Nathan Osburn v. Virginia Department of Alcoholic Beverage Control , 67 Va. App. 1 ( 2016 )


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  •                                          COURT OF APPEALS OF VIRGINIA
    Present: Judges Humphreys, AtLee and Senior Judge Clements
    PUBLISHED
    Argued at Lexington, Virginia
    NATHAN OSBURN
    OPINION BY
    v.     Record No. 0038-16-3                                  JUDGE ROBERT J. HUMPHREYS
    NOVEMBER 15, 2016
    VIRGINIA DEPTARTMENT OF
    ALCOHOLIC BEVERAGE CONTROL
    FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
    William D. Broadhurst, Judge
    Audra M. Dickens (Dale W. Webb; Frankl Miller & Webb, LLP, on
    briefs), for appellant.
    Ryan Spreague Hardy, Assistant Attorney General (Mark R. Herring,
    Attorney General; Rhodes Ritenour, Deputy Attorney General; on
    brief), for appellee.
    Nathan Osburn (“Osburn”) appeals the decision of the Roanoke City Circuit Court (the
    “circuit court”) upholding the previous decisions of a hearing officer, the Department of Human
    Resource Management (“DHRM”), and the Department of Employee Dispute Resolution
    (“EDR”), terminating Osburn from his position as special agent for the Virginia Department of
    Alcoholic Beverage Control (“ABC”) because Osburn violated an ABC license applicant’s
    constitutional rights during a site inspection. Specifically, Osburn claims the circuit court erred
    in finding that Osburn violated the Fourth Amendment and erred in holding the “newly
    discovered evidence” of General Order 502 was collateral, corroborative, or cumulative.
    I. BACKGROUND
    Osburn was employed with ABC as a special agent who helped investigate applications
    for retail alcohol licenses. In August 2013, ABC received an application from Linda Swim
    (“Swim”), owner of Bent Mountain Bistro (the “Bistro”). Another special agent, David Scott
    (“Agent Scott”), was assigned to review and investigate the application, however, Osburn
    assisted Agent Scott in doing so.
    Although the application indicated that Swim was the sole owner of the Bistro, ABC’s
    research into the company found that there was likely at least one other owner, Benjamin Ward
    (“Ward”), whom they suspected was a convicted felon. ABC issued subpoenas which “yielded
    good evidence” in regard to the undisclosed ownership. The record states that “Osburn had
    previously interacted with both Swim and Ward during [ABC] inspections of other
    establishments in which they were jointly involved.” Further, Agent Scott received a phone call
    from the Bistro’s landlord during which the landlord stated that the Bistro’s owner was Ward.
    The landlord called back about twenty minutes later to state that Ward was in fact only a cook,
    and not an owner, of the Bistro. The agents also had a suspicion that there could be a third
    owner of the Bistro.
    Agent Scott scheduled a site visit to the Bistro with Swim for August 9, 2013. Osburn
    accompanied Agent Scott on that visit to help investigate. According to Agent Scott, the purpose
    of the visit was “to conduct a site inspection as well as follow up on a suspicion that there may
    possibly be someone else involved with the business that had not been disclosed to [ABC] during
    the application investigation.”
    When they arrived, Agent Scott and Osburn entered the front door of the Bistro. Osburn
    went straight through to the kitchen to begin the site investigation. Agent Scott went to the back
    of the Bistro to speak with Ms. Swim. Neither Swim nor Osburn saw each other before Osburn
    began his site investigation. According to ABC’s Operations Manual 03 (“OM-03”) regarding
    retail investigations, the site inspection that was scheduled to occur on the date of Osburn’s
    -2-
    search was “to ensure sufficient inventory of qualifying items.” Va. Dep’t of Alcoholic
    Beverage Control, Operations Manual 03, § III(A)(19) (2009) [OM-03].
    Osburn began his investigation by walking around the kitchen and storage areas of the
    business, observing “the food, the equipment, the restaurant, facilities, the preparation area, the
    storage,” including “entry points [and] exit points.” This portion of the investigation took
    approximately ten minutes. Osburn then came upon the business office, which had an open door
    and many documents lying around as though it had not yet been set up. Osburn entered the
    business office, picked up multiple documents, took photographs of documents, and opened
    drawers and a filing cabinet during his investigation. Osburn continued looking “more closely”
    because he found a document indicating the owner of the Bistro to be Ward. Osburn stated that
    his search was “thorough” and that he “went through pretty much everything,” but that he did not
    remove anything from the office.
    At some point during his investigation, Osburn spoke with a man he called Dwayne
    Powell (“Powell”) and introduced himself as an ABC agent. Osburn first stated that the
    conversation occurred while Powell was “at the pizza oven in the back,” but later said that
    Powell was “outside, out back” of the Bistro. During the conversation, Osburn asked Powell
    such questions as how long Powell had worked there and whether he was on the payroll.
    Nothing in Osburn’s testimony indicated that Powell knew Osburn was conducting a thorough
    search of the office.
    Shortly after the site visit, Swim wrote a complaint to the Office of the Governor and to
    her representative in the House of Delegates alleging that both Agent Scott and Osburn violated
    her Fourth Amendment rights during the inspection. After learning of the complaints, ABC
    began an internal investigation. Only two of Swim’s allegations were substantiated against
    Osburn: (1) “[Osburn] seized evidence in violation of Swim’s constitutional rights,” and
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    (2) “[Osburn] rummaged through Swim’s business records with deliberate indifference to her
    rights.”
    On April 3, 2014, Osburn was terminated from employment with ABC and given a
    Group III Written Notice, which was issued for “Failure to Follow Instructions and/or Policy”
    (Offense Code 13) and “Other – Violation of Constitutional Rights” (Offense Code 99). In
    November 2014, an internal hearing officer upheld Osburn’s termination. Osburn then appealed
    that decision to both DHRM and EDR. EDR remanded the case to the hearing officer for
    consideration of mitigating factors. On the second review, the hearing officer again upheld
    Osburn’s termination, and Osburn again appealed to both DHRM and EDR. Both departments
    upheld the hearing officer’s determination. Osburn then timely appealed those decisions to the
    circuit court, which upheld Osburn’s termination.
    Osburn now appeals the circuit court’s decision, arguing that his search of the Bistro’s
    business office did not require a warrant, and thus did not violate the Fourth Amendment because
    (i) it fell under the highly regulated industry exception to the warrant requirement, (ii) he had
    consent to search the premises, and (iii) the language of ABC’s authorizing statute gives ABC
    the authority to conduct warrantless searches of both licensees and applicants. Osburn also
    argues that General Order 502, a policy enacted by ABC after Osburn’s termination but before
    his evidentiary hearing, constitutes newly discovered evidence that would make his search
    permissible under ABC’s revised policy.
    II. ANALYSIS
    In reviewing the ruling of a grievance proceeding, this Court may “reverse or modify the
    hearing officer’s decision” only if “the determination is contradictory to law.” Va. Dep’t of State
    Police v. Barton, 
    39 Va. App. 439
    , 445, 
    573 S.E.2d 319
    , 322 (2002); see also Code
    § 2.2-3005(B). Both circuit courts and appellate courts are to apply this standard of review. See
    -4-
    Pound v. Dep’t of Game & Inland Fisheries, 
    40 Va. App. 59
    , 64, 
    577 S.E.2d 533
    , 535 (2003).
    “[T]he hearing officer is to act as fact finder and the Director of the [DHRM] is to determine
    whether the hearing officer’s decision is consistent with policy. In the grievance process, neither
    of these determinations is subject to judicial review, but only that part of the grievance
    determination ‘contradictory to law.’” 
    Barton, 39 Va. App. at 445
    , 573 S.E.2d at 322 (quoting
    Code § 2.1-116.07:1(B)). The appealing party has the burden to “identify[] the law . . .
    contradicted” by the hearing officer’s decision. Va. Polytechnic Inst. & State Univ. v.
    Quesenberry, 
    277 Va. 420
    , 429, 
    674 S.E.2d 854
    , 858 (2009). Questions of law raised by the
    parties in such cases are “limited to ‘constitutional provisions, statutes, regulations, [and] judicial
    decisions’” and are reviewed de novo. Commonwealth v. Needham, 
    55 Va. App. 316
    , 325, 
    685 S.E.2d 857
    , 861 (2009). However, the Director of DHRM has “the final authority to establish
    and interpret personnel policies.” Code § 2.2-1201(13).
    As a preliminary matter, we review ABC’s contention that this Court need not analyze
    the Fourth Amendment issue because Osburn was terminated for both a violation of the Fourth
    Amendment as well as violation of ABC policy, and agency policy is not subject to judicial
    review. However, the policies referenced in Osburn’s notice of termination are directly related
    to, and dependent upon, the Fourth Amendment rights of ABC applicants and licensees, and
    thus, to allow the termination to depend upon the agency policy alone would amount to allowing
    an agency official to interpret and define the limits of the Fourth Amendment. Therefore, we
    review Osburn’s assignments of error regarding both ABC’s policy and the jurisprudence
    interpreting the Fourth Amendment.
    A. Fourth Amendment Violation
    Osburn’s first assignment of error argues that the circuit court erred in ruling that Osburn
    violated the Fourth Amendment. It asserts that his search of the business office did not require a
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    warrant because (i) the search fell within the “highly regulated industry exception,” (ii) he had
    consent from either Swim or Powell to conduct the search, and (iii) the language of ABC’s
    authorizing statute gives ABC the authority to conduct warrantless searches of both licensees and
    applicants.
    “[T]he Fourth Amendment protects businesses from unreasonable warrantless searches
    and seizures by administrative agencies.” Abateco Servs. v. Bell, 
    23 Va. App. 504
    , 511-12, 
    477 S.E.2d 795
    , 798 (1996). “Search regimes where no warrant is ever required may be reasonable
    where ‘special needs . . . make the warrant and probable-cause requirement impracticable.’”
    City of L.A. v. Patel, 
    135 S. Ct. 2443
    , 2452 (2015) (quoting Skinner v. Ry. Labor Executives’
    Ass’n, 
    489 U.S. 602
    , 619 (1989)). A search that “serve[s] a ‘special need’ other than conducting
    criminal investigations” is referred to as an “administrative search.” 
    Id. The Supreme
    Court of
    the United States has long held “that administrative searches must be viewed differently than
    criminal searches, and that their constitutionality must be tested by different standards.” United
    States v. Thriftimart, Inc., 
    429 F.2d 1006
    , 1008 (9th Cir. 1970) (referencing two Supreme Court
    cases, Camara v. Municipal Court, 
    387 U.S. 523
    (1967), and See v. Seattle, 
    387 U.S. 541
    (1967),
    for support).
    i. Highly Regulated Industry Exception
    Osburn first argues that his search of the Bistro’s business office did not violate Swim’s
    Fourth Amendment rights because the search was related to the regulation of alcohol, which falls
    under the highly regulated industry exception.
    An exception to the warrant requirement exists for “searches of closely regulated
    businesses and industries . . . because ‘certain industries have such a history of government
    oversight that no reasonable expectation of privacy could exist.’” Abateco 
    Servs., 23 Va. App. at 512
    , 477 S.E.2d at 799 (quoting Marshall v. Barlow’s, Inc., 436 U.S 307, 312 (1978)). The
    -6-
    liquor industry falls within the highly regulated industry exception to the warrant requirement.
    See Colonnade Catering Corp. v. United States, 
    397 U.S. 72
    (1970). “[W]hen an entrepreneur
    embarks upon such a business [as the sale of liquor], he has voluntarily chosen to subject himself
    to a full arsenal of governmental regulation.” 
    Marshall, 436 U.S. at 313
    .
    The legality of a search of highly regulated industry “depends not on consent but on the
    authority of a valid statute.” United States v. Biswell, 
    406 U.S. 311
    , 315 (1972). In this case,
    the statute at issue is Code § 4.1-204(F), which states:
    [ABC] and its special agents shall be allowed free access during
    reasonable hours to every place in the Commonwealth and to the
    premises of both (i) every wine shipper licensee and beer shipper
    licensee and (ii) every delivery permittee wherever located where
    alcoholic beverages are manufactured, bottled, stored, offered for
    sale or sold, for the purpose of examining and inspecting such
    place and all records, invoices and accounts therein. The Board
    may engage the services of alcoholic beverage control authorities
    in any state to assist with the inspection of the premises of a wine
    shipper licensee, a beer shipper licensee, or delivery permittee, or
    any applicant for such license or permit.
    (Emphasis added).
    Since Swim was not yet licensed to sell alcohol, but was only in the application process,
    the issue is whether the statute, and thus the highly regulated industry exception to the warrant
    requirement, applies to ABC licensees only, or to both licensees and applicants for a license.
    Osburn contends that the statute gives ABC agents “free access” to both licensees and applicants
    for a license to sell alcohol, such that the search he conducted was authorized by the statute.
    ABC contends that the statute only allows ABC agents “free access” to licensees, and thus
    Osburn’s conduct did not fall within the exception.
    However, neither party has an accurate understanding of the statute. Contrary to the
    arguments of both Osburn and ABC, Code § 4.1-204(F) does not provide ABC agents with “free
    access” at all, but rather the statute places the burden on both licensees and applicants for a
    -7-
    license to provide such access. The statute states that ABC “agents shall be allowed free
    access,” indicating that it is the applicant or licensee who must allow the agent access, not the
    other way around. Therefore, in order to obtain or retain an ABC license, Code § 4.1-402(F)
    directs a license applicant to allow ABC agents “free access” to his or her premises, essentially
    requiring a case-by-case waiver of his or her Fourth Amendment rights in order to become
    licensed or to retain a license. The statute does not give ABC agents the right to raid with
    impunity the records and businesses of either applicants or licensees.
    Thus, since Code § 4.1-402(F) applies to both ABC licensees and to applicants for a
    license, we must determine whether Osburn’s conduct fell within the highly regulated industry
    exception to the warrant requirement. In New York v. Burger, 
    482 U.S. 691
    , 702-03 (1987)
    (quoting Donovan v. Dewey, 
    452 U.S. 594
    , 600, 603 (1980)), the Supreme Court of the United
    States provided a three-prong test to determine whether a warrantless inspection is reasonable in
    the context of a highly regulated business:
    First, there must be a “substantial” government interest that
    informs the regulatory scheme pursuant to which the inspection is
    made. . . . Second, the warrantless inspections must be “necessary
    to further the regulatory scheme”. . . . Finally, “the statute’s
    inspection program, in terms of the certainty and regularity of its
    application, must provide a constitutionally adequate substitute for
    a warrant.” In other words, the regulatory statute must perform the
    two basic functions of a warrant: it must advise the owner of the
    commercial premises that the search is being made pursuant to the
    law and has a properly defined scope, and it must limit the
    discretion of the inspecting officers.
    In the case of the alcohol industry, the government obviously has a substantial interest in
    knowing the ownership of businesses applying for an ABC license. Such interest is “substantial”
    because knowing all owners of a business helps ensure compliance with industry regulations and
    that illegal operations will not occur with the use of an ABC license. See United States v.
    Brown, 
    763 F.2d 984
    , 987 (8th Cir.) (“The government has a substantial interest in establishing
    -8-
    methods by which it can effectively monitor compliance with the regulations governing the
    Medicaid Program and root out opportunities for and instances of fraud.”), cert. denied, 
    474 U.S. 905
    (1985). Thus, the facts of this case pass the first prong of the Burger test. Further, Osburn’s
    thorough search of the Bistro’s business office was specifically due to ABC’s suspicions of
    undisclosed ownership of the company. Therefore, this case passes the second prong of the test
    because an inspection of business records is “necessary to further the regulatory scheme” of
    determining all business owners. See 
    Burger, 482 U.S. at 702
    .
    However, Osburn’s search of the Bistro’s business office may fail the third prong of the
    Burger test. Since the statute requires applicants to essentially consent to a search by allowing
    “free access,” to ABC agents, the statute only “provide[s] a constitutionally adequate substitute
    for a warrant” in the form of the applicant’s own consent to the search. The statute provides no
    other “substitute for a warrant” aside from the applicant’s consent. Therefore, under the
    statutory scheme, ABC agents must either obtain an inspection warrant or obtain the consent of
    an applicant or licensee to search the premises. Since no warrant was obtained in this case, the
    remaining question is whether consent was given. If no valid consent was given, Osburn’s
    search fails the third prong of the Burger test and Osburn’s search would not fall within the
    highly regulated industry exception to the warrant requirement.
    ii. Consent
    Osburn contends that he obtained both express and implied consent to search the Bistro
    office. He argues that express consent was given when Swim made an appointment for the ABC
    agents to come to the office and because she had applied for multiple ABC licenses in the past,
    and therefore should have known that a search would be conducted. Osburn also argues that he
    had implied consent because Powell, whom Osburn contends was part owner of the Bistro, was
    watching without objection while Osburn conducted part of the search.
    -9-
    Whether a person consented to a warrantless search is a question of fact. Limonja v.
    Commonwealth, 
    8 Va. App. 532
    , 540, 
    383 S.E.2d 476
    , 481 (1989). Questions of fact are not
    reviewable by appellate courts in the grievance process unless the finding was contradictory to
    law. 
    Barton, 39 Va. App. at 445
    , 573 S.E.2d at 322.1 “We are bound by the [agency’s] findings
    of historical fact unless plainly wrong or without evidence to support them.” Edwards v.
    Commonwealth, 
    38 Va. App. 823
    , 827, 
    568 S.E.2d 454
    , 456 (2002) (quoting McGee v.
    Commonwealth, 
    25 Va. App. 193
    , 198, 
    487 S.E.2d 259
    , 261 (1997) (en banc)). However, we
    review de novo whether the legal standards of consent were properly applied by the circuit court.
    See Medley v. Commonwealth, 
    44 Va. App. 19
    , 29, 
    602 S.E.2d 411
    , 415 (2004) (“[W]e review
    de novo the [circuit] court’s application of defined legal standards such as probable cause and
    reasonable suspicion to the particular facts of the case.”).
    “Where consent is freely and voluntarily given, probable cause and a search warrant are
    not required.” 
    Limonja, 8 Va. App. at 540
    , 383 S.E.2d at 481. “A consensual search is
    reasonable if the search is within the scope of the consent given.” 
    Edwards, 38 Va. App. at 827
    ,
    568 S.E.2d at 456 (quoting Grinton v. Commonwealth, 
    14 Va. App. 846
    , 850, 
    419 S.E.2d 860
    ,
    862 (1992)). “The United States Supreme Court has articulated the standard for measuring the
    scope of an individual’s consent under the Fourth Amendment to be “‘“objective”
    reasonableness—what would the typical person have understood by the exchange between the
    officer and the suspect?’” 
    Id. at 827-28,
    568 S.E.2d at 456 (quoting Florida v. Jimeno, 
    500 U.S. 248
    , 251 (1991)).
    1
    [T]he hearing officer is to act as fact finder and the Director of the
    [DHRM] is to determine whether the hearing officer’s decision is
    consistent with policy. In the grievance process, neither of these
    determinations is subject to judicial review, but only that part of
    the grievance determination “contradictory to law.”
    
    Barton, 39 Va. App. at 445
    , 573 S.E.2d at 322.
    - 10 -
    In this case, the hearing officer determined that the evidence was insufficient to find that
    Osburn had either express or implied consent to search the Bistro’s business office. The circuit
    court agreed that the evidence in the record supported that factual conclusion as a matter of law.
    We agree as well. According to ABC’s operations manual in effect at the time of Osburn’s
    search, the scope of a search pursuant to a “site visit” is narrow: “to ensure sufficient inventory
    of qualifying items.” OM-03 § III(A)(19) (2009). Thus, based on a plain reading of ABC’s
    operations manual, a “site visit” should entail nothing more than a search of the kitchen area of a
    business to determine whether the required inventory is present.
    Based on the “objective reasonableness” standard of Jimeno and Edwards, a typical
    person in Swim’s position would not have understood the scheduled visit to entail more than a
    kitchen inspection and certainly not a search of her office and its contents. The evidence in the
    light most favorable to ABC, as the party that prevailed below, indicates that Swim’s previous
    dealings with ABC, assuming such dealings included site visits, would not have alerted Swim to
    anything more than a brief inspection of the kitchen for qualifying inventory. Further, there is no
    evidence to indicate that Swim knew the appointment she set up with Agent Scott was for
    anything more than a typical site visit and interview. For these reasons, it is clear that an
    applicant in Swim’s position would have believed the scope of their consent to be limited to a
    site visit search of the kitchen—and other areas where alcohol would be kept and served—and
    no more. However, Osburn’s search was not so limited, as he went into the business office
    specifically searching for records indicating ownership of the business. He searched through
    desk drawers and a filing cabinet, and even took pictures of documents pertaining to ownership
    of the Bistro. ABC could fairly conclude that such a search exceeded the scope of consent for a
    site visit because Osburn clearly did not limit the scope of his search to the locations pertinent to
    the storing and serving of food and alcoholic beverages.
    - 11 -
    Osburn also contends that implied consent was formed when Powell, an alleged
    part-owner of the Bistro, did not object while Osburn was conducting his search. However,
    Osburn’s evidence in support of that position consisted of his own conflicting statements about
    his interactions with Powell on the day of the search. There was no other supporting evidence
    presented to the hearing officer. As fact finder, it was in the hearing officer’s discretion to
    determine the credibility of the evidence. See Sierra v. Commonwealth, 
    59 Va. App. 770
    , 776,
    
    722 S.E.2d 656
    , 658 (2012) (“It is the prerogative of the trier of fact ‘to resolve conflicts in the
    testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
    facts.’” (quoting Brown v. Commonwealth, 
    56 Va. App. 178
    , 185, 
    692 S.E.2d 271
    , 274 (2010))).
    The hearing officer implicitly determined, based on the evidence before him, that either Osborn’s
    testimony was not credible or that the evidence was insufficient to support a finding of implied
    consent to search the Bistro office. Because there is evidence in the record to support the hearing
    officer’s finding, we hold that the circuit court was correct in declining to overturn the hearing
    officer’s decision in that regard.
    For the above reasons, we conclude that ABC and the circuit court did not err in their
    judgment that Osburn did not have consent of any kind to conduct a search of the Bistro business
    office.
    iii. Whether the Statutory Definition of “Place or Premises” Permits Free Access
    Next, Osburn contends the circuit court erred in its review of ABC’s statutory
    construction of Code § 4.1-402(F) in light of the statute’s definitions section, Code § 4.1-100.
    Specifically, Osburn argues that the Code’s definition of “place or premises,” permits ABC
    agents the “free access” of Code § 4.1-402(F) to search the property of both ABC applicants and
    licensees. However, we have already decided in Part II(A)(i) above that Code § 4.1-402(F) does
    not convey a right of “free access” to ABC agents, but rather places the burden on ABC
    - 12 -
    applicants and licensees to permit “free access” to ABC agents when conducting site inspections
    upon pain of adverse consequences to their application or license. Therefore, our judgment in
    that regard also resolves Osburn’s contention here.
    Therefore, since Osburn’s search did not fall within the highly regulated industry
    exception and he did not have consent to search the business office, we hold that the circuit court
    did not err in upholding Osburn’s termination because Osburn’s search of the Bistro office
    violated the Fourth Amendment in contravention of ABC policy.
    B. Newly Discovered Evidence
    Osburn’s second assignment of error alleges that the circuit court erred in holding the
    newly discovered evidence of General Order 502 was collateral, corroborative, or cumulative.
    General Order 502 became effective in July 2014 and specifically addressed the handling and
    investigation of ABC applications. Va. Dep’t of Alcoholic Beverage Control, General Order
    502, § I (2014). Specifically, Osburn contends that General Order 502, adopted after his
    termination, changed the standard policies of a site visit as delineated in OM-03 and that the
    change specifically allowed Osburn’s conduct.
    First, we note that the newly discovered evidence rule does not apply to a newly enacted
    law, agency policy, or order such as General Order 502. According to Black’s Law Dictionary,
    “evidence” is defined as “[s]omething (including testimony, documents, and tangible objects)
    that tends to prove or disprove the existence of an alleged fact.” Evidence, Black’s Law
    Dictionary (10th ed. 2014). General Order 502 is meant to guide ABC agents in the process of
    their site inspections; it does nothing to help “prove or disprove” any fact. Thus, General Order
    502 does not fall within the range of information this Court could consider under the newly
    discovered evidence rule.
    - 13 -
    Further, whether termination or other disciplinary action is warranted for violation of
    departmental policy is ordinarily governed by the policies in place at the time of the termination
    or other disciplinary action. Moreover, even if we could consider General Order 502, we
    nonetheless could not review EDR’s decision that it did not constitute newly discovered
    evidence. The standard for determining whether newly discovered evidence should be
    considered in employee grievance proceedings is unique because administrative agencies have
    their own policies that are not subject to judicial review. “These decisions, which were rendered
    on administrative review to determine whether the hearing officer’s decision is consistent with
    state or agency policy and whether it complies with the grievance procedure, are final and not
    appealable.” Tatum v. Va. Dep’t of Agric. & Consumer Servs., 
    41 Va. App. 110
    , 118, 
    582 S.E.2d 452
    , 456 (2003). Section 7.2(a) of the Grievance Procedure Manual states that a
    “challenge that the hearing decision is not in compliance with the grievance procedure . . . as
    well as a request to present newly discovered evidence, is made to EDR.” Grievance Proc.
    Manual § 7.2(a) (emphasis added). In this case, Osburn already made a request to EDR to
    consider newly discovered evidence, and EDR already made its decision in that regard. Because
    EDR’s decision was based on agency policy and the grievance procedure, the decision is final
    and not appealable. Thus, we do not review Osborn’s assignment of error regarding newly
    discovered evidence.
    III. CONCLUSION
    We hold that the circuit court did not err in finding that Osburn violated the Fourth
    Amendment. Although the search in this case was initially within the “highly regulated industry
    exception” because it was related to the alcohol industry, Osburn’s search of the business office
    took the search outside the realm of the exception because he did not obtain consent from the
    business owner to enter the office and search business documents. Specifically, Osburn’s search
    - 14 -
    of the business office fell outside the scope of the consent that the owner did give to search the
    kitchen for proper inventory pursuant to the site inspection. Further, General Order 502 is not
    reviewable as newly discovered evidence, because that determination is an agency decision not
    subject to judicial review. For all of these reasons, we affirm the decision of the circuit court.
    Affirmed.
    - 15 -
    

Document Info

Docket Number: 0038163

Citation Numbers: 67 Va. App. 1, 792 S.E.2d 276, 2016 Va. App. LEXIS 305

Judges: Humphreys, Atlee, Clements

Filed Date: 11/15/2016

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (20)

City of L. A. v. Patel , 135 S. Ct. 2443 ( 2015 )

Skinner v. Railway Labor Executives' Assn. , 109 S. Ct. 1402 ( 1989 )

Limonja v. Commonwealth , 8 Va. App. 532 ( 1989 )

Sierra v. Commonwealth , 59 Va. App. 770 ( 2012 )

Virginia Department of State Police v. Barton , 39 Va. App. 439 ( 2002 )

Medicare&medicaid Gu 34,654 United States of America v. ... , 763 F.2d 984 ( 1985 )

United States v. Biswell , 92 S. Ct. 1593 ( 1972 )

Edwards v. Commonwealth , 38 Va. App. 823 ( 2002 )

Tatum v. Virginia Department of Agriculture & Consumer ... , 41 Va. App. 110 ( 2003 )

Medley v. Commonwealth , 44 Va. App. 19 ( 2004 )

Brown v. Commonwealth , 56 Va. App. 178 ( 2010 )

Virginia Polytechnic Institute and State University v. ... , 277 Va. 420 ( 2009 )

Pound v. Department of Game & Inland Fisheries , 40 Va. App. 59 ( 2003 )

Commonwealth v. Needham , 55 Va. App. 316 ( 2009 )

United States v. Thriftimart, Inc., a Corporation, Dba ... , 429 F.2d 1006 ( 1970 )

McGee v. Commonwealth , 25 Va. App. 193 ( 1997 )

Grinton v. Commonwealth , 14 Va. App. 846 ( 1992 )

Camara v. Municipal Court of City and County of San ... , 87 S. Ct. 1727 ( 1967 )

Florida v. Jimeno , 111 S. Ct. 1801 ( 1991 )

Colonnade Catering Corp. v. United States , 90 S. Ct. 774 ( 1970 )

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