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Mall Amusements, LLC v. Virginia Department of Alcoholic Beverage Control

Court of Appeals of Virginia

September 13, 2016



          Jason C. Greaves (T. Wayne Biggs; Dycio & Biggs, on brief), for appellant.

          Kristina Perry Alexander, Senior Assistant Attorney General Section Chief (Mark R. Herring, Attorney General; John W. Daniel, II, Deputy Attorney General, on brief), for appellee.

          Present: Judges Beales, Russell and AtLee Argued at Fredericksburg, Virginia



         Mall Amusements, LLC, doing business as King Pinz ("King Pinz"), appeals an order from the Circuit Court of Fairfax County affirming the decision of the Virginia Alcoholic Beverage Control Board ("the Board"). For the following reasons, we affirm the order of the circuit court.

         I. BACKGROUND

         On April 17, 2014, a bartender at King Pinz sold an alcoholic beverage to a person under twenty-one years old. As a result, King Pinz was cited for violating Code § 4.1-304 and the administrative regulations of the Board.

         King Pinz participated in a hearing on November 12, 2014 before an administrative hearing officer from the Virginia Department of Alcoholic Beverage Control ("Virginia ABC"). Special Agent[1] Derrick Kekic ("Kekic") testified that, on April 17, 2014, he went into King Pinz with another special agent and an "underage buyer" working for Virginia ABC ("underage buyer" or "buyer").[2] Kekic proffered a photograph of the underage buyer that was taken before going inside King Pinz. Administrative Hearing Officer Clara Williamson ("Williamson") admitted the photograph into evidence after asking Agent Kekic some additional questions about who took the picture and whether it accurately depicted the underage buyer at that time, despite the fact that King Pinz objected to the foundation for allowing the picture into evidence and then objected to Williamson's clarifying questions.

         Kekic testified that, from fifteen to twenty feet away, he observed the buyer sit at the bar at King Pinz and interact with the bartender. He testified that she asked for a Bud Light beer. The bartender asked for her license, and she showed the bartender her actual driver's license. Kekic offered photographs depicting the underage buyer after buying alcohol and of her driver's license. The driver's license was clearly marked as "under twenty-one" and listed her birthdate correctly as 10/23/1996, which made her seventeen years old at the time. Williamson also admitted those photographs into evidence.

         The bartender then selected a bottle of Bud Light, opened it, and put it in front of the underage buyer. Once the bottle was placed in front of her, Kekic approached, retrieved the bottle, and walked over to the manager. The manager told Kekic that the buyer had looked young, but he did not worry about it when he observed the bartender look at her driver's license. The bartender then came over to the manager and Kekic, and Kekic asked her "if she knew what the date of birth of the individual that she just sold a Bud Light to [was]." Kekic testified that she responded, "She [the bartender] stated 1996, and then she stated that she fucked up." The bartender admitted to Kekic that she had selected an unopened bottle of beer, opened it for the buyer, and that she heard the seal break when she opened it. Williamson admitted into evidence pictures of the bottle of beer that the bartender offered to the underage buyer. Kekic also asked that a certificate of analysis of what was in the bottle be admitted in addition to the photograph of the bottle. King Pinz objected. Williamson ultimately admitted the certificate of analysis as Exhibit 5 and considered it in her written decision. Kekic testified that the bartender was convicted in Loudoun County General District Court of selling alcohol to a person under twenty-one.

         The underage buyer also testified about her recollection of events on April 17, 2014. Hearing Officer Williamson asked her questions throughout her testimony. See App. at 63-68. When she had finished her questioning, Williamson said, "Agent Kekic, any questions that you wish asked?" Kekic then posed questions to Williamson, who in turn posed those questions to the underage buyer. See App. at 65-68. Agent Kekic asked, "I think she can clarify how many other sales were made that day. I believe she will remember and there's reasons for that." Williamson then asked the underage buyer, "Okay. Did you participate in other underage buyer operations that same day?" The underage buyer responded, "Yes, ma'am." In response to another request from Agent Kekic, Williamson asked, "Is this the first time you had ever purchased alcohol through . . . the ABC program?" The underage buyer, talking over Williamson, responded, "Yes. This is my first time that - yeah." Finally, as part of this same questioning, the following exchange also took place:

Kekic: If you could clarify also from her when she speaks of the bartender looking at it for a minute, that she literally means 60 seconds or a point of time.
Williamson: Okay. You said a minute and, of course, 60 seconds -
Kekic: I don't - I'm wondering if she - she believes it to be an actual minute or a point of time.
Underage Buyer: It was longer than 30 seconds. It wasn't -
Williamson: Between 30 -
Underage Buyer: It was close to a minute, ...

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