COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Chafin and AtLee Argued at Lexington, Virginia

JOHN TAYLOR OPINION BY v. Record No . 1593-18-3 JUDGE ROBERT J. HUMPHREYS APRIL 30, 2019 VIRGINIA ALCOHOL IC BEVERAGE CONTROL AUTHORITY

FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON Charles L. Ricketts, III, Judge Mark Bong for appellant. Samuel T. Towell, Deputy Attorn ey General (Mark R. Herring, Attorney General; Tara Lynn R. Z urawski, Senior Assistant Attorney General; Gregory C. Fle ming, Senior Assistant Attorney General; Sarah Flynn Robb, Assist ant Attorney General, on brief ), for appellee.
On July 24, 2017, the Virginia Alcoholic Beverage Control Auth ority 1 (“ABC” or “agency”) terminated appellant John Taylor’s (“Taylor”) employm ent. Prior to his termination, Taylor served as ABC’s “Region 3 S pecial Agent in Charge.” On July 24, 2017, however, the Agency issued Taylor a “Group III” written notice of disciplina ry action with removal, i.e., termination. 2 The Group III written notice alleged that Taylor violated an ABC licensee’s

1 The Virginia Alcoholic Beverage Control Authority is the “succ essor in interest to the Department of Alcoholic Beverage Control and the Alcoholic Beve rage Control Board.” Code § 4.1-101(B).

2 The Virginia Department of Hum an Resource Management Policies and Procedures Manual, in Policy 1.60, sets forth certain “standards of conduc t” and describes levels of offenses ranging from the lowest level, “G roup I,” to the highest level, “Group III.” According to the policy, Group III offenses include “acts of misconduct of such a severe nature that a first occurrence normally should warrant termination.” This includes acts that “endanger others in thePUBLISHED- 2 - constitutional rights by orde ring the seizur e of money and othe r evidence without a search warrant or written consent. O n July 31, 2017, Taylor filed a g rievance challenging his termination and, pursuant to Code § 2.2-3000 et seq. , requested a hearing before a hearing officer appointed by the Virginia Depart ment of Human Resources Managem ent (“DHRM”). The hearing officer upheld Taylo r’s termination. Taylor subse quently requested that the Office of Equal Employment and D ispute Resolution (“EEDR”) at D HRM conduct an administrative review of the he aring officer’s decision. Taylo r also sought to present newly discovered evidence. EEDR, howev er, declined to disturb the he aring officer’s decision. Taylor then appealed the hearing office r’s decision to the Circuit Cou rt for the City of Staunton (the “circuit court”), which den ied Taylor’s appeal. In doing so, the circuit court hel d that the hearing officer’s decision was not contrary to law. On appeal to this Court, Taylor asserts eleven assignments of error. In his first assignment of error, Taylor argues that the circuit court erred in affirming the hearing officer’s decision because his terminati on was based, at least in part, o n violations of ABC policies that permitted ABC to impermissibly “interpret and define the limits of the Fourth Amendment[.]” In his second and third assignmen ts of error, Taylor argues tha t the circuit court erred because neither ABC nor the licensee’s “e mployees” or “corporate office rs” had standing to assert a Fourth Amendment violation again st Taylor, on behalf of the lic ensee. In his next seven assignments of error, Taylor argu es that the circuit court erre d because he did not violate a licensee’s Fourth Amendment right s. More specif ically, Taylor argues that numerous exceptions to the Fourth Amendment’s warrant requirement as a prerequisite to a search or seizure applied,

workplace[;] constitute illegal or unethical conduct; neglect o f duty; disruption i n the workplace; or other serious violations of policies, procedures, or laws .” Virginia Department of Human Resource Management Policies a nd Procedures, Standards of Condu ct: Policy 1.60 (Apr. 16, 2008) (emphasis added).- 3 - including the highly regulated industry exceptio n, plain view, exigent circumstances, and consent. In his final assignme nt of error, Taylor makes what w e assume is essentially a due process argument. Taylor therei n argues that the circuit courterred in upholding his termination because ABC “failed to follow its own internal policies” and “d eparted from fair and unprejudiced discipline.”
I. BACKGROUND This Court is bound by the hearing officer’s factual findings. In an appeal of this nature, this Court’s sole role is to cons ider whether the hearing offic er’s decision, based upon those factual findings, was “consis tent with law and policy.” See Os burn v. Va. Dep’t of Alcoholic Beverage Control, 295 Va. 10, 17 (2018); see also Code § 2.2-30 05.1(C). On October 23, 2017, a hearing regard ing Taylor’s termination t ook place. In a subsequent decision dated February 12, 2018, the hearing office r upheld Taylor’s Group III written notice of disciplinary a ction. In his decision, the he aring officer noted that ABC employed Taylor as a regional “S pecial Agent in Charge.” In th at capacity, Taylor was assigned to the ABC Bureau of Law Enforcement Operations, and his respon sibilities included the supervision and oversight of all criminal and administrative in vestigations conducted by the special agents assigned to the R egion 3 enforcement office. Ta ylor also served as a liaison with federal, state, and local offici als, as well as command level p ersonnel with other law enforcement agencies throughout the Commonwealth. Taylor’s position as aSpecial Agent in Cha rge required him to supervise subordinate supervisors, including the Assist ant Special Age nt in Charge, D aniel Blye (“ASAC Blye”). ASAC Blye, in turn, supervised th e special agents and all inves tigations conducted by the region. During the time period relevant t o this case, Special Agents Ke vin Weatherholtz and Kevin- 4 - Bilwin (“Special Agent Weatherho ltz” and “Special Agent Bilwin” ) were special agents reporting through ASAC Blye to Taylor. Code § 4.1-105 vests ABC special age nts with police powers. OnMarch 24, 2015, the Governor of Virginia issued Ex ecutive Order 40 to improve the l aw enforcement training of ABC’s special agents. Executiv e Order 40 provides, in part, th at “[t]he ABC Board shall require the immediate retraining of all ABC special agents in the areas of use of force, cultural diversity, effective interaction with youth, and community policing, to be completed no later than September 1, 2015.” On June 1, 2015 and June 2, 2015, Taylor participated in traini ng in accordance with Executive Order 40. Taylor’s training addressed several work-r elated topics, including “Upholding Constitutional Rights of Citizens.” In part, the tr aining defined “search” and “seizure” as each term pertains to government actions regulated by the Fourth Amendment. The training also defined and properly conceptualized “probable cau se” and “reasonable suspicion” pursuant to the Fourth Amendment. On January 24, 2017, Taylor spoke w ith ASAC Blye and Special Ag ent Weatherholtz regarding a possible illegal gambling case at the Stephens CityMoose Lodge (“Lodge”), a private, members-only establis hment and ABC licensee. Special Agent Bilwin, a member of the Lodge, had an identification card that allowed him to enter the establishment. The identification card did not show Special Agent Bil win’s picture. Taylor subse quently approved a plan to have Special Agent Weatherholtz enter the Lodge using Special Agent Bilwin’s identif ication card. On January 27, 2017, Special Agent Weatherholtz and another ABC agent made an “internal observation” of the Lodge. Both agents were admitted to the Lodge using Special Agent Bilwin’s identification c ard. Special Agent Weatherholtz , posing as Special Agent Bilwin, signed in the other agentas his guest. Special Agent Weatherholtz and the other agent- 5 - proceeded to drink beer and solicit information from a bartende r about the Lodge’s upcoming Super Bowl party. The agents l earned that for $30, they could attend the Super Bowl party, eat, drink, and participate in a “Supe r Bowl” board game that would pay out money from a “pool” to multiple winners. Special Agent Weatherholtz, again using Spec ial Agent Bilwin’s name, paid the $30 entry fee and received a numbered chip that corresponde d to a square on the Super Bowl board. The bartender and a fly er at the Lodge both claimed tha t the Super Bowl board game was legal. Later that same day, Special Age nt Weatherholtz met with Specia l Agent Bilwin. Subsequently, on January 31, 2017, Sp ecial Agent Bilwin met with Taylor and ASAC Blye to discuss the Super Bowl board game . Taylor and ASAC Blye conclu ded that the game was illegal. Taylor then instructe d Special Agent Bilwin to seize the money involved with the game as evidence. Taylor did not obt ain a search warrant or instruc t Special Agent Bilwin to do so. Further, Taylor did not speak w ith ABC’s internal legal counsel or instruct Special Agent Bilwin to use ABC’s consent to search form. On February 1, 2017, Special Agent B ilwin went to the Lodge to discuss the Super Bowl board game and pool being conducted inside the premises. There , Special Agent Bilwin met with Larry Dillow (“Dillow”), the Lodge’s ABC manager and barte nder. Special Agent Bilwin explained the reason for his vis it and asked to see the Super B owl board game. Dillow agreed and showed Special Agent Bilwi n the Super Bowl board with squar es, “located in plain view behind the bar.” Special Agent Bilwin then asked about the loc ation of the numbered chips for purchase, which Dillow retrieved from a back room. Special Agent Bilwin called Tay lor to provide an update. Durin g the phone call, Special Agent Bilwin told Taylor that he was unsure whether the game wa s illegal. Taylor then- 6 - informed Special Agent Bilwin that he would “get the name” of s omeone “at gaming” to call Special Agent Bilwin. Approximately twenty minutes lat er, James Habel (“Habel”), the Lodge’s administrator, arrived at the Lodge with Gail Te ft (“Teft”), the Lodge’s actin g secretary. Special Agent Bilwin showed his credentials to Habel and Teft and explained his reas on for the visit. Teft, being familiar with the Super Bowl boa rd game, provided Special AgentBilwin with two copies of invoices for the purchase of the boards, which were purchased f rom a distributor in another state. Taylor called Special Agent B ilwin and provided him with the na me of Michael Menefee (“Menefee”), a compliance manage r with the Virginia Department of Agriculture and Consumer Services. Taylor told Special A gent Bilwin that Menefee would call him in thirty minutes. Taylor also reminded Special Age nt Bilwin to seize the money co llected by the Lodge if Menefee concluded that the Super Bowl board game was illegal. After waiting approximately forty-five minutes, Special Agent B ilwin called Menefee. During their conversation, Menefee asked Special Agent Bilwin t o send him pictures of the Super Bowl board and numbered chips. Menefee subsequently conc luded that the game was illegal. Special Agent Bilwin exp lained the Super Bowl board g ame’s illegality to Habel and Teft. He then informed Habel a nd Teft that he “would like to s eize the game and proceeds as evidence.” Habel and Teft complie d with Special Agent Bilwin’s request and “volunteered the money acquired from the game[,]” as well as the Super Bowl boar d, the remaining numbered chips, and three unopened Super Bo wl boards. Retrieving some o f those items, including a portion of the money collected, req uired Habel and Teft to opena safe in the Lodge’s social quarters, as well as a second saf e in an upstairs office. Teft organized and counted the money acquired from the game, which totaled $1,636.- 7 - ABC conducted an internal investigati on and, on July 24, 2017, issued Taylor a Group III written notice with removal. As part of the investigation, an ABC investigator spoke with Habel. Habel informed the investigator that it was his understanding that Special Agent Bilwin was asked to confiscate the Super Bowl board, “as well as all cash that was made from the board.” Habel also stated that he inform ed Special Agent Bilwin that he would “give him anything and everything that he needed.” Hab el “wanted to cooperate in any way that [he] could.” The ABC investigator also spoke with Tef t, who added that Special Agent Bilwin informed her that “he was going to have to confiscate the board and the items that we nt with it and the cash that went with it.” Teft added that “[t] he way [Special Agent Bilwin] pu t it basically he didn’t have a choice . . . this was what he n eeded to do was to confiscate it all[.]” Based upon these facts, the hear ing officer found that ABC pres ented sufficient evidence to show that Taylor failed to f ollow agency policy, which const ituted a “Group II” offense. Notably, the hearing officer found that multiple “General Order s” defined the parameters of an investigation of an A BC licensee. General Order 301, for examp le, governs search warrants and provides that ABC special agents “shall observe constitutional guidelines when conducting searches and always remain mi ndful of their lawful purpose.” F urther, General Order 501 governs licensee inspections and provides that ABC special agen ts “shall not” conduct inspections when an agent possess es “advanced knowledge/probabl e cause that the evidence of a criminal violation is locate d upon the licensed premises. In t his instance, the agent will obtain and execute a search warrant in accordance with General Order 3 01, Search Warrants.” Finally, the hearing officer cited Gene ral Order 106, which addresses th e issuance of lawful orders. That order provides that “Bureau s upervisors will not knowingly or w illfully issue any order in violation of a law, ordinance, rul e or order of the United Stat es, Commonwealth of Virginia, or the Bureau of Law Enforcement.”- 8 - Mindful of these General Order s, the hearing officer found thatTaylor had “advance knowledge” of a criminal viol ation occurring on the Lodge’s pre mises. The hearing officer subsequently found that, pursuan t to General Order 301, Taylor “was obligated . . . to ‘observe constitutional guidelines when c onducting searches.’” Pursuant to General Order 501, Taylor was also obligated “to refrai n from conducting an inspection of the Lodge” and required to “obtain a search warrant and then execute the search warrant in accordance with General Order 301.” Thereafter, the hear ing officer found that Taylor failed to obtain a required search warrant before authorizing a s earch of the Lodge. The hearing officer also found that Taylor ordered Special Agent Bilwin to s eize the money collected by th e Lodge for the illegal Super Bowl board game without obtaining a search warrant first. Ther efore, the hearing officer concluded that Taylor’s order vi olated the law and ABC policy, which justified the issuance of a Group II written notice. The hearing officer subsequentl y found that, given the circumst ances of the case, Taylor’s misconduct justified A BC’s decision to elevate Taylor’ s Group II written notice to a Group III written notice. The hearing officer explained that, in certain extreme circumstances, a Group II offense may be elevated to a more severe Group III off ense. As stated by the hearing officer, “[f]ailure to comply with search policies and laws cre ated a unique impact on the Agency that would justify elevation of aGroup II Written Notice to a Group III Written Notice.” Taylor did not comply with agency policy because he did not obtain or instruct Special Agent Bilwin to obtain a search warrant before en tering the Lodge or seizing it s property. Consequently, the hearing officer found that Special A gent Bilwin’s seizure of th e Lodge’s property without a search warrant describing the i tems to be seized “was contrary to the Fourth Amendment.” 3

3 Taylor did not dispute at oral a rgument that, according to the hearing officer’s opinion, his violation of ABC policy war ranted a Group II offense.- 9 - The hearing officer also found tha t no exception to the Fourth Amendment’s prohibition on warrantless searches and seizure s justified Special Agent Bi lwin’s seizure of the Lodge’s property. For example, the hear ing officer found that not all the items seized were in plain view, particularly some of the items r etrieved from the Lodge’s safes . Finally, the hearing officer concluded that Habel and Teft did not consent to the search or seizure. Mindful of these circumstances and Taylor’s failu re to comply with search and se izure policies and laws, the hearing officer upheld Taylor’s Group III written notice. Taylor subsequently requested tha t EEDR administratively reviewthe hearing officer’s decision. Taylor also sought to pr esent newly discovered evide nce in the form of witness testimony from Special Agent Bilwin, who declined to testify du ring Taylor’s hearing on the advice of his legal counsel . On March 12, 2018, EEDR issued a ruling upholding Taylor’s termination and refusing to di sturb the hearing officer’s decis ion. After exhausting his administrativ e appeals, Taylo r appealed to the circuit court. In an opinion dated August 8, 2018, the cir cuit court found “that the decision of the hearing officer was not contrary to law, and the re was no constitutional provis ion, statu[t]e, regulation or judicial decision which the h earing officer’s decision contradi cted.” Accordingly, the circuit court denied Taylor’s appeal. 4 This appeal follows.
II. ANALYSIS A. Standard of Review “[I]n conjunction with the Virgi nia Personnel Act, Code § 2.2-2 900 et seq[.] , the General Assembly established a system for handling state employee compl aints arising in the workplace by enacting the State Grievan ce Procedure[.]” Murphy v. Va. De p’t of State Police, 68 Va. App. 716, 719 (2018) (quoting Pound v. Dep’t of Game & Inland Fisher ies, 40 Va. App. 59, 63-64

4 Taylor also filed a motion for r econsideration, which the circ uit court denied.- 10 - (2003)); see also Code § 2.2-3000 et seq . Accordingly, we observe th at Virginia’s employee grievance procedure creates a “t ripartite review procedure” wit h the following roles: “(1) the hearing officer is the finder of fact and final authority on fa ctfinding; (2) DHR M and [E]EDR determine whether the hearing o fficer’s ruling is in compliance with personnel policy and grievance procedure re spectively; and (3) t he courts determine whether the grievance determination is ‘con tradictory to law.’” Passaro v. Va. Dep’t of State Police, 67 Va. App. 357, 367 (2017) (citing Va. Dep’t of S tate Police v. Barton, 39 Va. App. 439, 445 (2002)). “Pursuant to that review procedure, the he aring officer’s findings of fac t and the administrative determinations of compliance w ith grievance procedure by [E]EDR and personnel policy by DHRM are not subject to judicial review.” Id. (citing Barton, 39 Va. App. at 445). “In determining whether a grievan ce decision was ‘contradictoryto law,’ [t]he courts are limited to ascertaining complian ce with constitutional provisio ns, statutes, regulations, and judicial decisions.” Murphy, 68 V a. App. at 720 (some internal quotation marks and citations omitted). Further, it is the appealing party’s burden to “identify [a] constitu tional provision, statute, regulation or judicial decision which the [hearing off icer’s] decision contradicted.’” Osburn, 295 Va. at 17 (quoting Va. P olytechnic Inst. & State Un iv. v. Quesenberry, 277 Va. 420, 429 (2009)). “Questions regarding w hether a decision is contra dictory to law, including the meaning of any underlying statutes, are reviewed de novo .” Id. (citing Quesenberry, 277 Va. at 429; REVI, LLC v. Chicago T itle Ins. Co., 290 Va. 203, 208 (201 5)). B. Taylor’s ABC Policy Violations As a preliminary matter, this C ourt must address ABC’s contenti on that this Court need not analyze the alleged Fourth Amendment issues because ABC ter minated Taylor for both a violation of the Fourth Amendmentas well as multiple violation s of ABC policy. ABC argues that Taylor’s failure to follow ABC policy, standing alone, con stituted misconduct justifying- 11 - Taylor’s removal. ABC also notes that these policies—General O rders 301, 501, and 106— impose stricter requirements upon ABC special agents than the F ourth Amendment. Therefore, ABC seems to argue that this C ourt should affirm the circuit co urt’s judgment based upon Taylor’s violation of ABC policy alone, because this Court is p rohibited from reviewing matters of agency policy. ABC’s argument on this matter fa ils for two reasons. First, th e hearing officer initially determined that Taylor’s failure to follow ABC policy warranted a Group II offense. More specifically, the hearing offi cer found that given the circumst ances of this case, General Orders 501, 301, and 106 obligated Taylor to obtain a search warrant b efore ordering a search of the Lodge and the seizure of its prop erty. Agency policy also mand ated that Taylor avoid knowingly or willfully issuing any order i n violation of a law, ordinance , rule or order of the United States, the Commonwealth, or the Bureau o f Law Enforcement. The hearin g officer subsequently found that Taylor’s actions violate d ABC policy, which justified the issuance of a Group II written notice. Only after concluding tha t Taylor violated ABC policy did the hearing officer address the elevation of Taylor’s Group II offense to a Group III offen se. Given that only Group III offenses warrant termination pursu ant to DHRM’s Procedures Manu al, it is clear that Taylor’s failure to follow ABC policy alone was not sufficient misconduc t to justify Taylor’s removal as ABC claims, and the hearing officer did not treat Taylor’s fail ure as such. Second, while ABC correctly notes that agency policy is not sub ject to judicial review, ABC’s preliminary argument fa ils to recognize that the policies referenced in Taylor’s notice of termination are directly rel ated to, and dependent upon, the Fo urth Amendment rights of ABC applicants and licensees. This is evident in the hearing offic er’s opinion where the hearing officer aptly summarized the int erplay between the Fourth Amend ment and General Orders 501, 301, and 106 to address the elevatio n of Taylor’s Group II offe nse to a Group III offense. Thus,- 12 - to allow the termination of Taylor’s employment to depend upon ABC policy alone would amount to allowing an agency offici al to interpret and define t he limits of the Fourth Amendment. Therefore, we must review Taylor’s assignments of e rror regarding ABC’s policies and the jurisprudence interpre ting the Fourth Amendment. 5 C. Taylor’s Standing Arguments As a second preliminary matter, T aylor oddly argues that the ci rcuit court erred in upholding his termination because ABC lacked standing to assert a Fourth Amendment violation on behalf of the Lodge. In support of this argument, Taylor ci tes a laundry list of criminal cases to assert that Fourth Amendment r ights are personal rights that may not be vicariously asserted. Taylor also posits that neither t he Lodge’s “employees” nor its “corporate officers” had standing to assert a Fourth Amendment vi olation against Taylor, on behal f of the Lodge. These arguments lack merit of any kind. The issue of standing to seek aconstitutional remedy is entire ly immaterial to whether Taylor violated the Lodge’s Fourth Amendment rights in the abstract. Taylor’s argument mixes apples and oranges. ABC was notattempting to vicariously seek redress for a violation of the constitutional rights of a thi rd party. This appeal does not c oncern a criminal case in which a defendant sought to suppress evid ence seized in violation of th e Fourth Amendment. Rather, this case is a civil employment grie vance appeal where ABC and the h earing officer determined that Taylor violated ABC policies, whi ch incorporate by reference AB C licensees’ constitutional

5 In his first assignment of error, Taylor employs this same ana lysis to argue that the circuit court erred in upholding Taylor’s termination because A BC incorporated Fourth Amendment principles in its pol icies. Such an action, clearly, is not automatically an error of law as Taylor seems to assert. R ather, this Court must review ABC’s incorporation of the Fourth Amendment in its policies to ens ure that the agency policies co mply with established constitutional guidelines. S ee Passaro, 67 Va. App. at 367 (emphasizing that, pursuant to Virginia’s employee grievance procedure, the courts only reviewissues of law).- 13 - protections provided by the Four th Amendment. Therefore, Taylo r’s standing argument is inapplicable to the issues before us. D. Taylor’s Fourth Amendment Arguments Taylor argues that the circu it court erred i n upholding his ter mination because he did not violate the Lodge’s Fourth Amend ment rights. Taylor supports that argument and attempts to justify his actions by relying upon numerous exceptions to the Fourth Amendment’s prohibition on warrantless searches and seizure s. These exceptions, as arg ued by Taylor, include the highly regulated industry exception, plai n view, exigent circumstances , and consent. 6 1. The Highly Regulated Industry Exception The Fourth Amendment protects “ [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV. It also provides that “ no Warrants shall issue, but upon p robable cause[.]” Id. Based on this constitutional text, the United S tates Supreme Court “has repea tedly held that ‘searches conducted outside the judicial pr ocess, without prior approval by [a] judge or [a] magistrate [judge], are per se unreasonable . . . subject only t o a few specifically establis hed and well-delineated exceptions.’” City of L.A. v. Patel, 135 S. Ct . 2443, 2452 (2015) (citations omitted). “‘[T]he Fourth Amendment’s p rohibition on unreasonable searches and seizures is applicable to commercial premises , as well as to private homes. ’” Osburn, 295 Va. at 17 (quoting New York v. Burger, 482 U.S. 691, 699 (1987)). “Warrantless searches, in either

6 Taylor also makes a brief “reas onableness” argument on appeal. We recognize that the United States Supreme Court has long held that the “[t]he ultim ate touchstone of the Fourth Amendment is ‘reasonablen ess.’” Kentucky v. King, 563 U.S. 452 , 459 (2011) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). We also rec ognize that an action is “reasonable” under the Fourth Amendment, reg ardless of the indi vidual police officer’s state of mind, “‘as long as the circumstances, viewed objectively, justify [the] acti on.’” Stuart, 547 U.S. at 403 (quoting Scott v. Un ited States, 436 U.S. 128, 138 (1978 ) (emphasis in original)).- 14 - context, are presumptively unr easonable.” Id. (citing Patel, 1 35 S. Ct. at 2452). “There is an exception, however, for warrantle ss inspections of businesses e ngaged in highly regulated industries.” Id. (citing Pat el, 135 S. Ct. at 2454-56; Burger, 482 U.S. at 702). The liquor industry falls within the highly r egulated industry exception t o the warrant requirement. See Colonnade Catering Corp. v. U nited States, 397 U.S. 72, 76 (197 0). “The highly regulated industr y exception is premised upon the c oncept that ‘[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor ove r the stock of such an enterpri se.’” Osburn, 295 Va. at 17-18 (quoting Marshall v. Barlo w’s, Inc., 436 U.S. 307, 313 (1978)). To be “reasonable,” however, a warrantless search or seizure of a highly regulated business mu st be specifically authorized by statute, and the parameters of a ny exception to the search warr ant requirement must be found in the statute. See id. at 18 (ci ting United States v. Biswell, 4 06 U.S. 311, 315 (1972)). In the Commonwealth, Code § 4.1-204( F) grants ABC and its speci al agents the authority

to search the premises of licensees. That statute states, in pertinent part, that [ABC] and its special agents shall be allowed free access durin g reasonable hours to every place i n the Commonwealth and to the premises of both (i) every wine shipper licensee and beer shipp er licensee and (ii) every delivery permittee wherever located whe re alcoholic beverages are manuf actured, bottled, stored, offered for sale or sold, for the purpose of examining and inspecting such place and all records, invoices and accounts therein. Code § 4.1-204(F). General Order 501, in turn, interprets and defines the scope of authority granted by Code § 4.1-204(F). Secti on IV(A) of that general or der defines the scope of such inspections to include the following: 4. Evidence of violation of state and federal criminal laws wh ich could constitute grounds for sus pension or revocation of a lice nse pursuant to Virginia Code Section 4.1-225. These will include, but not be limited to, the following:

. . . .- 15 - c. Gambling violations;

. . . . 5. Agents can inspect the premises where the items outlined ab ove could reasonably be located. Wh ile conducting inspections agen ts may seize items of evidence, unde r the plain view doctrine, of criminal violations if they have probable cause to believe such items constitute evidence of a c rime. Upon seizing any such it em however, the inspection should cease with the scene secured, an d either a search warrant or consent to search from a person authorized to provide con sent should be obtained. In short, Code § 4.1-204(F), whe n read in conjunction with ABC policies, permits warrantless inspections or search es of any licensee’s premises for the purpose of inspecting records and accounts. It also pe rmits the seizure of any contr aband or evidence of criminal activity in “plain view,” but no other seizures without a searc h warrant or consent are authorized by ABC policies implemen ting the statute. Here, Taylor argues that the c ircuit court erred in upholding h is termination because Special Agent Bilwin’s “entry,” as charact erized by Taylor, fel l under the highly regulated industry exception to the Fourth Amendment. Taylor, however, o ffers only a recitation of the parameters of the highly regul ated industry exception, but no a nalysis on the matter. Taylor then proceeds to argue that Special Agent Bilwin’s search and subseq uent seizure of the Lodge’s property was “reasonable” under the circumstances. Reviewing the ABC policies at i ssue in conjunction with applicable Fourth Amendment jurisprudence, we find Taylor’s highly regulated industry excep tion argument unpersuasive. As recognized by the hearing officer, “ [ABC] did not discipline [T aylor] for an unlawful search .” (Emphasis added). Rather, Taylo r was disciplined for ordering the unlawful seizure of money and other property belonging to the Lodge. Further, as previou sly mentioned, this case is not dependent upon whether Taylor vi olated an ABC licensee’s consti tutional rights in the abstract. It is instead dependent upon wheth er Taylor’s actions violated ABC policy, which incorporates- 16 - guidelines pertaining to unlawfu l searches and seizures that ar e, in some respects, more restrictive than constitutional ju risprudence woul d otherwise p ermit. See Virginia v. Moore, 553 U.S. 164, 174 (2008) (“A State is fr ee to prefer one search-and -seizure policy among the range of constitutionally permissible options, but its choice of a mo re restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutio nal.”). Consequently, we cannot say that either the h earing officer or circuit court’s judgment on the issue was contradictory to law. 2. The Plain View Exception Taylor next argues that he did not violate the Lodge’s Fourth A mendment rights when he ordered Special Agent Bilwin to s eize money and other property belonging to the Lodge because the seized items were in plai n view. According to Taylor, Spec ial Agent Bilwin viewed the Super Bowl board game and associ ated numbered chips in plain vi ew, “the incriminating character of the evidence was pl ainly apparent, and [Special] A gent Bilwin had a lawful right of access to the objects themselves.” Taylor also argues that pro bable cause supported the warrantless seizure. “The theory of the plain view doc trine is that an individual ha s no reasonable expectation of privacy in items that are in p lain view.” Daniels v. Common wealth, 69 Va. App. 422, 435 (2018) (quoting Commonwea lth v. Thornton, 24 Va. App. 478, 483 (1997)). The United States Supreme Court has identified the following three requirements that must be met before the plain view doctrine applies: “1) that the officer did not violate th e Fourth Amendment in arriving at the place from which the evi dence could be plainly viewed, 2) that the incriminating character of the evidence must be immediatel y apparent, and 3) that the offi cer have a lawful right of access to the object itself.” Id. ( quoting Cauls v. Commonwealth, 55 Va. App. 90, 99 (2009)). Only when these requirements are me t can the plain view doctrine jus tify a warrantless seizure.- 17 - Here, this Court need not indivi dually analyze each requirement of the plain view doctrine because the hearing o fficer found as a matter of fact that only some, but not all, of the items seized by Special Agent B ilwin were in plain view. “The [Super Bowl boards] and chips were on display for anyone in the L odge to see.” Importantly, however, the hearing officer found that “[n]ot all of the m oney . . . was in plain view. So me of the money was in a cash bag in a safe in the social quarte rs and some of the money was in asafe in the office.” With the record clearly supporting these findings of fact, the hearing o fficer correctly concluded that “[b]ecause some of the money w as not in plain view, not all of the money could be seized without a warrant.” Consequentl y, we cannot say that either th e hearing officer or circuit court’s judgment on the issue was contradictory to law. 3. The Exigent Circumstances Exception Taylor also argues that “exigen t circumstances i nside the Lodge ” justified Special Agent Bilwin’s seizure of the money a ssociated with the Super Bowl bo ards. Similar to his highly regulated industry exception ar gument, however, Taylor offers o nly a brief recitation of the law of exigent circumstances , but little to no analysis. “The exigent circumstances ex ception to the warrant requirement applies when the exigencies of the situation make the needs of law enforcement s o compelling that [a] warrantless search [or seizure] is objectiv ely reasonable under the Fourth Amendment.” Commonwealth v. Campbell, 294 Va. 486, 493 (2017) (quoting Kentucky v. King, 56 3 U.S. 452, 459 (2011) (some internal quotation marks omitted) ), cert. denied sub nom. Campb ell v. Virginia, 139 S. Ct. 421 (2018). According to our Supreme C ourt, the factors relevant t o an exigent circumstances analysis include, but are not limited to, the following: (1) the degree of urgency involve d and the time required to get a warrant; (2) the officers’ reasonable belief that contraband is about to be removed or destroyed; (3) the possibility o f danger to ot hers, including police officers left t o guard the site; (4) informati on that- 18 - the possessors of the contraba nd are aware that the police may be on their trail; (5) whether the offense is serious, or involves violence; (6) whether officers re asonably believe the suspects are armed; (7) whether there is, a t the time of entry, a clear show ing of probable cause; (8) whether t he officers have strong reason to believe the suspects are actual ly present in the premises; (9) the likelihood of escape if the susp ects are not swiftly apprehende d; and (10) the suspects’ recent en try into the premises after hot pursuit. Id. at 495 (quoting Verez v. C ommonwealth, 230 Va. 405, 410-11 (1985)). The hearing officer and the cir cuit court found Taylor’s exigen t circumstances argument unpersuasive as do we. In his de cision, the hearing officer ex plained that “[a]lthough money is inherently mobile and easily concealed,” no exigency existed in dependent of Taylor’s instruction to Special Agent Bilwin to sei ze the money. The hearing office r added that Taylor “could have obtained a search warrant to avo id the exigency or “‘frozen the scene’ until he was able to obtain a search warrant.” We agree. Nothing in the record supports the existence of any exigency re quiring Special Agent Bilwin’s warrantless seizure of the Lodge’s property. The reco rd reflects that T aylor knew of the Super Bowl board game’s illegality several days before Special Agent Bilwin’s visit to the Lodge on February 1, 2017. Taylor al so ordered the warrantless seizure of the gambling proceeds on January 31, 2017, the day before the seizures occur red. Additionally, the record does not reflect that the eviden ce related to the Super Bowl bo ard game was in jeopardy of being lost, destroyed, or removed from th e Lodge when Taylor ordered the warrantless seizures. Both Teft and Habel cooperated with Spe cial Agent Bilwin’s investiga tion and informed him of their intent to comply. Finally, this Court cannot conclude that anyof the other “Verez” factors, which generally apply to more ser ious criminal offenses, apply here. Therefore, we cannot say that the hearing officer’s conclusion that the exigent circumst ances exception did not apply was contradictory to law.- 19 - 4. The Consent Exception In his final Fourth Amendment arg ument, Taylor argues that the circuit court erred in upholding his termination because Special Agent Bilwin obtained consent from Teft and Habel to seize the money associated w ith the Super Bowl board game. “Where consent is freely and vol untarily given, probable cause and a search warrant are not required.” Limonja v. Commonwealth, 8 Va. App. 532, 540 (1 989). “Whether a person has consented to a warrantless sear ch ‘is a factual question best a nswered by the . . . factfinder.’” Osburn, 295 Va. at 20 (quoting Eva ns v. Commonwealth, 290 Va. 2 77, 283 n.4 (2015)). “Pursuant to Virginia’s statutor y grievance procedure, findings of fact are to be made by the hearing officer.” Id.; s ee also Code § 2.2-3005.1(C). Here, the hearing officer found tha t Habel and Teft did not con sent to Special Agent Bilwin’s seizure of the money at issue. That factual finding i s supported by the record. There is no evidence in the record of an a ffirmative consent to seize th e items taken. The hearing officer explained that Habel and Teft ’s expressed desire to cooperate w ith Special Agent Bilwin did not mean that they consented to the seizure of the money. The hear ing officer also noted that Special Agent Bilwin did not inform Habe l and Teft that they could refu se to turn over the money. Finally, while ABC created a consent to search form to resolve questions of whether a licensee consented to a search or seizure , Special Agent Bilwin never pr esented Habel or Teft with such a form. It follows that we cannot say that either the hearing of ficer or circuit c ourt’s judgment on the issue was contradictory to law. E. Taylor’s Due Process Argument In his final assignment of error , Taylor argues that the circui t court erred in upholding his termination because ABC “failed to follow its own internal poli cies” and “departed from fair and unprejudiced discipline.” Taylor also accuses ABC of terminati ng him in a “retaliatory and- 20 - unlawful” manner, which violat ed his due process rights. Taylo r attempts to absolve himself of responsibility by asserting that, a t the time of the investigat ion into the Lodge’s activities, he was not Special Agent Bilwin’s “line s upervisor.” Taylor also clai ms that he was “unaware of many details of [Special] Agent Bilwin’s investigation at the time [ he] was questioned regarding [Special] Agent Bilwin’s hand ling of the gambling investigation .” While Taylor maintains that ABC failed to take these factor s into consideration before issu ing him a Group III written notice, he fails to explain why ABC’s decision to terminate his employm ent was retaliatory and unlawful. We find that Taylor’s final ass ignment of error is without meri t. “Under settled principles, a state employee with a property interest in his em ployment is entitled to pre-termination ‘oral or writt en notice of the charges, an expl anation of the employer’s evidence, and an opportunity for the employ ee to tell his side of the sto ry.’” Va. Dep’t of Alcoholic Beverage Control v. Tyson, 63 Va. App. 417, 423-24 (2014) (quot ing Gilbert v. Homar, 520 U.S. 924, 929 (1997)). This Court has concluded, however, that “[t] he ‘elaborate statutory grievance procedures’ required by the State G rievance Procedure ‘more than satisfy the minimal requirements of due process.’” Id. (quoting Va. Dep’t of Trans p. v. Stevens, 53 Va. App. 654, 664 (2009)). In this case, ABC followed the grie vance statutes at all stages of the process. It ultimately ended with an evidentiary hearing before a hearing o fficer in which Taylor was represented by counsel. During t he hearing, Taylor had the opp ortunity to present evidence, call and examine witnesses, and contest all aspects of the agency’s decision. Taylor then had the opportunity to request that EEDR conduct an administrative revi ew of the hearing officer’s decision. Taylor also filed an appeal with the circuit court. The circuit court ultimately found, however, that the hearing office r’s decision “was not contradic tory to law.” It is difficult to- 21 - conceive how this comprehensive process violated Taylor’s due p rocess rights, and Taylor offers none beyond asserting the severity o f the sanction as subjectiv ely prejudicial and unfair. Therefore, we conclude that the State Grievance Procedure more than satisfied Taylor’s due process rights.
III. CONCLUSION For the foregoing reasons, we a ffirm the circuit court’s judgm ent that the hearing officer’s decision was not contradictory to law. Affirmed.