Atkinson v. Virginia Alcohol Beverage Control Com'n, 0025-85
| Decision Date | 06 November 1985 |
| Docket Number | No. 0025-85,0025-85 |
| Citation | 336 S.E.2d 527,1 Va.App. 172 |
| Parties | Eldridge Maurice ATKINSON t/a Jackie's Place v. VIRGINIA ALCOHOL BEVERAGE CONTROL COMMISSION. Record |
| Court | Virginia Court of Appeals |
Charles B. Phillips, Salem (Phillips, Doherty & Swanson, Salem, on brief), for appellant.
Donald A. Lahy, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.
Present: KOONTZ, C.J., and COLEMAN and KEENAN, JJ.
This appeal is from a decision of the Circuit Court for the City of Roanoke, upholding a determination by the Virginia Alcoholic Beverage Control Commission that the ABC license of Eldridge M. Atkinson, appellant, should be suspended for forty-five (45) days, or in the alternative, for thirty (30) days with a five hundred dollar ($500.00) fine. The basis for this action was that Atkinson's business, Jackie's Place, was so located that violations of the Alcoholic Beverage Control Act or the laws of the Commonwealth relating to peace and good order had resulted from issuance of a license to him. Code §§ 4-31(a)(2)(b), 4-37(A)(3), 4-34(d). The issue on appeal is whether there is sufficient evidence to support the Commission's action.
By notice of hearing dated March 3, 1983, Atkinson was informed that the Commission would conduct a hearing to determine whether his ABC license should be suspended or revoked. The notice to Atkinson charged that a cause existed for which the Commission could refuse to issue a license "in that the place occupied by you is so located that violations of the ABC Act or the laws of the Commonwealth relating to peace and good order have resulted from issuance of the license and operation thereunder by you in violation of Sections 4-31(a)(2)(b) and 4-37(A)(3) and 4-34(d) of the ABC Act."
An evidentiary hearing was held on April 21, 1983. The hearing officer found that Jackie's Place is located in a mixed business and residential area in the City of Salem. It is patronized by the general public. Atkinson has owned the building where Jackie's Place is located since 1944. Originally, he operated a restaurant there, but later rented it to others. The ABC license of Atkinson's last tenant was revoked by order of the Commission dated April 29, 1981. Among the six substantiated charges, one was that the establishment was so located that violations of the ABC Act or laws of the Commonwealth relating to peace and good order had resulted.
After the tenant's license revocation, Atkinson resumed personal control over Jackie's Place, and was granted an ABC on and off premises license on June 2, 1981. Aware that "bad problems" had existed at this location, he took steps to correct them, including refusal to admit persons who had been drinking, used foul language, or did not present a proper appearance.
Lt. Gwaltney of the Salem Police Department testified that nineteen calls regarding Jackie's Place were received by the Department between January 30, 1982, and December 26, 1982. Of these, one resulted in an arrest for drunk in public. The rest were either unfounded or any trouble had subsided by the time the officers arrived. Lt. Gwaltney testified that the police had responded to fourteen calls at Jackie's Place between January 3, 1983, and April 10, 1983. Of these, two resulted in arrests for drunk in public. Vivian Glass, a waitress at Jackie's Place, testified that one of these arrests resulted from a situation at her residence next to the restaurant.
Officer Gwaltney further testified that several similar establishments in Salem did not generate the number of calls to the Police Department as did Jackie's Place. However, aside from four or five calls in 1982 and one in 1983 that originated from Jackie's Place, he had no way of knowing who made the calls to the police.
On December 8, 1982, an altercation occurred at Jackie's Place which resulted in a patron being convicted of malicious wounding. Officer Gwaltney, who investigated that incident, testified that he observed two patrons in an apparently intoxicated condition, and observed Atkinson serve one of these patrons a beer. The bulk of the testimony concerned this wounding incident of December 8th.
The hearing officer concluded that the charge against Atkinson was substantiated by the evidence of intoxicated patrons buying and consuming beer upon the premises, and by the fight which caused severe injury to a patron. Atkinson's license was suspended for forty-five (45) days provided, however, that upon payment of a five hundred dollar ($500.00) penalty, the suspension would be reduced to thirty (30) days. Further, Atkinson's license was restricted to prohibit the sale or consumption of alcoholic beverages between the hours of 10:00 p.m. and 6:00 a.m.
The Commission adopted the findings and decision of the hearing officer on September 23, 1983. On appeal, the circuit court affirmed that portion of the Commission's order suspending Atkinson's license. The court set aside the restriction on the hours when alcohol could be consumed and sold, finding that it was not supported by the evidence. The final order incorporating these findings by the circuit court was entered on December 12, 1984.
Atkinson contends that the evidence taken before the hearing officer tended to establish, if anything, a violation of Code § 4-37(A)(1)(g) () rather than the violation for which he was charged. The Commonwealth argues that the facts show numerous violations of the ABC laws and the laws of the Commonwealth protecting peace and good order. For that reason, the Commonwealth contends that the Commission was justified under Code § 4-37(A)(3) in suspending Atkinson's license whether or not the evidence supported the specific violation with which he was charged. Code § 4-37(A)(3) states:
That any cause exists for which the Commission would have been entitled to refuse to issue such license had the facts been known; and the Commission may likewise suspend or revoke any license for any other cause designated by this chapter.
Judicial review of suspension decisions are governed by Code § 4-37(D):
Upon judicial review of a suspension or revocation such review or appeal shall extend to the entire evidential record of the proceedings provided by the agency in accordance with § 9-6.14:17 of the Administrative Process Act (§ 9-6.14:1 et seq.) and shall not be limited to the determination of errors of law or a capricious and arbitrary abuse of discretion.
Under Code § 9-6.14:17, the scope of review is limited to whether there was "substantial evidence in the agency record" to support the decision. State Board of Health v. Godfrey, 223...
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