Charles H. Cuthbert, Jr. v. VA ABC Board

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

CHARLES H. CUTHBERT, JR.
MEMORANDUM OPINION *
v. Record No. 2106-94-2 PER CURIAM
MAY 23, 1995
VIRGINIA ALCOHOLIC BEVERAGE
CONTROL BOARD, ET AL.

FROM THE CIRCUIT COURT OF
THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
(Charles H. Cuthbert, Jr., pro se, on
brief).

(James S. Gilmore, III, Attorney General;
Michael K. Jackson, Senior Assistant
Attorney General; J. Patrick Griffin,
Assistant Attorney General, on brief), for
appellee Virginia Alcoholic Beverage
Control Board.

No brief for appellee Harry Lee Cooper,
t/a The XYZ Convenience Store.

The Virginia Alcoholic Beverage Control Board (ABC Board)

granted a wine and beer off-premises license to Harry Lee Cooper

for the XYZ Convenience Store. Charles H. Cuthbert, Jr., appeals

the decision of the circuit court affirming that ruling and he

raises a single issue on appeal: whether the ABC Board abused

its discretion or erred as a matter of law by granting the off-

premises wine and beer license for the XYZ Convenience Store.

Upon reviewing the record and briefs of the parties, we conclude

*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that this appeal is without merit. Accordingly, we summarily

affirm the decision of the trial court. Rule 5A:27.

On appeal, "[t]he sole determination as to factual issues is

whether substantial evidence exists in the agency record to

support the agency's decision." Johnston-Willis, Ltd. v. Kenley,

6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988). "The 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.'" Atkinson v. Virginia Alcoholic Beverage

Control Comm'n, 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985)

(citation omitted). Moreover, "where the question involves an

interpretation which is within the specialized competence of the

agency and the agency has been entrusted with wide discretion by

the General Assembly, the agency's decision is entitled to

special weight in the courts." Johnston-Willis, Ltd., 6 Va. App.

at 244, 369 S.E.at 8. "A court may not merely substitute its

judgment for that of an administrative agency." Jackson v. W.,

14 Va. App. 391, 400, 419 S.E.2d 385, 390 (1992).

Code § 4.1-222 grants the ABC Board discretion to refuse to

issue a license in instances where an applicant's place of

operation "[i]s so located that granting a license and operation

thereunder . . . would result in violations of this title . . .

or violation of the laws of the Commonwealth or local ordinances

relating to peace and good order." Code § 4.1-222(A)(2)(b). Cf.

Code § 4.1-223 (circumstances where license prohibited). The

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hearing officer found, and the ABC Board confirmed, that

Cuthbert's objection to the issuance of the off-premises wine and

beer license was substantiated by the evidence. Nevertheless,

the ABC Board determined that the license should issue and that

the licensee should be placed on probation for one year.

The ABC Board was acting within its discretionary authority

in issuing the license subject to a one-year probationary period.

The decision was supported by evidence which indicated that the

licensee was seeking to minimize any breaches of the laws or

disturbances to the peace and good order. The ABC Board's

findings of fact noted that the licensee already had implemented

specific steps to that end, such as providing the habitual

loiterers with bags for their trash and discouraging panhandlers

from gathering in front of his store. The ABC Board also found

that the premises in which the licensee now operates his store

had previously been vacant for several years and that the

licensee needed the off-premises wine and beer license in order

to compete with similar businesses in the area.
Therefore, we affirm the circuit court's ruling that the ABC

Board's decision to grant the license, subject to a one-year

probationary period, was within the board's statutory authority

and was based upon substantial evidence. Accordingly, the

judgment of the circuit court is summarily affirmed.

Affirmed.

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