                     COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia

PARADOX CORPORATION, T/A THE EDGE

v.   Record No. 2333-94-1                      MEMORANDUM OPINION *
                                                    PER CURIAM
VIRGINIA ALCOHOLIC BEVERAGE CONTROL BOARD          MAY 16, 1995


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                      A. Bonwill Shockley, Judge

            Kevin E. Martin-Gayle (Moody E. Stallings,
            Jr.; John W. Richardson; Stallings &
            Richardson, on briefs), for appellant.
            J. Patrick Griffin, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General; Michael K. Jackson, Senior Assistant
            Attorney General, on brief), for appellee.


     Paradox Corporation, t/a The Edge (The Edge) appeals from a

circuit court affirmance of a decision of the Virginia Alcoholic

Beverage Control Board (the Board) to revoke The Edge's ABC

licenses.    The Edge presents the following nine questions on

appeal:
     1.     Did the trial court err in failing to reverse the Board
            on the basis that the Board's method of revoking the
            appellant violated Due Process of law?

     2.     Did the trial court err in failing to reverse the Board
            on the basis that the Board was "tainted" by the March
            29, 1994, meeting?

     3.     Did the trial court err in refusing to continue the
            case, in refusing to order Board Member Giordano to
            appear and testify, and in refusing to order the City
            Attorneys to appear and testify?

     4.     Did the trial court err in failing to reverse the Board
            on the basis that the Board acted arbitrarily and

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
             capriciously?

        5.   Did the trial court err in failing to reverse the Board
             on the basis that the Board abused its discretion by
             issuing revocations without any justification
             whatsoever for adopting the harshest penalty possible?

        6.   Did the trial court err in failing to reverse the Board
             on the basis that the Board erred in issuing
             revocations despite the presence of mitigating
             evidence?

        7.   Did the trial court err in failing to reverse the Board
             on the basis that the Board abused its discretion in
             modifying the decision of the hearing officer by
             issuing revocations?
        8.   Did the trial court err in failing to reverse the Board
             on the basis that the Board erred in issuing
             revocations where the ends/goals of the Board are not
             furthered by such a harsh result, while The Edge is put
             out of business?

        9.   Did the trial court err in granting the Board's Motion
             to Strike?

Finding no error, we affirm the circuit court's decision.


                             Issues 1 and 2

        To show a due process violation, The Edge must overcome "the

presumption of official regularity" which is bestowed upon agency

decisions.    Code § 9-6.14:17.   The Edge's "taint" argument is

deficient.

        First, the membership of the Board changed on February 21,

1994.    The "Old" Board, by notice dated February 10, 1994,

proposed to revoke The Edge's licenses.       The "New" Board acted on

the proposal.    This sequence of events demonstrates that the

"Old" Board questioned the penalty decided upon by the hearing

officer, and it set into motion the events leading up to the



                                   2
"New" Board's revocation of the licenses.    Such a scenario hardly

supports The Edge's theory that the Board and Virginia Beach

officials conspired to shut down The Edge.

     Second, a review of the transcript of the November 18, 1994

hearing reveals that all nine witnesses, with minor differences,

agreed that the main purpose of the meeting was to address

rowdiness and drinking problems in the oceanfront area by the

coordinated efforts of Virginia Beach police and ABC enforcement

personnel.   While some witnesses testified that "The Block" was

mentioned, it was mentioned in the context of being part of the

larger oceanfront area.   No witness recalled The Edge being

mentioned at the meeting.
     There is no proof that The Edge, either overtly or covertly,

was the topic of conversation at the March 29 meeting.

Accordingly, nothing happened at the meeting which would

necessitate an opportunity by The Edge to respond.   As such,

there was no due process violation.

     Finally, The Edge's reliance on Virginia Board of Medicine

v. Fetta, 244 Va. 276, 421 S.E.2d 410 (1992), is misplaced.

There, four Board members, who later ruled on Fetta's case, sat

in on the hearing before the hearing officer.    Id. at 277, 421

S.E.2d at 411.   Here, the November 18 meeting, of which there is

no evidence that The Edge was even mentioned, is no parallel to

the hearing condemned in Fetta.

                              Issue 3



                                  3
     First, The Edge argues that the circuit court erred in not

granting a continuance so that it could serve Board member

Giordano with a subpoena.   Whether to grant or deny a continuance

lies in the sound discretion of the trial court, and its decision

will not be disturbed absent an abuse of that discretion.       See

McNew v. Dunn, 233 Va. 11, 15, 353 S.E.2d 713, 716 (1987).       The

Edge successfully served eleven other potential witnesses.      The

court quashed the subpoena as to two of these witnesses, but the

other nine were in court and prepared to testify on November 18.

Under these circumstances, we cannot conclude that the court

abused its discretion in denying the motion for a continuance.
     Second, The Edge argues that the court should have compelled

Giordano to appear and testify.   Giordano was not served with a

subpoena.    The Edge cites no authority that would enable the

court, under those circumstances, to compel her attendance and

testimony.

     Third, The Edge argues that the court erred in ruling that

City Attorney Lilley and Assistant City Attorney Byman need not

testify.    In their "Motion to Quash Subpoenas to Testify," Lilley

and Byman asserted that they "were present at the meeting . . .

solely in their capacity as attorneys in order to provide legal

advice to City Council and/or City officials."   The trial court

accepted this assertion.    The transcript of the November 18

hearing contains nothing that contradicts this assertion.    There

is no suggestion in this transcript that Lilley or Byman were



                                  4
active participants in the meeting or that their roles

transgressed their status as legal advisors to the city

councilmen or city officials.

                        Issues 4 through 7

     The Board adopted the hearing officer's findings of fact,

but disagreed as to the appropriate punishment.    The Edge, while

conceding that the Board has the authority, in the exercise of

its discretion, to revoke The Edge's licenses, nonetheless argues

that the Board, under these circumstances, owed some degree of

deference to the hearing officer's determination of punishment.

There is no support for this argument.    Code § 4.1-103(13)

specifically grants "The Board" the power to "[g]rant, suspend,

and revoke licenses . . . ."     See also Code § 4.1-225.    No

condition is placed on this power.

     Furthermore, a close review of the record reveals that

Chicho's, a nearby establishment, was not similarly situated to

The Edge, and, as such, the Board did not act arbitrarily and

capriciously in arriving at a less severe punishment for

Chicho's.   Of particular note are the findings that, as to

Chicho's, the violations involved actions of employees and/or

officers which were apparently unknown to the owners.       In

contrast, The Edge's owners were directly involved in its

violations.

                                Issue 8
     The Edge argues that the Board erred in revoking its



                                   5
licenses because the Board's "goal" of ensuring the public safety

is not furthered by the revocation.       This public policy argument

is without merit.   As noted above, Code §§ 4.1-103(13) and

4.1-225 specifically grant the Board the authority to revoke

licenses for violations such as those committed by The Edge.

                                Issue 9

     The Edge incorrectly argues that the trial judge erred in

granting the motion to strike.    Rule 1:11 and Code § 8.01-378,

cited by The Edge, specifically apply to jury trials.      Rather,

the proper posture for a trial court to assume in considering a

motion to strike is to "view the evidence and all reasonable

inferences drawn from the evidence in the light most favorable to

the plaintiff.   Any reasonable doubt as to whether the plaintiff

has produced sufficient evidence of the wrong alleged must be

resolved in the plaintiff's favor and the motion to strike

denied."   Izadpanah v. Boeing Joint Venture, 243 Va. 81, 83, 412

S.E.2d 708, 709 (1992).

     The purpose of the November 18 hearing was to demonstrate

that the Board was tainted when it considered The Edge's

licensing status, and, correspondingly, denied The Edge due

process guarantees.   As noted earlier, nothing produced at the

hearing supported this claim.    Accordingly, the circuit court did

not err in granting the motion to strike.

                                                       Affirmed.




                                   6
