6/20/2024 12:30 pm Date / Time filed with the Register of Regulations | VA.R. Document Number: R____-______ |
Virginia Register Publication Information
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Transmittal Sheet: Response to Petition for Rulemaking
Initial Agency Notice
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Agency Decision
Promulgating Board: | Board for Contractors |
Regulatory Coordinator: | Joe Haughwout (804)367-8566 Joseph.Haughwout@dpor.virginia.gov |
Agency Contact: | Cameron Parris Regulatory Operations Administrator (804)367-9183 Cameron.Parris@dpor.virginia.gov |
Contact Address: | Department of Professional and Occupational Regulation 9960 Mayland Drive, Suite 400 Richmond, VA 23233 |
Chapter Affected: | |
18 vac 50 - 30: | Individual License and Certification Regulations |
Statutory Authority: |
State: 54.1-201 Federal: |
Date Petition Received | 03/26/2024 |
Petitioner | Patrick Jeffers |
Petitioner requests the Department of Professional and Occupational Regulation ("DPOR")
and the Board for Contractors ("the Board") to amend 18VAC50-30-190.11 of the Board's
Individual License and Certification Regulations (18VAC50-30), which provides for
prohibited acts.
Section 18VAC50-30-190 states, in part:
Any of the following are cause for disciplinary action:
11. Where the regulant has been convicted or found guilty, after initial licensure
or certification, regardless of adjudication, in any jurisdiction of any felony or
of a misdemeanor involving lying, cheating or stealing, sexual offense, non-marijuana
drug distribution, physical injury, or relating to the practice of the profession,
there being no appeal pending therefrom or the time of appeal having elapsed. Any
pleas of guilty or nolo contendere shall be considered a conviction for the purposes
of this subdivision. The record of a conviction certified or authenticated in such
form as to be admissible in evidence under the laws of the jurisdiction where convicted
shall be admissible as prima facie evidence of such guilt;
Petitioner requests that the term "sexual offense" in the prohibited act be stricken.
Petitioner contends that 18VAC50-30-190.11 invites the Board to apply § 54.1-204(B)
of the Code of Virginia in a manner that exceeds the Board's police power under §§
54.1-100 and 54.1-201(A)(5) by allowing the Board to divest tradesman applicants,
with certain criminal convictions, of their fundamental right to pursue and practice
their occupations of choice absent the Board's legitimate protective need to prevent
them from perpetrating deceptive or misleading trade practices, or to ensure their
continuing trade competency, in contravention of the Constitution of the United States,
the Constitution of Virginia, and federal and state statutory and common law.
Petitioner's petition provides additional legal argument as to the bases upon which
the prohibited act exceeds the Board's police power.
A copy of the petition is available from the agency.
Agency Plan
The petition for rulemaking will be published in the Virginia Register of Regulations
on April 22, 2024 (Volume 40, Issue 18). The petition will also be published on the
Virginia Regulatory Town Hall (www.townhall.virginia.gov). Public comment on the petition
will be received from April 22, 2024, to May 13, 2024. Upon conclusion of the public
comment period, the Board will consider all public comments received on the petition
and make a decision to either grant or deny the petitioner's request at the Board's
next available meeting, which is expected to be June 18, 2024. The petitioner will
be notified in writing of the Board's decision.
Publication Date | 04/22/2024 (comment period will also begin on this date) |
Comment End Date | 05/13/2024 |
Take no action
Agency Response Date | 06/20/2024 |
The regulation cited in the petition, 18VAC50-30-190, provides for a prohibited act
that applies to regulants who have been convicted of any felony or of certain misdemeanors
after receiving a license. Based on a review of the petition, it appears the intention
of the petitioner was to address the Board's requirement that, pursuant to 18VAC50-30-30,
individuals must disclose any felony convictions and any non-marijuana misdemeanor
convictions at the time application is made. It further appears the petition addresses
the Board's legal authority to refuse issuance of a license to applicants for licensure
rather than the board's authority to discipline a licensee.
Section 54.1-204 of the Code of Virginia provides that a person shall not be refused
a license to practice, pursue, or engage in any regulated occupation or profession
solely because of a prior criminal conviction, unless the conviction directly relates
to the occupation or profession for which the license is sought.
This section of the Code of Virginia also sets forth criteria the Board must consider
when determining whether a criminal conviction directly relates to an occupation or
profession. These include the nature and seriousness of the crime; the relationship
of the crime to the ability, capacity or fitness required to perform the duties and
discharge the responsibilities of the occupation; and the extent to which the occupation
or profession might offer an opportunity to engage in further criminal activity of
the same type.
The statutes and regulations of the Board provide for the protection of the health,
safety, and welfare of the public. Removing the provision in the regulation that requires
an applicant to disclose any felony convictions and non-marijuana misdemeanor convictions,
including sexual offense convictions, does not fulfill the Board's obligation to provide
the protections referenced above. Considering this, along with public comments received
in response to the petition, the Board denies the petitioner's request.