Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Taylor v. Virginia Alcoholic Beverage Control Authority

Court of Appeals of Virginia

April 30, 2019

JOHN TAYLOR
v.
VIRGINIA ALCOHOLIC BEVERAGE CONTROL AUTHORITY

          FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON CHARLES L. RICKETTS, III, JUDGE

          Mark Bong for appellant.

          Samuel T. Towell, Deputy Attorney General (Mark R. Herring, Attorney General; Tara Lynn R. Zurawski, Senior Assistant Attorney General; Gregory C. Fleming, Senior Assistant Attorney General; Sarah Flynn Robb, Assistant Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Chafin and AtLee Argued at Lexington, Virginia

          OPINION

          ROBERT J. HUMPHREYS JUDGE.

         On July 24, 2017, the Virginia Alcoholic Beverage Control Authority[1] ("ABC" or "agency") terminated appellant John Taylor's ("Taylor") employment. Prior to his termination, Taylor served as ABC's "Region 3 Special Agent in Charge." On July 24, 2017, however, the Agency issued Taylor a "Group III" written notice of disciplinary action with removal, i.e., termination.[2] The Group III written notice alleged that Taylor violated an ABC licensee's constitutional rights by ordering the seizure of money and other evidence without a search warrant or written consent. On July 31, 2017, Taylor filed a grievance challenging his termination and, pursuant to Code § 2.2-3000 et seq., requested a hearing before a hearing officer appointed by the Virginia Department of Human Resources Management ("DHRM").

         The hearing officer upheld Taylor's termination. Taylor subsequently requested that the Office of Equal Employment and Dispute Resolution ("EEDR") at DHRM conduct an administrative review of the hearing officer's decision. Taylor also sought to present newly discovered evidence. EEDR, however, declined to disturb the hearing officer's decision. Taylor then appealed the hearing officer's decision to the Circuit Court for the City of Staunton (the "circuit court"), which denied Taylor's appeal. In doing so, the circuit court held that the hearing officer's decision was not contrary to law.

         On appeal to this Court, Taylor asserts eleven assignments of error. In his first assignment of error, Taylor argues that the circuit court erred in affirming the hearing officer's decision because his termination was based, at least in part, on violations of ABC policies that permitted ABC to impermissibly "interpret and define the limits of the Fourth Amendment[.]" In his second and third assignments of error, Taylor argues that the circuit court erred because neither ABC nor the licensee's "employees" or "corporate officers" had standing to assert a Fourth Amendment violation against Taylor, on behalf of the licensee. In his next seven assignments of error, Taylor argues that the circuit court erred because he did not violate a licensee's Fourth Amendment rights. More specifically, Taylor argues that numerous exceptions to the Fourth Amendment's warrant requirement as a prerequisite to a search or seizure applied, including the highly regulated industry exception, plain view, exigent circumstances, and consent. In his final assignment of error, Taylor makes what we assume is essentially a due process argument. Taylor therein argues that the circuit court erred in upholding his termination because ABC "failed to follow its own internal policies" and "departed from fair and unprejudiced discipline."

         I. BACKGROUND

         This Court is bound by the hearing officer's factual findings. In an appeal of this nature, this Court's sole role is to consider whether the hearing officer's decision, based upon those factual findings, was "consistent with law and policy." See Osburn v. Va. Dep't of Alcoholic Beverage Control, 295 Va. 10, 17 (2018); see also Code § 2.2-3005.1(C).

         On October 23, 2017, a hearing regarding Taylor's termination took place. In a subsequent decision dated February 12, 2018, the hearing officer upheld Taylor's Group III written notice of disciplinary action. In his decision, the hearing officer noted that ABC employed Taylor as a regional "Special Agent in Charge." In that capacity, Taylor was assigned to the ABC Bureau of Law Enforcement Operations, and his responsibilities included the supervision and oversight of all criminal and administrative investigations conducted by the special agents assigned to the Region 3 enforcement office. Taylor also served as a liaison with federal, state, and local officials, as well as command level personnel with other law enforcement agencies throughout the Commonwealth.

         Taylor's position as a Special Agent in Charge required him to supervise subordinate supervisors, including the Assistant Special Agent in Charge, Daniel Blye ("ASAC Blye"). ASAC Blye, in turn, supervised the special agents and all investigations conducted by the region. During the time period relevant to this case, Special Agents Kevin Weatherholtz and Kevin Bilwin ("Special Agent Weatherholtz" and "Special Agent Bilwin") were special agents reporting through ASAC Blye to Taylor.

         Code § 4.1-105 vests ABC special agents with police powers. On March 24, 2015, the Governor of Virginia issued Executive Order 40 to improve the law enforcement training of ABC's special agents. Executive Order 40 provides, in part, that "[t]he ABC Board shall require the immediate retraining of all ABC special agents in the areas of use of force, cultural diversity, effective interaction with youth, and community policing, to be completed no later than September 1, 2015."

         On June 1, 2015 and June 2, 2015, Taylor participated in training in accordance with Executive Order 40. Taylor's training addressed several work-related topics, including "Upholding Constitutional Rights of Citizens." In part, the training defined "search" and "seizure" as each term pertains to government actions regulated by the Fourth Amendment. The training also defined and properly conceptualized "probable cause" and "reasonable suspicion" pursuant to the Fourth Amendment.

         On January 24, 2017, Taylor spoke with ASAC Blye and Special Agent Weatherholtz regarding a possible illegal gambling case at the Stephens City Moose Lodge ("Lodge"), a private, members-only establishment and ABC licensee. Special Agent Bilwin, a member of the Lodge, had an identification card that allowed him to enter the establishment. The identification card did not show Special Agent Bilwin's picture. Taylor subsequently approved a plan to have Special Agent Weatherholtz enter the Lodge using Special Agent Bilwin's identification card.

         On January 27, 2017, Special Agent Weatherholtz and another ABC agent made an "internal observation" of the Lodge. Both agents were admitted to the Lodge using Special Agent Bilwin's identification card. Special Agent Weatherholtz, posing as Special Agent Bilwin, signed in the other agent as his guest. Special Agent Weatherholtz and the other agent proceeded to drink beer and solicit information from a bartender about the Lodge's upcoming Super Bowl party. The agents learned that for $30, they could attend the Super Bowl party, eat, drink, and participate in a "Super Bowl" board game that would pay out money from a "pool" to multiple winners. Special Agent Weatherholtz, again using Special Agent Bilwin's name, paid the $30 entry fee and received a numbered chip that corresponded to a square on the Super Bowl board. The bartender and a flyer at the Lodge both claimed that the Super Bowl board game was legal.

         Later that same day, Special Agent Weatherholtz met with Special Agent Bilwin. Subsequently, on January 31, 2017, Special Agent Bilwin met with Taylor and ASAC Blye to discuss the Super Bowl board game. Taylor and ASAC Blye concluded that the game was illegal. Taylor then instructed Special Agent Bilwin to seize the money involved with the game as evidence. Taylor did not obtain a search warrant or instruct Special Agent Bilwin to do so. Further, Taylor did not speak with ABC's internal legal counsel or instruct Special Agent Bilwin to use ABC's consent to search form.

         On February 1, 2017, Special Agent Bilwin went to the Lodge to discuss the Super Bowl board game and pool being conducted inside the premises. There, Special Agent Bilwin met with Larry Dillow ("Dillow"), the Lodge's ABC manager and bartender. Special Agent Bilwin explained the reason for his visit and asked to see the Super Bowl board game. Dillow agreed and showed Special Agent Bilwin the Super Bowl board with squares, "located in plain view behind the bar." Special Agent Bilwin then asked about the location of the numbered chips for purchase, which Dillow retrieved from a back room.

         Special Agent Bilwin called Taylor to provide an update. During the phone call, Special Agent Bilwin told Taylor that he was unsure whether the game was illegal. Taylor then informed Special Agent Bilwin that he would "get the name" of someone "at gaming" to call Special Agent Bilwin.

         Approximately twenty minutes later, James Habel ("Habel"), the Lodge's administrator, arrived at the Lodge with Gail Teft ("Teft"), the Lodge's acting secretary. Special Agent Bilwin showed his credentials to Habel and Teft and explained his reason for the visit. Teft, being familiar with the Super Bowl board game, provided Special Agent Bilwin with two copies of invoices for the purchase of the boards, which were purchased from a distributor in another state.

         Taylor called Special Agent Bilwin and provided him with the name of Michael Menefee ("Menefee"), a compliance manager with the Virginia Department of Agriculture and Consumer Services. Taylor told Special Agent Bilwin that Menefee would call him in thirty minutes. Taylor also reminded Special Agent Bilwin to seize the money collected by the Lodge if Menefee concluded that the Super Bowl board game was illegal.

         After waiting approximately forty-five minutes, Special Agent Bilwin called Menefee. During their conversation, Menefee asked Special Agent Bilwin to send him pictures of the Super Bowl board and numbered chips. Menefee subsequently concluded that the game was illegal. Special Agent Bilwin explained the Super Bowl board game's illegality to Habel and Teft. He then informed Habel and Teft that he "would like to seize the game and proceeds as evidence." Habel and Teft complied with Special Agent Bilwin's request and "volunteered the money acquired from the game[, ]" as well as the Super Bowl board, the remaining numbered chips, and three unopened Super Bowl boards. Retrieving some of those items, including a portion of the money collected, required Habel and Teft to open a safe in the Lodge's social quarters, as well as a second safe in an upstairs office. Teft organized and counted the money acquired from the game, which totaled $1, 636.

         ABC conducted an internal investigation and, on July 24, 2017, issued Taylor a Group III written notice with removal. As part of the investigation, an ABC investigator spoke with Habel. Habel informed the investigator that it was his understanding that Special Agent Bilwin was asked to confiscate the Super Bowl board, "as well as all cash that was made from the board." Habel also stated that he informed Special Agent Bilwin that he would "give him anything and everything that he needed." Habel "wanted to cooperate in any way that [he] could." The ABC investigator also spoke with Teft, who added that Special Agent Bilwin informed her that "he was going to have to confiscate the board and the items that went with it and the cash that went with it." Teft added that "[t]he way [Special Agent Bilwin] put it basically he didn't have a choice . . . this was what he needed to do was to confiscate it all[.]"

         Based upon these facts, the hearing officer found that ABC presented sufficient evidence to show that Taylor failed to follow agency policy, which constituted a "Group II" offense. Notably, the hearing officer found that multiple "General Orders" defined the parameters of an investigation of an ABC licensee. General Order 301, for example, governs search warrants and provides that ABC special agents "shall observe constitutional guidelines when conducting searches and always remain mindful of their lawful purpose." Further, General Order 501 governs licensee inspections and provides that ABC special agents "shall not" conduct inspections when an agent possesses "advanced knowledge/probable cause that the evidence of a criminal violation is located upon the licensed premises. In this instance, the agent will obtain and execute a search warrant in accordance with General Order 301, Search Warrants." Finally, the hearing officer cited General Order 106, which addresses the issuance of lawful orders. That order provides that "Bureau supervisors will not knowingly or willfully issue any order in violation of a law, ordinance, rule or order of the United States, Commonwealth of Virginia, or the Bureau of Law Enforcement."

         Mindful of these General Orders, the hearing officer found that Taylor had "advance knowledge" of a criminal violation occurring on the Lodge's premises. The hearing officer subsequently found that, pursuant to General Order 301, Taylor "was obligated . . . to 'observe constitutional guidelines when conducting searches.'" Pursuant to General Order 501, Taylor was also obligated "to refrain from conducting an inspection of the Lodge" and required to "obtain a search warrant and then execute the search warrant in accordance with General Order 301." Thereafter, the hearing officer found that Taylor failed to obtain a required search warrant before authorizing a search of the Lodge. The hearing officer also found that Taylor ordered Special Agent Bilwin to seize the money collected by the Lodge for the illegal Super Bowl board game ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.