HB926: Illegal aliens; corporate existence terminated involuntarily for employing.


HOUSE BILL NO. 926
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee on Rules
on February 5, 2008)
(Patrons Prior to Substitute—Delegates Byron and Cosgrove [HB 227])
A BILL to amend and reenact §§ 13.1-753, 13.1-769, 13.1-915, 13.1-931, 13.1-1046, 13.1-1056, 13.1-1234, and 13.1-1246 of the Code of Virginia, relating to business entities; employment of illegal aliens.

Be it enacted by the General Assembly of Virginia:

1.  That §§ 13.1-753, 13.1-769, 13.1-915, 13.1-931, 13.1-1046, 13.1-1056, 13.1-1234, and 13.1-1246 of the Code of Virginia are amended and reenacted as follows:

§ 13.1-753. Involuntary termination of corporate existence.

A. The corporate existence of a corporation may be terminated involuntarily by order of the Commission when it finds that the corporation (i) has continued to exceed or abuse the authority conferred upon it by law; (ii) has failed to maintain a registered office or a registered agent in this Commonwealth as required by law; or (iii) has failed to file any document required by this chapter to be filed with the Commission. Upon termination, the properties and affairs of the corporation shall pass automatically to its directors as trustees in liquidation. The trustees then shall proceed to collect the assets of the corporation; sell, convey and dispose of such of its properties as are not to be distributed in kind to its shareholders; pay, satisfy and discharge its liabilities and obligations; and do all other acts required to liquidate its business and affairs. After paying or adequately providing for the payment of all its obligations, the trustees shall distribute the remainder of its assets, either in cash or in kind, among its shareholders according to their respective rights and interests.

B. The corporate existence of a corporation may be terminated involuntarily by order of the Commission upon a corporation's conviction for a violation of 8 U.S.C. § 1324a(f), as amended, for actions of its officers and directors constituting a pattern or practice of employing unauthorized aliens in the Commonwealth. The corporation whose existence is terminated pursuant to this subsection shall not be eligible for reinstatement pursuant to § 13.1-754 for a period of not less than one year.

BC. Before entering any such order the Commission shall issue a rule against the corporation giving it an opportunity to be heard and show cause why such an order should not be entered. The Commission may issue the rule on its own motion or on motion of the Attorney General.

§ 13.1-769. Revocation of certificate of authority by Commission.

A. The certificate of authority to do business in the Commonwealth of any foreign corporation may be revoked by order of the Commission when it finds that the corporation:

1. Has continued to exceed the authority conferred upon it by law;

2. Has failed to maintain a registered office or a registered agent in the Commonwealth as required by law;

3. Has failed to file any document required by this chapter to be filed with the Commission; or

4. No longer exists under the laws of the state or country of its incorporation.

B. The certificate of authority to do business in the Commonwealth of any foreign corporation may be revoked by order of the Commission upon a corporation's conviction for a violation of 8 U.S.C. § 1324a(f), as amended, for actions of its officers and directors constituting a pattern or practice of employing unauthorized aliens in the Commonwealth. A certificate terminated pursuant to this subsection shall not be eligible for reinstatement for a period of not less than one year.

BC. Before entering any such order the Commission shall issue a rule against the corporation giving it an opportunity to be heard and show cause why such an order should not be entered. The Commission may issue the rule on its own motion or on motion of the Attorney General.

CD. The authority of a foreign corporation to transact business in the Commonwealth ceases on the date shown on the order revoking its certificate of authority.

DE. The Commission's revocation of a foreign corporation's certificate of authority appoints the clerk of the Commission the foreign corporation's agent for service of process in any proceeding based on a cause of action arising during the time the foreign corporation was authorized to transact business in the Commonwealth. Service of process on the clerk of the Commission under this subsection is service on the foreign corporation and shall be made on the clerk in accordance with § 12.1-19.1.

EF. Revocation of a foreign corporation's certificate of authority does not terminate the authority of the registered agent of the corporation. 

§ 13.1-915. Involuntary termination of corporate existence.

A. The corporate existence of a corporation may be terminated involuntarily by order of the Commission when it finds that the corporation (i) has continued to exceed or abuse the authority conferred upon it by law; (ii) has failed to maintain a registered office or a registered agent in the Commonwealth as required by law; or (iii) has failed to file any document required by this Act to be filed with the Commission. Upon termination, the properties and affairs of the corporation shall pass automatically to its directors as trustees in liquidation. The trustees then shall proceed to collect the assets of the corporation, and pay, satisfy and discharge its liabilities and obligations and do all other acts required to liquidate its business and affairs. After paying or adequately providing for the payment of all its obligations, the trustees shall distribute the remainder of its assets in accordance with § 13.1-907.

B. The corporate existence of a corporation may be terminated involuntarily by order of the Commission upon a corporation's conviction for a violation of 8 U.S.C. § 1324a(f), as amended, for actions of its officers and directors constituting a pattern or practice of employing unauthorized aliens in the Commonwealth. The corporation whose existence is terminated pursuant to this subsection shall not be eligible for reinstatement pursuant to § 13.1-916 for a period of not less than one year.

BC. Before entering any such order the Commission shall issue a rule against the corporation giving it an opportunity to be heard and show cause why such an order should not be entered. The Commission may issue the rule on its own motion or on motion of the Attorney General.

§ 13.1-931. Revocation of certificate of authority by Commission.

A. The certificate of authority to transact business in the Commonwealth of any foreign corporation may be revoked by order of the Commission when it finds that the corporation:

1. Has continued to exceed the authority conferred upon it by law;

2. Has failed to maintain a registered office or a registered agent in the Commonwealth as required by law;

3. Has failed to file any document required by this Act to be filed with the Commission; or

4. No longer exists under the laws of the state or country of its incorporation.

B. The certificate of authority to do business in the Commonwealth of any foreign corporation may be revoked by order of the Commission upon a foreign corporation's conviction for a violation of 8 U.S.C. § 1324a(f), as amended, for actions of its officers and directors constituting a pattern or practice of employing unauthorized aliens in the Commonwealth. A certificate terminated pursuant to this subsection shall not be eligible for reinstatement for a period of not less than one year.

BC. Before entering any such order the Commission shall issue a rule against the corporation giving it an opportunity to be heard and show cause why such an order should not be entered. The Commission may issue the rule on its own motion or on motion of the Attorney General.

CD. The authority of a foreign corporation to transact business in the Commonwealth ceases on the date shown on the order revoking its certificate of authority.

DE. The Commission's revocation of a foreign corporation's certificate of authority appoints the clerk of the Commission the foreign corporation's agent for service of process in any proceeding based on a cause of action arising during the time the foreign corporation was authorized to transact business in the Commonwealth. Service of process on the clerk of the Commission under this subsection is service on the foreign corporation and shall be made on the clerk in accordance with § 12.1-19.1.

EF. Revocation of a foreign corporation's certificate of authority does not terminate the authority of the registered agent of the corporation.

§ 13.1-1046. Dissolution; generally.

A. A limited liability company organized under this chapter is dissolved and its affairs shall be wound up upon the happening of the first to occur of the following events:

1. At the time or on the happening of any events specified in writing in the articles of organization or an operating agreement;

2. Upon the unanimous written consent of the members;

3. The entry of a decree of judicial dissolution under § 13.1-1047; or

4. Automatic cancellation of its certificate pursuant to § 13.1-1064.

B. The certificate of a limited liability company may be terminated involuntarily by order of the Commission upon the limited liability company's conviction for a violation of 8 U.S.C. § 1324a(f), as amended, for actions of its members or managers constituting a pattern or practice of employing unauthorized aliens in the Commonwealth. A certificate terminated pursuant to this subsection shall not be eligible for reinstatement pursuant to § 13.1-1050.1 for a period of not less than one year.

C. Before entering any such order the Commission shall issue a rule against the limited liability company giving it an opportunity to be heard and show cause why such an order shall not be entered. The Commission may issue the rule on its own motion or on motion of the Attorney General.

§ 13.1-1056. Cancellation of certificate of registration.

A. A foreign limited liability company may cancel its certificate of registration by delivering to the Commission a certificate of cancellation on forms prescribed and furnished by the Commission which shall set forth:

1. The name of the foreign limited liability company and the name of the state or other jurisdiction under whose jurisdiction it was formed;

2. That the foreign limited liability company is not transacting business in this Commonwealth and that it surrenders its registration to transact business in this Commonwealth;

3. That the foreign limited liability company revokes the authority of its registered agent to accept service on its behalf and appoints the clerk of the Commission as its agent for service of process in any proceeding based on a cause of action arising during the time it was authorized to transact business in this Commonwealth;

4. A mailing address to which the clerk may mail a copy of any process served on him under subdivision 3 of this subsection; and

5. A commitment to notify the clerk of the Commission in the future of any change in the mailing address on the limited liability company.

B. If the Commission finds that the certificate of cancellation conforms to the provisions of this article and all required fees have been paid, the Commission shall file the certificate and the certificate of registration shall be cancelled.

C. The certificate of registration to do business in the Commonwealth of any foreign limited liability company may be revoked by order of the Commission upon the foreign limited liability company's conviction for a violation of 8 U.S.C. § 1324a(f), as amended, for actions of its members or managers constituting a pattern or practice of employing unauthorized aliens in the Commonwealth. A certificate terminated pursuant to this subsection shall not be eligible for reinstatement for a period of not less than one year.

D. Before entering any such order the Commission shall issue a rule against the foreign limited liability company giving it an opportunity to be heard and show cause why such an order shall not be entered. The Commission may issue the rule on its own motion or on motion of the Attorney General.

§ 13.1-1234. Dissolution generally.

A. A business trust organized under this chapter is dissolved and its affairs shall be wound up upon the happening of the first to occur of the following events:

1. At the time or on the happening of any events specified in writing in the articles of trust or a governing instrument;

2. Upon the unanimous written consent of the beneficial owners;

3. The entry of a decree of judicial dissolution under § 13.1-1235; or

4. Automatic cancellation of its certificate pursuant to § 13.1-1254.

B. The certificate of a business trust may be terminated involuntarily by order of the Commission upon the business trust's conviction for a violation of 8 U.S.C. § 1324a(f), as amended, for actions of its trustees or beneficial owners authorized to act on the behalf of a business trust constituting a pattern or practice of employing unauthorized aliens in the Commonwealth. A certificate of a business trust terminated pursuant to this subsection shall not be eligible for reinstatement for a period of not less than one year.

C. Before entering any such order the Commission shall issue a rule against the business trust giving it an opportunity to be heard and show cause why such an order shall not be entered. The Commission may issue the rule on its own motion or on motion of the Attorney General.

§ 13.1-1246. Cancellation of certificate of registration.

A. A foreign business trust may cancel its certificate of registration by delivering to the Commission articles of cancellation on forms prescribed and furnished by the Commission that shall set forth:

1. The name of the foreign business trust and the name of the state or other jurisdiction under whose jurisdiction it was formed;

2. That the foreign business trust is not transacting business in this Commonwealth and that it surrenders its registration to transact business in this Commonwealth;

3. That the foreign business trust revokes the authority of its registered agent to accept service on its behalf and appoints the clerk of the Commission as its agent for service of process in any proceeding based on a cause of action arising during the time it was authorized to transact business in this Commonwealth;

4. A mailing address to which the clerk may mail a copy of any process served on him under subdivision 3 of this subsection; and

5. A commitment to notify the clerk of the Commission in the future of any change in the mailing address of the business trust.

B. If the Commission finds that the articles of cancellation conform to the provisions of this article and all required fees have been paid, it shall file the articles and the certificate of registration shall be canceled.

C. The certificate of registration to do business in the Commonwealth of any foreign business trust may be revoked by order of the Commission upon the foreign business trust's conviction for a violation of 8 U.S.C. § 1324a(f), as amended, for actions of its trustees or beneficial owners authorized to act on the behalf of a foreign business trust constituting a pattern or practice of employing unauthorized aliens in the Commonwealth. A certificate of a foreign business trust terminated pursuant to this subsection shall not be eligible for reinstatement for a period of not less than one year.

D. Before entering any such order the Commission shall issue a rule against the foreign business trust giving it an opportunity to be heard and show cause why such an order shall not be entered. The Commission may issue the rule on its own motion or on motion of the Attorney General.

2. That, in accordance with the provisions of this act, the State Corporation Commission shall require a corporation, foreign corporation, limited liability company, foreign limited liability company, business trust, or foreign business trust authorized to conduct business in the Commonwealth to report as a part of its corporate annual report to the Commission, any conviction of a violation of 8 U.S.C. 1324a(f), as amended, for actions of its officers or directors, members or managers, or trustees or beneficial owners for employing unauthorized aliens in the Commonwealth.

HOUSE BILL NO. 926
Offered January 9, 2008
Prefiled January 8, 2008
A BILL to amend and reenact §§ 54.1-111 and 54.1-3434.01 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 54.1-104.1, relating to professions and occupations; unlawful acts; employment of illegal aliens.
Patrons-- Byron, Albo, Gilbert, Landes and Marshall, D.W.

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1.  That §§  54.1-111 and 54.1-3434.01 of the Code of Virginia are amended and reenacted and the Code of Virginia is amended by adding a section numbered 54.1-104.1 as follows:

§ 54.1-104.1. Grounds for disciplinary action; conviction for employing illegal immigrant.

A. Any regulatory board established pursuant to this title may suspend, revoke, or fail to renew the license, certificate, registration or authority it has issued any person who has been convicted of violating: (i) § 40.1-11.1, (ii) § 54.1-111 A 9, or (ii) any federal law for knowingly employing any person who is not legally eligible to be employed in the United States.

B. In addition, a regulatory board may determine the amount of the monetary penalty for the violation, which shall not exceed $2,500 for each violation.

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

A. It shall be 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. Employing any person who cannot provide legal documents indicating that he is legally eligible to be employed in the United States.

10. 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.

Any person who willfully engages in any unlawful act enumerated in this section shall be guilty of a Class 1 misdemeanor. The third or any subsequent conviction for violating this section during a 36-month period shall constitute a Class 6 felony. In addition, any person convicted of any unlawful act enumerated in subdivision 1 through 8 of this subsection, 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.

B. In addition to the criminal penalties provided for in subsection A, 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.

C. 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 A and B of § 8.01-413 or subsection J of § 32.1-127.1:03, for copies of patient records, as applicable under the circumstances.

D. This section shall apply, mutatis mutandis, to all persons holding a multistate licensure privilege to practice nursing in the Commonwealth of Virginia.

§ 54.1-3434.01. Notice of pharmacy closing; change of ownership; penalty.

A. Prior to the closing of a pharmacy for more than one week, the owner shall either (i) post a conspicuous notice at least thirty days prior to the anticipated closing or (ii) mail a notice, at least fourteen days prior to the anticipated closing, to every current pharmacy customer having refill authority. Each notice posted or mailed pursuant to this section shall indicate the date of such closing, if available, and the name of the pharmacy to which prescriptions and other required prescription dispensing records and individual patient records will be transferred unless patients indicate their preference to the contrary. The Board of Pharmacy shall promulgate regulations providing for a definition of "closing of a pharmacy" and exceptions to the requirements of this section.

B. Upon any change of ownership of a pharmacy, regardless of how such change may be effectuated, the prescription dispensing records and other patient records for at least two years immediately prior to the change of ownership, shall be transferred, in accordance with Board regulations, to the new owner in a manner to ensure the confidentiality, integrity, and security of the pharmacy's prescription dispensing records and other patient records and the continuity of pharmacy services at substantially the same level as that offered by the previous owner.

Refusing to process a request for the prescription dispensing records and other patient records tendered in accordance with law or regulation shall constitute a closing and the requirements of this section shall apply. Such refusal may constitute a violation of § 54.1-111 A 9 10, depending on the circumstance.