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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