THE CIRCUIT COURT OF THE CITY OF ROANOKE William D.
M. Dickens (Dale W. Webb; Frankl Miller & Webb, LLP, on
briefs), for appellant.
Spreague Hardy, Assistant Attorney General (Mark R. Herring,
Attorney General; Rhodes Ritenour, Deputy Attorney General;
on brief), for appellee.
Present: Judges Humphreys, AtLee and Senior Judge Clements
Argued at Lexington, Virginia
J. HUMPHREYS JUDGE
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.
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.
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
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."
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 search was "to ensure sufficient inventory
of qualifying items." Va. Dep't of Alcoholic
Beverage Control, Operations Manual 03, § III(A)(19)
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.
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.
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 (2) "[Osburn] rummaged through Swim's
business records with deliberate indifference to her
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.
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 ...