Administrative Code

Virginia Administrative Code
4/17/2024

Part II. Procedural Regulations

12VAC5-431-60. Applicability of Administrative Process Act.

The provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall govern the procedures for rendering all case decisions.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-70. Emergency orders.

The commissioner may, pursuant to § 32.1-13 of the Code of Virginia, issue emergency orders that are necessary to preserve the public health, safety, welfare and environment. Emergency orders arising out of matters governed by these regulations shall state the reasons and factual basis upon which the emergency order is issued. The emergency order shall state the time period for which it is effective.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-80. Enforcement of regulations.

A. Notice. Whenever the commissioner has reason to believe that a violation of Titles 32.1 or 35.1 of the Code of Virginia or any provisions of these regulations has occurred or is occurring, the district or local health department shall so notify the alleged violator. Such notice shall: (i) be in writing, with a request to the owner to respond by providing any pertinent information relating to the issue; (ii) cite the statute, regulation or regulations that are allegedly being violated; and (iii) state the facts which form the basis for believing that the violation has occurred or is occurring. Such notification is not an official finding or case decision nor an adjudication, but may be accompanied by a request that certain corrective action be taken.

B. Orders. Pursuant to the authority granted in §§ 32.1-26 and 35.1-6 of the Code of Virginia, the commissioner may issue orders to require any owner or other person to comply with the provisions of these regulations. The order may require the following:

1. The immediate cessation and correction of the violation;

2. Appropriate remedial action to ensure that the violation does not continue or recur;

3. The submission of a plan to prevent future violations;

4. The submission of an application for a variance; and

5. Any other corrective action deemed necessary for proper compliance with the regulations.

C. Hearing before the issuance of an order. Before the issuance of an order, the commissioner must comply with the requirements of § 35.1-6 of the Code of Virginia.

D. When order effective. All orders issued pursuant to this section shall become effective not less than 15 days after mailing a copy thereof by certified mail to the last known address of the owner or person violating these regulations or the address provided by the applicant on his application to operate a hotel. Violation of an order is a Class 3 misdemeanor. See § 35.1-7 of the Code of Virginia.

E. Compliance. The commissioner may act as the agent of the board to enforce all effective orders and these regulations. Should any person fail to comply with any effective order or these regulations, the commissioner may do any or all of the following:

1. Institute a proceeding to revoke the owner's permit in accordance with 12VAC5-431-320;

2. Request the attorney for the Commonwealth to bring a criminal action; or

3. Request the Attorney General to bring an action for civil penalty, injunction, or other appropriate remedy.

F. Not exclusive means of enforcement. Nothing contained in 12VAC5-431-70 or this section shall be interpreted to require the commissioner to issue an order prior to seeking enforcement of any regulation or statute through an injunction, mandamus or criminal prosecution.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-90. Suspension of regulations during disasters.

If in the case of a man-made or natural disaster, the commissioner finds that certain regulations cannot be complied with and that the public health is better served by not fully complying with these regulations, he may authorize the suspension of the application of the regulations for specifically affected localities and institute a provisional regulatory plan until the disaster is abated.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-100. Variances.

A. The commissioner may grant a variance to these regulations by following the appropriate procedures set forth in this section.

B. Requirements for a variance. The commissioner may grant a variance if he finds that the hardship imposed, which may be economic, outweighs the benefits that may be received by the public and that granting such a variance does not subject the public to unreasonable health risks or environmental pollution.

C. Application for a variance. Any owner who seeks a variance shall apply in writing to the local health department. All requests for variances must be made in writing and received by the local health department prior to denial of the hotel permit or within 30 days after such denial. The application for a variance shall include:

1. A citation to the regulation from which a variance is requested;

2. The nature and duration of the variance requested;

3. Any relevant analytical data including result of relevant tests conducted pursuant to the requirements of these regulations;

4. Statements or evidence that establishes that the public health, welfare and environment would not be adversely affected if the variance were granted;

5. Suggested conditions that might be imposed on the granting of a variance that would limit the detrimental impact on the public health and welfare;

6. Other information believed pertinent by the applicant; and

7. Such other information as the district or local health department or commissioner may require.

D. Evaluation of a variance application. The commissioner shall act on any variance request submitted pursuant to subsection C of this section within 60 days of receipt of the request. In evaluating a variance application, the commissioner shall consider such factors as the following:

1. The effect that such a variance would have on the operation of the hotel;

2. The cost and other economic considerations imposed by this requirement;

3. The effect that such a variance would have on protection of the public health, safety, welfare and the environment; and

4. Such other factors as the commissioner may deem appropriate.

E. Disposition of a variance request. The commissioner may grant, modify or deny a variance request.

1. If the commissioner denies a variance request, he shall provide the owner an opportunity to an informal hearing as defined by § 2.2-4019 of the Code of Virginia. Following this opportunity for an informal hearing, the commissioner may reject any application for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision.

2. If the commissioner proposes to grant a variance request, the applicant shall be notified in writing of this decision. Such notice shall identify the variance and the hotel involved and shall specify the period of time for which the variance will be effective. Such notice shall provide that the variance will be terminated when the hotel comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the hotel has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the variance shall be as noted in the variance letter.

3. All variances granted to any hotel may be transferable unless otherwise stated. Each variance shall be attached to the permit to which it is granted. Each variance is revoked when the permit to which it is attached is revoked.

4. No owner may challenge the terms or conditions of a variance after 30 calendar days have elapsed from the receipt of the variance.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-110. Hearing types.

Hearings before the commissioner or his designee shall include any of the following forms depending on the nature of the controversy and the interests of the parties involved:

1. Informal hearings. An informal hearing is a meeting with an employee or director of the district or local health department held in conformance with § 2.2-4019 of the Code of Virginia.

2. Adjudicatory hearing. An adjudicatory hearing is a formal, public adjudicatory proceeding before the commissioner or a designated hearing officer held in conformance with § 2.2-4020 of the Code of Virginia.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-120. Request for hearing.

A request for an informal hearing shall be made by sending the request in writing to the district or local health department in the locality where the hotel is located. Requests for hearings shall cite the reason or reasons for the hearing request and the section or sections of these regulations involved and must be received within 30 days of the decision by the district or local health department that led to the hearing request.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-130. Hearing as a matter of right.

Any person or named party whose rights, duties, or privileges have been or may be affected by any case decision made in the administration of these regulations shall have a right to both informal and adjudicatory hearings. The commissioner may require participation in an informal hearing before granting the request for a full adjudicatory hearing. EXCEPTION: No person other than an owner shall have the right to an adjudicatory hearing to challenge the issuance of a permit to operate unless the person can demonstrate at an informal hearing that the minimum standards contained in these regulations have not been applied and that he will be injured in some manner by the issuance of the permit.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-140. Appeals.

A. Any appeal from a denial of a permit to operate a hotel must be made in writing and received by the local health department within 30 days of the date the denial letter was received.

B. Any request for hearing on the denial of an application for a variance pursuant to 12VAC5-431-100 E 1 must be made in writing and received within 30 days of receipt of the denial notice.

C. Pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), an aggrieved owner may appeal a final decision of the commissioner to the appropriate circuit court.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-150. Grandfather clause.

Permits granted to hotels prior to March 1, 2002, shall remain valid until ownership changes or unless conditions at the hotel change in a manner that would adversely affect the public health, safety, welfare, or environment. Necessary alterations, modifications or repairs to a hotel shall not be grandfathered and shall comply with the version of the Virginia Uniform Statewide Building Codes in effect at the time the changes are made.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-160. Submission of plans, specifications and other data.

Whenever a hotel is constructed or remodeled or whenever an existing structure is converted to use as a hotel, properly prepared plans and specifications for such construction, remodeling, or conversion shall be submitted to the director for review and approval before construction, remodeling or conversion is begun. The plans and specifications shall detail such items as the layout of the hotel, plans for proposed buildings and structures, the proposed water source and distribution system, and the proposed sewage disposal system. Detailed plans and specifications shall be submitted for the food service establishment and swimming pool, if applicable. The director or the designee shall approve the plans and specifications if they meet the requirements of these regulations. No hotel shall be constructed, remodeled, or converted except in accordance with plans and specifications approved by the director or the designee. The director may waive the requirement for plans for minor modifications and renovations.

Whenever plans and specifications are required to be submitted to and approved by the director or his designee, he shall inspect the hotel prior to its beginning operation to determine compliance with the approved plans and specifications and with the requirements of these regulations.

The director's or designee's approval of any plans or specifications is no guarantee that plans or specifications are without error and the owner shall have final responsibility for the accuracy and completeness of the plan and specifications, including subsequent construction and installation.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-170. Application for a permit.

Any person desiring to operate a hotel shall make written application for a permit on an approved application form at least 30 days prior to the opening of the hotel. As a minimum, such application shall include the name and address of the applicant who intends to operate the hotel, the proposed dates of operation, the number of rooms expected to be served on the busiest day, the type of sewage disposal system to be used, the type of water supply that will service the facility and the signature of the applicant. Upon review of the application, the director may require the applicant to submit such additional information as is required to evaluate the applicant's application for the permit.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-180. Permits.

A. No person shall own, establish, conduct, maintain, manage, or operate any hotel in this Commonwealth unless the hotel is permitted as provided in this section. All permits shall be in the name of the owner or lessee. Permits shall not be issued to newly constructed or extensively remodeled hotels until a certificate of occupancy has been issued by the building official. Only a person who complies with the requirements of these regulations shall be entitled to receive or retain such a permit.

B. Nontransference of hotel permits. Permits issued after March 1, 2002, shall not be transferable from one person to another or from one location to another. A new owner shall be required to make a written application for a permit. The application forms are obtainable at all local health departments.

C. Conditional permits. A conditional permit authorizes the owner of a hotel to operate the hotel under certain controlled conditions, which may include, but are not limited to, restrictions of the types of food the hotel can handle and type of swimming facility made available for public use.

D. Requirements for posting permits. The permit shall be posted in a place where it is readily observable by the public transacting business with the hotel.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-190. Issuance of a permit.

Prior to the issuance of a permit, the director or his designee shall inspect the hotel to determine compliance with the requirements of these regulations. The department shall issue a permit to the applicant if its inspection reveals that the proposed hotel complies with the requirements of these regulations. The permit shall remain in effect (i.e., is self-renewing) unless otherwise suspended, revoked or surrendered by the owner. Ownership or lessee changes void the permit and the new owner must apply for a new permit.

A permit may be issued for a hotel that substantially complies with the criteria set forth in these regulations. The director shall be responsible for determining what constitutes substantial compliance.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-200. Denial of a permit.

Whenever the department denies a hotel permit it shall, within 10 days of the inspection, send the applicant a written explanation of the reasons why the permit was denied.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-210. Suspension of a permit.

The director may suspend a permit to operate a hotel without an informal conference if the director finds the continued operation constitutes a substantial and imminent threat to the public health. Upon receipt of such notice that a permit is suspended, the permit holder shall cease operation immediately and begin corrective action.

Whenever a permit is suspended, the holder of the permit or the person in charge shall be notified in writing by certified mail or by hand delivery. Upon service of notice that the permit is immediately suspended, the former permit holder shall be given an opportunity to request an informal hearing. If a permit holder wants to request an informal hearing, he must submit a request in writing to the director within 10 working days after he receives notice of the suspension. The written request shall be filed with the local department by the former holder of the permit. If a written request for an informal hearing is not filed within 10 working days, the suspension is sustained. Each holder of a suspended permit shall be afforded an opportunity for an informal hearing within three working days of receipt of a request for an informal hearing. The director may end the suspension at any time if the reasons for suspension no longer exist.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-220. Revocation of a permit.

Prior to revocation, the director shall notify in writing the holder of the permit, or the person in charge, of the specific reason or reasons for which the permit is to be revoked. The permit shall be revoked at the end of the 30 days following service of such notice unless a written request for an informal conference is filed before then with the director. If no request for an informal conference is filed within the 30-day period, the revocation of the permit shall be final.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-230. Permits issued under prior regulations.

Permits granted prior to March 1, 2002, shall not require a new permit so long as the ownership of the hotel has not changed and the permit holder otherwise complies with these regulations.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-240. Application after revocation.

Any person whose permit has been revoked may apply for a new permit after complying with these regulations by following the procedures in 12VAC5-431-170.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-250. Periodic inspection.

Hotels shall be inspected by the designee of the commissioner. Annual random inspections shall be conducted on a percentage of hotels within each locality. Additional inspections shall be conducted in response to complaints filed with the department that directly affect the health and safety of the public. Further inspections shall be conducted as often as necessary for the enforcement of these regulations. It shall be the responsibility of the operator of a hotel to give the health commissioner or his designee free access to such premises at reasonable times for the purpose of inspection in accordance with § 35.1-5 of the Code of Virginia.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-260. Inspection report.

Whenever an inspection of a hotel is made, the findings shall be recorded on the department's inspection report forms.

The original of the completed inspection report form shall be furnished to the person in charge of the hotel at the conclusion of each inspection. The completed inspection report form, being a public document, shall be made available for public disclosure to any person who requests it according to law.

The inspection report shall state any failure to comply with any time limit for corrections and may result in the closing of the hotel. An opportunity for an informal conference on the inspection findings, a time limit, or both, shall be granted provided that a written request is filed with local health department within 10 days following the inspection or the cessation of operations. When a request for a hearing is received, the procedures outlined in 12VAC5-431-120 shall be followed.

Whenever a hotel is required to cease operation under the provisions of 12VAC5-431-210, it shall not resume operations until a reinspection shows that conditions responsible for the order to cease operations no longer exists. Following a request for reinspection, it shall be made as soon as possible or within three working days.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-431-270. Correction of violations.

The completed inspection report form may specify a reasonable period of time for the correction of the violations found. Where a period of time for the correction is specified, the correction shall be accomplished within the period specified and in accordance with the following provisions:

1. Should a substantial and imminent health hazard be declared by the director, including but not limited to substantial fire damage, sewage backing into the food preparation and service areas, lack of refrigeration or lack of water, the operator shall immediately cease operations. Operations shall not be resumed until authorized by the director. Authorization shall not be granted until such violations are corrected.

2. All violations specifying a reasonable period of time for correction shall be corrected as soon as possible, but in any event, within the period of time specified. A follow-up inspection shall be conducted by the director or his designee to confirm the corrections.

2. All violations specifying a reasonable period of time for correction shall be corrected as soon as possible, but in any event, within the period of time specified. A follow-up inspection shall be conducted by the director or his designee to confirm the corrections.

Statutory Authority

§§ 35.1-11 and 35.1-13 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

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