Fever's Inc. v. Virginia Alcoholic Beverage Control Board ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
FEVER'S INC. t/a
FEVER'S RESTAURANT & LOUNGE
OPINION BY
v. Record No. 1329-96-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 18, 1997
VIRGINIA ALCOHOLIC BEVERAGE
CONTROL BOARD
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Richard S. Blanton, Judge
A. Pierre Jackson for appellant.
Louis E. Matthews, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Michael K. Jackson, Senior Assistant
Attorney General and Chief, on brief), for
appellee.
The Virginia Alcoholic Beverage Control Board revoked the
wine and beer and mixed beverage licenses held by Fever's, Inc.
trading as Fever's Restaurant and Lounge. The Board found that
(1) cause existed to deny Fever's a license because Fever's was
"so located that violations of the ABC Act or laws of the
Commonwealth relating to peace and good order" resulted, see Code
§ 4.1-222(A)(2)(b); and (2) on July 31, 1994, Fever's "allowed
noisy or disorderly conduct" on its premises, in violation of
Code § 4.1-225(1)(h). Upon a petition for review, the circuit
court judge found reasonable cause to believe that Fever's
allowed noisy or disorderly conduct on its premises on July 31,
1994, affirmed the Board's decision on that ground, and stated
that he "need not address the other issues raised in this
matter." Fever's appeals from that decision and contends that
the evidence was insufficient to support the revocations. For
the reasons that follow, we reverse the trial judge's ruling
upholding the Board's decision concerning the July 31, 1994
incident and remand the case to the trial judge for consideration
of the Board's other ground for revoking the licenses.
I.
The facts concerning the July 31, 1994 incident are
essentially undisputed. At the evidentiary hearing, William
Harding, the sole stockholder of the licensee and operator of the
business, testified that he had planned an outdoor music festival
for July 31, 1994, on the three acres of property adjacent to and
owned by his restaurant in Prince Edward County. The event was
planned to be "an outdoor festival . . . out on the ball field
with several DJs with lots of barbecue, food and everything."
Harding always employed security personnel at the
restaurant, including off-duty police officers. Harding
testified that on a normal night he would have at least two
bartenders on duty, one doorman, "two floor wardens, and three to
four security." Because the festival was to be held outdoors on
July 31, Harding had more security personnel on his premises than
usual.
When it rained that evening, Harding moved the event inside
his restaurant, which has a dance hall permit issued by the
county. To reduce the number of people inside the premises,
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Harding raised the entry fee from $10 to $15. The evidence
regarding the number of patrons on the premises that night was
disputed. Special Agent L. E. Williams testified that after the
incident, Harding told him that approximately 600 people were in
Fever's that night. Harding testified that his dance hall permit
did not limit the number of patrons. In August 1994, after the
event, the sheriff told Harding that the county administration
office said the proper capacity for his facility was
approximately 266 people.
The evidence proved that at 2:00 a.m. a disc jockey played
"Rough It Up," a song that inspired the crowd to engage in "slam
dancing," a dance that involves people intentionally colliding
with one another. Harding testified that the disc jockeys had
been warned not to play that song and that most disc jockeys knew
not to play that song at a public dance establishment. Harding
testified that when the disc jockey played the song, he ordered
his staff to turn the lights on and asked everyone to leave.
Harding had several employees in the parking lot who used
flashlights to assist in directing the cars out of the parking
lot.
Larry Womack, the doorman, testified that when the disc
jockey played the song, "Rough It Up," patrons began to dance and
shove each other. When the bumping occurred, the security
personnel turned on the lights and began to escort people from
the building. Roger Jackson, a deputy sheriff who routinely
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stopped by the restaurant at closing time, also testified that he
was inside the restaurant at 2:00 a.m. when the disc jockey
played the song, "Rough It Up." He said the patrons who were
dancing began pushing each other. As things began to get out of
control, he called for assistance from the county sheriff and the
town police.
Officer Earle Townsend testified that at approximately 2:45
a.m., he received a call that an officer at Fever's was seeking
additional assistance. When Townsend arrived, the music had been
turned off but the disc jockey was still screaming into the
microphone. As the patrons were being escorted outside, some of
the patrons began to fight outside the building. Shortly after
Townsend went outside to disburse the patrons, he heard gunshots
on a neighboring property, the Sportsmen's Arena. The shots were
fired near the Arena, approximately one hundred yards away from
Fever's on the road that leads from Fever's to the highway.
Townsend went to the location where the shots were fired, found
the victims, and sent them to the hospital in rescue vehicles.
The police arrested one person at that location.
A police officer, Bobby Simmons, testified that he was
employed by Fever's, as his second job, to act as a security
guard on July 31, 1994. Simmons initially worked outside, but
after fights erupted inside the restaurant, Simmons was called
inside. Simmons also testified that after the fighting started,
he began to move patrons out of the restaurant and heard
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gunshots. Womack testified that the shots were at the
Sportsmen's Arena. Womack further testified that when the deputy
sheriffs went to the area of the Sportsmen's Arena, the sheriff's
department momentarily stopped the people leaving Fever's from
exiting onto the highway. As a result, the traffic leaving
Fever's slowed.
Officer Townsend also testified that he was approached in
downtown Farmville at approximately 3:30 a.m. by a vehicle whose
occupants asked for directions to a hospital. An occupant of the
vehicle had a gunshot wound. Townsend led the people to the
hospital. Friends of the victim followed them and engaged in
misconduct at the hospital. One arrest was made at the hospital.
However, no testimony linked those people to the Fever's
incident.
Special Agent Williams testified that "[o]n July 31, 1994,
one person was stabbed, two people were shot and eight others
received medical assistance from three different hospitals."
Sheriff Southall stated that the people involved in the
misconduct had been patrons at Fever's.
Other evidence in the record, unrelated to the events of
July 31, 1994, proved that instances of misconduct had occurred
at Fever's in the past. Because the testimony was disputed and
the trial judge did not rely upon those incidents in rendering
his decision, we do not address that evidence.
II.
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"Under Code § 9-6.14:17, the scope of review is limited to
whether there was 'substantial evidence in the agency record' to
support the decision. . . . 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, 529-30 (1985)
(citations omitted). Contrary to the Board's finding, we
conclude that the record lacks substantial evidence to support
the finding that Harding, the owner and manager of Fever's,
"allowed noisy, lewd or disorderly conduct upon the licensed
premises" on July 31, 1994. "We recognize that the substantial
evidence standard accords great deference to the findings of the
administrative agency, but even under this standard the evidence
must be relevant to the conclusion reached." Id. at 178, 336
S.E.2d at 531.
The evidence proved that Harding had a history of
cooperating with the police, that he employed many security
personnel at his restaurant on a regular basis, and that he took
additional precautions on July 31, 1994. Harding specifically
employed additional security personnel because the event was
scheduled to be outdoors. When it rained, Harding moved the
event inside the restaurant and raised the entrance fee in order
to control the size of the crowd.
The evidence further proved that the disc jockeys were
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warned in advance not to play the song that caused the disruptive
conduct. In addition, the evidence proved that as soon as the
disc jockey played the song and patrons became disorderly,
Harding and his staff took immediate action to regain control.
They turned the lights on and began asking the patrons to leave.
Indeed, the Board adopted the hearing officer's finding that
"management acted to stop the record and close the
establishment."
In A.B.C. Board v. Village Grill, 217 Va. 632, 231 S.E.2d
327 (1977), the Supreme Court held that the licensee "allowed"
misconduct to occur on the premises where the president of the
licensee assaulted a customer and the vice president of the
licensee directed abusive language toward police officers. See
id. at 634, 231 S.E.2d at 328-29. No evidence proved that
Harding or any of the employees of Fever's engaged in misconduct
on July 31, 1994. In addition, no evidence proved that Harding
simply watched as the situation deteriorated. Rather, the record
proved that Harding took reasonable precautions to prepare for
his event and reacted promptly and reasonably after the crowd
became disruptive.
The Board made no findings that suggest additional
precautions that Harding could have taken. The trial judge found
that "the establishment had approximately 600 people there off
and on throughout the evening." The record established, however,
that the dance hall permit issued to Fever's did not contain a
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capacity limitation and that Harding was not informed that the
county had established a capacity for the restaurant until after
July 1994. Furthermore, the evidence is undisputed that the
unexpected playing of music for slam dancing by a disc jockey was
the precipitating event. Based on this record, we hold that "'a
reasonable mind would necessarily'" conclude that Harding did not
"allow" the misconduct to occur at Fever's on July 31, 1994.
Atkinson, 1 Va. App. at 176, 336 S.E.2d at 530 (citation
omitted). Harding took reasonable action to prevent the incident
and to stop the disorder when it occurred.
III.
The Board also found that the evidence supported a finding
that "the place occupied by the licensee is so located that
violations of the ABC Act or the laws of the Commonwealth
relating to peace and good order have resulted from issuance of
the license." The trial judge, however, failed to review that
finding by the Board because he found sufficient evidence to
support the finding that Harding allowed misconduct to occur at
Fever's on July 31, 1994. Because we hold that ruling to be
erroneous, we remand this case to the trial judge for a ruling on
the Board's other ground for revoking the licenses. On remand,
the trial judge must determine whether substantial evidence in
the agency record proves: (1) "that violations of the . . . Act
or other laws of the Commonwealth relating to peace and good
order have taken place at [Fever's]," and (2) "that there is some
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nexus between these violations and the location of [Fever's]."
Atkinson, 1 Va. App. at 177, 336 S.E.2d at 530.
Reversed and remanded.
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