Phillip S. Pool, LLC, t/a C & C Mini Market v. Virginia Alcoholic Beverage Control Board ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges McCullough, Decker and Senior Judge Felton
UNPUBLISHED
PHILLIP S. POOL, LLC, t/a
C & C MINI MARKET
MEMORANDUM OPINION*
v. Record No. 1158-15-3 PER CURIAM
DECEMBER 8, 2015
VIRGINIA ALCOHOLIC
BEVERAGE CONTROL BOARD
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Leyburn Mosby, Jr., Judge
(Joseph A. Sanzone; Sanzone & Baker, L.L.P., on brief), for
appellant.
(Mark R. Herring, Attorney General; Cynthia E. Hudson, Chief
Deputy Attorney General; John W. Daniel II, Deputy Attorney
General; Kristina Perry Stoney, Senior Assistant Attorney General;
Michelle Welch, Assistant Attorney General, on brief), for appellee.
Phillip S. Pool, LLC, t/a C & C Mini Market (appellant) appeals a final order of the circuit
court dismissing his petition for appeal of the decision by the Virginia Alcoholic Beverage Control
Board (the Board) to revoke his license to sell wine and beer off premises. On appeal, appellant
contends the circuit court erred
because there was not competent and substantial evidence in the
record to support the finding of the ABC Board’s Administrative
Hearing Officer and the ABC Appeal Board Chairman, because the
record did not show that the licensee knew or should have
reasonably known that any item in his store was drug paraphernalia
as defined in . . . Code . . . § 4.1-225[(1)(o)] or any similar related
statute, and because there was not substantial evidence in the
record to establish that any item sold in the store was drug
paraphernalia.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
We have reviewed the record, including the administrative hearings, the June 25, 2015
transcript of the circuit court hearing, and the circuit court’s June 25, 2015 order. We find that
this appeal is without merit.
Upon judicial review of agency action in accordance with
the Administrative Process Act, Code §§ 2.2-4000 et seq.,
appellant bears the burden “to designate and demonstrate an error
of law subject to review.” Code § 2.2-4027. In this case, the issue
is “the substantiality of the evidentiary support for findings of
fact.” Code § 2.2-4027(iv).
Hedleston v. Virginia Retirement Sys., 62 Va. App. 592, 596-97, 751 S.E.2d 1, 3 (2013).
Special Agent J. Keith Henderson conducted an inspection of C & C Mini Market. He
found a cigar box located below the counter containing ten “kits” packaged in plastic baggies.
The kits consisted of a “glass stem” containing a plastic flower and a piece of Chore Boy
Scrubber. Henderson recognized the kits as something used to smoke drugs. Henderson asked
the sales clerk what the items were, and she replied, “I think people use them to smoke drugs.”
She was unaware of another use for the items. The sales clerk also told Henderson that
appellant, the President of C & C Mini Market, packaged the kits and “put the[m] there for sale.”
Appellant testified the kits were “flower kits” used to hold flowers. He also stated a
representative of a distributor of the kits told him, “What people decide to do with them is up to
them.” Appellant denied he packaged the kits. Appellant initially testified he had sold the kits
for “many years” and this was the first time he had heard anything about them “being used for
drugs.” Appellant later testified he did not know who “put [the kits] together” and he was not
aware that they were kept under the counter or that they were sold in the store.
The administrative hearing officer found appellant’s testimony was “self-serving” and his
explanation that the kits were used to hold real flowers was “implausible.” The fact finder is not
required to accept a party’s evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102, 107,
341 S.E.2d 190, 193 (1986), but is free to believe and disbelieve in part or in whole the
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testimony of any witness, Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,
830 (1991). The administrative hearing officer concluded appellant “reasonably should have
known that the kits were designed or intended to be used for smoking illegal drugs.”
Upon review of the record, we conclude that “the record before [the Board] contained
‘substantial evidence . . . upon which the agency as the trier of the facts could reasonably find
them to be as it did.’ Code § 2.2-4027.” Hedleston, 62 Va. App. at 599, 751 S.E.2d at 4. Thus,
the circuit court did not err in finding “[t]here was substantial evidence for the Board to rely on
in suspending the license.” Accordingly, we affirm for the reasons stated by the circuit court in
its final order. See Pool v. Virginia Alcoholic Beverage Control Bd., Case No. CL14000762-00
(June 25, 2015) (incorporating the circuit court’s bench ruling). We dispense with oral argument
and summarily affirm because the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional process. See Code
§ 17.1-403; Rule 5A:27.
Affirmed.
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