COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

CHARLES H. CUTHBERT, JR. 

 MEMORANDUM OPINION*

v. Record No. 2106-94-2 PER CURIAM 

 MAY 23, 1995 

VIRGINIA ALCOHOLIC BEVERAGE 

 CONTROL BOARD, ET AL. 

 FROM THE CIRCUIT COURT OF 

THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 (Charles H. Cuthbert, Jr., pro se, on 

brief). 

 (James S. Gilmore, III, Attorney General; 

Michael K. Jackson, Senior Assistant 

Attorney General; J. Patrick Griffin, 

Assistant Attorney General, on brief), for 

appellee Virginia Alcoholic Beverage 

Control Board. 

 No brief for appellee Harry Lee Cooper, 

 t/a The XYZ Convenience Store. 

 The Virginia Alcoholic Beverage Control Board (ABC Board) 

granted a wine and beer off-premises license to Harry Lee Cooper 

for the XYZ Convenience Store. Charles H. Cuthbert, Jr., appeals 

the decision of the circuit court affirming that ruling and he 

raises a single issue on appeal: whether the ABC Board abused 

its discretion or erred as a matter of law by granting the offpremises wine and beer license for the XYZ Convenience Store. 

Upon reviewing the record and briefs of the parties, we conclude 

 

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

designated for publication. 
 2 

that this appeal is without merit. Accordingly, we summarily 

affirm the decision of the trial court. Rule 5A:27. 

 On appeal, "[t]he sole determination as to factual issues is 

whether substantial evidence exists in the agency record to 

support the agency's decision." Johnston-Willis, Ltd. v. Kenley, 

6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988). "The court may 

reject the agency's findings of fact 'only if, considering the 

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

different conclusion.'" Atkinson v. Virginia Alcoholic Beverage 

Control Comm'n, 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985) 

(citation omitted). Moreover, "where the question involves an 

interpretation which is within the specialized competence of the 

agency and the agency has been entrusted with wide discretion by 

the General Assembly, the agency's decision is entitled to 

special weight in the courts." Johnston-Willis, Ltd., 6 Va. App. 

at 244, 369 S.E.at 8. "A court may not merely substitute its 

judgment for that of an administrative agency." Jackson v. W., 

14 Va. App. 391, 400, 419 S.E.2d 385, 390 (1992). 

 Code § 4.1-222 grants the ABC Board discretion to refuse to 

issue a license in instances where an applicant's place of 

operation "[i]s so located that granting a license and operation 

thereunder . . . would result in violations of this title . . . 

or violation of the laws of the Commonwealth or local ordinances 

relating to peace and good order." Code § 4.1-222(A)(2)(b). Cf.

Code § 4.1-223 (circumstances where license prohibited). The 
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hearing officer found, and the ABC Board confirmed, that 

Cuthbert's objection to the issuance of the off-premises wine and 

beer license was substantiated by the evidence. Nevertheless, 

the ABC Board determined that the license should issue and that 

the licensee should be placed on probation for one year. 

 The ABC Board was acting within its discretionary authority 

in issuing the license subject to a one-year probationary period. 

 The decision was supported by evidence which indicated that the 

licensee was seeking to minimize any breaches of the laws or 

disturbances to the peace and good order. The ABC Board's 

findings of fact noted that the licensee already had implemented 

specific steps to that end, such as providing the habitual 

loiterers with bags for their trash and discouraging panhandlers 

from gathering in front of his store. The ABC Board also found 

that the premises in which the licensee now operates his store 

had previously been vacant for several years and that the 

licensee needed the off-premises wine and beer license in order 

to compete with similar businesses in the area. 

 Therefore, we affirm the circuit court's ruling that the ABC 

Board's decision to grant the license, subject to a one-year 

probationary period, was within the board's statutory authority 

and was based upon substantial evidence. Accordingly, the 

judgment of the circuit court is summarily affirmed. 

Affirmed.