COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, At Lee and Senior Judge Clements Argued at Lexington, Virginia

NATHAN OSBURN OPINION BY v. Record No. 0038-16-3 J UDGE ROBERT J. HUMPHREYS NOVEMBER 15, 2016 VIRGINIA DEPT ARTMENT OF ALCOHOLIC BE VERAGE CONTROL

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE William D. Broadhurst, Judge Audra M. Dickens (Dale W. Webb ; Frankl Miller & Webb, LLP, on briefs), for appellant. Ryan Spreague Hardy, Assistant Attorney General (Mark R. Herring, Attorney General; Rhodes Ritenour, Deputy Attorney General; on brief), for appellee.
Nathan Osburn (“Osburn”) appeals the decisi on of the Roanoke City Circuit Court (the “circuit court”) upholding the prev ious decisions of a hearing o fficer, the Department of Human Resource Management (“DHRM”), and the De partment of Employee Dispute Resolution (“EDR”), terminating Osburn from his position as special agent for the Virginia Department of Alcoholic Beverage Control (“ABC”) because Osburn violated an ABC license applicant’s constitutional rights during a site inspection. Sp ecifically, Osburn claims the circuit court erred in finding that Osburn violated the Fourth Amendment and erred in holding the “newly discovered evidence” of General Order 502 was collateral, corroborative, or cumulative.
I. BACKGROUND Osburn was employed with ABC as a special ag ent who helped inves tigate applications for retail alcohol licenses. In August 2013, ABC received an application from Linda SwimPUBLISHED- 2 - (“Swim”), owner of Bent Mountain Bistro (the “Bistro”). Another special agent, David Scott (“Agent Scott”), was assigned to review and investigate the application, however, Osburn assisted Agent Scott in doing so. Although the application indicated that Swim was the so le owner of the Bistro, ABC’s research into the company found that there was li kely at least one other owner, Benjamin Ward (“Ward”), whom they suspected was a convicted felon. ABC issued subpoenas which “yielded good evidence” in regard to the undisclosed owne rship. The record states that “Osburn had previously interacted with both Swim and Ward during [ABC] inspections of other establishments in which they were jointly invol ved.” Further, Agent Scott received a phone call from the Bistro’s landlord during which the landl ord stated that the Bistro’s owner was Ward. The landlord called back about twenty minutes late r to state that Ward was in fact only a cook, and not an owner, of the Bistro. The agents al so had a suspicion that there could be a third owner of the Bistro. Agent Scott scheduled a site visit to the Bistro with Swim for August 9, 2013. Osburn accompanied Agent Scott on that visit to help inve stigate. According to Agent Scott, the purpose of the visit was “to conduct a s ite inspection as well as follow up on a suspicion that there may possibly be someone else involved with the busine ss that had not been disclosed to [ABC] during the application investigation.” When they arrived, Agent Scott and Osburn ente red the front door of the Bistro. Osburn went straight through to the kitche n to begin the site investigation. Agent Scott went to the back of the Bistro to speak with Ms. Swim. Neither Swim nor Osburn saw each other before Osburn began his site investigation. According to ABC’s Operations Manual 03 (“OM-03”) regarding retail investigations, the site inspection that was scheduled to occur on the date of Osburn’s- 3 - search was “to ensure sufficien t inventory of qualifying items .” Va. Dep’t of Alcoholic Beverage Control, Operations Manu al 03, § III(A)(19) (2009) [OM-03]. Osburn began his investigation by walking ar ound the kitchen and st orage areas of the business, observing “the food, the equipment, the restaurant, facilities, th e preparation area, the storage,” including “entry points [and] exit point s.” This portion of the investigation took approximately ten minutes. Osburn then came up on the business office, which had an open door and many documents lying around as though it ha d not yet been set up. Osburn entered the business office, picked up multiple documents, took photographs of documents, and opened drawers and a filing cabinet duri ng his investigation. Osburn c ontinued looking “more closely” because he found a document indicating the owner of the Bistro to be Ward. Osburn stated that his search was “thorough” and that he “went thr ough pretty much everything,” but that he did not remove anything from the office. At some point during his investigation, Osburn spoke with a man he called Dwayne Powell (“Powell”) and introduced himself as an ABC agent. Osburn first stated that the conversation occurred while Powell was “at the pi zza oven in the back,” but later said that Powell was “outside, out back” of the Bistr o. During the conversation, Osburn asked Powell such questions as how long Powell had worked there and whether he was on the payroll. Nothing in Osburn’s testimony indicated th at Powell knew Osburn was conducting a thorough search of the office. Shortly after the site visit, Swim wrote a co mplaint to the Office of the Governor and to her representative in the House of Delegates al leging that both Agent Sc ott and Osburn violated her Fourth Amendment rights du ring the inspection. After learning of the complaints, ABC began an internal investigation. Only two of Swim’s allegations were substantiated against Osburn: (1) “[Osburn] seized evidence in viol ation of Swim’s constitutional rights,” and- 4 - (2) “[Osburn] rummaged through Swim’s business records with deliberate indifference to her rights.” On April 3, 2014, Osburn was terminated from employment with ABC and given a Group III Written Notice, which was issued for “Fa ilure to Follow Instructions and/or Policy” (Offense Code 13) and “Other – Violation of Constitutional Rights” (Offense Code 99). In November 2014, an internal hearing officer upheldOsburn’s termination. Osburn then appealed that decision to both DHRM and EDR. EDR remanded the case to the hearing officer for consideration of mitigating factors. On the second review , the hearing officer again upheld Osburn’s termination, and Osburn again appealedto both DHRM and EDR. Both departments upheld the hearing officer’s determination. Osburn then timely appealed those decisions to the circuit court, which upheldOsburn’s termination. Osburn now appeals the circuit court’s decisi on, arguing that his sear ch of the Bistro’s business office did not require a warrant, and thus did not violate the Fourth Amendment because (i) it fell under the highly regulat ed industry exception to the warra nt requirement, (ii) he had consent to search the premises, and (iii) the la nguage of ABC’s authorizing statute gives ABC the authority to conduct warrantless searches of both licensees and applicants. Osburn also argues that General Order 502, a policy enacted by ABC after Osburn’s termination but before his evidentiary hearing, constitutes newly discove red evidence that would make his search permissible under ABC’s revised policy.
II. ANALYSIS In reviewing the ruling of a grievance pro ceeding, this Court may “reverse or modify the hearing officer’s decision” only if “the determination is contradictor y to law.” Va. Dep’t of State Police v. Barton, 39 Va. App. 439, 445, 573 S. E.2d 319, 322 (2002); see also Code § 2.2-3005(B). Both circuit courts a nd appellate courts are to apply this standard of review. See- 5 - Pound v. Dep’t of Game & Inland Fisheries, 40 Va. App. 59, 64, 577 S.E.2d 533, 535 (2003). “[T]he hearing officer is to act as fact finder and the Director of the [DHRM] is to determine whether the hearing officer’s decisi on is consistent with policy. In the grievance process, neither of these determinations is subject to judicial review, but only that part of the grievance determination ‘contradictory to law.’” Barton, 39 Va. App. at 445, 573 S.E.2d at 322 (quoting Code § 2.1-116.07:1(B)). The appealing party ha s the burden to “identify[] the law . . . contradicted” by the hearing officer’s decisi on. Va. Polytechnic In st. & State Univ. v. Quesenberry, 277 Va. 420, 429, 674 S.E.2d 854, 858 (2009) . Questions of law raised by the parties in such cases are “limited to ‘constitutional provisions, statutes, re gulations, [and] judicial decisions’” and are reviewed de novo . Commonwealth v. Nee dham, 55 Va. App. 316, 325, 685 S.E.2d 857, 861 (2009). However, the Director of DHRM has “the final authority to establish and interpret personnel policie s.” Code § 2.2-1201(13). As a preliminary matter, we review ABC’s c ontention that this C ourt need not analyze the Fourth Amendment issue because Osburn was te rminated for both a violation of the Fourth Amendment as well as violation of ABC policy, a nd agency policy is not subject to judicial review. However, the policies referenced in Os burn’s notice of termination are directly related to, and dependent upon, the Fourth Amendment ri ghts of ABC applicants and licensees, and thus, to allow the termination to depend upon th e agency policy alone would amount to allowing an agency official to interpret and define the limits of the Fourth Amendment. Therefore, we review Osburn’s assignments of error regarding both ABC’ s policy and the jurisprudence interpreting the Fourth Amendment. A. Fourth Amendment Violation Osburn’s first assignment of error argues that the circuit court erred in ruling that Osburn violated the Fourth Amendment. It asserts that his search of the business office did not require a- 6 - warrant because (i) the search fe ll within the “highl y regulated industry ex ception,” (ii) he had consent from either Swim or Powell to conduct the search, and (iii) the language of ABC’s authorizing statute give s ABC the authority to conduct warran tless searches of both licensees and applicants. “[T]he Fourth Amendment protects busine sses from unreasonable warrantless searches and seizures by administrative agencies.” Abateco Servs. v. Bell, 23 Va. App. 504, 511-12, 477 S.E.2d 795, 798 (1996). “Search regimes where no wa rrant is ever required may be reasonable where ‘special needs . . . make the warrant a nd probable-cause requirement impracticable.’” City of L.A. v. Patel, 135 S. Ct. 2443, 2452 ( 2015) (quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989)). A search that “s erve[s] a ‘special need’ other than conducting criminal investigations” is referred to as an “ad ministrative search.” I d. The Supreme Court of the United States has long held “that administra tive searches must be viewed differently than criminal searches, and that their constitutionality must be tested by different standards.” United States v. Thriftimart, Inc., 429 F.2d 1006, 1008 (9thCir. 1970) (referencin g two Supreme Court cases, Camara v. Municipal Court, 387 U.S. 523 (1967), and See v. Seattle, 387 U.S. 541 (1967), for support). i. Highly Regulated Industry Exception Osburn first argues that his search of the Bist ro’s business office did not violate Swim’s Fourth Amendment rights because the search was related to the regulation of alcohol, which falls under the highly regulate d industry exception. An exception to the warrant requirement exists for “searches of closely regulated businesses and industries . . . because ‘certain industries have such a history of government oversight that no reasonable expe ctation of privacy could exist.’” Abateco Servs., 23 Va. App. at 512, 477 S.E.2d at 799 (quoting Marshall v. Barl ow’s, Inc., 436 U.S 307, 312 (1978)). The- 7 - liquor industry falls within the hi ghly regulated industry exception to the warrant requirement. See Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970). “[W]hen an entrepreneur embarks upon such a business [as th e sale of liquor], he has volunt arily chosen to subject himself to a full arsenal of governmental re gulation.” Marshall, 436 U.S. at 313

. The legality of a search of highly regulate d industry “depends not on consent but on the authority of a valid statute.” United States v. Biswell, 406 U.S. 311, 315 (1972). In this case, the statute at issue is C ode § 4.1-204(F), which states: [ABC] and its special agents sh all be allowed free access during reasonable hours to every place inthe Commonwealth and to the premises of both (i) every wine shipper licensee and beer shipper licensee and (ii) every delivery permittee wherever located where alcoholic beverages are manufactur ed, bottled, stored, offered for sale or sold, for the purpose of examining and inspecting such place and all records, invoices and accounts therein. The Board may engage the services of alcoho lic beverage control authorities in any state to assist with the in spection of the premises of a wine shipper licensee, a beer shipper licensee, or delivery permittee, or any applicant for such license or permit. (Emphasis added). Since Swim was not yet licensed to sell alcohol , but was only in the application process, the issue is whether the statute, and thus the highly regulated industry exception to the warrant requirement, applies to ABC licensees only, or to both licensees and app licants for a license. Osburn contends that the statute gives ABC agents “free access” to both li censees and applicants for a license to sell alcohol, su ch that the search he conducted was authorized by the statute. ABC contends that the statute only allows A BC agents “free access” to licensees, and thus Osburn’s conduct did not fall within the exception. However, neither party has an accurate understa nding of the statute. Contrary to the arguments of both Osburn and ABC, Code § 4.1-204( F) does not provide ABC agents with “free access” at all, but rather the statute places th e burden on both licensees and applicants for a- 8 - license to provide such access. The statute states that ABC “agents shall be allowed free access,” indicating that it is the applicant or licensee who must allow the agent access, not the other way around. Therefore, in order to obtai n or retain an ABC license, Code § 4.1-402(F) directs a license applicant to allow ABC agents “free access” to his or her premises, essentially requiring a case-by-case waiver of his or her Fourth Amendment rights in order to become licensed or to retain a license. The statute do es not give ABC agents the right to raid with impunity the records and businesses of either applicants or licensees. Thus, since Code § 4.1-402(F) applies to both ABC licensees and to applicants for a license, we must determine whether Osburn’s co nduct fell within the high ly regulated industry exception to the warrant requirement. In New York v. Burger, 482 U.S. 691, 702-03 (1987) (quoting Donovan v. Dewey, 452 U.S. 594, 600, 603 ( 1980)), the Supreme Court of the United States provided a three-prong test to determine whether a warrantless insp ection is reasonable in the context of a highl y regulated business: First, there must be a “substant ial” government interest that informs the regulatory scheme pursuant to which the inspection is made. . . . Second, the warrantless inspections must be “necessary to further the regulatory scheme”. . . . Finally, “the statute’s inspection program, in terms of th e certainty and regularity of its application, must provide a constitu tionally adequate substitute for a warrant.” In other words, the re gulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the searchis being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. In the case of the alcohol industry, the govern ment obviously has a substantial interest in knowing the ownership of businesses applying for an ABC license. Such inte rest is “substantial” because knowing all owners of a business helps en sure compliance with industry regulations and that illegal operations will not occur with the use of an AB C license. See United States v. Brown, 763 F.2d 984, 987 (8th Cir.) (“The government has a substantial inte rest in establishing- 9 - methods by which it can effectively monitor co mpliance with the regul ations governing the Medicaid Program and root out opportunities for and inst ances of fraud.”), cert. denied, 474 U.S. 905 (1985). Thus, the facts of this case pass the first prong of the Burger test. Further, Osburn’s thorough search of the Bistro’s business office was specifically due to ABC’s suspicions of undisclosed ownership of the company. Therefore, this case passes the se cond prong of the test because an inspection of business records is “nec essary to further the regulatory scheme” of determining all business owners. See Burger, 482 U.S. at 702. However, Osburn’s search of the Bistro’s bu siness office may fail the third prong of the Burger test. Since the statute requires applicants to essentiall y consent to a search by allowing “free access,” to ABC agents, the statute only “pr ovide[s] a constitutionally adequate substitute for a warrant” in the form of the applicant’s ow n consent to the search. The statute provides no other “substitute for a warrant” aside from the applicant’s c onsent. Therefore, under the statutory scheme, ABC agents must either obtain an inspection warrant or obtain the consent of an applicant or licensee to search the premises. Since no warrant was obtai ned in this case, the remaining question is whether consent was give n. If no valid consent was given, Osburn’s search fails the third prong of the Burger test and Osburn’s search w ould not fall within the highly regulated industry excepti on to the warrant requirement. ii. Consent Osburn contends that he obtaine d both express and implied consent to search the Bistro office. He argues that express consent was give n when Swim made an appointment for the ABC agents to come to the office and because she had applied for multiple ABC licenses in the past, and therefore should have known that a search woul d be conducted. Osburn also argues that he had implied consent because Powell, whom Osburncontends was part owner of the Bistro, was watching without objection while Osbur n conducted part of the search.- 10 - Whether a person consented to a warrantless se arch is a question of fact. Limonja v. Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481 (1989). Questions of fact are not reviewable by appellate courts in the grievance process unless th e finding was contradictory to law. Barton, 39 Va. App. at 445, 573 S.E.2d at 322. 1 “We are bound by the [agency’s] findings of historical fact unless plai nly wrong or without evidence to support them.” Edwards v. Commonwealth, 38 Va. App. 823, 827, 568 S. E.2d 454, 456 (2002) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc )). However, we review de novo whether the legal standards of consent were properly applied by th e circuit court. See Medley v. Commonwealt h, 44 Va. App. 19, 29, 602 S.E.2d 411, 415 (2004) (“[W]e review de novo the [circuit] court’s applica tion of defined legal standard s such as probable cause and reasonable suspicion to the partic ular facts of the case.”). “Where consent is freely and voluntarily gi ven, probable cause and a search warrant are not required.” Limonja, 8 Va. App. at 540, 383 S.E.2d at 481. “A consensual search is reasonable if the search is within the scope of the consent given.” Edwards, 38 Va. App. at 827, 568 S.E.2d at 456 (quoting Grinton v. Co mmonwealth, 14 Va. App. 846, 850, 419 S.E.2d 860, 862 (1992)). “The United States Supreme Court ha s articulated the standard for measuring the scope of an individual’s c onsent under the Fourth Amen dment to be “‘“objective” reasonableness—what would the typical person have understood by the exchange between the officer and the suspect?’” Id. at 827-28, 568 S.E.2d at 456 (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)).

1 [T]he hearing officer is to act as fact finder and the Director of the [DHRM] is to determine whether th e hearing officer’s decision is consistent with policy. In the grie vance process, neither of these determinations is subject to judici al review, but only that part of the grievance determination “contradictory to law.” Barton, 39 Va. App. at 445, 573 S.E.2d at 322.- 11 - In this case, the hearing officer determined that the evidence was insufficient to find that Osburn had either express or imp lied consent to search the Bistro ’s business office. The circuit court agreed that the evidence in the record supp orted that factual conclu sion as a matter of law. We agree as well. According to ABC’s operati ons manual in effect at the time of Osburn’s search, the scope of a search pursu ant to a “site visit” is narrow: “to ensure sufficient inventory of qualifying items.” OM-03 § III(A)(19) (200 9). Thus, based on a plain reading of ABC’s operations manual, a “site visit” should entail noth ing more than a search of the kitchen area of a business to determine whether the re quired inventory is present. Based on the “objective reasonableness” sta ndard of Jimeno and Edwards, a typical person in Swim’s position would not have underst ood the scheduled visit to entail more than a kitchen inspection and certainly no t a search of her office and its contents. The evidence in the light most favorable to ABC, as the party that prevailed below, indicates that Swim’s previous dealings with ABC, assuming such dealings includ ed site visits, would not have alerted Swim to anything more than a brief inspection of the kitche n for qualifying inventory. Further, there is no evidence to indicate that Swim knew the appoi ntment she set up with Agent Scott was for anything more than a typical site visit and interview. For thes e reasons, it is clear that an applicant in Swim’s position would have believed the scope of their consent to be limited to a site visit search of the kitchen—and other areas where alcohol would be kept and served—and no more. However, Osburn’s search was not so limited, as he went into the business office specifically searching for record s indicating ownership of the business. He searched through desk drawers and a filing cabinet, and even took pictures of documents pertaining to ownership of the Bistro. ABC could fairly conclude that such a search exceeded the scope of consent for a site visit because Osburn clearly did not limit the sc ope of his search to th e locations pertinent to the storing and serving of food and alcoholic beverages.- 12 - Osburn also contends that implied consen t was formed when Powell, an alleged part-owner of the Bistro, did not object whil e Osburn was conducting his search. However, Osburn’s evidence in support of that position cons isted of his own conflicting statements about his interactions with Powell on the day of th e search. There was no other supporting evidence presented to the hearing officer. As fact finder, it was in the hearing officer’s discretion to determine the credibil ity of the evidence. See Sierrav. Commonwealth, 59 Va. App. 770, 776, 722 S.E.2d 656, 658 (2012) (“It is the pr erogative of the trier of fact ‘to resolve conflicts in the testimony, to weigh the evidence, an d to draw reasonable inferences from basic facts to ultimate facts.’” (quoting Brown v. Commonwealth, 56 Va. App. 17 8, 185, 692 S.E.2d 271, 274 (2010))). The hearing officer implicitly determined, based on the evidence before him, that either Osborn’s testimony was not credible or th at the evidence was insufficient to support a finding of implied consent to search the Bistro offi ce. Because there is evidence in the record to support the hearing officer’s finding, we hold that the circuit court was correct in declining to overturn the hearing officer’s decision in that regard. For the above reasons, we conclude that ABC and the circuit court did not err in their judgment that Osburn did not have consent of any kind to conduct a search of the Bistro business office. iii. Whether the Statutory Definition of “Place or Premises” Permits Free Access Next, Osburn contends the circuit court er red in its review of ABC’s statutory construction of Code § 4.1-402(F) in light of the statute’s de finitions section, Code § 4.1-100. Specifically, Osburn argues that the Code’s de finition of “place or premises,” permits ABC agents the “free access” of Code § 4.1-402(F) to search the prope rty of both ABC applicants and licensees. However, we have already decided in Part II(A)(i) above thatCode § 4.1-402(F) does not convey a right of “free access” to ABC agents, but ra ther places the burden on ABC- 13 - applicants and licensees to permit “free access” to ABC agents wh en conducting site inspections upon pain of adverse consequences to their application orlicense. Therefore, our judgment in that regard also resolves Osburn’s contention here. Therefore, since Osburn’s search did not fall within the highly regulated industry exception and he did not have cons ent to search the business office, we hold that the circuit court did not err in upholding Osburn’s termination b ecause Osburn’s search of the Bistro office violated the Fourth Amendment in contravention of ABC policy. B. Newly Discovered Evidence Osburn’s second assignment of error alleges that the circuit court erred in holding the newly discovered evidence of General Order 502 was collateral, corroborative, or cumulative. General Order 502 became effective in July 201 4 and specifically addressed the handling and investigation of ABC applicati ons. Va. Dep’t of Alcoholic Be verage Control, General Order 502, § I (2014). Specifically, Osburn contends that General Order 502, adopted after his termination, changed the standard policies of a si te visit as delineated in OM-03 and that the change specifically al lowed Osburn’s conduct. First, we note that the newly discovered evid ence rule does not apply to a newly enacted law, agency policy, or order such as General Order 502. According to Black’s Law Dictionary, “evidence” is defined as “[s] omething (including testimony, docu ments, and tangible objects) that tends to prove or disprove the existence of an alleged fact.” Evidence, Black’s Law Dictionary (10th ed. 2014). Gene ral Order 502 is meant to guide ABC agents in the process of their site inspections; it does nothing to help “p rove or disprove” any fact. Thus, General Order 502 does not fall within the range of informati on this Court could consider under the newly discovered evidence rule.- 14 - Further, whether termination or other discip linary action is warranted for violation of departmental policy is ordinarily governed by the policies in place at the time of the termination or other disciplinary action. Moreover, even if we could consider General Order 502, we nonetheless could not review EDR’s decision that it did not constitute newly discovered evidence. The standard for determining wh ether newly discovered evidence should be considered in employee grievance proceedings is unique because administrative agencies have their own policies that are not subj ect to judicial review. “These decisions, which were rendered on administrative review to determine whether the hearing officer’s decision is consistent with state or agency policy and whether it complies w ith the grievance procedure, are final and not appealable.” Tatum v. Va. Dep’t of Agri c. & Consumer Servs., 41 Va. App. 110, 118, 582 S.E.2d 452, 456 (2003). Section 7.2(a) of the Gr ievance Procedure Manual states that a “challenge that the hearing decision is not in compliance with the grie vance procedure . . . as well as a request to presen t newly discovered evidence , is made to EDR.” Grievance Proc. Manual § 7.2(a) (emphasis added). In this ca se, Osburn already made a request to EDR to consider newly discovered evidence, and EDR alrea dy made its decision in that regard. Because EDR’s decision was based on agency policy and th e grievance procedure, the decision is final and not appealable. Thus, we do not review Osborn’s assignment of error regarding newly discovered evidence.
III. CONCLUSION We hold that the circuit court did not err in finding that Osburn violated the Fourth Amendment. Although the search in this case wa s initially within the “h ighly regulated industry exception” because it was related to th e alcohol industry, Osburn’s search of the business office took the search outside the realm of the excepti on because he did not obtain consent from the business owner to enter the office and search busin ess documents. Specific ally, Osburn’s search- 15 - of the business office fell outside the scope of the consent that the owner di d give to search the kitchen for proper inventory pursuant to the site inspection. Further, General Order 502 is not reviewable as newly discovered evidence, because that determination is an agency decision not subject to judicial review. For all of these reas ons, we affirm the decision of the circuit court. Affirmed.