COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Seni or 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; Michel le 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 lic ensee, 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 ci rcuit court erred in affirming the Board’s order because (1) there was not “‘su bstantial 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 reviewi ng the record and briefs of the parties, we conclude that th is appeal is without merit. Accordingly, we summarily affirm the circuit court’s decision. See Rule 5A:27.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Standard of Review This matter arises under the Virginia Administ rative 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 “substant ial 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 ‘substant ial 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 revi ew the facts in the light most favorable to sustaining the Board’s action and ‘take due account of the pres umption of official re gularity, 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 brie f 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 argumen t(s) on each question presented. Appellant begins by asserting the trial court “e rred in its written opinion dated August 6, 2008.” It then alleges that a “materia l issue before the [trial] Court was whether there was ‘substantial evidence’ as to the fact s of the violation as required by the Vi rginia Statutes, specifically, section- 3 - 4.1-225.” Appellant repeats arguments it claims it ma de to the trial court, including its assertion that it was wrongly “cited” unde r 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 se lling alcohol, sold the alcohol, not Commodore. Summarizing, appellant asserts there was not substantial ev idence to supp ort 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 co rporation, 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 Ma y 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 opportuni ty to view the sevent een-year-old subject to determine how old he appeared to be. The ABC hearing officer found the employee so ld a bottle of beer to the underage subject, and the subject’s “youthf ul facial features and genera l 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 deci sion to the Board, which he ard the matter on February 5, 2008. At the hearing, Commodore ar gued that it trained the empl oyee 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 shoe s of [its] employees.” It noted that the hearing officer took Commodore’s prior record into account wh en 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 su bstantiated,” 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 cour t took the matter under adviseme nt. By opinion letter dated August 6, 2008, the trial court found the Board’s d ecision 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 C ode § 4.1-304 and 3 VAC 5-50-10. Under Code § 4.1-304, it is a Class 1 misdemeanor to “se ll 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 provid es in pertinent part , that “no licensee shall sell any alcoholic beverage s 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 sanction s against a li censee if “it has reasonable cause to believe that” the licen see “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 th e sanctions set forth in that subsection. Accordingly, we affirm the circuit court’ s judgment affirming th e 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.