THE CIRCUIT COURT OF THE CITY OF STAUNTON CHARLES L.
RICKETTS, III, JUDGE
Bong for appellant.
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
J. HUMPHREYS JUDGE.
24, 2017, the Virginia Alcoholic Beverage Control
Authority ("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. 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
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.
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
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).
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.
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.
§ 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 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.
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.
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.
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.
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.
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
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.
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.
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.
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[.]"
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."
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 ...