Capital Land, Inc., t/a, etc. v. Virginia ABC ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
CAPITAL LAND, INC. T/A
LONGHORN II SALOON & GRILLE
v. Record No. 3042-96-2 MEMORANDUM OPINION *
PER CURIAM
VIRGINIA ALCOHOLIC BEVERAGE CONTROL JULY 15, 1997
BOARD, ELLEN B. SLAYMAKER, KENNETH
WILLIS, LLOYD JACKSON AND GARY FOX
FROM THE CIRCUIT COURT OF
HENRICO COUNTY
L. A. Harris, Jr., Judge
(Joseph W. Kaestner; Brian R. Pitney; Kaestner,
Pitney & Jones, P.C., on brief), for appellant.
(James S. Gilmore, III, Attorney General; Michael
K. Jackson, Senior Assistant Attorney General;
Louis E. Matthews, Jr., Assistant Attorney
General, on brief), for appellee Virginia
Alcoholic Beverage Control Board.
(Thomas A. Lisk; LeClair, Ryan, P.C., on
brief), for appellees Ellen B. Slaymaker,
Kenneth Willis, Lloyd Jackson and Gary Fox.
The Virginia Alcoholic Beverage Control Board ("ABC Board")
denied a beer on-premises license to Capital Land, Inc., t/a
Longhorn II Saloon & Grille ("Capital Land"). Capital Land
appeals the decision of the circuit court affirming that ruling
and raises the following issues on appeal: (1) whether the
circuit court erred in affirming the ABC Board's denial of
Capital Land's license when the ABC Board's findings of fact do
not support the conclusion that the place to be occupied will
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
substantially interfere with the usual quietude and tranquility
of the residential area; and (2) whether the circuit court erred
in affirming the ABC Board's decision when the ABC Board
unlawfully exercised unauthorized administration and enforcement
of zoning. Upon reviewing the record and briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. Rule 5A:27.
FACTS
Capital Land submitted an application for a mixed beverage
and wine and beer on-premises license with the ABC Board on
December 15, 1995. Capital Land later withdrew the application
to sell mixed beverages and wine.
On February 23, 1996, a formal hearing concerning Capital
Land's application for an on-premises beer license was held
before an ABC Board hearing officer. The hearing officer made
findings of fact and granted the license. Citizen-objectors
appealed the hearing officer's decision to the ABC Board. After
reviewing the record and hearing arguments of counsel, the ABC
Board concluded that
the portion of the objection pertaining to
substantially interfering with the usual
quietude and tranquility of the surrounding
residential area is substantiated by evidence
which shows a likelihood that the operation
of the applicant establishment under an on-
premises A.B.C. license will substantially
and adversely affect the peace and
tranquility of the surrounding residential
area.
The ABC Board then refused the application for a license.
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I. THE RECORD SUPPORTS THE ABC BOARD'S DECISION
Code § 4.1-222(A)(2)(d) grants the ABC Board discretion to
refuse to issue an ABC license in instances where the place to be
occupied by the applicant "[i]s so located with respect to any
residence or residential area that the operation of such place
under such license will . . . substantially interfere with the
usual quietude and tranquility of such residence or residential
area."
Although the hearing officer found that the citizen
objections were not substantiated, the ABC Board acted within its
discretionary authority when it refused to issue the license.
Capital Land argues that the ABC Board's findings of fact do not
support its decision. However, 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). 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." Id. at 244, 369 S.E.2d 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). We find that the ABC Board's decision
was based on substantial evidence.
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Capacity of the Facility and Parking
The facility is located on a two lane road on an area
"dominated by residential property," although it is zoned B-3
which allows for commercial establishments. Barbara Graham,
President of Capital Land, testified that she expected 400
patrons per night at the business, but that the certificate of
occupancy allows 645 people in the building. Thus, the evidence
that the building capacity is 645 persons and is located in a
predominately residential neighborhood supports the ABC Board's
reliance on the large capacity of the facility as a primary
factor in its decision to refuse the on-premises ABC license.
Further, Graham stated that the parking lot had about 225
parking spaces and had only one ingress and egress outlet. One
nearby resident testified that, in the past, patrons of the
facility drove through the neighborhood searching for parking
spaces when the parking lot was full. This evidence, combined
with the building's capacity of 645 people and only 225 parking
spaces, further supports the ABC Board's decision.
Late Night Operation of the Applicant Business
The facility's anticipated hours of operation are from 7:30
p.m. until 2:00 a.m. on Thursday through Saturday nights. Ellen
Slaymaker, who lives about seventy feet from the establishment,
testified that when the facility was leased by another
individual, she had called the police to the location at least
eight times for drunk and disorderly conduct and a noisy party.
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She stated that she and her husband have been awakened numerous
times by the noise from the facility and that she has heard music
from the building until 1:30 a.m. or 2:00 a.m.
Gary Fox, who lives three blocks from the location,
expressed concern for noise and vibrations from music on the
premises, especially late at night or in the early morning hours.
Graham testified that in 1987 she constructed a ten foot
fence and planted trees behind the fence to help decrease the
sound or noise emanating from the building. However, she also
stated that several of the trees have died and the fence is in
need of repair.
Therefore, evidence in the record supports the ABC Board's
reliance on this factor in denying the issuance of the ABC
license.
Residential Character of the Neighborhood
Fox and two other nearby residents expressed concern for
neighborhood children's safety while bicycling or walking along
the road with the increased traffic associated with the business.
Kenneth Willis expressed similar concerns, especially
considering that the parking lot has only one entrance and exit,
and considering the fact that the patrons would likely have
consumed alcohol prior to their departure from the facility.
Willis also expressed concern for the safety of the neighborhood
children who, in summertime evenings, walk to convenience stores
located near the Capital Land property. Slaymaker complained
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that patrons of the facility threw trash into her yard in the
past.
Therefore, considering the testimony of the citizens and
residents of the community, substantial evidence in the record
supports the ABC Board's decision that there is a likelihood that
"the operation of the applicant establishment under an
on-premises ABC license will substantially and adversely affect
the peace and tranquility of the surrounding residential area."
See Hamm v. Yeatts, 479 F. Supp. 267, 273 (W.D. Va. 1979) (In
determining whether an establishment may impact on the "'usual
quietude and tranquility'" of a residential area, the most
important factor may be "the will of the citizens and residents
of the community.").
II. ABC BOARD'S AUTHORITY
Appellant argues that because the facility is located in an
area that is zoned for commercial development, the ABC Board
exercised unauthorized zoning authority when it denied Capital
Land's application for an on-premises ABC license. However,
former Code § 4.1-103(13), recodified as Code § 4.1-103(14),
empowered the ABC Board to grant licenses for the distribution
and sale of alcoholic beverages. Code § 4.1-222 establishes
conditions under which the ABC Board may refuse to grant
licenses. The ABC Board based its decision on the finding that
the evidence showed "a likelihood that the operation of the
applicant establishment under an on-premises ABC license will
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substantially and adversely affect the peace and tranquility of
the surrounding residential area." Code § 4.1-222(A)(2)(d)
clearly empowers the ABC Board to refuse to grant an ABC license
on this basis. The fact that the building is located in an area
zoned for commercial use does not automatically qualify the
proposed business for an ABC license. Therefore, Capital Land's
zoning argument is without merit.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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