c. 406; 2005, c. 792; 2008, c. 631.

    Editor’s note.

    Acts 1996, cc. 934 and 1006, cl. 2 provide: “[t]hat, pursuant to the Virginia Administrative Process Act (§ 9-6.14:1 et seq.) [see now § 2.2-4000 et seq.], the Board for Contractors, with the assistance of an advisory committee comprised of at least three cross connection control inspectors and two plumbing contractors, shall adopt final regulations relating to the certification of backflow prevention device workers on or before April 1, 1998.”

    Acts 1996, cc. 934 and 1006, cl. 3, provide: “[t]hat the Board for Professional and Occupational Regulation shall conduct a study to determine the appropriate level of regulation of backflow prevention device workers. The Board shall also determine the approximate costs to individual regulants, affected businesses, and consumers of the various forms of regulation. The Board shall report its findings to the Governor and the 1997 Session of the General Assembly by December 1, 1996.”

    Acts 1997, c. 885, cl. 2, provides: “That the provisions of this act shall not effect the validity of any certificate duly issued by the Board for Asbestos Licensing, the Board for Contractors, or the Board for Waste Management Facility Operators before July 1, 1997.”

    The 1997 amendments.

    The 1997 amendment by c. 403 added subsection C.

    The 1997 amendment by c. 885 rewrote subsection A which formerly read: “Beginning July 1, 1995, no individual shall engage in, or offer to engage in, work as a tradesman as defined in § 54.1-1128 unless he has been certified under the provisions of this article. Individuals shall not be subject to tradesman certification when working under the supervision of a tradesman who is certified in the specialty for which work is being performed. Individuals holding a certification in one specialty shall not be required to have a tradesman certification in another specialty when performing work which is incidental to work being performed under their own specialty certification” and in subsection B, substituted “no individual shall present himself as a certified backflow prevention” for “no individual shall engage in, or offer to engage in, work as a backflow prevention” in the first sentence and added the third and fourth sentences.

    The 1999 amendment inserted “or natural gas fitter provider” in subsection C.

    The 2000 amendments.

    The 2000 amendment by c. 406 substituted “one year after the effective date of the Board’s final regulations” for “July 1, 1999” near the beginning of subsection C.

    The 2005 amendments.

    The 2005 amendment by c. 792 added subsection D.

    The 2008 amendments.

    The 2008 amendment by c. 631, in subsection D, added clause (i) designator and added clause (ii).

    § 54.1-1129.1. Certification of water well systems providers; continuing education.

    1. The Board shall establish three levels of certification as follows: (i) trainee, which shall require proof of at least one year of full-time practical experience in the drilling, installation, maintenance, or repair of water wells or water well systems under the supervision of a certified master water well systems provider; (ii) journeyman, which shall require proof of at least three years of practical experience in the drilling, installation, maintenance, or repair of water wells or water well systems under the supervision of a certified master water well systems provider; and (iii) master, which shall require proof of at least six years of practical experience in the drilling, installation, maintenance, or repair of water wells or water well systems, under the supervision of a certified master water well systems provider.
    2. A certified water well systems provider, as a condition of renewal or reinstatement and as part of the renewal or reinstatement application, shall certify to the Board that the applicant has completed at least eight hours of continuing education, approved by the Board, in the specialty of technical aspects of water well construction, applicable statutory and regulatory provisions, and business practices related to water well construction. The Board may establish requirements for approval of training instructors, criteria for continuing education, and other regulations it deems necessary to protect the public health, safety or welfare. In addition, the Board may require continuing education for renewal or reinstatement for any individual found to be in violation of the statutes or regulations governing the licensing or certification of water well system providers.

    History. 2005, c. 792.

    OPINIONS OF THE ATTORNEY GENERAL

    Local health department may require water well classification for geothermal well. —

    The local health departments are within their authority to require a Water Well Classification license, pursuant to subsection C of § 32.1-176.4 and § 54.1-1100 et seq., for the construction of wells for use in a closed-loop geothermal heat pump system. See opinion of Attorney General to The Honorable J. Chapman Petersen, Member, Senate of Virginia, 10-043, 2011 Va. AG LEXIS 1 (01/13/2011).

    § 54.1-1130. Application for licensure; fees; examinations; issuance; waiver of examination for water well systems providers.

    1. Any individual desiring to be licensed as a tradesman, liquefied petroleum gas fitter or natural gas fitter provider, or certified as a backflow prevention device worker or water well systems provider shall file a written application on a form prescribed by the Board. The application shall be accompanied by a fee set by the Board pursuant to § 54.1-201 . The application shall contain, at a minimum, the applicant’s name, place of employment, and business address; and information on the knowledge, skills, abilities and education or training of the applicant.If the application is satisfactory to the Board, the applicant shall be required by Board regulations to take an oral or written examination to determine his general knowledge of the trade in which he desires licensure or of backflow prevention devices if he desires voluntary certification unless he is exempt pursuant to § 54.1-1131 . If the applicant successfully completes the examination, a license as a tradesman, liquefied petroleum gas fitter, or natural gas fitter provider, or a certificate as a backflow prevention device worker, shall be issued.
    2. The Board shall require an applicant for certification as a water well systems provider, unless otherwise exempt, to take an oral or written examination to determine the applicant’s general knowledge of water well systems, including relevant statutory and regulatory requirements. If the applicant successfully completes a required examination, a certificate shall be issued.Notwithstanding any other provision of this section, unless an applicant is found by the Board to have engaged in any act that would constitute grounds for disciplinary action, the Board shall issue a certificate without examination to any applicant who provides satisfactory proof to the Board of having been actively and continuously engaged in water well construction activities immediately prior to July 1, 2007, as follows: (i) at least one year for trainee certification; (ii) at least three years for journeyman certification; and (iii) at least six years for master certification. This subsection shall apply only to individuals who have been employed by a properly licensed water well contractor during such period of active and continuous engagement in water well construction activities.

    History. 1994, c. 895; 1996, cc. 934, 1006; 1997, cc. 403, 885; 1999, c. 343; 2003, c. 892; 2005, c. 792.

    The 1997 amendments.

    The 1997 amendment by c. 403, in the first paragraph, inserted “or licensed as a liquefied petroleum gas fitter” in the first sentence and inserted “at a minimum” in the third sentence and in the second paragraph, inserted “or licensure” in the first sentence and inserted “licensure as a liquefied petroleum gas fitter” in the second sentence.

    The 1997 amendment by c. 885 substituted “to be licensed as a tradesman or certified as a backflow” for “to be certified as a tradesman or backflow” in the first sentence of the first paragraph and in the second paragraph, substituted “licensure” for “certification” and inserted “if he desires voluntary certification” in the first sentence and substituted “a license as a tradesman or certification as a backflow” for “certification as a tradesman or backflow” in the second sentence.

    The 1999 amendment substituted “liquefied petroleum gas fitter, or natural gas fitter provider” for “or as a, liquefied petroleum gas fitter” in the first paragraph, in the first sentence, and substituted “liquefied petroleum gas fitter, or natural gas fitter provider, or a certificate as a backflow prevention device worker” for “or as a, liquefied petroleum gas fitter, or certification as a backflow prevention device worker or licensure as a liquefied petroleum gas fitter” in the second paragraph, in the last sentence.

    The 2003 amendments.

    The 2003 amendment by c. 892, in the first paragraph, inserted “and” preceding “information on the knowledge,” and deleted “and an affidavit stating that the information on the application is correct” at the end of the paragraph.

    The 2005 amendments.

    The 2005 amendment by c. 792 redesignated the former section as subsection A and added subsection B.

    OPINIONS OF THE ATTORNEY GENERAL

    Local health department may require water well classification for geothermal well. —

    The local health departments are within their authority to require a Water Well Classification license, pursuant to subsection C of § 32.1-176.4 and § 54.1-1100 et seq., for the construction of wells for use in a closed-loop geothermal heat pump system. See opinion of Attorney General to The Honorable J. Chapman Petersen, Member, Senate of Virginia, 10-043, 2011 Va. AG LEXIS 1 (01/13/2011).

    § 54.1-1131. Exemptions.

    1. An individual certified or licensed by any one of the following agencies shall not be required to fulfill the examination requirement specified in § 54.1-1130 for a tradesman license:
      1. The Board of Housing and Community Development prior to July 1, 1995.
      2. Any local governing body prior to July 1, 1978.
      3. An apprenticeship program which is approved by the Commissioner of Labor and Industry.Individuals applying for a tradesman license between July 1, 1995, and July 1, 1998, shall be deemed to have fulfilled the examination requirement if they are able to demonstrate that they have the required number of years of discipline-free experience set forth in Board regulations.
    2. Upon satisfactory evidence to the Board, the following individuals shall not be required to fulfill the examination requirement specified in § 54.1-1130 to be certified as a backflow prevention device worker or licensed as a liquefied petroleum gas fitter:
      1. Individuals approved, or recognized as having expertise, by a local governing body prior to July 1, 1998, to perform backflow prevention device work;
      2. Individuals applying for certification as a backflow prevention device worker between July 1, 1998 and July 1, 1999, who are able to demonstrate that they have the required number of years of discipline-free experience and education or training set forth in Board regulations; or
      3. Individuals applying for licensure as a liquefied petroleum gas fitter within one year of the effective date of the Board’s final regulations, who are able to demonstrate that they have at least five years’ experience as a liquefied petroleum gas fitter.
    3. The provisions of this article shall not apply to any individual who is performing work on (i) any ship, boat, barge or other floating vessel or (ii) a single-family residence where the value of the work performed is less than $250 and such individual does not hold himself out to the general public as a tradesman.
    4. Individuals applying for a natural gas fitter provider license within one year of the effective date of the Board’s final regulations, shall be deemed to have fulfilled the examination requirement if they are able to demonstrate that they have five years’ prior experience as a natural gas fitter provider.
    5. Individuals applying for a natural gas fitter provider license between July 1, 1999 and July 1, 2004, shall be deemed to have fulfilled the examination requirement if they are able to demonstrate that they have at least five years’ experience in an apprenticeship capacity under the direct supervision of a gas fitter.
    6. Individuals applying for licensure as a liquefied petroleum gas fitter between July 1, 2000 and July 1, 2005, shall be deemed to have fulfilled the examination requirements if they are able to demonstrate that they have at least five years’ experience in an apprenticeship capacity under the direct supervision of a gas fitter.

    History. 1994, c. 895; 1995, c. 581; 1996, cc. 934, 1006; 1997, cc. 403, 885; 1999, cc. 343, 817, 833; 2000, c. 406; 2014, c. 734.

    The 1997 amendments.

    The 1997 amendment by c. 403 inserted “or licensed as a liquefied petroleum gas fitter” at the end of the introductory language of subsection B and inserted “or licensure” following “for certification” in subdivision B 2.

    The 1997 amendment by c. 885, in the paragraph following subdivision A 3, substituted “a tradesman license” for “tradesman certification” and inserted “that they have.”

    The 1999 amendments.

    The 1999 amendment by c. 343 added subsections D and E.

    The 1999 amendment by c. 817, effective March 29, 1999, deleted “or” following “device work” in subdivision B 1; in subdivision B 2, deleted “or licensure” following “certification,” inserted “as a backflow prevention device worker,” added “or”; and added subdivision B 3.

    The 1999 amendment by c. 833, in subsection C, inserted the clause (i) designator, and inserted “or (ii) a single-family residence where the value of the work performed is less than $250 and such individual does not hold himself out to the general public as a tradesman.”

    The 2000 amendments.

    The 2000 amendment by c. 406 substituted “within one year of the effective date of the Board’s final regulations” for “between July 1, 1999 and July 1, 2000” in subdivision B 3 and in subsection D, and added subsection F.

    The 2014 amendments.

    The 2014 amendment by c. 734, in subdivision A 3, substituted “Commissioner of Labor and Industry” for “Virginia Apprenticeship Council.”

    § 54.1-1132. Expiration and renewal of license or certificate.

    A license as a tradesman, liquefied petroleum gas fitter, or natural gas fitter provider, or a certificate as a backflow prevention device worker, issued pursuant to this article shall expire as provided in Board regulations and shall become invalid on that date unless renewed, subject to approval of the Board. A license for a tradesman shall be valid for three years from the date of issuance. Application for renewal of any certificate or license issued pursuant to this article shall be made as provided by Board regulations and shall be accompanied by a fee set by the Board pursuant to § 54.1-201 .

    History. 1994, c. 895; 1996, cc. 934, 1006; 1997, cc. 403, 885; 1999, c. 343; 2018, c. 750.

    Editor’s note.

    Acts 2018, c. 750, cl. 2 provides: “That the Board for Contractors shall adjust the expiration date of current licenses for tradesmen such that license expiration dates coincide with the updates schedule of the Uniform Statewide Building Code until all licenses for tradesmen expire in three years pursuant to this act.”

    The 1997 amendments.

    The 1997 amendment by c. 403 inserted “or a license as a liquefied petroleum gas fitter” in the first sentence; and inserted “or license” in the second sentence.

    The 1997 amendment by c. 885 substituted “A license as a tradesman or certification as a backflow” for “A certificate as a tradesman or backflow” at the beginning of the first sentence; and inserted “or license” in the second sentence.

    The 1999 amendment substituted “liquefied petroleum gas fitter or natural gas fitter provider, or a certificate” for “or as a liquefied petroleum gas fitter or certification” in the first sentence.

    The 2018 amendments.

    The 2018 amendment by c. 750 added the second sentence.

    § 54.1-1133. Continuing education.

    The Board may establish in the regulations requirements for continuing education as a prerequisite to renewal of any certificate or license issued under this article. The Board shall require evidence of knowledge of code changes as a prerequisite to renewal of any certificate or license issued under this article. In addition, the Board may require continuing education for any individual who is found to be in violation of the statutes or regulations governing the practice of licensed tradesmen or certificate holders issued under this article.

    History. 1994, c. 895; 1996, cc. 934, 1006; 1997, cc. 403, 885; 1999, c. 817.

    Editor’s note.

    At the direction of the Code Commission, the amendment to this section by Acts 1997, c. 403 was not implemented because of its similarity to the change made by Acts 1997, c. 885.

    Acts 2013, c. 738, provides: “§ 1. That the Board for Contractors shall evaluate continuing education requirements for tradesman, including curriculum standards, corresponding updates to the Uniform Statewide Building Code (§ 36-97 et seq.), effectiveness in protecting the public, and cost to regulants, and initiate regulatory action to reduce any unnecessary burdens.

    “§ 2. That on or before November 1, 2013, the Board shall report its findings to the Chairmen of the House Committee on General Laws and the Senate Committee on General Laws and Technology.”

    The 1997 amendment substituted “certificate or license” for “certification.”

    The 1999 amendment, effective March 29, 1999, added the second and third sentences.

    § 54.1-1134. Grounds for denial or revocation of certification or license; reports of building officials and others.

    The Board shall have the power to require remedial education and to suspend, revoke or deny renewal of the certification or license of any individual who is found to be in violation of the statutes or regulations governing the practice of licensed tradesmen, liquefied petroleum gas fitters or natural gas fitter providers or certified backflow prevention device workers in the Commonwealth.

    Any building official who finds that an individual is practicing as a tradesman, elevator mechanic, liquefied petroleum gas fitter or natural gas fitter provider without a license as required by this article shall file a report to such effect with the Board. Any water purveyor or building official who finds that an individual is practicing as a backflow prevention device worker without a certificate, if a certificate is required by the locality in which an individual is engaging in backflow prevention device worker activities, shall file a report to such effect with the Board.

    Any building official who has reason to believe that (i) a tradesman, liquefied petroleum gas fitter or natural gas fitter provider is performing incompetently as demonstrated by an egregious or repeated violation of the Uniform Statewide Building Code (§ 36-97 et seq.) or (ii) a certified backflow prevention device worker is performing incompetently as demonstrated by an egregious or repeated violation of the standards adopted by the American Society of Sanitary Engineering referenced in the plumbing code adopted by the Virginia Uniform Statewide Building Code shall file a report to such effect with the Board. Any water purveyor who has reason to believe that a certified backflow prevention device worker is performing incompetently as demonstrated by an egregious or repeated violation of the standards adopted by the American Society of Sanitary Engineering referenced in the plumbing code adopted by the Virginia Uniform Statewide Building Code shall file a report to such effect with the Board and local building official.

    History. 1994, c. 895; 1996, cc. 934, 1006; 1997, cc. 403, 885; 1999, c. 343; 2009, cc. 184, 586.

    The 1997 amendments.

    The 1997 amendment by c. 403, in the first paragraph, inserted “or licensure” and inserted “or licensed liquefied petroleum gas fitters”; inserted “or as a liquefied petroleum gas fitter without a license” in the second paragraph; and inserted “or a liquefied petroleum gas fitter” in clause (i) of the third paragraph.

    The 1997 amendment by c. 885, in the first paragraph, inserted “or license” and substituted “of licensed tradesmen or certified backflow” for “of certified tradesmen or backflow” and rewrote the second and third paragraphs which formerly read: “Any building official who finds that an individual is practicing as a tradesman or backflow prevention device worker without certification as required by this article shall file a report to such effect with the Board. Any water purveyor who finds that an individual is practicing as a backflow prevention device worker without certification as required by this article shall file a report to such effect with the Board.”

    The 1999 amendment in the first, second and third paragraphs, in the first sentence, inserted “or natural gas fitter providers,” deleted “or” preceding “liquefied petroleum” in the first paragraph, deleted “or as a” preceding “liquefied petroleum” in the second paragraph, and deleted “or a” preceding “liquefied petroleum” in the third paragraph.

    The 2009 amendments.

    The 2009 amendments by cc. 184 and 586 are identical and inserted “elevator mechanic” in the first sentence of the second paragraph.

    § 54.1-1135. Prohibited acts.

    1. Practicing or attempting to practice as a tradesman, liquefied petroleum gas fitter or natural gas fitter provider in the Commonwealth, except as provided for in this article, is prohibited and shall constitute the commission of a Class 1 misdemeanor.
    2. No person shall represent himself as a certified backflow prevention device worker unless he has been certified by the Board. Any person engaging or offering to engage in backflow prevention device worker activities within the meaning of this chapter who, through verbal claim, sign, advertisement, or letterhead, represents himself as a certified backflow prevention device worker without holding such a certificate from the Board shall be guilty of a Class 1 misdemeanor.
    3. No person shall be entitled to assert the lack of licensure as required by this article as a defense to any action at law or suit in equity if the party who seeks to recover from such person gives substantial performance within the terms of the contract in good faith and without actual knowledge of the licensure requirements of this article.
    4. In any locality which requires state certification to engage in backflow prevention device worker activities, no person shall be entitled to assert a lack of certification as a defense to any action at law or suit in equity if the party who seeks to recover from such person gives substantial performance within the terms of the contract in good faith and without actual knowledge of the locality’s certification requirements.

    History. 1994, c. 895; 1996, cc. 934, 1006; 1997, cc. 403, 885; 1999, cc. 343, 833.

    Cross references.

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

    The 1997 amendments.

    The 1997 amendment by c. 403 inserted “or liquefied petroleum gas fitter” in subsection A.

    The 1997 amendment by c. 885 deleted “or backflow prevention device worker” following “tradesman” in subsection A; added present subsection B; redesignated former subsection B as present subsection C, and substituted “licensure” for “certification” twice therein; and added subsection D.

    The 1999 amendments.

    The 1999 amendment by c. 343, in subsection A, deleted “or” preceding “liquefied petroleum,” and inserted “or natural gas fitter provider.”

    The 1999 amendment by c. 833 substituted “Class 1” for “Class 3” in subsection A.

    Article 4. Certification of Elevator Mechanics.

    § 54.1-1140. Definitions.

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

    “Accessibility mechanic” means an individual who is engaged in erecting, constructing, installing, altering, servicing, repairing, testing or maintaining wheelchair lifts, incline chairlifts, dumbwaiters with a capacity limit of 300 pounds, and private residence elevators, in accordance with the Uniform Statewide Building Code (§ 36-97 et seq.).

    “Certified accessibility mechanic” means an individual who is certified by the Board in accordance with this article to engage in work as an accessibility mechanic.

    “Elevator mechanic” means an individual who is certified by the Board in accordance with this article to engage in erecting, constructing, installing, altering, servicing, repairing, testing or maintaining elevators, escalators, or related conveyances in accordance with the Uniform Statewide Building Code.

    “Limited use/limited application endorsement” means an addition to the certification record of a certified accessibility mechanic authorizing the certificate holder to erect, construct, install, alter, service, repair, test, or maintain limited use/limited application elevators as defined by the Uniform Statewide Building Code.

    History. 2004, c. 188; 2007, c. 424; 2009, cc. 184, 586; 2010, cc. 81, 207.

    The 2007 amendments.

    The 2007 amendment by c. 424 inserted the definition of “Certified elevator mechanic” and rewrote the definition of “Elevator mechanic.”

    The 2009 amendments.

    The 2009 amendments by cc. 184 and 586 are identical and deleted the former definition of “Certified elevator mechanic,” which read: “ ‘Certified elevator mechanic’ ” means an individual who is certified by the Board in accordance with this article to engage in work as an elevator mechanic”; and substituted “certified by the Board in accordance with this article to engage” for “engaged” in the definition of “Elevator mechanic.”

    The 2010 amendments.

    The 2010 amendments by cc. 81 and 207 are identical and added the paragraphs defining “Accessibility mechanic,” “Certified accessibility mechanic,” and “Limited use/limited application endorsement.”

    § 54.1-1141. Certification required; exemption.

    1. No person shall engage in, or offer to engage in, work as an elevator mechanic or accessibility mechanic in the Commonwealth unless he has been certified under the provisions of this article. Individuals shall not be subject to certification as an elevator mechanic or accessibility mechanic when working under the direct and immediate supervision of an elevator mechanic or certified accessibility mechanic who is certified in the specialty for which work is being performed. Individuals certified as elevator mechanics or accessibility mechanics shall not be required to hold any other professional or occupational license or certification; however, nothing in this subsection shall prohibit an individual from holding more than one professional or occupational license or certification.
    2. Any individual desiring to be certified as an elevator mechanic or accessibility mechanic shall file a written application on a form prescribed by the Board. The application shall be accompanied by a fee set by the Board pursuant to § 54.1-201 . The application shall contain, at a minimum, the applicant’s name, place of employment, business address, and information on the knowledge, skills, abilities and education or training of the applicant.
    3. Accessibility mechanics desiring to work on limited use/limited application elevators, as defined by the Uniform Statewide Building Code, shall obtain a limited use/limited application endorsement on their certification.
    4. Nothing in this article shall be construed to prevent a person who is not certified as an elevator mechanic or accessibility mechanic from performing maintenance that is not related to the operating integrity of an elevator, escalator, or related conveyance.

    History. 2004, c. 188; 2007, c. 424; 2010, cc. 81, 207; 2021, Sp. Sess. I, c. 151.

    Editor’s note.

    Acts 2008, Sp. Sess. II, c. 9, effective July 24, 2008, in cl. 1, provides: “That the Virginia Board for Contractors shall extend the time for compliance with the requirements of § 54.1-1141 of the Code of Virginia until July 1, 2009, for individuals who install, service, or repair chairlifts or other vertical conveyances intended for residential use only.”

    Acts 2009, c. 251, provides: “§ 1. That the Board for Contractors shall extend the time for compliance with the requirements of § 54.1-1141 of the Code of Virginia until July 1, 2010, for individuals who install, service, or repair wheelchair lifts, incline chairlifts, dumbwaiters, and residential elevators.

    “§ 2. That the Board for Contractors shall convene a group of stakeholders to evaluate the level of regulation appropriate for individuals who install, service, or repair wheelchair lifts, incline chairlifts, dumbwaiters, residential elevators, and Limited Use Limited Application (LULA) elevators and make recommendations for legislation to the Senate Committee on General Laws and Technology and the House Committee on General Laws on or before November 30, 2009.”

    The 2007 amendments.

    The 2007 amendment by c. 424 substituted “No person shall engage in, or offer to engage in, work as an elevator mechanic in the Commonwealth” for “Effective July 1, 2005, no individual shall present himself as a certified elevator mechanic as defined in § 54.1-1140 ” in subsection A; and added subsection C.

    The 2010 amendments.

    The 2010 amendments by cc. 81 and 207 are identical, and inserted subsection C and redesignated former subsection C as D, and inserted “or accessibility mechanic” throughout the section.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 151, effective July 1, 2021, inserted the second sentence in subsection A.

    § 54.1-1142. Issuance of certification; emergency certification.

    1. The Board shall issue a certificate to practice as an elevator mechanic or certified accessibility mechanic in the Commonwealth to any applicant who has submitted satisfactory evidence that he has successfully:
      1. Completed the educational requirements as required by the Board, which shall at a minimum include such requirements as the Board determines will establish minimum competency on the part of the applicant;
      2. Completed the experience requirements as required by the Board, which shall at a minimum consist of at least three years in the elevator industry; and
      3. Passed an examination offered or approved by the Board.
    2. The Board may issue a certificate to practice as an elevator mechanic or a certified accessibility mechanic to any applicant who has completed a training and education program approved by the Board that is equal to or exceeds the requirements established by the Board for all applicants.

    History. 2004, c. 188; 2007, c. 424; 2009, cc. 184, 586; 2010, cc. 81, 207.

    The 2007 amendments.

    The 2007 amendment by c. 424 substituted “a certified elevator mechanic” for “an elevator mechanic” and deleted subsection C, pertaining to applications for certification made between July 1, 2004, and July 1, 2005.

    The 2009 amendments.

    The 2009 amendments by cc. 184 and 586 are identical and substituted “an elevator mechanic” for “a certified elevator mechanic” in the introductory paragraph of subsection A and in subsection B.

    The 2010 amendments.

    The 2010 amendments by cc. 81 and 207 are identical, and inserted “or certified accessibility mechanic” in the first paragraph of subsection A and in subsection B, and substituted “completed a training and education program” for “a certification from an association” in subsection B.

    § 54.1-1142.1. Certifications in event of declared emergency.

    1. Whenever the Governor declares a state of emergency in accordance with § 44-146.17 or in the event of a work stoppage by elevator mechanics and the Board determines that the number of elevator mechanics is insufficient to meet the demands of the emergency or work stoppage, the Board shall issue an emergency certificate to practice as an elevator mechanic under the following conditions:
      1. A contractor licensed under the provisions of this chapter (a) attests to the Board, in a form prescribed by the Board, that an applicant has an acceptable combination of documented experience and education to perform work as an elevator mechanic without direct and immediate supervision of an elevator mechanic and (b) provides such proof thereof as required by the Board; and
      2. The applicant attested to the Board by the licensed contractor applies to the Board for emergency certification as an elevator mechanic.As used in this subsection, “direct and immediate supervision” means proper supervision but does not include line of sight supervision.
    2. Each such certification shall be valid for a period of 45 days from the date of issuance and for such geographic areas or such elevators, escalators, or related conveyances as the Board may designate. Such certification shall entitle the certificate holder to engage in work as an elevator mechanic. The Board shall renew such certification as often as necessary to ensure that there is a sufficient number of elevator mechanics to meet the demands of the emergency. No fee shall be charged for application for such certification or any renewal thereof.
    3. The Board may delegate to the Director of the Department the authority to issue such emergency certifications. The Director shall inform the Board of the issuance of any certifications.

    History. 2007, c. 424; 2009, cc. 184, 586.

    The 2009 amendments.

    The 2009 amendments by cc. 184 and 586 are nearly identical and, in subsection A, in the introductory paragraph, deleted “certified” following “number of” and substituted “an emergency certificate to practice as an elevator mechanic” for “a certificate to practice as a certified elevator mechanic”; in subdivision A 1, substituted “attests” for “certifies” and inserted “of an elevator mechanic”; in subdivision A 2, substituted “attested” for “certified” and “emergency certification as an elevator mechanic” for “certification as an emergency certified elevator mechanic,” and added the last paragraph; rewrote subsection C; and deleted subsection D.

    § 54.1-1142.2. Certifications in event of shortage of elevator mechanics.

    1. Whenever a contractor licensed under the provisions of this chapter demonstrates to the satisfaction of the Board that there is a shortage of elevator mechanics, the Board shall issue temporary certifications under the following conditions:
      1. The licensed contractor attests to the Board, in a form prescribed by the Board, that after due diligence, the licensed contractor is unable to find an elevator mechanic from the list of elevator mechanics maintained by the Board to perform elevator work;
      2. The applicant has an acceptable combination of documented experience and education to perform work as an elevator mechanic without direct and immediate supervision of an elevator mechanic and provides such proof thereof as required by the Board;
      3. The applicant applies for such temporary certification as an elevator mechanic; and
      4. The applicant pays an application fee as set by the Board.As used in this subsection, “direct and immediate supervision” means proper supervision but does not include line of sight supervision.
    2. Each such temporary certification shall be valid for a period of up to 45 days from the date of issuance, provided the applicant continues at all times to be employed by the licensed contractor. The Board shall renew such certification as often as necessary to ensure that there is a sufficient number of elevator mechanics to meet the shortage.
    3. The Board may delegate to the Director of the Department the authority to issue such temporary certifications or renewals thereof. The Director shall inform the Board of the issuance of any such certifications or renewals.

    History. 2009, cc. 184, 586.

    § 54.1-1143. Continuing education.

    1. The Board shall establish in the regulations requirements for continuing education as a prerequisite to renewal of any certificate issued under this article. The Board shall require evidence of knowledge of the Uniform Statewide Building Code changes as a prerequisite to renewal of any certificate issued under this article. In addition, the Board may require continuing education for any individual who is found to be in violation of law or regulations governing the practice of an elevator mechanic certified under this article.
    2. An elevator mechanic or a certified accessibility mechanic, as a condition of recertification and as part of the recertification application, shall attest to the Board that he has completed at least eight hours of continuing education, approved by the Board, in the specialty of elevator/escalator contracting. The Board may establish such requirements for approval of training instructors, the criteria for the continuing education and such other regulations to ensure the protection of the public interest. Such criteria shall include approval of curriculum sponsored by national or state professional elevator industry associations approved by the Board.
    3. The provisions of this section shall not apply to certifications issued by the Board under § 54.1-1142.1 or 54.1-1142.2 .

    History. 2004, c. 188; 2007, c. 424; 2009, cc. 184, 586; 2010, cc. 81, 207.

    The 2007 amendments.

    The 2007 amendment by c. 424 substituted “A certified elevator mechanic” for “An elevator mechanic” at the beginning of subsection B; and added subsection C.

    The 2009 amendments.

    The 2009 amendments by cc. 184 and 586 are identical and, in the first sentence of subsection B, substituted “An elevator mechanic” for “A certified elevator mechanic” and “shall attest” for “shall certify”; and added “or 54.1-1142.2 ” at the end in subsection C.

    The 2010 amendments.

    The 2010 amendments by cc. 81 and 207 are identical, and inserted “or a certified accessibility mechanic” near the beginning of subsection B.

    Article 5. Residential Building Energy Analysts.

    § 54.1-1144. Definitions.

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

    “Accredited residential building energy analyst training program” means a training program that has been approved by the Board to provide training for individuals to engage in blower door, duct blaster, or similar testing to measure energy efficiency, conduct energy modeling, prepare a residential building energy analysis report, and provide recommendations for improvements with return on investment or third-party verification for nationally accredited energy efficiency programs.

    “Licensed residential building energy analyst” means an individual who has successfully completed an accredited residential building energy analyst training program or meets the criteria of experience required by this article and regulations of the Board and who has been licensed by the Board.

    “Residential building energy analysis” means (i) an inspection, investigation, or survey of a dwelling or other structure to evaluate, measure, or quantify its energy consumption and efficiency, including lighting, HVAC, electronics, appliances, water heaters, insulation, and water conservation, and (ii) recommendations to reduce energy consumption and improve efficiency of a dwelling or other structure, including lighting, HVAC, electronics, appliances, water heaters, insulation, and water conservation for compensation conducted or made by a licensed residential building energy analyst.

    History. 2011, c. 865.

    Editor’s note.

    Acts 2011, c. 865, cl. 2 provides: “That the Board for Contractors shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

    Acts 2011, c. 865, cl. 3 provides: “That notwithstanding any other provision of law to the contrary, the regulations promulgated pursuant to the second enactment of this act shall remain in full force and effect until replaced by final regulations adopted by the Board for Contractors.”

    Acts 2011, c. 865, cl. 4 provides: “That the Board for Professional and Occupational Regulation shall evaluate the regulation of residential building energy analysts required by this act and shall submit a report on or before November 1, 2013, to the Governor and the chairmen of the Senate Committee on General Laws and Technology and the House Committee on General Laws, as to whether a different degree of regulation should be imposed pursuant to § 54.1-311 of the Code of Virginia.”

    § 54.1-1145. License required.

    1. No person shall engage in, or offer to engage in, work as a residential building energy analyst in the Commonwealth unless he has been licensed under the provisions of this article.
    2. The Board may issue a license to perform residential building energy analysis in the Commonwealth to any applicant who has submitted satisfactory evidence that he has successfully:
      1. Completed an accredited residential building energy analyst training program;
      2. Completed at least five residential building energy analyses under the supervision of a licensed residential building energy analyst;
      3. Remains in good standing with any certifying organization approved by the Board, provided that the requirements for the applicant’s class of membership in such association are equal to or exceed the requirements established by the Board for all applicants;
      4. Maintains the necessary insurance coverage as determined by the Board; and
      5. Demonstrates the financial capability, as determined by the Board, to perform residential building energy analysis.
    3. Individuals applying for a license as a residential building energy analyst between July 1, 2011, and July 1, 2012, who submit satisfactory evidence to the Board of having been actively and continuously engaged in residential building energy analysis for the immediately preceding three years shall be licensed by the Board, unless an applicant is found by the Board to have engaged in any act that would constitute grounds for disciplinary action.

    History. 2011, c. 865.

    Editor’s note.

    Acts 2011, c. 865, cl. 2 provides: “That the Board for Contractors shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

    Acts 2011, c. 865, cl. 3 provides: “That notwithstanding any other provision of law to the contrary, the regulations promulgated pursuant to the second enactment of this act shall remain in full force and effect until replaced by final regulations adopted by the Board for Contractors.”

    Acts 2011, c. 865, cl. 4 provides: “That the Board for Professional and Occupational Regulation shall evaluate the regulation of residential building energy analysts required by this act and shall submit a report on or before November 1, 2013, to the Governor and the chairmen of the Senate Committee on General Laws and Technology and the House Committee on General Laws, as to whether a different degree of regulation should be imposed pursuant to § 54.1-311 of the Code of Virginia.”

    § 54.1-1146. Additional powers of the Board.

    The Board shall adopt regulations necessary to establish procedures and requirements for the (i) approval of accredited residential building energy analyst training programs, (ii) licensing of individuals and firms to engage in residential building energy analysis, and (iii) establishment of standards for performing residential building energy analysis consistent with the U.S. Environmental Protection Agency guidelines and recognized by the Energy Star Program.

    History. 2011, c. 865.

    Article 6. Certification of Automatic Fire Sprinkler Inspectors.

    § 54.1-1147. (Effective until July 1, 2022) Certified automatic fire sprinkler inspector.

    1. No person may perform or offer to perform inspections of automatic fire sprinkler systems in the Commonwealth unless he is certified under the provisions of this section.
    2. The Board shall certify as an automatic fire sprinkler inspector any person who receives (i) a Level II or higher Inspection and Testing of Water-Based Systems certificate issued through the National Institute for Certification in Engineering Technologies or (ii) a substantially similar certification from a nationally recognized training program approved by the Board. The Board may suspend or revoke certification as an automatic fire sprinkler inspector for any person that does not maintain a certification required under this subsection.
    3. Notwithstanding the provisions of subsection A, a person lacking certification under this section but participating in a training or apprenticeship program may perform automatic fire sprinkler inspections so long as (i) such person is accompanied by a certified automatic fire sprinkler inspector and (ii) any required inspection forms are signed by the certified automatic fire sprinkler inspector.

    History. 2019, c. 726.

    Editor’s note.

    Acts 2019, c. 726, cl. 2 provides: “That the provisions of subsections A and C of § 54.1-1147 of the Code of Virginia, as created by this act, shall become effective on July 1, 2021.”

    Acts 2019, c. 726, c. 3 provides: “That the Board for Contractors (the Board) shall promulgate regulations to implement (i) the provisions of this act that shall become effective in due course, with such regulations to become effective no later than December 1, 2019, and (ii) the provisions of this act that shall become effective on July 1, 2021, with such regulations to become effective no later than July 1, 2021. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

    The 2022 amendments.

    The 2022 amendment by c. 340 added subsection D.

    § 54.1-1147. (Effective July 1, 2022) Certified automatic fire sprinkler inspector.

    1. No person may perform or offer to perform inspections of automatic fire sprinkler systems in the Commonwealth unless he is certified under the provisions of this section.
    2. The Board shall certify as an automatic fire sprinkler inspector any person who receives (i) a Level II or higher Inspection and Testing of Water-Based Systems certificate issued through the National Institute for Certification in Engineering Technologies or (ii) a substantially similar certification from a nationally recognized training program approved by the Board. The Board may suspend or revoke certification as an automatic fire sprinkler inspector for any person that does not maintain a certification required under this subsection.
    3. Notwithstanding the provisions of subsection A, a person lacking certification under this section but participating in a training or apprenticeship program may perform automatic fire sprinkler inspections so long as (i) such person is accompanied by a certified automatic fire sprinkler inspector and (ii) any required inspection forms are signed by the certified automatic fire sprinkler inspector.
    4. This section shall not apply to building officials and technical assistants enforcing the Uniform Statewide Building Code (§ 36-97 et seq.) or fire officials and technical assistants enforcing the Virginia Statewide Fire Prevention Code Act (§ 27-94 et seq.).

    History. 2019, c. 726; 2022, c. 340.

    § 54.1-1148. Continuing education.

    The Board shall establish in the regulations requirements for continuing education as a prerequisite to renewal of a certificate issued under this article. The Board shall require evidence of knowledge of changes to the Virginia Statewide Fire Prevention Code as a prerequisite to renewal of any certificate issued under this article. In addition, the Board may require continuing education for any individual who is found to be in violation of law or regulations governing automatic fire sprinkler inspectors certified under this article.

    History. 2019, c. 726.

    Editor’s note.

    Acts 2019, c. 726, cl. 3 provides: “That the Board for Contractors (the Board) shall promulgate regulations to implement (i) the provisions of this act that shall become effective in due course, with such regulations to become effective no later than December 1, 2019, and (ii) the provisions of this act that shall become effective on July 1, 2021, with such regulations to become effective no later than July 1, 2021. The Board’s initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

    Chapter 12. Cosmetologists.

    §§ 54.1-1200 through 54.1-1207.

    Repealed by Acts 2000, c. 726, cl. 2.

    Editor’s note.

    Acts 2000, c. 726, cl. 3 provides: “That the regulations of the Board for Barbers and the Board for Cosmetology in effect on June 30, 2000, shall remain in effect until July 1, 2002, or until the Board for Barbers and Cosmetologists adopts new regulations, whichever occurs first.”

    Chapter 13. Employment Agencies.

    §§ 54.1-1300 through 54.1-1308.

    Repealed by Acts 1996, cc. 61 and 179.

    Editor’s note.

    Sections 54.1-1302, 54.1-1306, and 54.1-1307 were previously repealed by Acts 1992, c. 430.

    Chapter 14. Geologists.

    §§ 54.1-1400 through 54.1-1405.

    Repealed by Acts 2012, cc. 803 and 835, cl. 39.

    Cross references.

    For current provisions regulating the practice of geology, see Article 3 (§ 54.1-2208.1 et seq.) of Chapter 22.

    Editor’s note.

    Former § 54.1-1400 , pertaining to definitions, derived from 1981, c. 132, § 54-962; 1988, c. 765. Former § 54.1-1401, pertaining to exemptions, derived from 1981, c. 132, § 54-968; 1988, c. 765. Former § 54.1-1402, pertaining to Board membership; officers; and quorum, derived from 1981, c. 132, § 54-963; 1988, cc. 42, 765. Former § 54.1-1403, pertaining to certification and minimum qualifications, derived from 1981, c. 132, §§ 54-964, 54-965; 1984, c. 51; 1988, c. 765. Former § 54.1-1404, pertaining to waiver of examination, derived from 1981, c. 132, § 54-966; 1988, c. 765; 1994, c. 247; 1996, c. 49. Former § 54.1-1405, pertaining to professional ethics and conduct, derived from 1981, c. 132, § 54-967; 1988, c. 765.

    Chapter 15. Hearing Aid Specialists and Opticians.

    Article 1. General Provisions.

    § 54.1-1500. Definitions.

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

    “Audiologist” means the same as that term is defined in § 54.1-2600 .

    “Board” means the Board for Hearing Aid Specialists and Opticians.

    “Hearing aid” means any wearable instrument or device designed or offered to aid or compensate for impaired human hearing and any parts, attachments, or accessories, including earmolds, but excluding batteries and cords.

    “Licensed hearing aid specialist” means any person who is the holder of a hearing aid specialist license issued by the Board for Hearing Aid Specialists and Opticians.

    “Licensed optician” means any person who is the holder of an optician license issued by the Board for Hearing Aid Specialists and Opticians.

    “Licensed optometrist” means any person authorized by Virginia law to practice optometry.

    “Licensed physician” means any person licensed by the Board of Medicine to practice medicine and surgery.

    “Optician” means any person not exempted by § 54.1-1506 who prepares or dispenses eyeglasses, spectacles, lenses, or related appurtenances, for the intended wearers or users, on prescriptions from licensed physicians or licensed optometrists, or as duplications or reproductions of previously prepared eyeglasses, spectacles, lenses, or related appurtenances; or who, in accordance with such prescriptions, duplications or reproductions, measures, adapts, fits, and adjusts eyeglasses, spectacles, lenses, or appurtenances, to the human face.

    “Practice of audiology” means the same as that term is defined in § 54.1-2600 .

    “Practice of fitting or dealing in hearing aids” means (i) the measurement of human hearing by means of an audiometer or by any other means solely for the purpose of making selections, adaptations or sale of hearing aids, (ii) the sale of hearing aids, or (iii) the making of impressions for earmolds. A practitioner, at the request of a physician or a member of a related profession, may make audiograms for the professional’s use in consultation with the hard-of-hearing.

    “Sell” or “sale” means any transfer of title or of the right to use by lease, bailment, or any other contract, excluding wholesale transactions with distributors or practitioners.

    “Temporary permit” means a permit issued while an applicant is in training to become a licensed hearing aid specialist.

    History. 1970, c. 571, § 54-524.110; 1988, c. 765; 2005, c. 599; 2012, cc. 803, 835; 2018, c. 458.

    The 2005 amendments.

    The 2005 amendment by c. 599, substituted “or” for “and” twice in the definition of “Practice.”

    The 2012 amendments.

    The 2012 amendments by cc. 803 and 835, cl. 34, are identical, and added “and Opticians” in the definition of “Board”; deleted the definition of “License”; and added the definitions of “Licensed hearing aid specialist,” “Licensed optician,” “Licensed optometrist,” “Licensed physician,” and “Optician.”

    The 2018 amendments.

    The 2018 amendment by c. 458 inserted the definitions for “Audiologist” and “Practice of audiology.”

    § 54.1-1500.1. Board for Hearing Aid Specialists and Opticians; qualifications and terms of members; officers.

    1. The Board for Hearing Aid Specialists and Opticians shall consist of 15 members, as follows: four licensed hearing aid specialists, of which at least one shall be licensed as an audiologist by the Board of Audiology and Speech-Language Pathology, six licensed opticians, one otolaryngologist, one ophthalmologist, and three citizen members.
    2. One of the citizen members shall be a hearing aid user or a person who has a family member who is or has been a hearing aid user. Each hearing aid specialist and the otolaryngologist shall have at least five years of experience in their respective fields immediately prior to appointment. Each of the opticians shall have at least five years of experience prior to appointment and the ophthalmologist shall have practiced ophthalmology for at least five years prior to appointment.
    3. The terms of Board members shall be four years.
    4. The Board shall elect a chairman and vice-chairman from its membership.

    History. 2012, cc. 803, 835.

    Editor’s note.

    Acts 2012, cc. 803 and 835, cl. 34 enacted this section.

    Acts 2012, cc. 803 and 835, cl. 36 provides: “That all members of the Board for Hearing Aid Specialists and the Board for Opticians shall maintain their terms of appointment and continue as members of the Board for Hearing Aid Specialists and Opticians.”

    Acts 2012, cc. 803 and 835, cl. 37 provides: “That the rules and regulations adopted by the Board for Hearing Aid Specialists and the Board for Opticians that are in effect as of July 1, 2012, shall remain in full force and effect until altered, amended, or rescinded by the Board for Hearing Aid Specialists and Opticians created in the 34th enactment of this act.”

    § 54.1-1500.2. Nominations for Board appointments.

    1. The appointment of the otolaryngologist member may be made from a list of at least three names submitted to the Governor by the Medical Society of Virginia. The appointment of one of the hearing aid specialist members may be made from a list of at least three names submitted to the Governor by the Speech-Language Hearing Association of Virginia. The appointment of the remaining hearing aid specialist members may be made from a list of at least three names for each vacancy submitted to the Governor by the Virginia Society of Hearing Aid Specialists. Nominations for appointments to regular terms shall be submitted to the Governor on or before June 1 of each year. The Governor may notify the Society or Association, respectively, of any vacancy other than by expiration, and like nominations may be made for the filling of the vacancy. In no case shall the Governor be bound to make any appointment from among the nominees.
    2. The appointment of the licensed optician members may be made from a list of at least three names for each vacancy submitted to the Governor by the Opticians Association of Virginia for each appointee who is an optician, and by the Medical Society of Virginia for each appointee who is a physician. Nominations for appointments to regular terms shall be submitted to the Governor on or before June 1 of each year. The Governor may notify the Society or Association, respectively, of any vacancy other than by expiration and like nominations may be made for the filling of the vacancy. In no case shall the Governor be bound to make any appointment from among the nominees.

    History. 2012, cc. 803, 835.

    Editor’s note.

    Acts 2012, cc. 803 and 835, cl. 34 enacted this section.

    Acts 2012, cc. 803 and 835, cl. 37 provides: “That the rules and regulations adopted by the Board for Hearing Aid Specialists and the Board for Opticians that are in effect as of July 1, 2012, shall remain in full force and effect until altered, amended, or rescinded by the Board for Hearing Aid Specialists and Opticians created in the 34th enactment of this act.”

    Article 2. Hearing Aids and Hearing Aid Specialists.

    § 54.1-1501. Exemptions; sale of hearing aids by corporations, etc., measuring hearing.

    1. Physicians licensed to practice in Virginia and certified by the American Board of Otolaryngology or eligible for such certification shall not be required to pass an examination as a prerequisite to obtaining a license under this chapter.
    2. Nothing in this chapter shall prohibit a corporation, partnership, trust, association or other like organization maintaining an established business address from engaging in the business of selling or offering for sale hearing aids at retail without a license, provided that it employs only licensed practitioners in the direct sale and fitting of such products.
    3. Nothing in this chapter shall prohibit any person who does not sell hearing aids or accessories or who is not employed by an organization which sells hearing aids or accessories from engaging in the practice of measuring human hearing for the purpose of selection of hearing aids.
    4. Audiologists licensed to practice in Virginia who have earned a doctoral degree in audiology shall not be required to pass an examination as a prerequisite to obtaining a license under this chapter.

    History. 1970, c. 571, §§ 54-524.111, 54-524.112; 1974, c. 534; 1986, c. 279; 1988, c. 765; 1996, c. 741; 2018, c. 458.

    The 2018 amendments.

    The 2018 amendment by c. 458 added subsection D.

    §§ 54.1-1502, 54.1-1503. Repealed by Acts 2012, cc. 803 and 835, cl. 35.

    Cross references.

    For current provisions pertaining to the Board for Hearing Aid Specialists and Opticians, see § 54.1-1500.1 .

    Editor’s note.

    Former § 54.1-1502 , pertaining to the Board for Hearing Aid Specialists; qualifications and terms of members; and officers, derived from 1970, c. 571, § 54-524.113; 1974, c. 534; 1979, c. 296; 1981, c. 447; 1988, c. 765; 1994, c. 26. Former § 54.1-1503, pertaining to nominations for Board appointments, derived from 1970, c. 571, § 54-524.113; 1974, c. 534; 1979, c. 296; 1981, c. 447; 1988, c. 765; 1994, c. 26.

    § 54.1-1504. License required.

    No person shall engage in the practice of fitting or dealing in hearing aids or display a sign or in any other way advertise or represent himself as a person who practices the fitting or dealing of hearing aids unless he holds a license as provided in this chapter.

    History. 1970, c. 571, § 54-524.111; 1974, c. 534; 1986, c. 279; 1988, c. 765; 2005, c. 599.

    The 2005 amendments.

    The 2005 amendment by c. 599, substituted “or” for “and” twice preceding “dealing.”

    § 54.1-1505. Return of hearing aid by purchaser or lessee.

    1. Within thirty days of the date of delivery, any purchaser or lessee of a hearing aid shall be entitled to return the hearing aid for any reason, provided such aid is returned in satisfactory condition.  Such purchaser or lessee shall be entitled to a replacement or a refund of all charges paid, less a reasonable charge for medical, audiological, and hearing aid evaluation services provided by the hearing aid specialist.
    2. The right of a purchaser or lessee to return a hearing aid and the charges to be imposed upon the return of such hearing aid, as provided in subsection A of this section, shall be explained and given in writing in at least ten-point, bold-faced type to such purchaser or lessee by the hearing aid specialist.
    3. The provisions of this section shall be subject to the provisions of the Virginia Consumer Protection Act (§ 59.1-196 et seq.).

    History. 1990, c. 584.

    Article 3. Opticians.

    § 54.1-1506. Exemptions.

    The provisions of this chapter shall not apply to:

    1. Any licensed physician or licensed optometrist;
    2. Any individual, partnership, or corporation engaged in supplying ophthalmic prescriptions and supplies exclusively to licensed physicians, licensed optometrists, licensed opticians, or optical scientists;
    3. Any person who does not hold himself out to the public as an “optician,” and who works exclusively under the direct supervision and control of a licensed physician or licensed optometrist or licensed optician, and in the same location;
    4. The sale of spectacles, eyeglasses, magnifying glasses, goggles, sunglasses, telescopes, or binoculars that are completely preassembled and sold as merchandise; or
    5. Any optician who (i) does not regularly practice in Virginia; (ii) holds a current valid license or certificate to practice as an optician in another state, territory, district, or possession of the United States; (iii) volunteers to provide free health care to an underserved area of the Commonwealth under the auspices of a publicly supported all volunteer, nonprofit organization with no paid employees that sponsors the provision of health care to populations of underserved people throughout the world; (iv) files a copy of the license or certificate issued in such other jurisdiction with the Board; (v) notifies the Board, within 15 days prior to the voluntary provision of services of the dates and location of such services; and (vi) acknowledges, in writing, that such licensure exemption shall only be valid, in compliance with the Board’s regulations, during the limited period that such free health care is made available through the volunteer, nonprofit organization on the dates and at the location filed with the Board.

    History. 1954, c. 237, §§ 54-398.1, 54-398.3; 1974, c. 534; 1988, c. 765, § 54.1-1701; 2002, c. 740; 2012, cc. 803, 835.

    Editor’s note.

    Acts 2012, cc. 803 and 835, enactments 34 through 37, merged the Board for Hearing Aid Specialists and the Board for Opticians. The historical citation from former section § 54.1-1701 has been transferred to this section at the direction of the Virginia Code Commission.

    § 54.1-1507. Practice of opticians restricted.

    No person shall practice or offer to practice as an optician in the Commonwealth unless he holds a license issued under this chapter.

    History. 1954, c. 237, § 54-398.3; 1974, c. 534; 1988, c. 765, § 54.1-1704; 2012, cc. 803, 835.

    Editor’s note.

    Acts 2012, cc. 803 and 835, enactments 34 through 37, merged the Board for Hearing Aid Specialists and the Board for Opticians. The historical citation from former section § 54.1-1704 has been transferred to this section at the direction of the Virginia Code Commission.

    § 54.1-1508. Optical prescriptions, ocular refraction, etc.

    Nothing in this chapter shall authorize an optician, or anyone else not otherwise authorized by law, to make, issue, or alter optical prescriptions, or to practice ocular refraction, orthoptics, or visual training, or to fit contact lenses except on the prescription of an ophthalmologist or optometrist and under his direction, or to advertise or offer to do so in any manner.

    History. 1954, c. 237, § 54-398.27; 1964, c. 101; 1988, c. 765, § 54.1-1705; 2012, cc. 803, 835.

    Editor’s note.

    Acts 2012, cc. 803 and 835, enactments 34 through 37, merged the Board for Hearing Aid Specialists and the Board for Opticians. The historical citation from former section § 54.1-1705 has been transferred to this section at the direction of the Virginia Code Commission.

    § 54.1-1509. Permissible practices.

    Notwithstanding the provisions of subdivisions 7 and 8 of § 54.1-3204 , a licensed optician is authorized to prepare and dispense eyeglasses, spectacles, lenses, or related appurtenances, for the intended wearers or users, on prescriptions from licensed physicians or licensed optometrists; duplicate and reproduce previously prepared eyeglasses, spectacles, lenses, or related appurtenances; and, in accordance with such prescriptions, duplications, or reproductions, measure, adapt, fit, and adjust eyeglasses, spectacles, lenses, or appurtenances to the human face. A licensed optician shall not, however, duplicate a contact lens solely from a previously prepared contact lens.

    History. 1990, c. 718, § 54.1-1706; 1993, c. 206; 2009, cc. 353, 761; 2012, cc. 803, 835.

    Cross references.

    As to who may provide opthalmic prescriptions, see § 54.1-2400.01:2 .

    Editor’s note.

    Acts 2012, cc. 803 and 835, enactments 34 through 37, merged the Board for Hearing Aid Specialists and the Board for Opticians. The historical citation from former section § 54.1-1706 has been transferred to this section at the direction of the Virginia Code Commission.

    Chapter 16. Librarians.

    §§ 54.1-1600 through 54.1-1606.

    Repealed by Acts 1988, c. 716.

    Editor’s note.

    Pursuant to Acts 1988, c. 765, cl. 5, §§ 54.1-1600 through 54.1-1606 are deemed to have been repealed by Acts 1988, c. 716, which repealed §§ 54-261 through 54-272, the comparable provisions in former Title 54.

    Chapter 17. Opticians.

    §§ 54.1-1700 through 54.1-1706.

    Repealed by Acts 2012, cc. 803 and 835, cl. 35.

    Cross references.

    For current provisions pertaining to the Board for Hearing Aid Specialists and Opticians, see § 54.1-1500.1 . For current provisions related to opticians generally, see Article 3 (§ 54.1-1506 et seq.) of Chapter 15.

    Editor’s note.

    Former § 54.1-1700 , pertaining to definitions, derived from 1954, c. 237, § 54-398.2; 1988, c. 765. Former § 54.1-1701, pertaining to exemptions, derived from 1954, c. 237, §§ 54-398.1, 54-398.3; 1974, c. 534; 1988, c. 765; 2002, c. 740. Former § 54.1-1702, pertaining to members and terms of Board for Opticians, derived from 1954, c. 237, § 54-398.10; 1974, c. 534; 1978, c. 534, § 54-398.4:1; 1981, c. 447; 1988, cc. 42, 765. Former § 54.1-1703, pertaining to nominations for Board appointments, derived from 1954, c. 237, § 54-398.5; 1988, c. 765; 1999, c. 532. Former § 54.1-1704, pertaining to practice of opticians restricted, derived from 1954, c. 237, § 54-398.3; 1974, c. 534; 1988, c. 765. Former § 54.1-1705, pertaining to optical prescriptions, ocular refraction, etc., derived from 1954, c. 237, § 54-398.27; 1964, c. 101; 1988, c. 765. Former § 54.1-1706, pertaining to permissible practices, derived from 1990, c. 718; 1993, c. 206; 2009, cc. 353, 761.

    Chapter 18. Polygraph Examiners.

    § 54.1-1800. Definitions.

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

    “Course of instruction” means a formal course of instruction in the detection of deception and the verification of truth in an institution approved by the Director.

    “Department” means the Department of Professional and Occupational Regulation.

    “Director” means the Director of the Department of Professional and Occupational Regulation.

    “Other detection device” or “device” means any mechanical or electronic instrument or device, other than a polygraph, used to test or question individuals for the purpose of detecting deception or verifying truthfulness.

    “Person” means any natural person, partnership, association, corporation or trust.

    “Polygraph” means any mechanical or electronic instrument or device used to test or question individuals for the purpose of determining truthfulness.

    “Polygraph examiner” means any person who uses a polygraph to test or question individuals for the purpose of determining truthfulness.

    “Polygraph examiner intern” means any person engaged in the study of polygraphy and the administration of polygraph examinations under the personal supervision and control of a polygraph examiner.

    History. 1975, c. 522, § 54-916; 1988, c. 765; 1993, c. 499; 2010, c. 625.

    The 2010 amendments.

    The 2010 amendment by c. 625 inserted “and the verification of truth” in the definition of “Course of instruction”; added the definition for “Other detection device”; and in the definition of “Polygraph examiner,” deleted “or ‘examiner’ ” preceding “means any person” and substituted “a polygraph” for “any device or instrument.”

    § 54.1-1801. Licenses.

    1. All polygraph examiners shall be licensed pursuant to this chapter.
    2. All persons who operate any other detection device shall be licensed pursuant to this chapter.

    History. 1975, c. 522, § 54-918; 1988, c. 765; 2010, c. 625.

    The 2010 amendments.

    The 2010 amendment by c. 625 designated the existing provision as subsection A and added subsection B.

    § 54.1-1802. Repealed by Acts 2010, c. 578, cl. 2.

    Cross references.

    For current provisions as to the authority of the Department to promulgate regulations, see § 54.1-1802.1 .

    Editor’s note.

    Former § 54.1-1802 , Regulations, was derived from 1975, c. 522, § 54-917; 1988, c. 765.

    Former § 54.1-1802 was also amended by Acts 2010, c. 625. The amendment by Acts 2010, c. 625 has been given effect in subdivision 1 of § 54.1-1802.1 at the direction of the Virginia Code Commission.

    § 54.1-1802.1. Powers and duties of the Department.

    The Department shall administer and enforce the provisions of this chapter. In addition to the powers and duties otherwise conferred by the law, the Director shall have the powers and duties of a regulatory board as contained in §§ 54.1-201 and 54.1-202 and shall have the power and duty to:

    1. Promulgate regulations necessary for the reasonable administration of this chapter in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). Such regulations shall include, but not be limited to, the establishment of minimum qualifications for the operators of polygraphs and other detection devices;
    2. Charge each applicant for licensure and for renewals of licensure a nonrefundable fee subject to the provisions of § 54.1-113 and subdivision A 4 of § 54.1-201 ; and
    3. Conduct investigations to determine the suitability of applicants for licensure and to determine the licensee’s compliance with applicable statutes and regulations.

    History. 2010, cc. 578, 625; 2012, c. 769.

    Editor’s note.

    Former § 54.1-1802 , from which subdivision 1 of this section was derived, was amended by Acts 2010, c. 625. Pursuant to § 30-152, the amendment by Acts 2010, c. 625 has been given effect in this section by adding the second sentence in subdivision 1, at the direction of the Virginia Code Commission.

    The 2012 amendments.

    The 2012 amendment by c. 769 substituted “A 4 of § 54.1-201 ” for “4 of § 54.1-201 ” in subsection 2.

    § 54.1-1803. Approval of schools to teach courses of instruction.

    The Director shall promulgate regulations for the approval of schools in which courses of instruction for polygraph examiners and persons who operate other detection devices approved pursuant to § 54.1-1805 are taught.

    History. 1975, c. 522, § 54-920; 1988, c. 765; 2010, c. 625.

    The 2010 amendments.

    The 2010 amendment by c. 625 inserted “for polygraph examiners and persons who operate other detection devices approved pursuant to § 54.1-1805 .”

    § 54.1-1804. Submission of fingerprints.

    Each applicant for licensure as a polygraph examiner, each polygraph examiner intern, and each applicant for licensure to operate any other detection device shall submit his fingerprints to the Department on a form provided by the Department.

    History. 1975, c. 522, § 54-921; 1988, c. 765; 2010, c. 625.

    The 2010 amendments.

    The 2010 amendment by c. 625 inserted “and each applicant for licensure to operate any other detection device” and made a related change.

    § 54.1-1805. Instrument to be used.

    1. Each polygraph examiner shall use an instrument that records permanently and simultaneously the subject’s cardiovascular and respiratory patterns as minimum standards, but such an instrument may record additional physiological changes pertinent to the determination of truthfulness.
      1. The use of any other detection device that does not meet the instrumentation requirements set forth in subsection A shall be approved by the Director. The Director shall approve such other detection device only when the data collected by such device is deemed to be reliable and valid in detecting deception or verifying truth, based upon the preponderance of available scientific evidence. The voluntary, written consent of any individual to be tested using a detection device approved pursuant to this subsection shall be obtained prior to the administration of any such test or questioning using the device. B. 1. The use of any other detection device that does not meet the instrumentation requirements set forth in subsection A shall be approved by the Director. The Director shall approve such other detection device only when the data collected by such device is deemed to be reliable and valid in detecting deception or verifying truth, based upon the preponderance of available scientific evidence. The voluntary, written consent of any individual to be tested using a detection device approved pursuant to this subsection shall be obtained prior to the administration of any such test or questioning using the device.
      2. Any such approved device shall be subject to regulations promulgated by the Director regarding its use in the Commonwealth.
      3. The Director shall establish standards of practice related to the use of any such other detection device approved pursuant to this subsection.

    History. 1975, c. 522, § 54-922; 1988, c. 765; 2003, cc. 545, 554; 2010, c. 625.

    Editor’s note.

    Acts 2003, cc. 545 and 554, cl. 2, provide: “That the provisions of this act shall expire on July 1, 2005.” The section is set out above without the changes by Acts 2003, cc. 545 and 554.

    The 2003 amendments.

    The 2003 amendments by cc. 545 and 554 are identical, and inserted the subsection A designation; substituted “that” for “which” following “instrument” in subsection A; and added subsection B. For expiration, see Editor’s note.

    The 2010 amendments.

    The 2010 amendment by c. 625, in subsection A, inserted “polygraph” and substituted “that records” for “which records”; and added subsection B.

    § 54.1-1806. Prohibition of use of certain questions on polygraph tests for employment.

    No licensed polygraph operator shall, during a polygraph examination required as a condition of employment, ask any question concerning the sexual activities of the person being examined if the question violates state or federal law. A violation of this section shall constitute grounds for disciplinary action pursuant to § 54.1-1802.1 .

    History. 1989, c. 693; 2010, c. 578.

    The 2010 amendments.

    The 2010 amendment by c. 578 substituted “§ 54.1-1802.1 ” for “§ 54.1-1802 ” in the last sentence.

    Chapter 19. Private Security Services Businesses.

    §§ 54.1-1900 through 54.1-1908.

    Repealed by Acts 1992, c. 578, effective July 1, 1993.

    Cross references.

    For present provisions relating to Private Security Services Businesses, see Art. 4 (§ 9.1-138 et seq.) of Chapter 1 of Title 9.1.

    Chapter 20. Public Accountancy.

    §§ 54.1-2000 through 54.1-2008.

    Repealed by Acts 2001, ch. 832, cl. 2.

    Cross references.

    As to public accountants, see now § 54.1-4400 et seq.

    Editor’s note.

    Repealed § 54.1-2003, was amended by Acts 2001, c. 339. As enacted by Acts 2001, c. 832, the comparable new provision, § 54.1-4409 , included this amendment, a name change.

    Chapter 20.1. Real Estate Appraisers.

    § 54.1-2009. Definitions.

    As used in this chapter, unless the context clearly indicates otherwise:

    “Appraisal” means an analysis, opinion, or conclusion relating to the nature, quality, value, or utility of specified interests in, or aspects of, identified real estate or identified real property. An appraisal may be classified by subject matter into either a valuation or analysis. A “valuation” is an estimate of the value of real estate or real property. An “analysis” is a study of real estate or real property other than estimating value. The term “appraiser” or “appraisal” may be used only by a person licensed or certified by the Board.

    “Appraisal report” means any communications, written or oral, of an appraisal.

    “Board” means the Real Estate Appraiser Board.

    “Certified general real estate appraiser” means an individual who meets the requirements for licensure that relate to the appraisal of all types of real estate and real property and is licensed as a certified general real estate appraiser. This designation is identified in Title 11, § 1116 (a) of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. § 3345 (a)) as a “state certified real estate appraiser.”

    “Certified residential real estate appraiser” means an individual who meets the requirements for licensure for the appraisal of (i) all types of real estate and real property that a licensed residential real estate appraiser is permitted to appraise and (ii) such other real estate and real property as the Board, by regulation, may permit.

    To the extent permitted by federal law and regulation, a certified residential real estate appraiser shall be considered a state certified real estate appraiser within the meaning of Title 11, § 1116 (a) of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. § 3345 (a)).

    “Department” means the Department of Professional and Occupational Regulation.

    “Director” means the Director of the Department of Professional and Occupational Regulation.

    “Evaluation” means an opinion of the market value of real property or real estate that may be utilized in connection with a real estate-related financial transaction where an appraisal by a state-certified or state-licensed appraiser is not required by the state or federal financial institution’s regulatory agency engaging in, contracting for, or regulating such real estate-related financial transaction or regulating the financial institution or lender engaged in or about to engage in such real estate-related financial transaction. An evaluation is limited in its scope and development to the requirements for evaluations as set forth in the Interagency Appraisal and Evaluation Guidelines promulgated by the Office of the Comptroller of the Currency et al. (75 F.R. 77450).

    “Federal financial institutions regulatory agencies” means the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Office of Thrift Supervision, the National Credit Union Administration, the Resolution Trust Corporation, the Federal National Mortgage Association, and the Federal Home Loan Mortgage Corporation.

    “Federally related transaction” means any real estate-related financial transaction which:

    1. A federal financial institutions regulatory agency engages in, contracts for or regulates; and
    2. Requires the services of an appraiser.

      “General real estate appraisal” means an appraisal conducted by an individual licensed as a certified general real estate appraiser.

      “Licensed residential real estate appraiser” means an individual who meets the requirements for licensure for the appraisal of any residential real estate or real property of one to four family residential units as the Board, by regulation, may permit, and such other real estate and real property as the Board, by regulation, may permit.

      This designation is identified in Title 11, § 1116 (c) of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. § 3345 (c)) as a “state-licensed appraiser.”

      “Real estate” means an identified parcel or tract of land, including improvements thereon, if any.

      “Real estate-related financial transaction” means any transaction involving:

    3. The use of real property or interests in real property as security for a loan or investment, including mortgage-backed securities. “Real property” means one or more defined interests, benefits or rights inherent in the ownership of real estate. “Regulation” means any regulations promulgated by the Real Estate Appraiser Board pursuant to the Administrative Process Act (§ 2.2-4000 et seq.). “Residential real estate appraisal” means an appraisal conducted by a licensed residential real estate appraiser or a certified residential real estate appraiser.

    1. The sale, lease, purchase, investment in or exchange of real property, including interests in property, or the financing thereof;

    2. The refinancing of real property or interests in real property; or

    History. 1990, c. 459; 1995, c. 327; 2018, c. 644.

    Cross references.

    As to disclosure of charges for appraisal or valuation using automated or other valuation mechanism, see § 55.1-906 .

    The 2018 amendments.

    The 2018 amendment by c. 644 rewrote the definition for “Evaluation,” which formerly read “ ‘Evaluation’ means an analysis, opinion, or conclusion relating to the nature, quality, value, or utility of specified interests in, or aspects of, identified real property.”

    § 54.1-2010. Exemptions from licensure.

    1. The provisions of this chapter shall not apply to:
      1. A real estate broker or salesperson licensed in the Commonwealth who, in the ordinary course of business, provides a valuation or analysis of real estate for a fee; however, such person shall not hold himself out as a real estate appraiser, and the valuation shall not be referred to as an appraisal and shall not be used in lieu of an appraisal performed by a licensed appraiser.
      2. An officer or employee of the United States of America, or of the Commonwealth or a political subdivision thereof, where the employee or officer is performing his official duties, provided that such individual does not furnish advisory service for compensation to the public or act as an independent contracting party in the Commonwealth or any political subdivision thereof in connection with the appraisal of real estate or real property.
      3. Any person who, in the ordinary course of business, provides consulting services or consultative brokerage for a fee, which services may include a valuation or analysis of real estate or standing or severed timber; provided such consulting services or consultative brokerage shall not be referred to as an appraisal and shall not be used in connection with obtaining a loan to finance or refinance real property or standing or severed timber or in connection with any federally related transaction.
      4. Any person who, in the regular course of business, provides services to his employer, which services may include a valuation or analysis of real estate, provided such services shall not be referred to as an appraisal and shall not be used in lieu of an appraisal performed by an appraiser licensed hereunder.
      5. Any person, including (i) a licensed residential real estate appraiser, certified residential real estate appraiser, or certified general real estate appraiser or (ii) an employee of a financial institution or lender, who provides an evaluation of real estate or real property in connection with a real estate-related financial transaction where an appraisal by a state-certified or state-licensed appraiser is not required by the state or federal financial institution’s regulatory agency engaging in, contracting for or regulating such real estate-related financial transaction or regulating the financial institution or lender engaged in or about to engage in such real estate-related financial transaction. The evaluations provided by such persons shall comply with any standards imposed by the state or federal financial institution’s or lender’s regulatory agencies for evaluations prepared by nonstate-certified or nonstate-licensed appraisers.
    2. Nothing contained herein shall proscribe the powers of a judge to determine who may qualify as an expert witness to testify in any legal proceeding.

    History. 1990, c. 459; 1992, c. 68; 1995, c. 327; 1999, c. 259; 2017, cc. 258, 269.

    The 1999 amendment, in subdivision A 1, substituted “the” for “this” preceding “Commonwealth,” substituted “a fee; however, such person shall not hold himself out as a real estate appraiser, and the valuation shall not be referred to as an appraisal and shall not be used in lieu of an appraisal performed by a licensed appraiser” for “the purpose of a prospective listing, sale or purchase in connection with services related to real estate brokerage, provided (i) that the valuation or analysis shall not be referred to as an appraisal and shall not be used in connection with obtaining a loan to finance or refinance the real estate, and (ii) that in connection with a sale or purchase of real estate no compensation, fee, or other consideration is paid for such valuation or analysis other than the fee paid for brokerage services rendered in connection with the sale or purchase of the real property involved,” in subdivision A 2, twice substituted “the” for “this,” in subdivision A 5, substituted “shall” for “must,” and inserted “the” following “imposed by”; and in subsection B, deleted the former last sentence which read “This provisions is declarative of existing law.”

    The 2017 amendments.

    The 2017 amendments by cc. 258 and 269 are identical, and in subdivision A 5, added clause (i) and made related changes.

    CASE NOTES

    Appraiser as expert. —

    Court rejected defendants’ argument that expert was not qualified to give opinion about value of property interests in coal because he was not a licensed real estate appraiser because: (1) after decision cited by defendants, Virginia adopted a statutory amendment that specifically preserved the discretion of a trial judge regarding who might qualify as an expert in real property evaluation; and (2) Virginia law regarding admission of expert testimony was not binding on a federal district court sitting in diversity. Metamining, Inc. v. Barnette, No. 2:12CV00024, 2013 U.S. Dist. LEXIS 89446 (W.D. Va. June 26, 2013).

    Expert witness qualification. —

    Licensure remains an important consideration in assessing a prospective expert’s qualifications; subsection B stands only for the proposition that a trial court cannot refuse to qualify an otherwise appropriate expert solely for the lack of an active Virginia license at trial. Va. Int'l Gateway, Inc. v. City of Portsmouth, 298 Va. 43 , 834 S.E.2d 234, 2019 Va. LEXIS 137 (2019).

    Exclusion of testimony abuse of discretion. —

    Exclusion of the testimony of a taxpayer’s expert witness was an abuse of discretion because the testimony was unobjectionable; there was no reasonable concern that permitting the testimony would condone or promote an unlawful activity even though the witness lacked a Virginia license at trial because he secured a temporary appraisal license, he completed his final appraisal report within the period of active licensure, and his testimony addressed only the appraisal for which he was licensed. Va. Int'l Gateway, Inc. v. City of Portsmouth, 298 Va. 43 , 834 S.E.2d 234, 2019 Va. LEXIS 137 (2019).

    CIRCUIT COURT OPINIONS

    Appraiser as expert witness. —

    It was an abuse of power to recognize an appraiser as an expert in real estate values in Virginia and permit his testimony because his appraisal work was unlicensed, and he was again unlicensed at the time he gave his testimony. Va. Int'l Gateway, Inc. v. City of Portsmouth, 98 Va. Cir. 254, 2018 Va. Cir. LEXIS 69 (Portsmouth Mar. 22, 2018).

    § 54.1-2011. Necessity for license.

    1. After December 31, 1992, except as provided in § 54.1-2010 and in subsections C and E of this section, it shall be unlawful to engage in the appraisal of real estate or real property for compensation or valuable consideration in this Commonwealth without first obtaining a real estate appraiser’s license in accordance with Board regulations promulgated pursuant to the Administrative Process Act (§ 2.2-4000 et seq.).
    2. After December 31, 1992, except as provided in § 54.1-2010 , it shall be unlawful for any person who is not licensed pursuant to this chapter to perform an appraisal in connection with a federally related transaction.
    3. Notwithstanding subsections A and B of this section, an individual who is not a licensed residential real estate appraiser, a certified residential real estate appraiser, or a certified general real estate appraiser may assist in the preparation of and sign an appraisal if:
      1. The assistant is under the direct supervision of a licensed residential real estate appraiser, a certified residential real estate appraiser, or a certified general real estate appraiser; and
      2. The appraisal is reviewed, attested to be accurate and complete, and signed by such licensed residential real estate appraiser, certified residential real estate appraiser, or certified general real estate appraiser in accordance with this chapter.
    4. This chapter shall not prevent or affect the practice of any profession or trade for which licensing, certification, or registration is required under any other Virginia law.
    5. A corporation, partnership, or other business entity may provide appraisal services if each appraisal is prepared and signed by an individual licensed in accordance with this chapter and such corporation, partnership, or other business entity has registered with the Board. However, any appraisal management company that is required to be licensed under § 54.1-2021.1 shall not be required to have an additional license under this section.
    6. An appraiser engaged by an appraisal management company to perform appraisal services shall disclose the actual fee paid to the appraiser by the appraisal management company as part of the appraisal report. The disclosure of such fee shall not be prohibited by the appraisal management company as otherwise provided in § 54.1-2022 .

    History. 1990, c. 459; 1992, c. 338; 2012, c. 405.

    Editor’s note.

    Acts 2012, c. 405, cl. 2 provides: “That the Virginia Real Estate Appraiser Board shall promulgate regulations to implement the provisions of this act to be effective July 1, 2014.”

    The 2012 amendments.

    The 2012 amendment by c. 405 added the second sentence of subsection E and added subsection F.

    CASE NOTES

    License required to present “expert” testimony. —

    It is unlawful under this section for anyone, including a licensed real estate broker who does not have a real estate appraiser’s license to testify for compensation about the value of real estate in any court proceeding, unless permitted under applicable statutory exceptions; thus court’s denial of tax consultant’s qualifications as an expert was proper. Lee Gardens Arlington Ltd. Partnership v. Arlington County Bd., 250 Va. 534 , 463 S.E.2d 646, 1995 Va. LEXIS 121 (1995).

    Exclusion of testimony abuse of discretion. —

    Exclusion of the testimony of a taxpayer’s expert witness was an abuse of discretion because the testimony was unobjectionable; there was no reasonable concern that permitting the testimony would condone or promote an unlawful activity even though the witness lacked a Virginia license at trial because he secured a temporary appraisal license, he completed his final appraisal report within the period of active licensure, and his testimony addressed only the appraisal for which he was licensed. Va. Int'l Gateway, Inc. v. City of Portsmouth, 298 Va. 43 , 834 S.E.2d 234, 2019 Va. LEXIS 137 (2019).

    CIRCUIT COURT OPINIONS

    License required to present “expert” testimony. —

    It was an abuse of power to recognize an appraiser as an expert in real estate values in Virginia and permit his testimony because his appraisal work was unlicensed, and he was again unlicensed at the time he gave his testimony. Va. Int'l Gateway, Inc. v. City of Portsmouth, 98 Va. Cir. 254, 2018 Va. Cir. LEXIS 69 (Portsmouth Mar. 22, 2018).

    § 54.1-2012. Real Estate Appraiser Board; membership; chairman; meetings; seal.

    1. The Real Estate Appraiser Board shall be composed of 10 members as follows: (i) six members shall be licensed as real estate appraisers, provided that, at all times, at least two of the appraiser members on the Board shall be certified general real estate appraisers and one shall be a certified residential real estate appraiser, and provided further, that all six appraiser members have been licensed for a period of at least five years prior to their appointment; (ii) one member shall be an officer or employee familiar with mortgage lending of a financial institution as defined in § 6.2-100 or an affiliate or subsidiary thereof; (iii) one member shall be an officer or employee of an appraisal management company; and (iv) two members shall be citizen members. The terms of Board members shall be four years.The appointment of appraiser members may be made from lists of at least three names each, submitted by Virginia affiliates of professional appraisal organizations that are members of the Appraisal Foundation. The appointment of the bank or savings institution member may be made from lists of at least three names each, submitted by the Virginia Bankers Association and the Virginia Association of Community Banks. The appointment of the appraisal management company member may be made from lists of at least three names each, submitted by the Virginia Bankers Association. Nominations for appointments to regular terms shall be submitted to the Governor on or before June 1 of each year. The Governor may notify the above organizations of any vacancy other than by expiration and like nominations may be made for the filling of the vacancy. In no case shall the Governor be bound to make any appointment from among the nominees.Notwithstanding § 54.1-200 , all members of the Board, including the citizen members, shall be eligible to participate in all matters, including decisions regarding the examination of applicants for licensure and decisions regarding the professional competence of licensees.The Board shall elect a chairman and a vice-chairman from its membership, provided that the chairman shall be an appraiser member.The Board shall meet at least once each year, and additional meetings may be called by the chairman or, if the chairman is incapacitated, by the vice-chairman, as deemed necessary.The Board shall adopt a seal by which it shall authenticate its proceedings.
    2. As soon as practicable, the Board shall determine the anticipated availability of licensed and certified appraisers to perform appraisals in Virginia. If, at any time, the Board determines that there is, or will be, a scarcity of certified general real estate appraisers, certified residential real estate appraisers, or licensed residential real estate appraisers to perform appraisals in connection with federally related transactions in any part of Virginia that leads, or will lead, to significant delays in the performance of such appraisals, the Board, subject to federal approval, shall extend the effective date of the licensing requirements of this chapter to the extent permitted under any temporary waiver granted under the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended (12 U.S.C. § 3301 et seq.).

    History. 1990, c. 459; 1992, c. 68; 1999, cc. 208, 505; 2010, c. 91; 2012, cc. 405, 522.

    Editor’s note.

    Acts 1999, cc. 208 and 505, cl. 2 provides: “That the provisions of this act shall not affect members of the Real Estate Appraiser Board whose terms have not expired as of July 1, 1999.”

    In subsection A, “§ 6.2-100 ” was substituted for “§ 6.1-2.1,” effective October 1, 2010, to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

    Acts 2012, c. 405, cl. 2 provides: “That the Virginia Real Estate Appraiser Board shall promulgate regulations to implement the provisions of this act to be effective July 1, 2014.”

    The 1999 amendments by cc. 208 and 505 are identical, and in subsection A, in clause (i), substituted “six members” for “four members,” and substituted “six appraiser” for “four appraiser,” substituted “one member shall be an officer or employee” for “two members shall be officers or employees” in clause (ii), and substituted “two members shall be citizen members. The terms of Board members shall be four years” for “three members shall be citizen members, one of whom shall be a full-time faculty member who teaches economics, finance or real estate at an accredited Virginia institution of higher education. The terms of Board members shall be four years. For the initial appointments, the terms shall be as follows: three members shall serve a term of two years, three members shall serve a term of three years, and three members shall serve a term of four years” in clause (iii); in the third paragraph, substituted “the bank or savings institution member” for “bank or savings institution” in the second sentence, inserted “and” following “Bankers Association,” and deleted “and the Virginia League of Savings Institutions” at the end of the second sentence, and inserted “the” preceding “citizen members” in the fourth paragraph.

    The 2010 amendments.

    The 2010 amendment by c. 91, in subsection A, deleted “Except as provided in the next paragraph” at the beginning of the first paragraph and deleted the second paragraph.

    The 2012 amendments.

    The 2012 amendment by c. 405, in the first sentence of the first paragraph of subsection A, substituted “composed of 10 members” for “composed of nine members” near the beginning, inserted present clause (iii), and redesignated former clause (iii) as (iv); and added the present third sentence of the second paragraph of subsection A.

    The 2012 amendment by c. 522 substituted “meet at least once each year, and” for “meet at least four times annually, and” in the fifth paragraph of subsection A.

    § 54.1-2013. General powers of Real Estate Appraiser Board; regulations; educational requirements for licensure.

    The Board shall have all of the powers of a regulatory board under Chapter 2 (§ 54.1-200 et seq.). The Board may do all things necessary and convenient for carrying into effect the provisions of this chapter, Chapter 20.2 (§ 54.1-2020 et seq.), and all things required or expected of a state appraiser certifying and licensing agency under Title 11 of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. § 3331 et seq.). The Board shall promulgate necessary regulations.

    The Board shall include in its regulations educational and experience requirements as conditions for licensure, provisions for the supervision of appraiser practices, provisions for the enforcement of standards of professional appraiser practice, and provisions for the disposition of referrals of improper appraiser conduct from any person or any federal agency or instrumentality. This paragraph shall not be construed to limit the powers and authority of the Board.

    The Board may set different education and experience requirements for licensed residential real estate appraisers, certified residential real estate appraisers, and certified general real estate appraisers. All applicants for licensure under this chapter shall meet applicable educational and experience requirements prior to licensure.

    Applicants for licensure as a certified residential real estate appraiser or a certified general real estate appraiser shall successfully complete an examination administered or approved by the Board prior to licensure. The Board may set different examination requirements for certified residential real estate appraisers and certified general real estate appraisers. The Board may require that licensed residential real estate appraisers successfully complete an examination administered or approved by the Board prior to licensure or prior to the renewal of an initial license.

    All regulations established by the Board shall satisfy any minimum criteria that are necessary in order that the federal financial institution’s regulatory agencies recognize and accept licenses for licensed residential real estate appraisers, certified residential real estate appraisers, certified general real estate appraisers, and appraisal management companies issued by the Board.

    History. 1990, c. 459; 1992, c. 68; 1993, c. 539; 2010, c. 91; 2014, c. 210.

    Editor’s note.

    Acts 2012, cc. 49 and 388 provide: Ҥ 1. That the Real Estate Appraiser Board shall evaluate the development of a continuing education curriculum for licensees that includes the effects of the use of energy efficiency and renewable energy equipment on the determination of the fair market value in the appraisal of non-income-producing residential real estate.

    “§ 2. On or before November 1, 2012, the Real Estate Appraiser Board shall report its findings to the (i) Chairmen of the House Committee on General Laws and the Senate Committee on General Laws and Technology and (ii) Housing Commission.”

    The 2010 amendments.

    The 2010 amendment by c. 91, in the second paragraph, deleted “except that, until December 31, 1992, the Board shall issue transitional licenses to applicants who have satisfied the educational requirements as conditions for licensure and have passed the applicable examination required by the Board but either lack or are not able to verify the experience requirements imposed by the Board” at the end of the first sentence, and deleted the former second and third sentences, which read: “Such transitionally licensed persons must satisfy the experience requirements, within two years of having been issued a transitional license as a condition to remaining licensed under this chapter. Each transitional license shall indicate clearly its transitional nature, period of validity and a nonextendible termination date.”

    The 2014 amendments.

    The 2014 amendment by c. 210, in the first paragraph, deleted “of this title” at the end of the first sentence, inserted “Chapter 20.2 (§ 54.1-2020 et seq.)” following “chapter” in the second sentence and deleted the former fourth sentence and in the fifth paragraph deleted “and” preceding “certified general” and inserted “and appraisal management companies” following “appraisers.”

    § 54.1-2013.1. Expired.

    Editor’s note.

    This section was enacted by Acts 1993, c. 199, and expired by its own terms January 1, 1994.

    § 54.1-2014. (Effective until July 1, 2023) Continuing education.

    The Board may establish in regulations requirements for continuing education as a prerequisite to renewal of a license issued under this chapter.

    History. 1990, c. 459.

    Editor's note.

    Acts 2022, c. 118, cl. 2 provides: “That the Real Estate Appraiser Board (the Board) shall promulgate regulations to implement the provisions of this act that include a course of at least two hours relating to fair housing or appraisal bias. The Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption.”

    The 2022 amendments.

    The 2022 amendment by c. 118 added the second sentence.

    § 54.1-2014. (Effective July 1, 2023) Continuing education.

    The Board may establish in regulations requirements for continuing education as a prerequisite to renewal of a license issued under this chapter. If the Board requires continuing education, the requirements shall include a minimum of two hours of fair housing or appraisal bias courses.

    History. 1990, c. 459; 2022, c. 118.

    § 54.1-2015. Subpoena power.

    In addition to all other authority to issue subpoenas, the Board or its designees shall have the authority to subpoena the records of any bank, savings institution, or credit union relating to real estate appraisals.

    History. 1990, c. 459.

    § 54.1-2016. Additional licenses.

    1. The Board may establish in regulations other categories of licensure, as well as the conditions required for such licensure, in order to safeguard the public interest or as may be required to satisfy any additional qualification criteria adopted by any federal agency or instrumentality.
    2. Unless expressly prohibited by federal law or regulation, an individual who is certified or licensed as a real estate appraiser in another jurisdiction may obtain a Virginia real estate appraiser’s license if (i) the Board determines that the requirements for certification or licensure, as the case may be, in such jurisdiction are substantially equivalent to the requirements for licensure under this chapter, and (ii) the applicant meets such other requirements as may be established by the Board.
    3. In accordance with Title 11, § 1122 (a) of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. § 3351(a)), the Board shall adopt regulations that provide for temporary practice in Virginia by appraisers licensed or certified by another state.

    History. 1990, c. 459.

    § 54.1-2017. Use of terms “Licensed Residential Real Estate Appraiser,” “Certified Residential Real Estate Appraiser,” and “Certified General Real Estate Appraiser”; authentication of reports.

    An individual who is not licensed by the Board as a certified general real estate appraiser, a certified residential real estate appraiser, or a licensed residential real estate appraiser shall not represent himself as being so licensed or use in connection with his name or place of business the term “real estate appraiser,” “general real estate appraiser,” “certified general real estate appraiser,” “licensed residential real estate appraiser,” “certified residential real estate appraiser,” “state certified real estate appraiser,” “state licensed real estate appraiser,” or any words, letters, abbreviations, or insignia indicating or implying that he is licensed as a certified general real estate appraiser, a licensed residential real estate appraiser, or a certified residential real estate appraiser in this Commonwealth.

    Each licensed residential real estate appraiser, certified residential real estate appraiser, and certified general real estate appraiser shall comply with the standards of professional appraisal practice and code of ethics adopted by the Board and shall authenticate all written appraisal reports with his signature, license designation and license number.

    All appraisal reports rendered in connection with federally related transactions shall be written.

    History. 1990, c. 459; 1999, c. 57.

    The 1999 amendment substituted “his signature” for “a seal which shall indicate the” in the second paragraph.

    § 54.1-2017.1. Evaluation requirements; report.

    1. Any evaluation, as defined in § 54.1-2009 , shall contain the statement: “This is not an appraisal performed in accordance with the Uniform Standards of Professional Appraisal Practice.”
    2. The evaluation report may be prepared in any reporting format, provided that (i) the reporting format meets the requirements as set forth in the Interagency Appraisal and Evaluation Guidelines promulgated by the Office of the Comptroller of the Currency et al. (75 F.R. 77450) and (ii) the evaluation report contains sufficient information in clear and understandable language to allow a person to understand the opinion of the market value of real property or real estate.

    History. 2018, c. 644.

    § 54.1-2018. Roster of appraisers.

    A roster showing the names and addresses of all licensed residential real estate appraisers, certified residential real estate appraisers, and certified general real estate appraisers shall be published annually and made available to all interested parties at a cost, as determined by the Director.

    History. 1990, c. 459.

    § 54.1-2019. Consent to suits and service of process of nonresidents; manner of service.

    1. Every nonresident applicant shall file with the Board an irrevocable consent that suits and actions may be commenced against such applicant in the proper court of any county or city of this Commonwealth in which a cause of action may arise or in which the plaintiff may reside, by the service of any process or pleading authorized by the laws of this Commonwealth on the Director of the Department of Professional and Occupational Regulation. The consent shall stipulate that such service of process or pleadings on the Director shall be taken and held in all courts to be as valid and binding as if due service has been made upon the applicant in the Commonwealth of Virginia.
    2. Any process or pleading served upon the Director shall be filed by the Director in his office and a copy thereof immediately forwarded by registered mail to the main office of the licensee at the last known address.

    History. 1990, c. 459; 1993, c. 499.

    Chapter 20.2. Real Estate Appraisal Management Companies.

    § 54.1-2020. Definitions.

    1. As used in this chapter, unless the context clearly requires otherwise:“Appraisal management company” means a person or entity that (i) provides appraisal management services to creditors or to secondary mortgage market participants, including affiliates; (ii) provides such services in connection with valuing a consumer’s principal dwelling as security for a consumer credit transaction or incorporating such transactions into securitizations; and (iii) within a 12-month calendar year, oversees an appraiser panel of more than 15 state-certified or state-licensed appraisers in a state or 25 or more state-certified or state-licensed appraisers in two or more states. “Appraisal management company” does not include a department or division of an entity that provides appraisal management services only to that entity.“Appraisal management services” means one or more of the following: (i) recruiting, selecting, and retaining appraisers; (ii) contracting with state-certified or state-licensed appraisers to perform appraisal assignments; (iii) managing the process of having an appraisal performed, including providing administrative services such as receiving appraisal orders and appraisal reports, submitting completed appraisal reports to creditors and secondary mortgage market participants, collecting fees from creditors and secondary mortgage market participants for services provided, and paying appraisers for services performed; and (iv) reviewing and verifying the work of appraisers.“Appraisal services” means acting as an appraiser to provide an appraisal or appraisal review.“Appraiser” means a person licensed or certified under § 54.1-2017 and as otherwise provided in Chapter 20.1 (§ 54.1-2009 et seq.).“Appraiser panel” means a network, list, or roster of licensed or certified appraisers approved by an appraisal management company to perform appraisals as independent contractors for the appraisal management company. Appraisers on an appraisal management company’s appraiser panel include both appraisers accepted by the appraisal management company for consideration for future appraisal assignments in covered transactions or for secondary mortgage market participants in connection with covered transactions and appraisers engaged by the appraisal management company to perform one or more appraisals in covered transactions or for secondary mortgage market participants in connection with covered transactions. An appraiser is an independent contractor for purposes of this chapter if the appraiser is treated as an independent contractor by the appraisal management company for purposes of federal income taxation.“Board” means the Virginia Real Estate Appraiser Board.“Employee” means an individual who has an employment relationship acknowledged by both the individual and the company and is treated as an employee for purposes of compliance with federal income tax laws.“Uniform Standards of Professional Appraisal Practice” means the Uniform Standards of Professional Appraisal Practice adopted by the Appraisal Standards Board of the Appraisal Foundation.
    2. The definitions contained in § 54.1-2009 shall be applicable except to the extent inconsistent with the definitions contained in this chapter.

    History. 2010, c. 508; 2012, c. 405; 2018, cc. 229, 230.

    Editor’s note.

    Acts 2012, c. 405, cl. 2 provides: “That the Virginia Real Estate Appraiser Board shall promulgate regulations to implement the provisions of this act to be effective July 1, 2014.”

    The 2012 amendments.

    The 2012 amendment by c. 405 added the paragraphs defining “Appraisal services,” “Appraiser” and “Uniform Standards of Professional Appraisal Practice.”

    The 2018 amendments.

    The 2018 amendments by cc. 229 and 230 are identical, and in subsection A, rewrote the definition for “Appraisal management company,” and added the definitions for “Appraisal management services” and “Appraiser panel.”

    § 54.1-2021. Exemptions.

    The provisions of this chapter shall not apply to:

    1. Any agency of the federal government or any agency of the Commonwealth or local government;
    2. Any person or entity that exclusively employs persons on an employer and employee basis for the performance of appraisal services;
    3. Any person or entity licensed pursuant to § 54.1-2017 that has as its primary business the performance of appraisal services in the Commonwealth in accordance with Chapter 20.1 (§ 54.1-2009 et seq.) and with the Uniform Standards of Professional Appraisal Practice;
    4. Any person or entity licensed pursuant to § 54.1-2017 that has as its primary business the performance of appraisal services in the Commonwealth but that in the normal course of business enters into an agreement with an independent contract appraiser for the performance of appraisal services that the contracting entity cannot complete either because of the location or type of property in question;
    5. Any licensed real estate broker performing activities in accordance with Chapter 21 (§ 54.1-2100 et seq.);
    6. Any officer or employee of an exempt entity described in this chapter when acting in the scope of employment for the exempt entity;
    7. An appraisal management company that is a subsidiary owned and controlled by a financial institution that is subject to appraisal independence standards at least as stringent as those under the Truth in Lending Act (15 U.S.C. § 1601 et seq.); or
    8. A department or unit within a financial institution that is subject to direct regulation by an agency of the United States government that is a member of the Federal Financial Institutions Examination Council or its successor, or to regulation by an agency of this state, that receives a request for the performance of an appraisal from one employee of the financial institution, and another employee of the same financial institution assigns the request for the appraisal to an appraiser that is an independent contractor to the institution, except that an appraisal management company that is a wholly owned subsidiary of a financial institution shall not be considered a department or unit within a financial institution for the purposes of this subdivision.

    History. 2010, c. 508; 2012, c. 405.

    Editor’s note.

    Acts 2012, c. 405, cl. 2 provides: “That the Virginia Real Estate Appraiser Board shall promulgate regulations to implement the provisions of this act to be effective July 1, 2014.”

    The 2012 amendments.

    The 2012 amendment by c. 405 rewrote the section.

    § 54.1-2021.1. Appraisal management companies; license required; posting of bond or letter of credit.

    1. No person shall engage in business as an appraisal management company without a license issued by the Board.
    2. The Board may issue a license to do business as an appraisal management company in the Commonwealth to any applicant who has submitted a complete application and provides satisfactory evidence that he has successfully:
      1. Completed all requirements established by the Board that are consistent with this chapter and are reasonably necessary to implement, administer, and enforce the provisions of this chapter; and
      2. Certified to the Board the following information, and such other information as may be reasonably required by the Board, regarding the person or entity seeking licensure:
        1. The name of the person or entity;
        2. The business address of the person or entity;
        3. Phone contact information for the person or entity, and email address;
        4. If the entity is not an entity domiciled in the Commonwealth, the name and contact information for the entity’s agent for service of process in the Commonwealth;
        5. If the entity is not an entity domiciled in the Commonwealth, proof that the entity is properly and currently registered with the Virginia State Corporation Commission;
        6. The name, address, and contact information for any person or any entity that owns 10 percent or more of the appraisal management company;
        7. The name, address, and contact information for a responsible person for the appraisal management company located in the Commonwealth, who shall be a person or entity licensed under Chapter 20.1 (§ 54.1-2009 et seq.);
        8. That any person or entity that owns any part of the appraisal management company has never had a license to act as an appraiser refused, denied, canceled, surrendered in lieu of revocation, or revoked by the Commonwealth or any other state;
        9. That the entity has a system in place to review the work of all appraisers that may perform appraisal services for the appraisal management company on a periodic basis to ensure that the appraisal services are being conducted in accordance with the Uniform Standards of Professional Appraisal Practice;
        10. That the entity maintains a detailed record of the following: (i) each request for an appraisal service that the appraisal management company receives; (ii) the name of each independent appraiser that performs the appraisal; (iii) the physical address or legal identification of the subject property; (iv) the name of the appraisal management company’s client for the appraisal; (v) the amount paid to the appraiser; and (vi) the amount paid to the appraisal management company; and
        11. That the entity has a system in place to ensure compliance with § 129E of the Truth in Lending Act (15 U.S.C. § 1601 et seq.).
    3. Any person that owns 10 percent or more of an appraisal management company and any controlling person of an appraisal management company seeking to be licensed pursuant to this chapter shall be of good moral character, as determined by the Board, and shall submit to a background investigation, as determined by the Board.
    4. In addition to the filing fee, each applicant for licensure shall post either a bond or a letter of credit as follows:
      1. If a bond is posted, the bond shall (i) be in the amount of $100,000 or any other amount as set by regulation of the Board, (ii) be in a form prescribed by regulation of the Board, and (iii) accrue to the Commonwealth for the benefit of (a) a claimant against the licensee to secure the faithful performance of the licensee’s obligations under this chapter or (b) an appraiser who has performed an appraisal for the licensee for which the appraiser has not been paid. The aggregate liability of the surety shall not exceed the principal sum of the bond. A party having a claim against the licensee may bring suit directly on the surety bond. When a claimant or an appraiser is awarded a final judgment in a court of competent jurisdiction against a licensee of this section for the licensee’s failure to faithfully perform its obligations under this chapter or failure to pay an appraiser who performed an appraisal, the claimant or the appraiser may file a claim with the Board for a directive ordering payment from the bond issuer of the amount of the judgment, court costs and reasonable attorney fees as awarded by the court. Such claim shall be filed with the Board no later than 12 months after the judgment becomes final. Upon receipt of the claim against the licensee, the Board may cause its own investigation to be conducted. The amount of the bond shall be restored by the licensee to the full amount required within 15 days after the payment of any claim on the bond. If the licensee fails to restore the full amount of the bond, the Board shall immediately revoke the license of the licensee whose conduct resulted in payment from the bond.
      2. If a letter of credit is posted, the letter of credit shall (i) be in the amount of $100,000 or any other amount as set by regulation of the Board, (ii) be irrevocable and in a form approved by the Board, payable to the Department of Professional Occupational Regulation, and (iii) be for the use and the benefit of (a) a claimant against the licensee to secure the faithful performance of the licensee’s obligations under this chapter or (b) an appraiser who has performed an appraisal for the licensee for which the appraiser has not been paid. The aggregate liability on the letter of credit shall not exceed the principal sum of the letter of credit. When a claimant or an appraiser is awarded a final judgment in a court of competent jurisdiction against a licensee of this section for the licensee’s failure to faithfully perform its obligations under this chapter or failure to pay an appraiser who performed an appraisal, the claimant or the appraiser may file a claim with the Board for a directive ordering payment from the issuer of the letter of credit of the amount of the judgment, court costs and reasonable attorney fees as awarded by the court. Such claim shall be filed with the Board no later than 12 months after the judgment becomes final. Upon receipt of the claim against the licensee, the Board may cause its own investigation to be conducted. Upon a draw against a letter of credit, the licensee shall provide a new letter of credit in the amount required by this subdivision within 15 days after payment of any claim on the letter of credit. If the licensee fails to restore the full amount of the letter of credit, the Board shall immediately revoke the license of the licensee whose conduct resulted in payment from the bond.

    History. 2012, c. 405; 2014, c. 210; 2018, cc. 229, 230.

    Editor’s note.

    Acts 2012, c. 405, cl. 2 provides: “That the Virginia Real Estate Appraiser Board shall promulgate regulations to implement the provisions of this act to be effective July 1, 2014.”

    Acts 2012, c. 405, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2012, except that § 54.1-2021.1 of this act shall become effective July 1, 2014.”

    The 2014 amendments.

    The 2014 amendment by c. 210, rewrote subsection A; in subsection B substituted “B. The” for “Beginning July 1, 2014, the”; redesignated former subsections B and C as subsections C and D; and in the first sentences of subdivisions D 1 and 2 substituted “$100,000” for “$25,000.”

    The 2018 amendments.

    The 2018 amendments by cc. 229 and 230 are identical, and in subdivision B 2 h, substituted “any part” for “10 percent or more” and inserted “surrendered in lieu of revocation.”

    § 54.1-2022. Appraisal management companies.

    1. An appraisal management company shall not enter into any contracts or agreements with an independent appraiser for the performance of real estate appraisal services unless the independent appraiser is licensed to provide that service under § 54.1-2017 and as otherwise provided in Chapter 20.1 (§ 54.1-2009 et seq.).
    2. The appraisal management company shall not prohibit an appraiser from disclosing in the appraisal report the actual fees charged by an appraiser for appraisal services, and shall otherwise comply with any applicable requirements of federal law including the requirements of the United States Department of Housing and Urban Development.
    3. No employee, director, officer, or agent of an appraisal management company shall influence or attempt to influence the development, reporting, result, or review of a real estate appraisal through coercion, extortion, collusion, compensation, inducement, intimidation, bribery, or in any other manner, including:
      1. Withholding or threatening to withhold timely payment for a real estate appraisal report;
      2. Withholding or threatening to withhold future business from a real estate appraiser or demoting or terminating or threatening to demote or terminate a real estate appraiser;
      3. Expressly or impliedly promising future business, promotions, or increased compensation for a real estate appraiser;
      4. Conditioning the ordering of a real estate appraisal report or the payment of a real estate appraisal fee, salary, or bonus on the opinion, conclusion, or valuation to be reached or on a preliminary estimate requested from a real estate appraiser;
      5. Requesting or requiring that a real estate appraiser provide an estimated, predetermined, or desired valuation in a real estate appraisal report or provide estimated values or comparable sales at any time before the appraiser’s completion of the appraisal report;
      6. Providing to a real estate appraiser an anticipated, estimated, encouraged, or desired value for a subject property or a proposed or targeted amount to be loaned to the borrower. However, a real estate appraiser may be provided with a copy of the sales contract for purchase transactions;
      7. Allowing the removal of a real estate appraiser from a list of qualified appraisers used by any entity without prior written notice to the appraiser. The notice shall include written evidence of the appraiser’s illegal conduct, substandard performance, or otherwise improper or unprofessional behavior or any violation of the Uniform Standards of Professional Appraisal Practice or licensing standards for appraisers in the Commonwealth; or
      8. Any other act or practice that impairs or attempts to impair a real estate appraiser’s independence, objectivity, or impartiality.
    4. The appraisal management company shall not engage in any of the following:
      1. Requesting or requiring a real estate appraiser to collect a fee from the borrower, homeowner, or any other person in the provision of real estate appraisal services;
      2. Altering, modifying, or otherwise changing a completed appraisal report submitted by an independent appraiser without the appraiser’s written knowledge and consent;
      3. Use an appraisal report submitted by an independent appraiser for any other transaction, purpose or use other than for that which the appraisal was prepared; however, nothing in this section shall be construed as prohibiting an appraisal management company from providing a copy of the appraisal to a federal or state agency in the normal course of business or when providing a copy of the appraisal is otherwise required by law;
      4. Requesting or requiring an appraiser to sign any indemnification agreement that would require the appraiser to defend and hold harmless the appraisal management company or any of its agents, employees or independent contractors for any liability, damage, losses, or claims arising out of the services performed by the appraisal management company or its agents, employees or independent contractors and not the services performed by the appraiser; or
      5. Requesting or requiring an appraiser to provide the company with the appraiser’s digital signature or seal.
    5. Nothing in this section shall be construed as prohibiting an appraisal management company from requesting that a real estate appraiser:
      1. Consider additional appropriate property information;
      2. Provide further detail, substantiation, or explanation for the real estate appraiser’s value conclusion; or
      3. Correct errors in the real estate appraisal report.

    History. 2010, c. 508; 2012, c. 405; 2013, c. 353.

    Editor’s note.

    Acts 2012, c. 405, cl. 2 provides: “That the Virginia Real Estate Appraiser Board shall promulgate regulations to implement the provisions of this act to be effective July 1, 2014.”

    The 2012 amendments.

    The 2012 amendment by c. 405 deleted “of this title” at the end of subsection A; inserted “or requiring” in subdivision C 5; redesignated former subdivisions C 9 through C 13 as present subsection D; added the introductory language in subsection D; in subdivision D 3, deleted “, by the appraisal management company of” following “Use” and inserted “or state” preceding “agency”; added “Requesting or” in subdivisions D 4 and D 5; and redesignated former subsection D as present E.

    The 2013 amendments.

    The 2013 amendment by c. 353 deleted “residential” following “performance of” near the middle of subsection A.

    § 54.1-2022.1. Appraiser compensation.

    1. An appraisal management company shall compensate appraisers in compliance with § 129E(i) of the federal Truth in Lending Act (15 U.S.C. § 1601 et seq.) and regulations promulgated thereunder.
    2. Except in the case of breach of contract or noncompliance with the conditions of the engagement or performance of services that violates the Uniform Standards of Professional Appraisal Practice, an appraisal management company shall compensate the appraiser within 30 days of the initial delivery by the appraiser of the completed appraisal report.

    History. 2015, c. 422; 2017, c. 666.

    The 2017 amendments.

    The 2017 amendment by c. 666 inserted the subsection A designation, and added subsection B.

    § 54.1-2023. Penalty.

    In addition to the powers vested in the Board, in any action brought under this chapter, if a court finds that a person has willfully engaged in an act or practice in violation of this chapter, the Attorney General, the attorney for the Commonwealth, or the attorney for the locality may recover for the Literary Fund, upon petition to the court, a civil penalty of not more than $10,000 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 locality notifies the alleged violator by certified mail that an act or practice is a violation of this chapter and the alleged violator, after receipt of the notice, continues to engage in the act or practice.

    Violations of this chapter shall constitute separate and distinct offenses. If the acts or activities violating this chapter also violate another provision of law, an action brought under this chapter shall not prohibit or bar any prosecution or proceeding under such other provision or the imposition or any penalties provided for thereby.

    History. 2010, c. 508; 2012, c. 405.

    Editor’s note.

    Acts 2012, c. 405, cl. 2 provides: “That the Virginia Real Estate Appraiser Board shall promulgate regulations to implement the provisions of this act to be effective July 1, 2014.”

    The 2012 amendments.

    The 2012 amendment by c. 405 added “In addition to the powers vested in the Board,” at the beginning, and substituted “not more than $10,000 per violation” for “not more than $2,500 per violation” at the end of the first sentence of the first paragraph.

    Chapter 21. Real Estate Brokers, Sales Persons and Rental Location Agents.

    Article 1. Regulation of Real Estate Brokers, Salespersons and Rental Location Agents.

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Brokers, §§ 3, 4, 26; 8B M.J. Statute of Frauds, § 2.

    § 54.1-2100. Definitions.

    As used in this chapter:

    “Distance learning” means instruction delivered by an approved provider through a medium other than a classroom setting. Such courses shall be those offered by an accredited institution of higher education, high school offering adult distributive education courses, other school or educational institution, or real estate professional association or related entities.

    “Real estate broker” means any individual or business entity, including a partnership, association, corporation, or limited liability company, who, for compensation or valuable consideration, (i) sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of real estate, including units or interest in condominiums, cooperative interest as defined in § 55.1-2100 , or time-shares in a time-share program even though they may be deemed to be securities or (ii) leases or offers to lease, or rents or offers for rent, any real estate or the improvements thereon for others.

    “Real estate team” means two or more individuals, one or more of whom is a real estate salesperson or broker, who (i) work together as a unit within the same brokerage firm, (ii) represent themselves to the public as working together as one unit, and (iii) designate themselves by a fictitious name.

    “Supervising broker” means a real estate broker who has been designated by a principal broker to supervise the provision of real estate brokerage services by associate brokers and salespersons assigned to a branch office or a real estate team.

    History. Code 1950, § 54-730; 1974, c. 409; 1982, c. 440; 1984, c. 283; 1988, c. 765; 1996, c. 993; 2001, c. 548; 2007, c. 809; 2018, cc. 223, 224.

    Cross references.

    As to real estate brokerage business of controlled subsidiary, see § 6.2-888 .

    As to mortgage loan originators, see Chapter 17 (§ 6.2-1700 et seq.) of Title 6.2.

    As to authority of licensed real estate brokers to sell, etc., home protection contracts, see § 38.2-2609 .

    Editor’s note.

    At the direction of the Virginia Code Commission, “institution of higher education” was substituted for “university, college, community college” in the definition of “Distance learning” to conform to Acts 2016, c. 588.

    Acts 2018, cc. 223 and 224, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2019.”

    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 “55.1-2100” for “55-426.”

    The 2001 amendments.

    The 2001 amendment by c. 548, substituted “limited liability company” for “limited liability corporation.”

    The 2007 amendments.

    The 2007 amendment by c. 809 added the definition of “Distance learning” and made related changes.

    The 2018 amendments.

    The 2018 amendments by cc. 223 and 224 are identical, effective January 1, 2019, and in the definition of “Real estate broker,” substituted “individual or business entity, including” for “person or business entity, including, but not limited to”; and added the definitions of “Real estate team” and “Supervising broker.”

    Research References.

    Real Estate Brokerage Law and Practice (Matthew Bender). Rohan, Goldstein and Bobis.

    CASE NOTES

    Editor’s note.

    Most of the cases annotated below were decided under prior law.

    Chapter is valid. —

    This chapter is a valid exercise of the police power, and has been sustained as against the contention that it contravened the Constitution of the United States by impairing the obligation of a contract and denying due process of law. Massie v. Dudley, 173 Va. 42 , 3 S.E.2d 176, 1939 Va. LEXIS 175 (1939).

    And is designed to protect the public. —

    This chapter, regulating the real estate business, and requiring brokers and salesmen to procure a license before acting as such, is designed to protect the public from the fraud, misrepresentation and imposition of dishonest and incompetent persons. Massie v. Dudley, 173 Va. 42 , 3 S.E.2d 176, 1939 Va. LEXIS 175 (1939).

    Purpose. —

    This chapter is designed to protect the public from the fraud, misrepresentation and imposition of dishonest and incompetent persons and is a legitimate exercise of the police power. Given this purpose, it is somewhat doubtful that the legislature would have intended the requirements of the statute to extend to a person acting as a middleman between businessmen who were considering the purchase and sale of an entire business; the parties can generally be considered quite competent to fend for themselves. CSB, Inc. v. Cradle of Democracy Broadcasting Co., 547 F. Supp. 106, 1982 U.S. Dist. LEXIS 14592 (E.D. Va. 1982).

    Broker with limited authority. —

    One who had no authority to fix the price of property and could not, therefore, make or submit a binding offer, was nevertheless a broker with a qualified or limited authority, where he was authorized to secure a purchaser and to obtain and negotiate offers for the property, subject to the approval of the owner. Massie v. Dudley, 173 Va. 42 , 3 S.E.2d 176, 1939 Va. LEXIS 175 (1939).

    Acts not constituting real estate transactions. —

    Where the original leases were already executed when the buyer and seller were brought together and where new or amended leases resulted from negotiations between buyer and seller and others, in which the person who brought the buyer and seller was not involved, that person was not acting as one who leases or offers to lease, or rents or offers for rent any real estate. CSB, Inc. v. Cradle of Democracy Broadcasting Co., 547 F. Supp. 106, 1982 U.S. Dist. LEXIS 14592 (E.D. Va. 1982).

    Where a radio transmission tower by the terms of the towersite lease was the property of the lessee, being specifically removable by the lessee should its lease to the site be terminated, and in all the transactions concerning the tower, including its sale as an asset of the radio station, the lessee maintained the tower was separate from the real estate on which it rested, and the tower’s character, in the lessee’s view, clearly was personalty, the sale of the tower did not involve the sale of real estate, since parties by agreement may fix the character and control the disposition of property, which in the absence of such a contract, would be held to be a fixture. CSB, Inc. v. Cradle of Democracy Broadcasting Co., 547 F. Supp. 106, 1982 U.S. Dist. LEXIS 14592 (E.D. Va. 1982).

    A broker who arranges the sale of a business as a going concern, which sale involves the transfer of leaseholds, is not a broker of real estate. CSB, Inc. v. Cradle of Democracy Broadcasting Co., 547 F. Supp. 106, 1982 U.S. Dist. LEXIS 14592 (E.D. Va. 1982).

    What constitutes negotiation. —

    A broker negotiates just as much when he brings parties together in such frame of mind that they can by themselves evolve a plan of procedure, as when he himself carries on the discussion and personally induces an agreement to accept a specific provision. Massie v. Dudley, 173 Va. 42 , 3 S.E.2d 176, 1939 Va. LEXIS 175 (1939).

    Appellant induced, brought about, arranged, and conducted the communications and conferences between the parties for the purpose of arranging a mutual agreement between them respecting the sale of a farm. In pursuance of his contract, he produced a purchaser for the farm, and pointed out its adaptability and advantages for the purposes desired by the prospective purchaser. It was held that the circumstances constituted completely the elements of a negotiation within the meaning of the statute. Massie v. Dudley, 173 Va. 42 , 3 S.E.2d 176, 1939 Va. LEXIS 175 (1939).

    Qualified intermediaries. —

    Simply put, the United States Court of Appeals for the Fourth Circuit believes the Virginia legislature would not have intended 26 U.S.C.S. § 1031 qualified intermediaries to be considered real estate brokers, as qualified intermediaries exist as a mechanism for qualifying taxpayers to defer the recognition of gains on investment properties and they serve a different, more specialized function than do real estate brokers as the term is commonly understood. Terry v. Suntrust Banks, Inc., 493 Fed. Appx. 345, 2012 U.S. App. LEXIS 13632 (4th Cir. 2012).

    CIRCUIT COURT OPINIONS

    Private cause of action. —

    Because no private cause of action exists under the Real Estate Brokers Act, plaintiffs could not plead a cause of action under the Act. Therefore, defendant’s demurrer was sustained without leave to amend as to the count of plaintiffs’ complaint alleging violation of the Act. Cudnohufsky v. Resh Realty, 95 Va. Cir. 244, 2017 Va. Cir. LEXIS 42 (Virginia Beach Mar. 3, 2017).

    OPINIONS OF THE ATTORNEY GENERAL

    “Real Estate Broker.” —

    A management company that manages short-term transient occupancy rentals of fewer than thirty days for a portion of the condominium units in a condominium complex must be licensed with the Virginia Real Estate Board and must employ a licensed real estate broker before renting or offering to rent those condominium units on behalf of the units’ owners. See opinion of Attorney General to The Honorable Randy C. Krantz, Commonwealth’s Attorney, Bedford County, 12-003, 2013 Va. AG LEXIS 5 (1/17/13).

    § 54.1-2101. Real estate salesperson defined.

    For the purposes of this chapter, “real estate salesperson” means any individual, or business entity, who for compensation or valuable consideration is employed either directly or indirectly by, or affiliated as an independent contractor with, a real estate broker, to sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase, sale or exchange of real estate, or to lease, rent or offer for rent any real estate, or to negotiate leases thereof, or of the improvements thereon.

    History. Code 1950, § 54-731; 1974, c. 685; 1978, c. 138; 1984, c. 201; 1988, c. 765; 1992, c. 84; 1996, c. 993; 2018, cc. 223, 224.

    Editor’s note.

    Acts 2018, cc. 223 and 224, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2019.”

    The 2018 amendments.

    The 2018 amendments by cc. 223 and 224 are identical, effective January 1, 2019, and substituted “individual, or business entity” for “person or business entity of not more than two persons unless related by blood or marriage.”

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Frauds, Statute of, §§ 2, 3.

    CIRCUIT COURT OPINIONS

    No duty to inquire. —

    Sections 54.1-2101 and 54.1-2106.1 do not require condominium buyers to inquire as to a real estate agent’s relationship with a real estate agency; the statutes are not sufficient notice to the buyers that the real estate agent may be an independent contractor. Steffan v. Freemason Assocs., 60 Va. Cir. 216, 2002 Va. Cir. LEXIS 389 (Norfolk Oct. 10, 2002).

    § 54.1-2101.1. Preparation of real estate contracts by real estate licensees; translation.

    Notwithstanding any rule of court to the contrary, any person licensed under this chapter may prepare written contracts for the sale, purchase, option, exchange, or rental of real estate, provided that the preparation of such contracts is incidental to a real estate transaction in which the licensee (i) is involved and (ii) does not charge a separate fee for preparing the contracts.

    If a party to a real estate transaction requests translation of a contract or other real estate document from the English language to another language, a licensee may assist such party in obtaining a translator or may refer such party to an electronic translation service. The licensee shall not charge a fee for such assistance or referral. In doing so, the licensee shall not be deemed to have breached any of his obligations under this chapter or otherwise become liable for any inaccuracies in the translation.

    History. 1997, cc. 200, 231; 2018, cc. 39, 87.

    Cross references.

    For rules governing real estate practice in the context of the unauthorized practice of law, see Rule 6 of Section I of the Rules for Integration of the Virginia State Bar, Part Six of the Rules of the Virginia Supreme Court. As to preparation of contracts incident to the regular course of conducting a licensed real estate business, see UPC 6-6 thereunder.

    The 2018 amendments.

    The 2018 amendments by cc. 39 and 87 are identical, and in the first paragraph, inserted “that” following “provided” and added the second paragraph.

    Law Review.

    For an article, “Property Law,” see 31 U. Rich. L. Rev. 1145 (1997).

    § 54.1-2102. Repealed by Acts 1992, c. 84.

    § 54.1-2103. Exemptions from chapter.

    1. The provisions of this chapter shall not apply to:
      1. Any person, partnership, association, corporation, entity, or their regular employees, who as owner or lessor perform any of the acts enumerated in §§ 54.1-2100 and 54.1-2101 with reference to property owned or leased by them, where the acts are performed in the regular course of or incident to the management of the property and the investment therein. For property governed by the Virginia Real Estate Time-Share Act (§ 55.1-2200 et seq.), the term “owner” for purposes of this subdivision shall include affiliated entities, provided that (i) the owner has a controlling interest in the affiliated entity or (ii) the affiliated entity and the owner have a common parent company;
      2. Any person acting without compensation as attorney-in-fact under a power of attorney issued by a property owner solely for the purpose of authorizing the final performance required of such owner under a contract for the sale, lease, purchase, or exchange of real estate;
      3. Service rendered by an attorney-at-law in the performance of his duties as such;
      4. A person acting as a receiver, trustee in bankruptcy, administrator or executor, or any person selling real estate under order of any court;
      5. A trustee acting under a trust agreement, deed of trust, or will, or the regular salaried employees thereof;
      6. Any corporation managing rental housing when the officers, directors, and members in the ownership corporation and the management corporation are the same and the management corporation manages no other property for other persons, partnerships, associations, or corporations;
      7. Any existing tenant of a residential dwelling unit who refers a prospective tenant to the owner of the unit or to the owner’s duly authorized agent or employee and for the referral receives, or is offered, a referral fee from the owner, agent or employee;
      8. Any auctioneer licensed in accordance with Chapter 6 (§ 54.1-600 et seq.) of this title selling real estate at public auction when employed for such purpose by the owner of the real estate and provided the bidding at such auction is held open for no longer than forty-eight hours. An auctioneer shall not advertise that he is authorized to sell real estate. An auctioneer may advertise for sale at public auction any real estate when employed to do so as herein provided, and may advertise that he is authorized to auction real estate at public auction;
      9. [Expired.]
      10. Any person who is licensed and is in good standing as a real estate broker or salesperson in another state, and who assists a prospective purchaser, tenant, optionee, or licensee located in another state to purchase, lease, option, or license an interest in commercial real estate, as defined in § 55.1-1100 , in the Commonwealth. Such real estate licensee from another state may be compensated by a real estate broker in the Commonwealth. Nothing in this subdivision shall be construed to permit any person not licensed and in good standing as a real estate broker or salesperson in the Commonwealth to otherwise act as a real estate broker or salesperson under this chapter.
    2. The provisions of this chapter shall not prohibit the selling of real estate (i) by an attorney-at-law in the performance of his duties as such, (ii) by a receiver, trustee in bankruptcy, administrator or executor, a special commissioner or any person selling real estate under order of court, or (iii) by a trustee acting under the trust agreement, deed of trust or will, or the regular salaried employees thereof.
    3. The provisions of this chapter shall not apply to any salaried person employed by a licensed real estate broker for and on behalf of the owner of any real estate or the improvements thereon which the licensed broker has contracted to manage for the owner if the actions of such salaried employee are limited to (i) exhibiting residential units on such real estate to prospective tenants, if the employee is employed on the premises of such real estate; (ii) providing prospective tenants with factual information about the lease of residential real estate; (iii) accepting applications for lease of such real estate; and (iv) accepting security deposits and rentals for such real estate. Such deposits and rentals shall be made payable to the owner or the broker employed by such owner. The salaried employee shall not negotiate the amounts of such security deposits or rentals and shall not negotiate any leases on behalf of such owner or broker.
    4. A licensee of the Board shall comply with the Board’s regulations, notwithstanding the fact that the licensee would be otherwise exempt from licensure under subsection A. Nothing in this subsection shall be construed to require a person to be licensed in accordance with this chapter if he would be otherwise exempt from such licensure.
    5. An attorney-at-law referring a client to a licensee shall not be entitled to receive any compensation from a listing firm or offered by a common source information company to cooperating brokers, unless the attorney is also licensed under this chapter as a real estate broker or salesperson.

    History. Code 1950, § 54-734; 1972, c. 324; 1973, cc. 487, 527; 1975, c. 238; 1980, c. 127; 1982, cc. 633, 682; 1988, c. 765; 1992, c. 84; 1993, cc. 816, 899; 1995, c. 227; 1998, cc. 261, 262; 2001, Sp. Sess. I, c. 9; 2009, cc. 88, 262; 2015, cc. 24, 272.

    Editor’s note.

    Acts 2001, Sp. Sess. I, c. 9, which added subdivision A 9, relating to certain employees of a nonprofit corporation founded by the City of Petersburg in cooperation with others, provides in cl. 3: “That the provisions of this act shall expire on June 30, 2003, unless sooner reenacted by the General Assembly.”

    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 “the Virginia Real Estate Time-Share Act (§ 55.1-2200 et seq.)” for “Chapter 21 (§ 55-360 et seq.) of Title 55” and “55.1-1100” for “55-526.”

    The 1998 amendments.

    The 1998 amendment by c. 261, in subsection C, in the first sentence, substituted “the actions of such salaried employee are limited to (i)” for “such salaried employee is employed on the premises of such real estate and are limited in employment to,” substituted “if the employee is employed on the premises of such real estate; (ii) providing” for “to providing such,” inserted “factual” preceding “information about,” substituted “residential real estate; (iii)” for “such residential units, to,” substituted “real estate; and (iv)” for “units, and to,” and substituted “real estate” for “units” at the end of the sentence.

    The 1998 amendment by c. 262 rewrote subdivision A 2 which formerly read: “Persons acting as attorney-in-fact, except persons so acting and receiving compensation where the primary purpose is to avoid the licensure requirements of this chapter, under a power of attorney issued by the property’s owner solely for the purpose of authorizing the final performance required of the owner under a contract of sale or exchange or a lease.”

    The 2001 amendments.

    The 2001, Special Session I, amendment by c. 9, effective July 19, 2001, added subdivision A 9. For expiration provision, see Editor’s note.

    The 2009 amendments.

    The 2009 amendment by c. 88 added subsection E.

    The 2009 amendment by c. 262 added subdivision A 10.

    The 2015 amendments.

    The 2015 amendments by cc. 24 and 272 are identical, and in subdivision A 1, deleted “or” following “association” and inserted “entity” in the first sentence and added the second sentence.

    CASE NOTES

    “Owner” has ordinary legal meaning. —

    Nothing in the statutory language employed in this section displays any intent to ascribe to the word “owner” a meaning different from what it enjoys in ordinary legal contemplation. Grenco Real Estate Inv. Trust v. Nathaniel Greene Dev. Corp., 218 Va. 228 , 237 S.E.2d 107, 1977 Va. LEXIS 183 (1977) (decided under prior law).

    Shareholder not owner of land of corporation. —

    Within the meaning of this section, a shareholder is not an owner of land of the corporation in which the shares are held. Grenco Real Estate Inv. Trust v. Nathaniel Greene Dev. Corp., 218 Va. 228 , 237 S.E.2d 107, 1977 Va. LEXIS 183 (1977) (decided under prior law).

    Even if, because of the licensing statute’s penal nature, the court construes the word “owner” liberally in favor of an exemption, the court cannot conclude that a shareholder is an owner of land of the corporation in which the shares are held. Such a construction not only would subvert the shareholder’s traditional status vis-a-vis the corporation but also would thwart the salutary purpose of the licensing requirement which is “to protect the public from the fraud, misrepresentation and imposition of dishonest and incompetent persons.” Grenco Real Estate Inv. Trust v. Nathaniel Greene Dev. Corp., 218 Va. 228 , 237 S.E.2d 107, 1977 Va. LEXIS 183 (1977) (decided under prior law).

    Exemption did not apply to licensed broker who sold his own property. —

    Trial court erred in concluding that the “owner” exemption in former § 54-734 (1) precluded it from regulating licensed real estate broker when he sold his own property; former § 54-734 (1) merely exempted from the licensing requirement property owners who in the course of dealing with their own property perform acts customarily performed by licensed agents or brokers; however, once an individual was licensed as an agent or broker, that person was subject to regulation by the board in any real estate transaction in which he or she participates. Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 384 S.E.2d 622, 6 Va. Law Rep. 663, 1989 Va. App. LEXIS 132 (1989).

    OPINIONS OF THE ATTORNEY GENERAL

    Licensing requirement. —

    A management company that manages short-term transient occupancy rentals of fewer than thirty days for a portion of the condominium units in a condominium complex must be licensed with the Virginia Real Estate Board and must employ a licensed real estate broker before renting or offering to rent those condominium units on behalf of the units’ owners. See opinion of Attorney General to The Honorable Randy C. Krantz, Commonwealth’s Attorney, Bedford County, 12-003, 2013 Va. AG LEXIS 5 (1/17/13).

    § 54.1-2104. Real Estate Board; membership; chairman; seal.

    The Real Estate Board shall be composed of nine members as follows: seven members who have been licensed real estate brokers or salespersons for at least five consecutive years before their appointment and two citizen members. The terms of Board members shall be four years.

    The Board shall elect a chairman from its membership.

    The Board shall adopt a seal by which it shall authenticate its proceedings.

    History. Code 1950, §§ 54-737, 54-738, 54-739, 54-744; 1956, c. 145; 1981, c. 447; 1984, c. 201; 1985, c. 448; 1988, cc. 42, 765; 1992, c. 809; 2010, c. 91.

    Cross references.

    As to appointments, removals, and limitation of terms of members of regulatory boards, see § 54.1-107 .

    The 2010 amendments.

    The 2010 amendment by c. 91 deleted the former second sentence of the first paragraph, which read: “For purposes of implementation of these provisions, one licensee and one citizen member of the Board shall be appointed effective July 1, 1992, and one licensee and one citizen member appointed effective July 1, 1994.”

    § 54.1-2105. General powers of Real Estate Board; regulations; educational and experience requirements for licensure.

    1. The Board may do all things necessary and convenient for carrying into effect the provisions of this chapter and may promulgate necessary regulations.
    2. The Board shall adopt regulations establishing minimum educational requirements as conditions for licensure. Board regulations relating to initial licensure shall include the following requirements:
      1. Every applicant for an initial license as a real estate salesperson shall have:
        1. At a minimum, a high school diploma or its equivalent; and
        2. Completed a course in the principles of real estate that carried an academic credit of at least four semester hours, but not less than 60 hours of classroom, correspondence, or other distance learning instruction, offered by an accredited institution of higher education, high school offering adult distributive education courses, or other school or educational institution offering an equivalent course.
      2. Every applicant for an initial license as a real estate broker shall have:
        1. At a minimum, a high school diploma or its equivalent; and
        2. Completed not less than 12 semester hours of classroom or correspondence or other distance learning instruction in real estate courses offered by an accredited institution of higher education or other school or educational institution offering equivalent courses.
      3. Every applicant for a license by reciprocity as a real estate salesperson or real estate broker shall have:
        1. Completed a course in the principles of real estate that is comparable in content and duration and scope to that required in subdivision 1 or 12 semester hours of classroom or correspondence or other distance learning instruction in real estate courses that are comparable in content and duration and scope to that required in subdivision 2; and
        2. If currently licensed by another state as a real estate salesperson or broker, passed Virginia’s examination.
    3. The Board may waive any requirement under the regulations relating to education or experience when the broker or salesperson is found to have education or experience equivalent to that required. No regulation imposing educational requirements for initial licensure beyond those specified by law shall apply to any person who was licensed prior to July 1, 1975, and who has been continuously licensed since that time, except that licensure as a salesperson prior to such time shall not exempt a salesperson who seeks to be licensed as a broker from the educational requirements established for brokers.
    4. The Board shall establish criteria to ensure that prelicensure and broker licensure courses meet the standards of quality deemed by the Board to be necessary to protect the public interests. For correspondence and other distance learning instruction offered by an approved provider, such criteria may include appropriate testing procedures. The Board may establish procedures to ensure the quality of the courses.Noncollegiate institutions shall not be authorized to grant collegiate semester hours for academic credit.The specific content of the real estate courses shall be in real estate brokerage, real estate finance, real estate appraisal, real estate law, and such related subjects as are approved by the Board.
    5. The Board may establish criteria delineating the permitted activities of unlicensed individuals employed by, or affiliated as an independent contractor with, real estate licensees or under the supervision of a real estate broker.
    6. The Board may take a disciplinary case against a licensee under advisement, defer a finding in such case, and dismiss such action upon terms and conditions set by the Board.

    History. Code 1950, § 54-740; 1974, c. 663; 1977, c. 3; 1980, c. 571; 1981, c. 117; 1984, cc. 201, 283; 1985, c. 116; 1988, cc. 9, 765; 1989, c. 244; 1991, c. 576; 1992, cc. 65, 446, 624, 717; 1995, c. 125; 1996, cc. 890, 903; 1997, c. 389; 1998, c. 268; 2000, c. 759; 2003, cc. 998, 1027; 2006, cc. 61, 627; 2007, c. 809; 2010, cc. 373, 637; 2012, c. 750; 2016, c. 334; 2019, cc. 179, 395.

    Editor’s note.

    Acts 1998, ch. 268, cl. 2 provides: “That the Real Estate Board shall adopt regulations to implement subsection E of § 54.1-2105 of this act on or before January 1, 2000.”

    Acts 1998, c. 268, cl. 3 provides: “That the provisions of subsection D of § 54.1-2105 of this act shall become effective on January 1, 1999.”

    Acts 2003, cc. 998 and 1027, cl. 2 provides: “That the Real Estate Board shall establish procedures for phasing in the provisions of this act such that real estate licensees who are first licensed after January 1, 2004, shall meet the requirements of the 30 hours of instruction for new real estate licensees and real estate licensees whose licenses are up for renewal after July 1, 2004, shall meet the continuing education requirements in this act.”

    Acts 2003, cc. 998 and 1027, cl. 3 effective April 2, 2003, as amended by Acts 2004, c. 1017, cl. 1, provides: “That notwithstanding any other provision of law, no license, permit, certificate, or other document, however styled or denominated, that is related to the practice of any business, profession, or calling and issued under Title 54.1 to any citizen of the Commonwealth shall be held to have expired, and no requirements pertaining to the renewal or maintenance of such license, permit, certificate, or other document shall have to be met, during the period of such person’s service outside of the United States in the armed services of the United States and 60 days thereafter. No extension granted under this section, however, shall exceed five years from the date of expiration of the document.

    “For the purposes of this enactment ‘service in the armed services of the United States’ includes active duty service with the regular Armed Forces of the United States or the National Guard or other reserve component.”

    Acts 2006, c. 61, cl. 2 provides: “That the provisions of this act shall not apply to any person holding a valid license as a real estate salesperson or broker issued by the Real Estate Board before July 1, 2006.”

    At the direction of the Virginia Code Commission, “institution of higher education” was substituted for “university, college, community college” in subdivisions B 1 b and B 2 b to conform to Acts 2016, c. 588.

    The 1997 amendment deleted “the” preceding “requirement that such schools” in the third sentence of subsection B; added subsection E; and redesignated former subsections E through H as present subsections F through I.

    The 1998 amendment, in subsection D, in the second sentence, substituted “no less than four hours” for “no less than two hours,” deleted “and” following “training in fair housing laws,” and added “and ethics and standards of conduct”; in the fourth sentence, substituted “The remaining four hours” for “The remaining six hours”; in subsection E, in the present first paragraph, added the last sentence, and added the present second paragraph. For effective dates of the 1998 amendments, see the Editor’s notes.

    The 2000 amendments.

    The 2000 amendment by c. 759 deleted former subsection I, which read: “The Board shall develop a residential property disclaimer statement form and a residential property disclosure statement form for use in accordance with the provisions of § 55-519.”

    The 2003 amendments.

    The 2003 amendments by cc. 998 and 1027 are identical, and substituted “that” for “which” in the second sentence of subsection B; substituted “45” for “forty-five” in paragraph B 1 a; substituted “60” for “sixty” in paragraph B 1 b; substituted “12” for “twelve” in subdivision B 2; inserted the last sentence in the first paragraph of subsection C; inserted present subsection D, and redesignated former subsections D through H as present subsections E through I; in present subsection E, in the second sentence, substituted “16 hours” for “eight hours,” and deleted “no less than four hours of which shall include training in fair housing laws, state real estate laws and regulations, and ethics and standards of conduct” at the end of that sentence, inserted the present third and fourth sentences, substituted “eight hours shall be elective and shall” for “four hours shall” in the present sixth sentence, and inserted the present eighth sentence; and in present subsection F, in the first paragraph, substituted “10” for “ten” in clause (ii), and substituted “75” for “seventy-five” in clause (iii), and in the second sentence of the second paragraph, substituted “shall” for “may.”

    The 2006 amendments.

    The 2006 amendment by c. 61 added “including a requirement that an applicant have, at a minimum, a high school diploma or its equivalent” at the end of the first sentence of subsection B.

    The 2006 amendment by c. 627, effective July 1, 2007, inserted “relating to initial licensure” in the last sentence of subsection B; added the sixth through ninth sentences in subsection E; and substituted ‘Every” for “As of July 1, 1990, every” in the first sentence of subsection G.

    The 2007 amendments.

    The 2007 amendment by c. 809 rewrote the section.

    The 2010 amendments.

    The 2010 amendments by cc. 373 and 637 are identical and added subdivision B 3.

    The 2012 amendments.

    The 2012 amendment by c. 750 added subsection E and made a stylistic change in subsection B.

    The 2016 amendments.

    The 2016 amendment by c. 334 added subsection F.

    The 2019 amendments.

    The 2019 amendments by cc. 179 and 395 are identical, and inserted “or affiliated as an independent contractor with” in subsection E.

    Law Review.

    For 1991 survey on property law, see 25 U. Rich. L. Rev. 859 (1991).

    CASE NOTES

    A rule of the Board was an invalid application of former § 54-762 (10) because the conduct prohibited by the rule was not of the character which the Board could prohibit under that provision. Kohlberg v. Virginia Real Estate Comm'n, 212 Va. 237 , 183 S.E.2d 170, 1971 Va. LEXIS 336 (1971) (decided under prior law).

    Regulation was valid exercise of board authority. —

    Regulation which stated that the commission had the power to fine and suspend a license for withholding from a prospective purchaser any information readily available to such licensee concerning character or condition of the real estate, constituted a valid exercise of the real estate board’s authority to regulate real estate brokers since this section gave the board broad discretion in promulgating rules and regulations necessary to carry out its statutory purpose of maintaining integrity and competency of real estate brokers. Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 384 S.E.2d 622, 6 Va. Law Rep. 663, 1989 Va. App. LEXIS 132 (1989) (decided under former § 54-740).

    CIRCUIT COURT OPINIONS

    Private cause of action. —

    Because no private cause of action exists under the Real Estate Brokers Act, plaintiffs could not plead a cause of action under the Act. Therefore, defendant’s demurrer was sustained without leave to amend as to the count of plaintiffs’ complaint alleging violation of the Act. Cudnohufsky v. Resh Realty, 95 Va. Cir. 244, 2017 Va. Cir. LEXIS 42 (Virginia Beach Mar. 3, 2017).

    § 54.1-2105.01. Educational requirements for all salespersons within one year of licensure.

    1. The Board shall establish guidelines for a post-license educational curriculum of at least 30 hours of classroom, or correspondence or other distance learning, instruction, in specified areas, which shall be required of all salespersons within the initial year of licensure. Failure of a new licensee to complete the 30-hour post-licensure curriculum within one year from the last day of the month in which his license was issued shall result in the license being placed on inactive status by the Board until the curriculum has been completed.
    2. To establish the guidelines required by this section, the Board shall establish an industry advisory group composed of representatives of the practices of (i) residential real estate, (ii) commercial real estate, and (iii) property management. The industry advisory group shall consist of licensed real estate salespersons and real estate brokers who shall be appointed by and shall meet at the direction of the Board to update the guidelines. The Board shall review and may approve educational curricula developed by an approved school or other provider of real estate education authorized by this chapter. The industry advisory group shall serve at no cost to the Board.
    3. The curricula for new licensees shall include topics that new licensees need to know in their practices, including contract writing, handling customer deposits, listing property, leasing property, agency, current industry issues and trends, flood hazard areas and the National Flood Insurance Program, property owners’ and condominium association law, landlord-tenant law, Board regulations, real estate-related finance, and such other topics as designated by the Board. The post-licensure education requirements of this section for new licensees shall be in lieu of the continuing education requirements otherwise specified in this chapter and Board regulations.

    History. 2007, c. 809; 2011, c. 461; 2015, c. 692; 2018, cc. 60, 86.

    Editor’s note.

    Acts 2007, c. 809, cl. 2 provides: “That the provisions of (i) subsection A of § 54.1-2105.01 relating to the educational requirements for real estate salespersons within the first year of licensure, and (ii) subdivision A 1 of § 54.1-2105.03 relating to the number of hours of continuing education required of real estate brokers and the apportionment of such hours of the first enactment of this act shall become effective on July 1, 2008, and that the remaining provisions of the first enactment shall become effective on July 1, 2007.”

    Acts 2018, cc. 60 and 86, cl. 2 provides: “That the provisions of this act amending §§ 54.1-2105.01 and 54.1-2105.03 of the Code of Virginia shall become effective on January 1, 2019.”

    The 2011 amendments.

    The 2011 amendment by c. 461, in subsection B, in the first sentence, substituted “advisory group composed of representatives of the practices of” for “advisory group to focus on the following three practice tracks,” in the second sentence, substituted “who shall be appointed by and shall meet” for “and meet” and deleted “in each of the three educational practice tracks” from the end, and in the last sentence, substituted “curricula” for “curriculum”; and in the first sentence in subsection C, substituted “The curricula” for “The guidelines in each of the three practice tracks,” and deleted “respective” preceding “practices” and “but not limited to” following “including.”

    The 2015 amendments.

    The 2015 amendment by c. 692, effective January 1, 2016, inserted “flood hazard areas and the National Flood Insurance Program” in subsection C.

    The 2018 amendments.

    The 2018 amendments by cc. 60 and 86 are identical, effective January 1, 2019, and in subsection A, inserted “post-license” and substituted “the initial year of licensure” for “one year of issuance of a license by the Board” in the first sentence, and inserted “post-licensure” and substituted “from the last day of the month in which his license was issued” for “of obtaining a real estate salesperson’s license” in the last sentence; in subsection B, deleted “at least annually” following “direction of the Board”; in subsection C, inserted “real estate-related finance” in the first sentence and substituted “post-licensure” for “continuing” in the second sentence.

    § 54.1-2105.02. Regulation of real estate education providers and courses.

    1. The Board may regulate any school that is established to offer real estate courses except such schools as are regulated by another state agency. Such authority shall include, but not be limited to, qualification of instructors, approval of course curricula, and requirement that such schools submit evidence of financial responsibility to ensure that these schools protect the public health, safety, and welfare.
    2. Board regulations shall include a procedure for processing applications of educational institutions, real estate professional associations, or related entities, to provide continuing education courses, which procedure, at a minimum, shall (i) provide for a broad range of subject matters suitable for the continuing education of licensed professionals in a multifamily residential and commercial office, as well as single-family residential, sales, leasing and property management; (ii) acknowledge, in writing, receipt of such applications within 10 calendar days after receipt; and (iii) provide written notification to the applicant, within 75 calendar days of receipt of the application, whether the application has been approved or disapproved, and if disapproved, the reasons therefor. In addition, the Board shall prepare a comprehensive listing of courses, pre-approved by the Board, related to the professional competency requirements for the multifamily residential and commercial office industries.Board regulations shall include criteria for evaluating and approving continuing education course credits and for awarding credit hours for such courses, as well as procedures for ensuring the quality of real estate courses. The Board shall approve recommended course titles, content, and hours of continuing education credit developed and published by national professional real estate trade associations, unless the Board determines in writing that such titles, content, or credit hours should not be approved and specifies the reasons therefor.

    History. 2007, c. 809.

    § 54.1-2105.03. Continuing education; relicensure of brokers and salespersons.

    1. Board regulations shall include educational requirements as a condition for relicensure of brokers and salespersons to whom active licenses have been issued by the Board beyond those now specified by law as conditions for licensure.
      1. Brokers to whom active licenses have been issued by the Board shall be required to satisfactorily complete courses of not less than 24 hours of classroom or correspondence or other distance learning instruction during each licensing term. Of the total 24 hours, the curriculum shall consist of:
        1. A minimum of eight required hours to include at least three hours of ethics and standards of conduct, two hours of fair housing, and the remaining three hours of legal updates and emerging trends, flood hazard areas and the National Flood Insurance Program, real estate agency, and real estate contracts;
        2. A minimum of eight hours of courses relating to supervision and management of real estate agents and the management of real estate brokerage firms as are approved by the Board, two hours of which shall include an overview of the broker supervision requirements under this chapter and the Board regulations; and
        3. Eight hours of general elective courses as are approved by the Board.The Board may, on a year-by-year basis, adjust the required hours and course topics specified in this subdivision for the next succeeding year, applicable to a licensee in the next renewal period for his license, including the addition of topics deemed by the Board to be essential. Such designation or adjustment by the Board shall be made prior to September 1 of any given calendar year. The action of the Board in making such adjustment shall be subject to § 2.2-4012.1 .The fair housing requirements shall include an update on current cases and administrative decisions under fair housing laws. If the licensee submits a notarized affidavit to the Board that certifies that he does not practice residential real estate and shall not do so during the licensing term, training in fair housing shall not be required; instead, such licensee shall receive training in other applicable federal and state discrimination laws and regulations.
      2. Salespersons to whom active licenses have been issued by the Board shall be required to satisfactorily complete courses of not less than 16 hours of classroom or correspondence or other distance learning instruction during each licensing term. Of the total 16 hours, the curriculum shall consist of:
        1. A minimum of eight required hours to include at least three hours of ethics and standards of conduct, two hours of fair housing, and the remaining three hours of legal updates and emerging trends, real estate agency, real estate contracts, and flood hazard areas and the National Flood Insurance Program; and
        2. Eight hours of general elective courses as are approved by the Board.The Board may, on a year-by-year basis, readjust the required hours and course topics specified in this subdivision for the next succeeding year, applicable to a licensee in the next renewal period for his license, including the addition of topics deemed by the Board to be essential. Such designation or adjustment by the Board shall be made prior to September 1 of any given calendar year. The action of the Board in making such adjustment shall be subject to § 2.2-4012.1 .
      3. The Board shall approve a continuing education curriculum of not less than three hours, and as of July 1, 2012, every applicant for relicensure as an active broker or salesperson shall complete at a minimum one three-hour continuing education course on the changes to residential standard agency effective as of July 1, 2011, to Article 3 (§ 54.1-2130 et seq.) prior to renewal or reinstatement of his license. If the licensee submits a notarized affidavit to the Board that certifies that he does not practice residential real estate and shall not do so during the licensing term, training in residential representation shall not be required. A licensee who takes one three-hour continuing education class on residential representation shall satisfy the requirements for continuing education and may, but shall not be required to, take any further continuing education on residential standard agency.The fair housing requirements shall include an update on current cases and administrative decisions under fair housing laws. If the licensee submits a notarized affidavit to the Board that certifies that he does not practice residential real estate and shall not do so during the licensing term, training in fair housing shall not be required; instead, such licensee shall receive training in other applicable federal and state discrimination laws and regulations.
      4. For correspondence and other distance learning instruction offered by an approved provider, the Board shall establish the appropriate testing procedures to verify completion of the course and require the licensee to file a notarized affidavit certifying compliance with the course requirements. The Board may establish procedures to ensure the quality of the courses. The Board shall not require testing for continuing education courses completed through classroom instruction.
    2. Every applicant for relicensure as an active salesperson or broker shall complete the continuing education requirements prior to each renewal or reinstatement of his license. The continuing education requirement shall also apply to inactive licensees who make application for an active license. Notwithstanding this requirement, military personnel called to active duty in the armed forces of the United States may complete the required continuing education within six months of their release from active duty.
    3. The Board shall establish procedures for the carryover of continuing education credits completed by licensees from the licensee’s current license period to the licensee’s next renewal period.
    4. The Board may grant exemptions or waive or reduce the number of continuing education hours required in cases of certified illness or undue hardship as demonstrated to the Board.

    History. 2007, c. 809; 2011, c. 461; 2012, c. 750; 2015, c. 692; 2016, c. 334; 2018, cc. 60, 86.

    Editor’s note.

    Acts 2007, c. 809, cl. 2 provides: “That the provisions of (i) subsection A of § 54.1-2105.01 relating to the educational requirements for real estate salespersons within the first year of licensure, and (ii) subdivision A 1 of § 54.1-2105.03 relating to the number of hours of continuing education required of real estate brokers and the apportionment of such hours of the first enactment of this act shall become effective on July 1, 2008, and that the remaining provisions of the first enactment shall become effective on July 1, 2007.”

    Acts 2018, cc. 60 and 86, cl. 2 provides: “That the provisions of this act amending §§ 54.1-2105.01 and 54.1-2105.03 of the Code of Virginia shall become effective on January 1, 2019.”

    The 2011 amendments.

    The 2011 amendment by c. 461, in the first paragraph in subdivisions A 1 and A 2, substituted “shall consist of” for “shall include”; added the second paragraph in subdivision A 1; added the last paragraph in subdivision A 2; added the first paragraph and the subdivision designator in subdivision A 3; in the last paragraph in subdivision A 3, substituted “completed” for “taken” in the second sentence; and redesignated former subdivision A 3 as subdivision A 4.

    The 2012 amendments.

    The 2012 amendment by c. 750, in subdivision A, in the last paragraph in 1 and the last paragraph in 3, deleted language concerning the board approving a two hour continuing education course on limited service agency; and added subsection C.

    The 2015 amendments.

    The 2015 amendment by c. 692, effective January 1, 2016, inserted “flood hazard areas and the National Flood Insurance Program” in subdivisions A 1 a and A 2 a and made related changes.

    The 2016 amendments.

    The 2016 amendment by c. 334 added subsection D.

    The 2018 amendments.

    The 2018 amendments by cc. 60 and 86 are identical, effective January 1, 2019, and in subdivision A 1 b, inserted “two hours of which shall include an overview of the broker supervision requirements under this chapter and the Board regulations.”

    § 54.1-2105.04. Education requirements; reactivation of licenses; waiver.

    1. Board regulations shall include remedial educational requirements for any salesperson or broker who has been inactive for more than three years. The regulations shall require the applicant to meet the educational requirements for a salesperson or broker in effect at the time either becomes active.
    2. When the license has been inactive for more than three years, the Board may waive the educational requirements for reactivation of a license under the following conditions: (i) during the time the license has been inactive, the holder of such inactive license has been engaged in an occupation whereby the knowledge of real estate would be retained or (ii) the holder of such license is a member or the spouse of a member of the armed forces of the United State