Section 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.

Historical Notes

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

Statutory Authority

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