CHAPTER 703

An Act to amend the Code of Virginia by adding in Title 9 a chapter
numbered 1.1 containing fourteen sections numbered 9-6.1 through
9-6.14, so as to regulate administrative agencies in their functions
of rule-making and adjudication, and to provide for appeals from
such agencies, and to repeal Chapter 1 of Title 9 of the Code, con-
taining §§ 9-1 through 9-6, relating to the Administrative Code of
Virginia, and Chapter 2 of Title 54 of the Code, containing 88 54-2
through 54-16, relating to the regulation of certain agencies and to
the Commission on Administrative Agencies. z

[S 81]

Approved April 8, 1952

Be it enacted by the General Assembly of Virginia:

1. That Chapter 1 of Title 9 of the Code of Virginia, containing §§ 9-1
through 9-6, and Chapter 2 of Title 54 of the Code, containing §§ 54-2
through 54-16, be repealed.

2. That the Code of Virginia be amended by adding in Title 9 a chapter
numbered 1.1, containing fourteen sections numbered 9-6.1 through 9-6.14,
as follows: ,

§ 9-6.1 Short Title-—The short title of this Chapter is “General Ad-
ministrative Agencies Act”.

§ 9-6.2 Definitions.—For the purpose of this Chapter:

(a) “Agency” means any state department, commission, board or
officer, having state-wide jurisdiction, authorized by law to make rules
or to adjudicate contested cases, except those pertaining to the legislative
or judiciary departments, and except the Department of Workmen’s Com-
pensation, State Corporation Commission, State Board of Education and
the Department of Education.

(b) “Rule” means any regulation (including amendments and re
peals) of general application and future effect affecting private rights,
privileges or interests, promulgated by an agency to implement, extend.
apply, interpret or make specific the legislation enforced or administered
by it, but does not include regulations solely concerning internal manage-
ment of the agency or of the State government, nor regulations of which
notice is customarily given to the public only by markers or signs, nor
mere instructions.
(c) “Contested case’? means a proceeding before an agency in which
the rights, duties or privileges of a person are required by law to be de-
termined after a hearing, but shall not include controversies relating to
the amount, the payment or the refund of a tax, controversies relating to
the issuance, denial, revocation or suspension of licenses by the Virginia
Alcoholic Beverage Control Board; nor, in cases in which an agency
issues a license, permit or certificate after an examination to test the
knowledge or ability of the applicant, controversies over whether the
examination was fair or whether the applicant passed the examination.

(d) The provisions of this Chapter shall not apply to rules relating
to or contested cases involving the conducting of public elections, the
conduct of inmates of public institutions, the conduct of students at pub-
lic schools or public educational institutions, the conduct of persons in
the military service or the receipt of public assistance.

§ 9-6.3. To assist persons dealing with it each agency shall, so far as
practicable, publish descriptive statements of its procedures.

§ 9-6.4. No rule shall hereafter be promulgated by any agency unless
and until the express terms or an informative summary of the proposed
rule has been published by and at the expense of the agency at least once
in ‘at least one newspaper of general circulation published in Richmond,
Virginia, or, if the rule has only local application, in the locality to which
it applies, and a copy has been filed in the office of the Division of Statu-
tory Research and Drafting, where it shall be subject to inspection dur-
ing office hours by any person. Such publication and filing must be not
less than fifteen nor more than thirty days prior to the day on which the
public hearing on the proposal is to be held. The published notice shall
include a statement of the time, place and nature of the hearing and exact
reference to the authority under which the rule is proposed.

§ 9-6.5. If, in an emergency, the adoption of a rule is necessary for
the immediate preservation of the public peace, health, safety or wel-
fare, the agency may promulgate the necessary rule, in ‘which event the
rule shall become effective immediately. Any such emergency rule shall
forthwith be published and filed in the manner prescribed in § 9-6.4. No
such rule shall remain in effect longer than sixty days unless all of the
provisions of this Chapter relating to adoption of non-emergency rules
are fully complied with.

§ 9-6.6. A public hearing shall be held by the agency at the time
and place named in the notice required by § 9-6.4, and opportunity shall
be afforded all interested persons to be heard and to submit objections,
amendments, evidence and arguments. The rule may be adopted in the
form in which it was filed, or as amended at the hearing, provided the
amendments do not alter the main purpose of the rule.

§ 9-6.7. (a) Each agency upon its adoption of any rule shall file
forthwith in the office of the Division of Statutory Research and Drafting
two certified copies thereof. Within thirty days from the effective date
of this act, each agency shall file in said office two certified copies of all
rules theretofore lawfully adopted by it and in force.

(b) Each agency shall publish all its rules in a printed pamphlet
(with not more than one supplement), and shall forward a copy thereof
to the clerk of each court of record of this State. A copy thereof shall
also be delivered to any person who requests it.

(c) Except as provided in § 9-6.5, no rule shall become effective
until it has been so filed and printed. No rule shall be enforced or en-
forceable while copies of the pamphlet containing it are not available
for distribution to the public at the office of the agency for more than
sixty consecutive days.

(d) The pamphlets and supplements thereto referred to in para-
graph (b) of this section shall be approximately six inches wide by nine
inches long, and the pages thereof shall be triple-punched four and one
quarter inches center to center. Where provisions of statute law are in-
serted with rules in a pamphlet, such provisions must be set forth sep
arately.

If an agency or any division thereof makes rules relating to more than
one subject, it may print its rules relating to separate subjects in separate
pamphlets, provided all its rules relating to each subject or group of sub-
jects are printed in one pamphlet with not more than one supplement to
that pamphlet.

§ 9-6.8. Any interested person may petition an agency requesting
the promulgation, amendment or repeal of any rule.

§ 9-6.9 (a) The validity of any rule of State-wide application may
be determined upon petition for a declaratory judgment thereon ad-
dressed to the Circuit Court of the city of Richmond by any person who
might be adversely affected by its enforcement and who alleges that it
is invalid; provided, that the validity of any rule which is not State-wide
in application may be determined by such petition addressed to the cir-
cuit or corporation court of any county or city in which such rule is ap-
plicable. The agency shall be made a party to the proceeding. The de
claratory judgment may be rendered whether or not the petitioner has
first requested the agency to pass upon the validity of the rule in question.

(b) The court shall declare the rule invalid if it finds that it is un-
constitutional or exceeds the statutory authority of the agency or was
adopted without compliance with the rule-making procedures prescribed
in this chapter or that, in the case of a rule adopted under § 9-6.5, action
under § 9-6.5 was not justified.

(c) An appeal may be had from the decision of the court to the
Supreme Court of Appeals as provided by law.

(d) Any rule shall be and become null and void from and after the
time when either house of the General Assembly adopts a resolution de-
claring it null and void. No rule having substantially the same object
shall thereafter be adopted unless and until the General Assembly repeals
the resolution.

§ 9-6.10 (a) Any person whose rights, duties or privileges have been
or may be affected by any action or inaction of an agency without a formal
hearing may demand in writing a formal hearing of his complaint and
a hearing thereon shall be held as soon as practicable before the agency.
Unless otherwise provided by statute any agency may conduct preliminary
hearings by means of subordinates of the agency but such hearings shall
not be formal hearings as required by this paragraph.

(b) In any contested case all parties shall be afforded an opportunity
for hearing after reasonable notice. The notice shall state the time, place
and issues involved, but if, by reason of the nature of the proceeding the
issues cannot be fully stated in advance of the hearing or if subsequent
amendment of the issues is necessary, they shall be fully stated as soon
as practicable. An opportunity shall be afforded all parties to present
evidence and argument with respect thereto.

(c) Depositions may be taken and read as in actions at law.

(d) The agency shall have power to issue subpoenas and subpoenas
duces tecum, and at the request of any party shall issue such subpoenas.
The failure of a witness without legal excuse to appear or to testify or
to produce documents shall be reported by the agency to the Circuit
Court of the city of Richmond and the proceedings thereon shall be as
provided in § 8-302.

§ 9-6.11 In contested cases:

ta) All relevant and material evidence shall be received, except that:
(1) the rules relating to privileged communications and privileged topics
shall be observed; (2) hearsay evidence shall be received only if the de-
clarant is not readily available as a witness; and (8) secondary evidence
of the contents of a document shall be received only if the original is not
readily available. In deciding whether a witness or document is readily
available the agency shall balance the importance of the evidence against
the difficulty of obtaining it, and the more important the evidence is the
more effort should be made to produce the eye-witness or the original
ocument.

(b) All reports of inspectors and subordinates of the agency and
other records and documents in the possession of the agency bearing on
the case shall be introduced by the agency at the hearing.

(c) Subject to the provisions of paragraph (a) of this section every
party shall have the right to cross-examine adverse witnesses and any in-
spector or subordinate of the agency whose report is in evidence and to
submit rebuttal evidence.

(d) The decision of the agency shall be based only on evidence re-
ceived at the hearing and matters of which a court of record could take
judicial notice.

§ 9-6.12 In contested cases, to be valid and operative, the order, de-
cree, judgment, or action of the agency must be reduced to writing and
contain the explicit findings of fact and conclusions of law upon which
the decision of the agency is based and certified copies thereof must be
delivered to the parties affected by it.

§ 9-6.13 (a) Any person aggrieved by a final decision in a contested
case, whether such decision is affirmative or negative in form, is entitled
to judicial review thereof under this act either in the Circuit Court of the
city of Richmond or in any court of record having jurisdiction in the city
or county in which such person resides or in which is located the principal
office of his business, or in which is located his property affected by the
decision complained of.

b) Proceedings for review shall be instituted by filing a notice of
appeal with the agency within thirty days after the date of the order and
giving a copy thereof to all other parties.

(c) With his notice of appeal, or within thirty days thereafter, the
appellant shall deliver to the agency a transcript of the testimony if it
was taken down in writing, or, if it was not taken down in writing, a
statement of it in narrative form.

(d) Within thirty days thereafter, the agency shall transmit to the
Clerk of the Court to which the appeal is taken:

(1) A copy of the request, if any, for, or notice of, the formal hear-
ing.

(2) A copy of the order appealed from.

(3) A copy of the notice of appeal.

(4) The transcript or statement of the testimony filed by appellant,
together with a certificate that it is correct or that it is correct except in
specified particulars.

(5) The exhibits.

(e) The failure of the agency to transmit the record within the
time allowed shall not prejudice the rights of the appellant. The court,
on motion of the appellant, may issue a writ of certiorari requiring the
agency to transmit the record on or before a certain date.

(f) The court, sitting without a jury, shall hear the appeal on the
record transmitted by the agency and such additional evidence as may be
necessary to resolve any controversy as to the correctness of the record.
And the court, in its discretion, may receive such other evidence as the
ends of justice require.
(zg) The court may affirm the decision of the agency or remand the
case for further proceedings; or it may reverse or modify the decision if
the substantial rights of the appellant have been prejudiced because the
findings, conclusions or decisions are (1) in violation of constitutional
provisions; or (2) in excess of statutory authority or jurisdiction of the
agency; or (3) made upon unlawful procedure; or (4) affected by other
error of law; or (5) unsupported by the evidence on the record con-
sidered as a whole; or (6) arbitrary, capricious, or an abuse of discretion.

(h) The filing of a notice of appeal shall not operate to stay the
enforcement of the order. The appellant, at any time after the filing of
his notice of appeal, may apply to the court to which he has appealed for
a stay. The application shall be on motion after notice to the agency, and
a stay pending the appeal shall be granted unless it appears to the court
that immediate enforcement of the order is essential to the public health
or safety. In the order granting a stay, the court may make any pro-
vision required to serve the ends of justice, including the granting or
continuing in effect of a license.

(i) Nothing in this chapter shall prevent resort to other means of
review, redress, or trial de novo, provided by law.

§ 9-6.14 From the final decision of the court of record an appeal
shall lie to the Supreme Court of Appeals in the manner provided by law
for appeals in civil cases.