THE CIRCUIT COURT OF FAIRFAX COUNTY Grace B. Carroll, Judge
C. Greaves (T. Wayne Biggs; Dycio & Biggs, on brief), for
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
RANDOLPH A. BEALES JUDGE
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
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.
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 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"). 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
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.
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
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
Williamson: Between 30 -
Underage Buyer: It was close to a minute, ...