COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

STEVE KENNETH BRANCH t/a IVORY'S RESTAURANT 

 OPINION BY 

v. Record No. 0081-95-2 JUDGE LARRY G. ELDER 

 NOVEMBER 7, 1995 

VIRGINIA DEPARTMENT OF 

 ALCOHOLIC BEVERAGE CONTROL 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Randall G. Johnson, Judge 

 J. Ridgely Porter, III, for appellant. 

 John Patrick Griffin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; Michael K. Jackson, Senior Assistant 

Attorney General and Chief, on brief), for 

appellee. 

 Steve Kenneth Branch appeals the trial court's affirmance of 

the Alcoholic Beverage Control (ABC) Board's revocation of 

Branch's two alcohol licenses. Branch contends (1) the ABC Board 

lacked authority to revoke the licenses as a sanction for his 

violations after he voluntarily surrendered the licenses; (2) the 

ABC Board failed to conduct a de novo hearing after the trial 

court vacated the revocations and remanded his case; (3) 

insufficient evidence supported the charge that the operation of 

his business resulted in breaches of peace and good order; and 

(4) he substantially prevailed on appeal to the trial court and 

was therefore entitled to an award of attorney's fees and costs. 

 Because the trial court committed no error, we affirm its 

decision to uphold the ABC Board's revocations. 
 2 

 

 I. 

 FACTS 

 On July 26, 1993, the ABC Board gave Branch notice of 

charges of violations of state alcohol beverage control laws, 

which concerned his licenses for (1) mixed beverages1

 and (2) 

wine and beer2 at his establishment, Ivory's Restaurant. 

 On January 5 and 7, 1994, an ABC Board hearing officer 

received testimony from Branch, Branch's employees and 

bookkeeper, ABC agents, and local police officers. At the 

hearing, Branch objected to the introduction of a television news 

videotape, which depicted various incidents of violence occurring 

near Ivory's. The hearing officer offered to make the video 

available to Branch's counsel, but the record does not disclose 

whether Branch's counsel availed himself of the opportunity. On 

January 27, 1994, the hearing officer found Branch violated ABC 

laws and recommended the revocation of both licenses. 

 On April 5, 1994, the case was heard before the full ABC 

Board, and Branch presented testimony and additional evidence. 

 1 The charges included (1) Branch no longer conducted 

business as a "restaurant;" (2) Branch failed to keep complete, 

accurate, and separate records; (3) Branch attempted to defraud 

the ABC Board by filing an inaccurate/fraudulent report; (4) 

issuance of the license led to breaches of peace and good order; 

and (5) Branch concealed the sale or consumption of alcoholic 

beverages. 

 2 The charges included counts (1) - (4) of the mixed alcohol 

beverage counts, plus a charge that Branch purchased beer or 

beverages "except for cash." 
 3 

Branch did not object to the hearing officer's handling of the 

video or the other evidence relating to the peace and good order 

charge. On April 6, 1994, the ABC Board revoked both licenses, 

and Branch appealed to the Richmond Circuit Court. 

 On July 13, 1994, the Honorable Randall G. Johnson affirmed 

the hearing officer's factual findings, but found that the 

hearing officer improperly admitted the videotape. The trial 

court stated that (1) the videotape was not so crucial to the ABC 

Board's final decision that the entire process must be thrown 

out; (2) only a remand could answer what the hearing officer or 

the ABC Board would have found if the videotape had not been 

admitted; and (3) the Board could "not base its decision and 

orders on remand on any evidence related to the subject 

videotape, unless the case is further remanded to the hearing 

officer to allow Branch to present evidence in rebuttal to it." 

The trial court therefore vacated the revocations and remanded 

the case to the ABC Board. The trial court refused to award 

Branch attorney's fees and costs, as he had not substantially 

prevailed on appeal. 

 Branch filed a motion with the trial court requesting it to 

amend or modify its July 13, 1994 order, which had not ordered a 

de novo hearing on remand. The trial court refused to do so. 

 On remand, the ABC Board vacated the two April 6, 1994 final 

orders of revocation and scheduled a hearing for the appeal. On 

August 1, 1994, Branch objected to the ABC Board hearing his case 
 4 

without affording him a de novo hearing before an officer. 

Immediately prior to the final August 23, 1994 ABC Board hearing, 

Branch voluntarily surrendered his licenses (which were to expire 

on September 30, 1994) and claimed that the ABC Board could take 

no further action against him. On September 6, 1994, the ABC 

Board issued orders revoking Branch's licenses. On December 13, 

1994, the trial court affirmed the ABC Board's revocations and 

dismissed Branch's appeal. 

 II. 

REVOCATION SUBSEQUENT TO VOLUNTARY SURRENDER 

 In his brief to the Court, Branch argued that once he 

voluntarily surrendered his two licenses prior to the ABC Board 

hearing, the ABC Board lacked the right to revoke the licenses on 

September 6, 1994, thereby affecting what was already a final 

termination. Branch relied on Code § 4.1-203(D), which states in 

pertinent part: 

The privileges conferred by any license granted by the 

Board . . . shall continue [for a designated period of 

time, which in this case was September 30, 1994], 

except that the license may be sooner terminated for 

any cause for which the Board would be entitled to 

refuse to grant a license, by operation of law, 

voluntary surrender[,] or order of the Board. 

(Emphasis added). However, at oral argument, Branch conceded 

that the voluntary surrender of an alcohol license does not bar 

further revocation and sanction proceedings and conceded that 

such proceedings may affect a licensee's chances of being granted 
 5 

an alcohol license in the future. See 48 C.J.S. Intoxicating 

Liquors § 171 at 613 (1981 & Supp. 1995). Because of this 

concession we need not exhaustively address this issue. We 

merely note that the ABC Board began its proceedings before 

Branch attempted to surrender his licenses. Nothing in the 

statute forbids the ABC Board from continuing an enforcement 

action simply because a licensee unilaterally seeks to preclude 

an adverse finding by surrender of the license after proceedings 

commenced. We hold the ABC Board retained authority to revoke 

Branch's licenses after he voluntarily surrendered them. 

 III. 

LACK OF DE NOVO HEARING ON REMAND 

 We uphold the trial court's ruling that Branch had no 

absolute right to a de novo hearing before a hearing officer on 

remand. 

 The basic law under which the legislature empowered the ABC 

Board to act contains no requirement that the case be remanded to 

the hearing officer. The law authorizes the Board to promulgate 

reasonable regulations necessary to carry out the provisions of 

the basic law. Code § 4.1-111(A). The Code also provides that 

"[t]he Board's power to regulate shall be broadly construed." 

Code § 4.1-111(F). 

 The Regulations of the Virginia Department of Alcoholic 

Beverage Control, which include the Rules of Practice Before 

Hearing Officers and the ABC Board, also guide our determination. 
 6 

 Part II of the Rules, concerning hearings before the ABC Board, 

includes VR125-01-1 § 2.6 (Evidence), which grants the ABC Board 

certain powers. Section 2.6(B) states: 

Should the Board determine at an appeal hearing, either 

upon motion or otherwise, that it is necessary or 

desirable that additional evidence be taken, the board 

may: 

 1. Direct that a hearing officer fix a time and 

place for the taking of such evidence . . . 

and 

 2. Upon unanimous agreement of the board 

members, permit the introduction of afterdiscovered or new evidence at [an] appeal 

hearing. 

(Emphasis added). This section provides an explicit exception to 

the general rule that all evidence should be introduced at a 

hearing before a hearing officer. VR125-01-1 § 2.6(A). Because 

the ABC Board may permit new evidence to be admitted after the 

hearing officer receives evidence and makes a recommendation, it 

follows that the ABC Board had the authority to exclude the 

videotape from its consideration on remand. 

 VR125-01-1 § 1.7 (Decisions) also supports the conclusion 

that the ABC Board was under no duty to instruct the hearing 

officer to make new findings of fact on remand, without the use 

of the videotape. VR125-01-1 § 1.7 states: 

A. Initial decisions.--The decision of the hearing 

officer shall be deemed the initial decision, 

shall be a part of the record and shall include: 

 1. A statement of the hearing officer's findings 

of fact and conclusions, as well as the 
 7 

reasons or bases therefor, upon all the 

material issues of fact, law or discretion 

presented on the record; and 

 2. The appropriate rule, order, sanction, relief 

or denial thereof as to each such issue. 

(Emphasis added). 

 Additionally, in rendering its decision, the ABC Board "may 

adopt, modify or reject the initial decision." § 1.7(F). The 

ABC Board also has the authority at its hearing to "examine a 

witness upon any question relevant to the matters in issue." 

§ 2.6(C). These powers implicitly give the ABC Board the 

authority to conduct a de novo review after the initial decision 

has been rendered and are sufficiently broad to allow the ABC 

Board to reconsider the case on remand from the circuit court 

without the necessity to remand for another proceeding before the 

hearing officer. 

 The trial court's July 13, 1994 order, which specifically 

dealt with the remand issue, distinguished this case from 

Virginia Bd. of Medicine v. Fetta, 244 Va. 276, 421 S.E.2d 410 

(1992), a case on which Branch relies. In Fetta, the Supreme 

Court held that the Virginia Board of Medicine violated statutory 

provisions relating to the conduct of its proceedings. The Court 

affirmed the trial court's ruling that because the violation 

could have had an impact on the medical board's ultimate 

decision, the proceeding could not be fairly reheard on remand 

and had to be dismissed. Fetta, 244 Va. at 283, 421 S.E.2d at 
 8 

414. In this case, the trial court wrote: 

Here, the only error found in the agency's proceedings 

concerns a videotape. There is nothing about that 

tape, or the hearing officer's or Board's consideration 

of it, which is per se so crucial or central to the 

Board's final decision that the entire process must be 

thrown out [as in Fetta] because of the hearing 

officer's action. 

The trial court wrote that it could not determine what the 

hearing officer or the ABC Board would have found had the 

videotape not been admitted into evidence and that only a remand 

would answer this question. In fashioning its remand 

instructions, the trial court wrote: 

 Accordingly, the final decisions and orders of the 

ABC Board revoking the licenses of Mr. Branch will be 

vacated, and the case will be remanded to the Board for 

such further consideration and proceedings as the Board 

deems appropriate. The Board is specifically 

instructed, however, that it may not base its decisions 

and orders on remand on any evidence related to the 

subject videotape, unless the case is further remanded 

to the hearing officer to allow Branch to present 

evidence in rebuttal to it. 

(Emphasis added). We hold that the trial court did not abuse its 

discretion in fashioning these remand instructions. As the 

Supreme Court stated in Fetta, Code § 9-6.14:193

 explicitly 

grants trial courts "the discretion to specify exactly what shall 

 

 3 This section states: 

 Where a regulation or case decision is found by the court to 

be not in accordance with law under § 9-6.14:17, the court 

shall suspend or set it aside and remand the matter to the 

agency for such further proceedings, if any, as the court 

may permit or direct in accordance with the law. 
 9 

be done on remand." Fetta, 244 Va. at 280, 421 S.E.2d at 412. 

Here, there is no evidence that the ABC Board based any of its 

decision on remand on any evidence related to the videotape. It 

was therefore unnecessary for the ABC Board to remand the case 

for a de novo hearing before a hearing officer. On remand, the 

ABC Board has the authority pursuant to its regulations to 

reconsider its decision. 

 IV. 

 SUFFICIENCY OF EVIDENCE ON PEACE AND GOOD ORDER CHARGE 

 Third, we hold that sufficient evidence supports the finding 

that Ivory's was so located that violations of law relating to 

peace and good behavior resulted from the issuance of Branch's 

ABC licenses.4

 

 4 Branch was specifically charged with violating three 

separate statutes: (1) Code § 4.1-222(A)(2)(b)(former § 4-31), 

which states that the ABC Board can refuse to grant a license if 

it has reasonable cause to believe that the establishment "[i]s 

so located that granting a license and operation thereunder . . . 

would result in violations of this title, Board regulations, or 

violation[s] of the laws of the Commonwealth or local ordinances 

relating to peace and good order"; (2) Code § 4.1-225(4)(former 

§ 4-37), which states that the ABC Board may suspend or revoke a 

license, or impose penalties, where "[a]ny cause exists for which 

the Board would have been entitled to refuse to grant such 

license had the facts been known"; and (3) Code § 4.1-203(D) 

(former § 4-34), discussed supra, Section II. 

 We are guided in this determination by familiar standards of 

appellate review of agency decisions. 

 Under Code § 9-6.14:17, the scope of review is 

limited to whether there was "substantial evidence in 

the agency record" to support the decision. The phrase 

"substantial evidence" refers to "such relevant 

evidence as a reasonable mind might accept as adequate 

to support a conclusion." The court may reject the 

agency's finding of fact "only if, considering the 

record as a whole, a reasonable mind would necessarily 

come to a different conclusion." This standard is 
 10 

designed "to give great stability and finality to the 

fact-finding process of the administrative agency." 

 In addition, we 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." 

Atkinson v. VABC, 1 Va. App. 172, 176, 336 S.E.2d 527, 529-30 

(1985)(citations omitted). 

 Regarding the peace and good order charge, the ABC Board had 

to determine: 

first, that violations of the ABC Act or other laws of 

the Commonwealth relating to peace and good behavior 

[took] place at the establishment in question; second, 

that there [was] some nexus between these violations 

and the location of the establishment. The location, 

in and of itself, must [have been] a relevant factor in 

the causation of the violations in order to prove that 

the establishment "[was] so located that violations of 

the ABC Act or the laws of the Commonwealth relating to 

peace and good order [had] resulted from issuance of 

the license and operation thereunder." 

Id. at 177, 336 S.E.2d at 530; see Muse v. VABC, 9 Va. App. 74, 

79-80, 384 S.E.2d 110, 113 (1989). 

 We conclude from a complete review of the record that 

"[s]ubstantial evidence was presented . . . which gave the ABC 

Board reasonable cause to believe that circumstances had 

developed, which, if known, would have entitled the ABC Board to 

refuse to grant [Branch's] license at the outset." Id. at 80, 

384 S.E.2d at 113. The record establishes that violations of the 

law occurred at Ivory's and that Ivory's location, in and of 
 11 

itself, contributed to disturbances of the peace and other 

violations of the law. 

 Substantial evidence from the record reveals the following 

facts: ABC agent G.R. Gullo testified that weapons were removed 

from people who were refused entry to Ivory's because they were 

intoxicated; and a man pulled a gun on a woman who sat in Ivory's 

outside "glass booth." Sergeant Tim Morley of the Richmond 

Police Department testified as to multiple violent incidents 

related directly to Ivory's location, including (1) the beating 

of a nineteen year old after an argument inside Ivory's; (2) the 

shooting of five persons "stemming from a crowd situation outside 

the club"; (3) the shooting of a person "in the head 

approximately 75 feet from the front door of the club after 

leaving"; (4) the striking of a police officer in the chest as he 

tried to maintain order while Ivory's was closing for the night; 

(5) the arrest of a person outside Ivory's for a fight that 

originated inside the club; (6) a woman "struck by a bottle and 

fists by 12 unknown suspects after refusing to dance with one of 

them"; and (7) a man "struck in the head with a bottle inside the 

club." Sergeant Morley also testified that Ivory's spawned the 

most violent problems the police encountered in the adjacent 

neighborhood. Lieutenant David Welch of the Virginia 

Commonwealth Police Department testified that there were problems 

with crowd control at Ivory's; that there were multiple instances 

of fighting at Ivory's; and that gunshots were fired at Ivory's. 
 12 

 Finally, Randall Plummer, formerly in charge of Ivory's 

security, testified he was assaulted at least three times and was 

shot at while working at the club. 

 Based on these facts and circumstances, we hold that the 

evidence supported the trial court's finding that a causal 

relationship, or nexus, existed between Ivory's location and the 

enumerated violations of the law. 

 V. 

ATTORNEY'S FEES AND COSTS 

 Finally, based on our review of the proceedings in this 

case, we hold that the trial court did not abuse its discretion 

in finding that Branch could not recover from ABC reasonable 

attorney's fees and costs. See Ingram v. Ingram, 217 Va. 27, 29, 

225 S.E.2d 362, 364 (1976)("An award of attorney's fees is a 

matter submitted to the trial court's sound discretion and is 

reviewable on appeal only for an abuse of discretion."). Code 

§ 9-6.14:21(A) of the Virginia Administrative Process Act (VAPA) 

states: 

 In any civil case brought under Article 4 . . . of 

this chapter and § 9-6.14:4.1, in which any person 

contests any agency action, as defined in § 9-6.14:4, 

such person shall be entitled to recover from that 

agency . . . reasonable costs and attorney fees if such 

person substantially prevails on the merits of the case 

and the agency is found to have acted unreasonably, 

unless special circumstances would make an award 

unjust. 

(Emphasis added). See Commonwealth v. Lotz Realty Co., Inc., 237 
 13 

Va. 1, 11, 376 S.E.2d 54, 59 (1989). 

 On Branch's first appeal, the trial court found that 

"because it cannot be reasonably said that Branch has prevailed 

on this appeal, no attorney's fees or costs will be awarded." 

The trial court's only reason for vacating the ABC Board's 

revocation order and remanding the case was that the hearing 

officer inappropriately admitted the videotape into evidence. 

The trial court's order specifically stated that "[t]here is 

nothing about that tape, or the hearing officer's or Board's 

consideration of it, which is per se so crucial or central to the 

Board's final decision that the entire process must be thrown out 

because of the hearing officers' action." 

 Assuming without deciding that Code § 9-6.14:21(A) 

supplements the ABC attorney's fees provisions,5 we hold that the 

trial court was not clearly wrong in deciding that Branch did not 

"substantially prevail on the merits of the case," see

Commonwealth v. May Bros. Inc., 11 Va. App. 115, 120, 396 S.E.2d 

695, 698 (1990)(holding that party "substantially prevailed" on 

the merits where all disputed issues were decided in its favor), 

and that the agency did not act "unreasonably" at any point in 

these proceedings. 

 

 5 For example, in Shuler v. VEC, 14 Va. App. 1013, 420 

S.E.2d 257 (1992), this Court held that VAPA provisions providing 

for the award of attorney's fees and costs do not apply to 

judicial review of determinations of claims for unemployment 

compensation. 
 14 

 Accordingly, we affirm the trial court's order upholding the 

ABC Board's revocations. 

Affirmed.