COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Petty and Senior Judge Bumgardner 

COMMODORE ASSOCIATES, INC., D/B/A 

 COMMODORE THEATRE 

 MEMORANDUM OPINION*

v. Record No. 2429-08-1 PER CURIAM 

FEBRUARY 10, 2009 

VIRGINIA ALCOHOLIC BEVERAGE CONTROL BOARD 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

James C. Hawks, Judge 

 (Fred Schoenfeld, President of Commodore Associates, Inc., pro se, 

on brief), for appellant. 

(Robert F. McDonnell, Attorney General; Frank S. Ferguson, 

Deputy Attorney General; Michelle Welch, Assistant Attorney 

General, on brief), for appellee. 

 Commodore Associates, Inc., d/b/a Commodore Theatre (Commodore) appeals from an 

order of the circuit court affirming an order of the Virginia Alcoholic Beverage Control Board 

(ABC or the Board) finding that Commodore, the licensee, unlawfully sold alcoholic beverages 

to an underage buyer in violation of Code § 4.1-304 and 3 VAC 5-50-10 and imposing sanctions 

against it under Code § 4.1-225(1)(c). Commodore contends the circuit court erred in affirming 

the Board’s order because (1) there was not “‘substantial evidence’ as to the facts of the 

violation” as required by Code § 4.1-225; and (2) the evidence presented was insufficient to 

prove it violated Code § 4.1-304 and 3 VAC 5-50-10. Upon reviewing the record and briefs of 

the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the 

circuit court’s decision. See Rule 5A:27. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
- 2 - 

Standard of Review

This matter arises under the Virginia Administrative Process Act, Code § 2.2-4000 et seq. 

Under the Act, 

“[t]he standard of review of an agency’s factual findings on appeal 

to a circuit court is limited to determining whether substantial 

evidence in the agency record supports its decision.” Avante at 

Lynchburg, Inc. v. Teefey, 28 Va. App. 156, 160, 502 S.E.2d 708, 

710 (1998). Under the “substantial evidence” standard, an 

agency’s factual findings should be rejected “‘only if, considering 

the record as a whole, a reasonable mind would necessarily come 

to a different conclusion.’” Tidewater Psychiatric Inst. v. Buttery, 

8 Va. App. 380, 386, 382 S.E.2d 288, 291 (1989) (quoting Virginia 

Real Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 

125 (1983)). “The phrase ‘substantial evidence’ refers to ‘such 

relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Bias, 226 Va. at 269, 308 S.E.2d at 125. 

Sentara Norfolk Gen. Hosp. v. State Health Comm’r, 30 Va. App. 267, 279, 516 S.E.2d 690, 696 

(1999), rev’d, 260 Va. 267, 534 S.E.2d 325 (2000). 

Additionally, “the court must review the facts in the light most favorable to sustaining the 

Board’s action and ‘take due account of the presumption of official regularity, the experience 

and specialized competence of the agency, and the purposes of the basic law under which the 

agency has acted.’” Bio-Medical Applications of Arlington, Inc. v. Kenley, 4 Va. App. 414, 427, 

358 S.E.2d 722, 729 (1987) (quoting former Code § 9-6.14:17). 

Issues on Appeal

 Commodore’s five page brief contains a single heading, “NATURE OF THE CASE,” on 

page 1, and no further headings or sections delineating: (a) what question or questions it seeks to 

raise on appeal; (b) a statement of facts; and (c) legal argument(s) on each question presented. 

Appellant begins by asserting the trial court “erred in its written opinion dated August 6, 2008.” 

It then alleges that a “material issue before the [trial] Court was whether there was ‘substantial 

evidence’ as to the facts of the violation as required by the Virginia Statutes, specifically, section 
- 3 - 

4.1-225.” Appellant repeats arguments it claims it made to the trial court, including its assertion 

that it was wrongly “cited” under the incorrect subsection of Code § 4.1-225(1). Commodore 

claims, as it claimed in the trial court, that it should have been cited under Code § 4.1-225(1)(k), 

rather than Code § 4.1-225(1)(c). Moreover, Commodore argues that it was not guilty of 

violating either subsection (1)(c) or (1)(k) of Code § 4.1-225, nor did it violate Code § 4.1-304. 

In arguing Commodore did not violate Code § 4.1-225, it asserts that its employee, who was 

trained in requesting identifications before selling alcohol, sold the alcohol, not Commodore. 

Summarizing, appellant asserts there was not substantial evidence to support the trial 

court’s decision to affirm the Board’s decision to temporarily suspend its license. Commodore 

contends its employee sold the alcohol, not the corporation, and it did all in its power to train the 

employee to check identifications and not to sell to underage persons. It also argues that it did 

not violate either Code § 4.1-225(1)(c) or § 4.1-225(1)(k), nor did it violate Code § 4.1-304. 

Background Facts

The facts are not in dispute. On May 3, 2007, an employee of Commodore served 

alcohol to a seventeen-year-old subject without inquiring about his age or requesting to see 

identification. The employee was later charged with the sale of alcohol to a minor, and 

Commodore was charged with violating Code § 4.1-304 and 3 VAC 5-50-10, and was subject to 

sanctions pursuant to Code § 4.1-225(1)(c). At an August 14, 2007 hearing, the administrative 

hearing officer heard testimony and had an opportunity to view the seventeen-year-old subject to 

determine how old he appeared to be. 

The ABC hearing officer found the employee sold a bottle of beer to the underage 

subject, and the subject’s “youthful facial features and general appearance . . . would have 

prompted a reasonable person using due care to require proof of age before completing the 

transaction.” By order entered September 26, 2007, the hearing officer ruled that Commodore’s 
- 4 - 

license be suspended for twenty days, but that payment of a $1,500 fine would terminate such 

suspension. 

Commodore appealed that decision to the Board, which heard the matter on February 5, 

2008. At the hearing, Commodore argued that it trained the employee and did all it could. It 

conceded the fault of its employee, but argued this was its first violation of the ABC laws. The 

Board found that Commodore “stand[s] in the shoes of [its] employees.” It noted that the 

hearing officer took Commodore’s prior record into account when it proposed a fine of $1,500 

for a violation that normally carries a fine of $2,000. By order dated February 8, 2008, the Board 

found it had “reasonable cause to believe that the charge is substantiated,” and it adopted the 

hearing officer’s decision as the final decision of the Board. 

Commodore appealed to the circuit court, which heard the matter on July 21, 2008. After 

hearing argument, the trial court took the matter under advisement. By opinion letter dated 

August 6, 2008, the trial court found the Board’s decision was supported by credible, undisputed 

facts. As to appellant’s arguments that subsection (1)(k) applied and required actual 

“consumption” by the underage subject, the trial court noted that the Board never relied on that 

subsection in its ruling. 

The Law

Commodore was charged with violating Code § 4.1-304 and 3 VAC 5-50-10. Under 

Code § 4.1-304, it is a Class 1 misdemeanor to “sell any alcoholic beverages to any person when 

at the time of such sale he knows or has reason to believe that the person to whom the sale is 

made is . . . less than twenty-one years of age.” 

3 VAC 5-50-10 mirrors Code § 4.1-304 and provides in pertinent part, that “no licensee 

shall sell any alcoholic beverages to a person whom he shall know, or have reason at the time to 

believe, is: 1. Under the age of 21 years . . . .” 
- 5 - 

Code § 4.1-225(1)(c) authorizes the Board to impose sanctions against a licensee if “it 

has reasonable cause to believe that” the licensee “violated any provision of Chapter 3 (§ 4.1-300 

et seq.) of this title.” 

Discussion

Here, there was substantial evidence to support the Board’s decision. Undisputed 

evidence established that Commodore served alcohol to an underage subject in violation of Code 

§ 4.1-304 and 3 VAC 5-50-10. By doing so, Commodore committed a violation cognizable 

under Code § 4.1-225(1)(c), thereby triggering the sanctions set forth in that subsection. 

Accordingly, we affirm the circuit court’s judgment affirming the Board’s finding that 

Commodore unlawfully sold alcoholic beverages to an underage buyer in violation of Code 

§ 4.1-304 and 3 VAC 5-50-10. 

Affirmed.