COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Senior Judge Hodges 

Argued at Norfolk, Virginia 

PARADOX CORPORATION, T/A THE EDGE 

v. Record No. 2333-94-1 MEMORANDUM OPINION*

 PER CURIAM 

VIRGINIA ALCOHOLIC BEVERAGE CONTROL BOARD MAY 16, 1995 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

A. Bonwill Shockley, Judge 

 Kevin E. Martin-Gayle (Moody E. Stallings, 

Jr.; John W. Richardson; Stallings & 

Richardson, on briefs), for appellant. 

 J. Patrick Griffin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; Michael K. Jackson, Senior Assistant 

Attorney General, on brief), for appellee. 

 Paradox Corporation, t/a The Edge (The Edge) appeals from a 

circuit court affirmance of a decision of the Virginia Alcoholic 

Beverage Control Board (the Board) to revoke The Edge's ABC 

licenses. The Edge presents the following nine questions on 

appeal: 

 1. Did the trial court err in failing to reverse the Board 

on the basis that the Board's method of revoking the 

appellant violated Due Process of law? 

 2. Did the trial court err in failing to reverse the Board 

on the basis that the Board was "tainted" by the March 

29, 1994, meeting? 

 3. Did the trial court err in refusing to continue the 

case, in refusing to order Board Member Giordano to 

appear and testify, and in refusing to order the City 

Attorneys to appear and testify? 

 4. Did the trial court err in failing to reverse the Board 

on the basis that the Board acted arbitrarily and 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
2 

capriciously? 

 5. Did the trial court err in failing to reverse the Board 

on the basis that the Board abused its discretion by 

issuing revocations without any justification 

whatsoever for adopting the harshest penalty possible? 

 6. Did the trial court err in failing to reverse the Board 

on the basis that the Board erred in issuing 

revocations despite the presence of mitigating 

evidence? 

 7. Did the trial court err in failing to reverse the Board 

on the basis that the Board abused its discretion in 

modifying the decision of the hearing officer by 

issuing revocations? 

 8. Did the trial court err in failing to reverse the Board 

on the basis that the Board erred in issuing 

revocations where the ends/goals of the Board are not 

furthered by such a harsh result, while The Edge is put 

out of business? 

 9. Did the trial court err in granting the Board's Motion 

to Strike? 

Finding no error, we affirm the circuit court's decision. 

Issues 1 and 2

 To show a due process violation, The Edge must overcome "the 

presumption of official regularity" which is bestowed upon agency 

decisions. Code § 9-6.14:17. The Edge's "taint" argument is 

deficient. 

 First, the membership of the Board changed on February 21, 

1994. The "Old" Board, by notice dated February 10, 1994, 

proposed to revoke The Edge's licenses. The "New" Board acted on 

the proposal. This sequence of events demonstrates that the 

"Old" Board questioned the penalty decided upon by the hearing 

officer, and it set into motion the events leading up to the 
3 

"New" Board's revocation of the licenses. Such a scenario hardly 

supports The Edge's theory that the Board and Virginia Beach 

officials conspired to shut down The Edge. 

 Second, a review of the transcript of the November 18, 1994 

hearing reveals that all nine witnesses, with minor differences, 

agreed that the main purpose of the meeting was to address 

rowdiness and drinking problems in the oceanfront area by the 

coordinated efforts of Virginia Beach police and ABC enforcement 

personnel. While some witnesses testified that "The Block" was 

mentioned, it was mentioned in the context of being part of the 

larger oceanfront area. No witness recalled The Edge being 

mentioned at the meeting. 

 There is no proof that The Edge, either overtly or covertly, 

was the topic of conversation at the March 29 meeting. 

Accordingly, nothing happened at the meeting which would 

necessitate an opportunity by The Edge to respond. As such, 

there was no due process violation. 

 Finally, The Edge's reliance on Virginia Board of Medicine 

v. Fetta, 244 Va. 276, 421 S.E.2d 410 (1992), is misplaced. 

There, four Board members, who later ruled on Fetta's case, sat 

in on the hearing before the hearing officer. Id. at 277, 421 

S.E.2d at 411. Here, the November 18 meeting, of which there is 

no evidence that The Edge was even mentioned, is no parallel to 

the hearing condemned in Fetta. 

Issue 3
4 

 First, The Edge argues that the circuit court erred in not 

granting a continuance so that it could serve Board member 

Giordano with a subpoena. Whether to grant or deny a continuance 

lies in the sound discretion of the trial court, and its decision 

will not be disturbed absent an abuse of that discretion. See

McNew v. Dunn, 233 Va. 11, 15, 353 S.E.2d 713, 716 (1987). The 

Edge successfully served eleven other potential witnesses. The 

court quashed the subpoena as to two of these witnesses, but the 

other nine were in court and prepared to testify on November 18. 

 Under these circumstances, we cannot conclude that the court 

abused its discretion in denying the motion for a continuance. 

 Second, The Edge argues that the court should have compelled 

Giordano to appear and testify. Giordano was not served with a 

subpoena. The Edge cites no authority that would enable the 

court, under those circumstances, to compel her attendance and 

testimony. 

 Third, The Edge argues that the court erred in ruling that 

City Attorney Lilley and Assistant City Attorney Byman need not 

testify. In their "Motion to Quash Subpoenas to Testify," Lilley 

and Byman asserted that they "were present at the meeting . . . 

solely in their capacity as attorneys in order to provide legal 

advice to City Council and/or City officials." The trial court 

accepted this assertion. The transcript of the November 18 

hearing contains nothing that contradicts this assertion. There 

is no suggestion in this transcript that Lilley or Byman were 
5 

active participants in the meeting or that their roles 

transgressed their status as legal advisors to the city 

councilmen or city officials. 

Issues 4 through 7

 The Board adopted the hearing officer's findings of fact, 

but disagreed as to the appropriate punishment. The Edge, while 

conceding that the Board has the authority, in the exercise of 

its discretion, to revoke The Edge's licenses, nonetheless argues 

that the Board, under these circumstances, owed some degree of 

deference to the hearing officer's determination of punishment. 

There is no support for this argument. Code § 4.1-103(13) 

specifically grants "The Board" the power to "[g]rant, suspend, 

and revoke licenses . . . ." See also Code § 4.1-225. No 

condition is placed on this power. 

 Furthermore, a close review of the record reveals that 

Chicho's, a nearby establishment, was not similarly situated to 

The Edge, and, as such, the Board did not act arbitrarily and 

capriciously in arriving at a less severe punishment for 

Chicho's. Of particular note are the findings that, as to 

Chicho's, the violations involved actions of employees and/or 

officers which were apparently unknown to the owners. In 

contrast, The Edge's owners were directly involved in its 

violations. 

Issue 8

 The Edge argues that the Board erred in revoking its 
6 

licenses because the Board's "goal" of ensuring the public safety 

is not furthered by the revocation. This public policy argument 

is without merit. As noted above, Code §§ 4.1-103(13) and 

4.1-225 specifically grant the Board the authority to revoke 

licenses for violations such as those committed by The Edge. 

Issue 9

 The Edge incorrectly argues that the trial judge erred in 

granting the motion to strike. Rule 1:11 and Code § 8.01-378, 

cited by The Edge, specifically apply to jury trials. Rather, 

the proper posture for a trial court to assume in considering a 

motion to strike is to "view the evidence and all reasonable 

inferences drawn from the evidence in the light most favorable to 

the plaintiff. Any reasonable doubt as to whether the plaintiff 

has produced sufficient evidence of the wrong alleged must be 

resolved in the plaintiff's favor and the motion to strike 

denied." Izadpanah v. Boeing Joint Venture, 243 Va. 81, 83, 412 

S.E.2d 708, 709 (1992). 

 The purpose of the November 18 hearing was to demonstrate 

that the Board was tainted when it considered The Edge's 

licensing status, and, correspondingly, denied The Edge due 

process guarantees. As noted earlier, nothing produced at the 

hearing supported this claim. Accordingly, the circuit court did 

not err in granting the motion to strike. 

 Affirmed.