(703) 369-4738

21
Dec
2021

2022 Criminal Law Mental Health Update

Written by: Bradley Marshall

2022 Criminal Law Mental Health Update

Bradley Marshall will be teaching a continued legal education class on Friday, January 21st, and on Wednesday, March 9th. Both of these dates offer a live webcast and live telephone options. He will go over the new updates effective July 2021, how these changes apply to trial practices, and much more.

To sign up go to  Virginia CLE.
The class offers MCLE Credit: 2.0 (Ethics: 1.0)
Live-Interactive Credit: 2.0 (all dates, all formats) Live Interactive MCLE Credit Symbol
Designation Credit: 2.0 Trial Practice/Litigation

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

6
Oct
2021

Part 5: Marijuana and Cannabis Laws: What became legal on July 1, 2021? What is still illegal? What will become legal in the future (and when)?

Marijuana became legal in Virginia for the first time in July 2021. 

But it is not entirely unregulated; there are still laws and regulations that govern its use, gifting, growing, sales, and more. In this blog – part of Vanderpool, Frostick, & Nishanian, P.C.’s series featuring our new cannabis practice area – we explore what is legal and illegal and what future changes are coming as well.  

Please keep in mind that this is a general legal summary for informational purposes only. If you have specific questions or would like to discuss a case, please contact us directly. Nothing in this blog should be considered legal advice.   

What is now Legal?

  • Adults 21 years and older may possess not more than one ounce of cannabis for personal use.
  • Generally, adults 21 years and older may use marijuana in private residences. However, nothing prohibits the owner of a private residence from restricting the use of marijuana on its premises.
  • Adults 21 and over may grow up to four plants per household (not per person), according to specified requirements (see below).
  • “Adult sharing” or transferring one ounce or less of marijuana between persons who are 21 years or older without remuneration is legal. “Adult sharing” does not include instances in which (i) marijuana is given away contemporaneously with another reciprocal transaction between the same parties; (ii) a gift of marijuana is offered or advertised in conjunction with an offer for the sale of goods or services, or (iii) a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services. At its essence, you cannot barter marijuana for anything else of value.

What is still Illegal?

  • It remains illegal for anyone to possess more than one ounce of marijuana. Individuals found guilty of possessing more than one ounce but not more than one pound of marijuana are subject to a civil penalty of not more than $25. Individuals found guilty of possessing more than one pound are subject to a felony.
  • It remains illegal for anyone under the age of 21 to consume, purchase, or possess marijuana, or to attempt to consume, purchase or possess any amount of marijuana.
  • It remains illegal to distribute or sell marijuana and/or to possess any amount of marijuana with the intent to distribute or sell it. This prohibition applies equally to businesses, which will not be permitted to sell, “gift,” or in any other way distribute marijuana. For more information on how to obtain a license to sell marijuana in the future, please see below.
  • Existing safety measures remain in place, including prohibiting the use of marijuana while driving a motor vehicle or while being a passenger in a motor vehicle, possessing marijuana on school grounds, while operating a school bus, in a motor vehicle transporting passengers for hire, or in a commercial vehicle.
  • It remains illegal to consume marijuana or offer marijuana to another person in any public place.

When will sales of marijuana begin?

It will not be legal to sell marijuana in Virginia before January 1, 2024. The law will create a new, independent political subdivision to regulate the marijuana industry. While the Cannabis Control Authority (CCA) began its work in July 2021, it will take time for the authority to hire staff, write regulations, and implement equity and safety initiatives. Additionally, many of the regulatory sections of the marijuana legalization bill must be reenacted (approved again) by the 2022 General Assembly before becoming law. For more information on the commercial market, please see below.

Medical Cannabis

I have a medical condition. How do I get a medical card to buy cannabis products?

To purchase cannabis for medical purposes, a patient must have both (a) an unexpired written certification issued from a board-registered practitioner and (b) a current active patient registration issued by the Board of Pharmacy. You can find more information by visiting the Department of Health Professions: Board of Pharmacy’s website.

Can I get a license to sell medical cannabis?

Not as of July 20, 2021. Virginia’s medical cannabis pharmaceutical processor program is currently only authorized to permit five companies (one permit in each Virginia Department of Health Service Area) to cultivate, process, and dispense medical cannabis to registered patients. You can find more information about Virginia’s medical cannabis pharmaceutical processor program by visiting the Department of Health Professions: Board of Pharmacy.

Adult-Use Cannabis Commercial Sales

How will the cannabis industry be regulated?

On July 1, 2021, the law authorized the creation of the Cannabis Control Authority (CCA), a new, independent political subdivision to regulate the marijuana industry, including issuing licenses for businesses, creating health and safety guidelines, and promoting diversity within the industry. On July 19, 2021, Governor Northam appointed the Cannabis Control Authority’s Board of Directors members. The Board, along with a CEO, will lead the creation of an adult-use marketplace. However, the CCA will not complete marijuana regulations or begin accepting applications for businesses before 2023.

When can I apply for a marijuana business license?

It will not be legal to sell marijuana before 2024. Until then, it remains a crime to sell any amount of marijuana. However, if the licensing provisions of the bill are reenacted (approved again) in the 2022 General Assembly session, you will likely be able to apply for a marijuana business license in 2023. More instructions and guidance for people wanting to start a marijuana business will be released before the application period begins.

Are there any steps I need to take before applying for a license in 2023?

Not at this time. The Cannabis Control Authority will begin the regulatory process and start engaging more directly with interested stakeholders over the next two years.

Home Cultivation

Can I grow marijuana at home?

“Home Cultivation” became legal on July 1, 2021. Adults 21 and over may now grow up to four marijuana plants per household (not per person) for personal use. Plants can be grown only at your primary place of residence.
Someone who grows plants must:

  1. ensure that no plant is visible from the public;
  2. take precautions to prevent unauthorized access by persons younger than 21 years of age; and
  3. attach to each plant a legible tag that includes the person’s name, driver’s license, or ID number, and a notation that the marijuana plant is being grown for personal use as authorized by law.

It remains illegal to grow more than four plants, to sell or distribute marijuana grown at home, or to manufacture marijuana concentrate from home-cultivated marijuana. Individuals who choose to do so are subject to criminal penalties.

For four free plant tags that meet all of Virginia’s legal requirements, please Contact Us – Vanderpool, Frostick & Nishanian, P.C. 

Where can I buy seeds to grow my own at home?

It remains illegal to sell marijuana seeds, clones, flower, or any other part of the marijuana plant in Virginia before 2024. Although there are some states that already have legalized marijuana sales, it remains federally illegal to move marijuana across state lines. You can, however, receive seeds and clones as a gift without remuneration of any kind.

Can I sell my home-grown marijuana to my friends?

No. The existing criminal penalties for selling or distributing marijuana or possessing marijuana with the intent to sell or distribute remain in effect. Individuals who sell marijuana or who possess it intending to sell it are subject to misdemeanor or felony charges, depending on the amount of marijuana involved. You may, however, gift marijuana to friends so long as all other requirements are met, i.e., that you receive no remuneration, that the person is an adult, that you gift them one ounce or less, etc.

If you would like more information or to find out how our team can help you or your business, please allow us to answer your business, employment, local government, land use, regulatory, and criminal law questions regarding cannabis and marijuana legalization. Please visit our Cannabis Laws website at Cannabis Laws – Vanderpool, Frostick & Nishanian, P.C. for more information.

31
Aug
2021

Part 1: Medical use of cannabis oil, what the new law says!

Virginia’s new law that prohibits employers from discharging, disciplining, or discriminating against an employee for the employee’s lawful use of cannabis oil.

Virginia recently enacted a new law that makes it unlawful for employers to discharge, discipline or discriminate against an employee for the employee’s lawful use of “cannabis oil.”  In order for the use to be lawful, it must be obtained pursuant to a valid written certification issued by a medical practitioner, who has registered to write such certifications with the Board of Pharmacy, for the treatment or to eliminate the symptoms of a person’s diagnosed conditions or disease. In addition, the patient with the certification must also register with the Board of Pharmacy as well as obtain the cannabis oil from one of the five registered medical cannabis pharmaceutical processor dispensaries in Virginia.  In the event that an employer has an employee that has a medical condition for which they have lawfully obtained cannabis oil pursuant to the above-described process, the employer may not discharge, discipline or discriminate against such employee for the employee’s lawful use of cannabis oil.  It is important to note that the new law does not protect those who are using cannabis products recreationally or who are using cannabis products for medicinal purposes but have not complied with the proper procedures required by the law.

CBD Oil Chemical markersThat leads us to the next question – what is Cannabis oil?

The new law defines cannabis oil as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor … or a dilution of the resin of a Cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose.” As the purpose of the Cannabis Oil under this law is to treat medical conditions, the law is very specific as to the content of cannabis products.

Cannabis oil should not be confused with CBD products available without a prescription and represented as having low amounts of THC. You can go to stores now where you may have CBD oils or cannabis products that are the kind that are not controlled and regulated by a medical cannabis pharmaceutical processor dispensary as part of a medicinal remedy. The use of these cannabis products are not what this law is intended to protect. If you have somebody who goes to a local store and buys some CBD product and then ends up in some circumstance where they test positive for marijuana, that’s not protected. It is the use related to medicinal use and only if the proper procedures are followed.

If an employee’s work is impaired by the use of medicinal cannabis, Employers may still take adverse action.

Employer’s still retain the ability to take adverse employment action against an employee with a medical certification if the employee’s work is impaired caused by the use of cannabis oil.  Employers may also prohibit possession of cannabis oil during work hours.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance

4
Aug
2021

New Associate Joins VF&N

Vanderpool, Frostick & Nishanian, P.C. is pleased to announce the addition of our newest associate Monica Munin. She is currently licensed and authorized to practice law in the District of Columbia. Her practice includes employment law as well as litigation.

Prior to joining VF&N, Ms. Munin worked as an associate at Brustein & Manasevit PLLC in Washington, D.C, where she specialized in administrative litigation and compliance consulting for Local Education Agencies (LEAs) as well as State Education Agencies (SEAs). Prior to obtaining her law license, Ms. Munin served as an intern for the Honorable William Jarvis in Prince William General District Court as well as a paralegal for a general practice law firm in New York City.

Monica Munin Associate

Monica Munin
Associate

1
Dec
2020

2020 Virginia Business Legal Elite

Vanderpool, Frostick & Nishanian, P.C. is proud to announce that three of its attorneys have been recognized by the Virginia Business Magazine as being among Virginia’s “Legal Elite” within their various practice categories. We are extremely honored to celebrate their continued success and exceptional work!

13
Aug
2020

New Associate Joins VF&N

Laura D’Agostino
Associate

Vanderpool, Frostick & Nishanian, P.C. is pleased to announce the addition of our newest associate Laura M. D’Agostino. Her practice includes employment law and litigation.

Laura’s passion for business and employment law stems from her upbringing and involvement in her family’s business. In this role, Laura assumed significant management responsibilities as she interacted with local government officials, ensured compliance with applicable regulatory provisions, and applied creative solutions to resolve personnel management issues. Laura is committed to helping her clients and their teams build and strengthen their legal compliance as well as assisting them in practical aspects of human resource management.

Prior to joining VF&N, Laura worked as a litigation associate for Jackson & Campbell and as a judicial law clerk for the Honorable Tracy C. Hudson in the Circuit Court for the Thirty-First Judicial Circuit of Virginia. Ms. D’Agostino simultaneously obtained her J.D. from Antonin Scalia Law School and her Master of Public Policy from the McCourt School of Public Policy at Georgetown University.

25
Jun
2020

Employers Who Fail to Pay Wages: Employee Private Right of Action

(Part Three of a Four-Part Series

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.

While businesses have been focused on dealing with the Covid-19 pandemic, working remotely, educating kids, and figuring out how to return to work safely, new laws will go into effect starting on July 1, 2020 that you need to know about.  These laws will significantly impact Virginia employers.

Due to the enactment of these new laws in Virginia, businesses will need to understand what the laws require, update their pay statements, educate and train their supervisors/managers accordingly, and ensure compliance with upcoming state minimum wage and hour increases. If an employer is a general construction contractor, they will also want to review their subcontractor agreements, or face wage and hour liability for subcontractor violations.

Employee Private Right of Action

The General Assembly passed a new law (effective July 1, 2020) which will allow employees to bring a private cause of action against employers who fail to pay them their wages. Under the new law, employees may bring such an action individually, jointly, with other aggrieved employees, or on behalf of similarly situated employees as a collective action. 

General Construction Contractor Liability for Subcontractor Failure to Pay Wages

Under the new law, a general construction contractor is liable for subcontractor wage violations. For any construction contract entered into on or after July 1, 2020, the general contractor and subcontractor are jointly and severally liable to pay the greater of:

  1. The rate and terms in an employment agreement between the subcontractor and its employees, or
  2. The amount of wages the subcontractor is required to pay under applicable law. The general contractor is also subject to all penalties, criminal or civil under existing law.

However, this new law also requires subcontractors to indemnify general contractors (except as stated in a contract) for wages, damages, interest, penalties, or attorney’s fees owed as a result of the subcontractor’s failure to pay, unless the failure to pay subcontractor’s employees was a result of the general contractor’s failure to pay the subcontractor.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

16
Jun
2020

You signed a contract for your business – Can the other side come after you personally?

Let’s assume that you are the owner of a small business (a corporation or limited liability company) working to obtain a contract for services for the business. You’ve done your research, found a solid services company to work with, negotiated the services and payment details, and are at the conference room table about to sign the contract. 

Two things could happen here – (1) concerned about the success rate of small businesses, the services company requires that you, as owner of the business, sign a personal guaranty; or (2) the services company does not require any cosigner, guarantor, or personal guarantee.

The services company requires that you, as owner of the business, sign a personal guaranty.

As confident as you may feel about the success of your small business, it is actually common for owners of small corporations and/or LLCs to be required to sign personal guarantees when entering a contract for their business. In this scenario, similar to the one above where the good friend cosigned a lending agreement, you must understand that by guaranteeing or personally cosigning your business’ contract, you are signing away the limited liability rights and status that you may otherwise have had. And, in the worst case scenario where your small business defaults on the contract payment terms, the services company will be able to, within the terms of the guarantee, seek payment directly from you personally!

The services company does not require any cosigner, guarantor, or personal guarantee.

In the second scenario, where the services company does not require that anyone cosign or personally guaranty the services contract, it is imperative that you, the small business owner, take care in signing the document. While it may be second nature to just quickly and casually scribble your name on the signature line, failing to include your title and position in the business or, even better, words similar to “president, signing on behalf of small business” may be a fool’s move! 

Without ensuring that it is perfectly clear that you have signed solely on behalf of the business, you open yourself up to possibly being held personally liable for the contract terms and obligations! Even if you do sign the document as described above, you should also be sure that your signature isn’t doing “double duty.” Specifically, fine print, buried deep in the contract may state that the business signer is also personally liable, even if there is only one signature block! This is a very dubious, but increasingly common, provision; why take the tisk? As such, reviewing not only all of the terms and provisions, but also the signature block, of your small business contract, and then taking care in how you sign such contract, is crucial!

Now, what happens if you do not own the business, but rather are an employee who was tasked with obtaining a contract for the business as part of your job?

In this scenario, it is unlikely that you would have signatory power for the company. In other words, you are not able to sign a contract with any meaningful business title using the words suggested in the above paragraph. As a result, you might be signing the contract personally, which, as above, opens you up to potential personal liability for all of the terms and conditions of the contract.

So, if you are this small business employee tasked with obtaining some sort of goods or services contract for your company, while you should feel comfortable researching providers of said goods and services, when it comes time to sign a contract, it is absolutely in your best interest to hand it over to the boss.

By: Attorney Jonathan Gelber


4
Jun
2020

Are electronic signatures (e-signatures) really binding?

As more and more transactions take place via the internet, it is important for individuals to understand, and be aware of, the liability that may be associated with electronically signing a document.

Virginia, like many other states, has adopted the Uniform Electronic Transactions Act (“UETA”); see Virginia Code § 59.1-479, et seq. The UETA makes it clear that, with few exceptions, one cannot contest the validity of a contract based solely upon one’s electronic signature. Rather, “if a law requires a signature, or provides for certain consequences in the absence of a signature, an electronic signature satisfies the law.” Virginia Code § 59.1-485(d).

Therefore, unless an exception applies to the document in question, it is important to understand that an electronic signature has the same strength and validity as a hard copy signature.

Additionally, not only does an electronic signature bind the signor, but the Fourth Circuit Court of Appeals has held that by clicking “I Agree” at the end of online terms and conditions agreement, one has electronically signed that document and is bound by its provisions.

By: Attorney Jonathan Gelber

11
May
2020

Can a rescue squad protect itself from local government accountability by becoming a non-stock corporation?

The Local Government Attorneys of Virginia hired Martin Crim of Vanderpool, Frostick & Nishanian P.C. to draft an amicus curiae brief in the Virginia Supreme Court case of Dumfries-Triangle Rescue Squad v. Board of County Supervisors of Prince William County. 

The case started when members of the rescue squad falsified operational records and the County’s Operational Medical Director refused to renew the operating license for the rescue squad. In response, the Board of Supervisors dissolved the Rescue Squad pursuant to statute and the agreement between the County and the Rescue Squad.

The Rescue Squad refused to wind up its affairs, however, claiming that its incorporation as a nonstock entity in 1959 made it immune to dissolution by the County. The Virginia Supreme Court allowed the appeal on the questions of whether the County had the authority to dissolve the Rescue Squad and whether the trial court was right to order the Rescue Squad to distribute its assets to the County.

The appeal presented the novel question of whether a rescue squad can unilaterally protect itself from local government accountability by becoming a non-stock corporation.

The amicus brief pointed out the state law has, since 1970, authorized local governments to regulate and even dissolve volunteer rescue squads, and similar laws apply to volunteer fire companies. Rescue squads are funded in large part with donations from private individuals and local governments, so the amicus brief argued that local governments need to have the ability to supervise, regulate, and, when necessary, dissolve rescue squads. State law has granted local governments those powers since 1970, and such laws affect rescue squads that existed before 1970 because the General Assembly has the power to affect existing corporations with new legislation designed to protect public health and safety.


* NO GUARANTEE OF RESULTS: Our prior results, including successful judgments and settlements, do not guarantee a similar outcome. Each case we handle is different and therefore we cannot guarantee any specific result in your case.