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MIRABILE CORPORATION v. VIRGINIA ALCOHOLIC BEVERAGE CONTROL BOARD




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MIRABILE CORPORATION

v.

VIRGINIA ALCOHOLIC BEVERAGE CONTROL BOARD


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements

Argued at Alexandria, Virginia

Record No. 2126-02-4

MIRABILE CORPORATION, T/A

CHAPPARRAL MEAT MARKET III

v.

VIRGINIA ALCOHOLIC BEVERAGE

CONTROL BOARD

 

MEMORANDUM OPINION[1]BY
JUDGE JEAN HARRISON CLEMENTS

SEPTEMER 30, 2003

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Gaylord L. Finch, Jr., Judge

Glenn H. Silver (C. Thomas Brown; Silver &

Brown, P.C., on briefs), for appellant.

Carla R. Collins, Assistant Attorney General

(Jerry W. Kilgore, Attorney General;

Francis S. Ferguson, Deputy Attorney General,

on brief), for appellee.

Mirabile Corporation, t/a Chapparral Meat Market III

(Mirabile or licensee) appeals from an order of the circuit
court

affirming an order of the Virginia Alcoholic Beverage Control

Board (Board) finding it unlawfully sold alcoholic beverages to
an

underage buyer in violation of Code ? 4.1-304 and 3 VAC 5-50-10

and imposing sanctions against it under Code ? 4.1-225(1)(c).
On

appeal, Mirabile contends the circuit court erred in affirming
the

Board’s order because (1) the administrative hearing officer

failed to follow requisite procedures in conducting the hearing

and (2) the evidence presented was insufficient to prove it

violated Code ? 4.1-304 and 3 VAC 5-50-10. For the reasons that

follow, we affirm the circuit court’s judgment.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of
the

proceedings as are necessary to the parties’ understanding of
the

disposition of this appeal.

I. BACKGROUND

The Board is charged with enforcement of the laws of the

Commonwealth dealing with the purchase and sale of alcoholic

beverages. Code ? 4.1-105. One such law, Code ? 4.1-304,

prohibits the sale of alcoholic beverages "to any person
when at

the time of such sale [the seller] knows or has reason to
believe

that the person to whom the sale is made is . . . less than

twenty-one years of age." In furtherance of its obligation
to

enforce this law, the Board, through its enforcement agents,
from

time to time conducts "underage buyer operations" to
determine

compliance with the statute.

On July 7, 2000, enforcement agents Barbara A. Storm and

David F. Vinson conducted such an operation at the licensee’s

place of business in Falls Church, Virginia. As a result of that

operation, the licensee was charged with violating the statute.

At the hearing before the administrative hearing officer,

Storm was the Board’s only witness. She testified that, on July

7, 2000, she and Vinson met with Duncan Keith, a young man who
was

seventeen years of age at the time, for the purpose of
conducting

an "underage buyer operation." Storm and Vinson
reviewed the

"underage buyer program" guidelines for conducting the
operation

with Keith, who had previously conducted many such operations
for

the agents. In keeping with those guidelines, Keith produced his

identification card issued by the Virginia Department of Motor

Vehicles, which the agents reviewed. The card indicated that

Keith’s date of birth was February 23, 1983 and that he would
not

be twenty-one years of age until February 23, 2004. At the

agents’ instruction, Keith emptied his pockets and gave them all

of his possessions except for the identification card.

At approximately 6:25 p.m., Keith, carrying only his

identification card and money the agents had given him for the

purpose of attempting to buy alcoholic beverages, entered the

licensee’s store, followed by Storm. Keith went to the cooler,

selected a six-pack of twelve-ounce bottles of Budweiser beer,
and

went to the cash register. Upon a gesture from the clerk, Keith

gave his identification card to the clerk. The clerk, later

identified as Carlo Mirabile, looked at the card and returned it

to Keith. The clerk then sold Keith the beer for the purchase

price of $4.17. Keith left the store.

Agent Storm, who, although not within hearing distance of the

transaction, was able to observe what occurred from
approximately

five to ten feet away, then approached the clerk, identified

herself as an agent of the Board, and obtained his
identification.

She exited the store and, after meeting with Vinson and Keith,

prepared a uniform summons for selling alcoholic beverages to an

underage person, which she issued to the clerk. Carlo Mirabile

was subsequently convicted of the offense in criminal court.

On cross-examination, in response to the licensee’s questions

suggesting Keith may have engaged in conversation with the clerk

to mislead or trick him about Keith’s age or identification,
Storm

testified that, prior to the transaction, she and Vinson had

specifically reviewed with Keith the guidelines that required an

underage buyer to answer accurately and truthfully if questioned

about his age. Storm further testified that Keith was an

experienced buyer who knew she was observing him and knew he
would

be disqualified from agency service if he engaged in deceptive

conduct about his age.

Agent Storm also testified that she took two photographs of

Keith that evening, one full length and one close-up. Storm

testified the photographs accurately depicted Keith’s appearance

that evening. The photographs were subsequently admitted into

evidence. She further testified that she made a photocopy of

Keith’s identification card and redacted from it his address and

social security number. After Storm identified the photocopy of

Keith’s identification card as an accurate copy, with her

redaction, the hearing officer admitted it into evidence, over

Mirabile’s objection.

Agent Storm also testified that she attempted to contact

Keith to secure his presence at the hearing but was unable to

locate him. Storm stated that Keith’s mother told her Keith was

in boot camp in the United States Marine Corps. Storm believed

the boot camp was in North Carolina.

Testifying for the licensee, Carlo Mirabile stated that he

asked Keith for identification because, although Keith was tall

and appeared to be over twenty-one years of age, the store had a

policy of carding anyone purchasing alcoholic beverages if there

was "the least bit of question" about whether the
buyer was

twenty-one. Carlo Mirabile indicated that, when Keith handed him

his identification, he thought Keith had given him a driver’s

license, but he was not certain. When he looked at the

identification, Carlo Mirabile testified, his eyes were
"kind of

blurrious [sic] due to an [automobile] accident [he] had [had]

previous[ly]." "[His] eyes," he went on,
"weren’t focusing on

[the card] because all the prices that [he] was running
on." The

clerk further explained: "When I looked at the ID, it was
just so

much commotion going on, and a long line, and everybody
hollering

to move along, and I just looked at it, and as I — I

miscalculated." Carlo Mirabile also testified that he did
not

recall Keith making any statements about his age or the

identification document he provided to the clerk. Carlo Mirabile

stated that, after Keith left the store and Agent Storm
approached

him, he "realized that [he had] sold the beer to [an] underage"

buyer.

The hearing officer determined that the charge was

substantiated and suspended the licensee’s license and privilege

to purchase and sell alcoholic beverages for twenty-five days,

conditioned upon the payment of a civil penalty of $2,000. The

licensee appealed to the Board, which affirmed the decision of
the

hearing officer. The Board’s decision was thereafter affirmed by

the circuit court, and this appeal followed.

II. ANALYSIS

This case arises under the Administrative Process Act, Code

?? 2.2-4000 to 2.2-4033. In an appeal from an agency decision,

"the burden is upon the appealing party to demonstrate
error."

Carter v. Gordon, 28 Va. App. 133, 141, 502 S.E.2d 697, 700-01

(1998). Judicial review of an agency decision is limited to

determining (1) "[w]hether the agency acted in accordance
with

law;" (2) "[w]hether the agency made a procedural
error which was

not harmless error;" and (3) "[w]hether the agency had
sufficient

evidential support for its findings of fact."
Johnston-Willis,

Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1998). The

review of an agency’s factual findings "is limited to
determining

whether substantial evidence in the agency record supports its

decision." Avante at Lynchburg, Inc. v. Teffey, 28 Va. App.
156,

160, 502 S.E.2d 708, 710 (1998). Under the substantial evidence

standard, the reviewing "court may reject the agency’s
findings of

fact ‘only if, considering the record as a whole, a reasonable

mind would necessarily come to a different conclusion.’"
Virginia

Real Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123,
125

(1983) (quoting B. Mezines, Administrative Law ? 51.01 (1981)).

"The phrase ‘substantial evidence’ refers to ‘such relevant

evidence as a reasonable mind might accept as adequate to
support

a conclusion.’" Id. (quoting Consolidated Edison Co. v.
NLRB,

305 U.S. 197, 229 (1938)).

Additionally, in accordance with familiar principles of

appellate review, "we review the facts in the light most

favorable to sustaining the Board’s action," Atkinson v.

Virginia Alcohol Beverage Control Comm’n, 1 Va. App. 172, 176,

336 S.E.2d 527, 530 (1985), and "take due account of the

presumption of official regularity, the experience and

specialized competence of the agency, and the purposes of the

basic law under which the agency has acted," Code ?
2.2-4027.

However,

even though an agency’s findings of fact may

be supported by substantial evidence in the

record, [its decision] may be subject to

reversal because the agency failed to

observe required procedures or to comply

with statutory authority. Thus, where the

legal issues require a determination by the

reviewing court whether an agency has, for

example, . . . failed to observe required

procedures, less deference is required and

the reviewing courts should not abdicate

their judicial function and merely

rubber-stamp an agency determination.

Johnston-Willis, Ltd., 6 Va. App. at 243, 369 S.E.2d at 7-8

(citation omitted).

A. Procedural Claims

On appeal, Mirabile contends the circuit court erred in

affirming the Board’s order because the administrative hearing

officer failed to follow requisite procedures in conducting the

hearing. We disagree.

Mirabile first claims the Board failed to produce Keith as a

witness and, thus, deprived it of the fundamental right,
afforded

it by ? 1.9(B) of the Rules of Practice of the Virginia
Alcoholic

Beverage Control Board, to cross-examine the only witness who

could give direct evidence against it of the circumstances of
the

transaction.

Code ? 2.2-4020(C) provides, in pertinent part, that "the

parties shall be entitled . . . to conduct such

cross-examination as may elicit a full and fair disclosure of

the facts." As relevant here, ? 1.9(B) of the Rules of
Practice

of the Virginia Alcoholic Beverage Control Board provides that a

"party shall have the right to cross-examine adverse
witnesses

and any agent or subordinate of the board whose report is in

evidence."

Mirabile cites no authority, and we know of none, which

compelled the Board to call Keith as a witness. If the Board

felt it could carry its burden of proof without Keith’s

appearance at the hearing, it was entitled to do so. Nothing in

the Code or the Rules of Practice of the Virginia Alcoholic

Beverage Control Board required it to do otherwise. Code

? 2.2-4020(C) and ? 1.9(B) of the Rules of Practice of the

Virginia Alcoholic Beverage Control Board gave Mirabile the
right

to cross-examine any witness called by the Board. Here, the

Board’s sole witness was Agent Storm, who, the record reflects,

was fully subjected to cross-examination by Mirabile. Thus, the

relevant provisions of ? 1.9(B) and Code ? 2.2-4020(C) were

satisfied.

Mirabile next claims the administrative hearing officer

should not have admitted the photocopy of Keith’s identification

card into evidence because there was no showing that the
original

was not readily available, as required by ? 1.9(A)(2) of the
Rules

of Practice of the Virginia Alcoholic Beverage Control Board.

Section 1.9(A)(2) of the Rules of Practice of the Virginia

Alcoholic Beverage Control Board provides as follows:

Secondary evidence of the contents of a

document shall be received only if the

original is not readily available. In

deciding whether a document is readily

available, the hearing officer shall balance

the importance of the evidence against the

difficulty of obtaining it, and the more

important the evidence the more effort

should be made to have the original document

produced.

Agent Storm testified that, on the evening in question,

Keith produced the original of his Virginia Department of Motor

Vehicles identification card, which she reviewed and

photocopied. She identified the photocopy as a true and

accurate copy of the original, subject only to her redaction of

Keith’s address and social security number. Keith then retained

the original. Storm told the administrative hearing officer

that she had attempted to secure Keith’s presence to testify at

the hearing but was unable to do so. Based on information from

Keith’s mother, Storm believed Keith was in boot camp for the

Marines, which was located, she thought, in North Carolina. No

evidence in the record contradicts her testimony.

This evidence amply supports the hearing officer’s finding

that the original of Keith’s identification card was not readily

available. Thus, the photocopy of Keith’s identification card

was properly admissible under ? 1.9(A)(2).

B. Sufficiency of the Evidence

Mirabile next contends the evidence presented at the

hearing was insufficient, as a matter of law, to prove it

violated Code ? 4.1-304 and 3 VAC 5-50-10. Mirabile does not

dispute that Keith was, in fact, seventeen years of age at the

time of the sale or that its employee sold him beer. Mirabile

argues, however, that the sole evidence against it—the hearsay

testimony of Agent Storm, who was not in a position to know what

identification was presented or what conversation was held at

the time of the sale—was insufficient to prove the licensee
knew

or had reason to believe Keith was underage.

We first note that, in proceedings under the Administrative

Process Act, "[t]he rules of evidence are considerably
relaxed

. . ., and the findings of administrative agencies will not be

reversed solely because evidence was received which would have

been inadmissible in court." Bias, 226 Va. at 270, 308
S.E.2d

at 126. Indeed, it is well established that "hearsay
evidence

is admissible" at an administrative hearing conducted in

accordance with the Administrative Process Act. See Carter, 28

Va. App. at 141, 502 S.E.2d at 701. "If the agency relies
on

hearsay evidence, the court reviewing the sufficiency of that

evidence on appeal may give it the same weight as any other

record evidence." Id.

We next note that, in this case, the Board was required to

prove that Keith, the purchaser of the alcoholic beverage, was

less than twenty-one years of age and that the licensee knew or

had reason to believe he was underage at the time of the

transaction. See Code ? 4.1-304; 3 VAC 5-50-10. Upon review of

the agency record, we hold the evidence presented, viewed in the

light most favorable to sustaining the Board’s action, was

sufficient to meet that burden.

Agent Storm testified that the only identification Keith

had in his possession when he entered the licensee’s store was

his Virginia Department of Motor Vehicles identification card,

which indicated that he was seventeen years of age at the time

and that he would not be twenty-one years of age until February

23, 2004. Storm further testified that, upon arriving at the

counter with the beer, Keith presented his identification card
to

the clerk and that the clerk, after looking at the card, sold

Keith the beer. Although she could not see the exact

identification document Keith produced to the clerk or hear

their conversation, Storm said Keith was an experienced buyer

who knew he was required to be accurate and truthful about his

age or face disqualification from agency service.

The clerk, Carlo Mirabile, testified that, when Keith

approached the counter with the beer, he asked him for

identification and Keith handed it to him. Carlo Mirabile

further testified that he did not recall that Keith made any

statements about his age or the identification document. Carlo

Mirabile acknowledged that, in looking at Keith’s identification

card, he miscalculated Keith’s age due to his blurred vision and

his anxiety about the long line of waiting customers.

We hold that this testimony constitutes substantial evidence

in support of the Board’s decision that Mirabile knew or had

reason to believe that Keith was too young to lawfully purchase

the beer he was sold.

Accordingly, we affirm the circuit court’s judgment

affirming the Board’s finding that Mirabile unlawfully sold

alcoholic beverages to an underage buyer in violation of Code

? 4.1-304 and 3 VAC 5-50-10.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.


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