                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


FEVER'S INC. t/a
 FEVER'S RESTAURANT & LOUNGE
                                              OPINION BY
v.   Record No. 1329-96-2             JUDGE JAMES W. BENTON, JR.
                                           FEBRUARY 18, 1997
VIRGINIA ALCOHOLIC BEVERAGE
 CONTROL BOARD


          FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
                     Richard S. Blanton, Judge

           A. Pierre Jackson for appellant.

           Louis E. Matthews, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General; Michael K. Jackson, Senior Assistant
           Attorney General and Chief, on brief), for
           appellee.



      The Virginia Alcoholic Beverage Control Board revoked the

wine and beer and mixed beverage licenses held by Fever's, Inc.

trading as Fever's Restaurant and Lounge.     The Board found that

(1) cause existed to deny Fever's a license because Fever's was

"so located that violations of the ABC Act or laws of the

Commonwealth relating to peace and good order" resulted, see Code
§ 4.1-222(A)(2)(b); and (2) on July 31, 1994, Fever's "allowed

noisy or disorderly conduct" on its premises, in violation of

Code § 4.1-225(1)(h).   Upon a petition for review, the circuit

court judge found reasonable cause to believe that Fever's

allowed noisy or disorderly conduct on its premises on July 31,

1994, affirmed the Board's decision on that ground, and stated

that he "need not address the other issues raised in this
matter."   Fever's appeals from that decision and contends that

the evidence was insufficient to support the revocations.    For

the reasons that follow, we reverse the trial judge's ruling

upholding the Board's decision concerning the July 31, 1994

incident and remand the case to the trial judge for consideration

of the Board's other ground for revoking the licenses.

                                 I.

     The facts concerning the July 31, 1994 incident are

essentially undisputed.   At the evidentiary hearing, William

Harding, the sole stockholder of the licensee and operator of the

business, testified that he had planned an outdoor music festival

for July 31, 1994, on the three acres of property adjacent to and

owned by his restaurant in Prince Edward County.   The event was

planned to be "an outdoor festival . . . out on the ball field

with several DJs with lots of barbecue, food and everything."
     Harding always employed security personnel at the

restaurant, including off-duty police officers.    Harding

testified that on a normal night he would have at least two

bartenders on duty, one doorman, "two floor wardens, and three to

four security."   Because the festival was to be held outdoors on

July 31, Harding had more security personnel on his premises than

usual.

     When it rained that evening, Harding moved the event inside

his restaurant, which has a dance hall permit issued by the

county.    To reduce the number of people inside the premises,




                                - 2 -
Harding raised the entry fee from $10 to $15.   The evidence

regarding the number of patrons on the premises that night was

disputed.   Special Agent L. E. Williams testified that after the

incident, Harding told him that approximately 600 people were in

Fever's that night.   Harding testified that his dance hall permit

did not limit the number of patrons.    In August 1994, after the

event, the sheriff told Harding that the county administration

office said the proper capacity for his facility was

approximately 266 people.
       The evidence proved that at 2:00 a.m. a disc jockey played

"Rough It Up," a song that inspired the crowd to engage in "slam

dancing," a dance that involves people intentionally colliding

with one another.   Harding testified that the disc jockeys had

been warned not to play that song and that most disc jockeys knew

not to play that song at a public dance establishment.   Harding

testified that when the disc jockey played the song, he ordered

his staff to turn the lights on and asked everyone to leave.

Harding had several employees in the parking lot who used

flashlights to assist in directing the cars out of the parking

lot.

       Larry Womack, the doorman, testified that when the disc

jockey played the song, "Rough It Up," patrons began to dance and

shove each other.   When the bumping occurred, the security

personnel turned on the lights and began to escort people from

the building.   Roger Jackson, a deputy sheriff who routinely




                                - 3 -
stopped by the restaurant at closing time, also testified that he

was inside the restaurant at 2:00 a.m. when the disc jockey

played the song, "Rough It Up."   He said the patrons who were

dancing began pushing each other.   As things began to get out of

control, he called for assistance from the county sheriff and the

town police.

     Officer Earle Townsend testified that at approximately 2:45

a.m., he received a call that an officer at Fever's was seeking

additional assistance.    When Townsend arrived, the music had been

turned off but the disc jockey was still screaming into the

microphone.    As the patrons were being escorted outside, some of

the patrons began to fight outside the building.    Shortly after

Townsend went outside to disburse the patrons, he heard gunshots

on a neighboring property, the Sportsmen's Arena.   The shots were

fired near the Arena, approximately one hundred yards away from

Fever's on the road that leads from Fever's to the highway.

Townsend went to the location where the shots were fired, found

the victims, and sent them to the hospital in rescue vehicles.

The police arrested one person at that location.
     A police officer, Bobby Simmons, testified that he was

employed by Fever's, as his second job, to act as a security

guard on July 31, 1994.   Simmons initially worked outside, but

after fights erupted inside the restaurant, Simmons was called

inside.   Simmons also testified that after the fighting started,

he began to move patrons out of the restaurant and heard




                                - 4 -
gunshots.   Womack testified that the shots were at the

Sportsmen's Arena.   Womack further testified that when the deputy

sheriffs went to the area of the Sportsmen's Arena, the sheriff's

department momentarily stopped the people leaving Fever's from

exiting onto the highway.   As a result, the traffic leaving

Fever's slowed.

     Officer Townsend also testified that he was approached in

downtown Farmville at approximately 3:30 a.m. by a vehicle whose

occupants asked for directions to a hospital.    An occupant of the

vehicle had a gunshot wound.   Townsend led the people to the

hospital.   Friends of the victim followed them and engaged in

misconduct at the hospital.    One arrest was made at the hospital.

However, no testimony linked those people to the Fever's

incident.
     Special Agent Williams testified that "[o]n July 31, 1994,

one person was stabbed, two people were shot and eight others

received medical assistance from three different hospitals."

Sheriff Southall stated that the people involved in the

misconduct had been patrons at Fever's.

     Other evidence in the record, unrelated to the events of

July 31, 1994, proved that instances of misconduct had occurred

at Fever's in the past.   Because the testimony was disputed and

the trial judge did not rely upon those incidents in rendering

his decision, we do not address that evidence.

                                 II.




                                - 5 -
     "Under Code § 9-6.14:17, the scope of review is limited to

whether there was 'substantial evidence in the agency record' to

support the decision. . . .   The court may reject the agency's

findings of fact 'only if, considering the record as a whole, a

reasonable mind would necessarily come to a different

conclusion.'"    Atkinson v. Virginia Alcoholic Beverage Control

Comm'n, 1 Va. App. 172, 176, 336 S.E.2d 527, 529-30 (1985)

(citations omitted).   Contrary to the Board's finding, we

conclude that the record lacks substantial evidence to support

the finding that Harding, the owner and manager of Fever's,

"allowed noisy, lewd or disorderly conduct upon the licensed

premises" on July 31, 1994.   "We recognize that the substantial

evidence standard accords great deference to the findings of the

administrative agency, but even under this standard the evidence

must be relevant to the conclusion reached."    Id. at 178, 336

S.E.2d at 531.

     The evidence proved that Harding had a history of

cooperating with the police, that he employed many security

personnel at his restaurant on a regular basis, and that he took

additional precautions on July 31, 1994.   Harding specifically

employed additional security personnel because the event was

scheduled to be outdoors.   When it rained, Harding moved the

event inside the restaurant and raised the entrance fee in order

to control the size of the crowd.

     The evidence further proved that the disc jockeys were



                                - 6 -
warned in advance not to play the song that caused the disruptive

conduct.   In addition, the evidence proved that as soon as the

disc jockey played the song and patrons became disorderly,

Harding and his staff took immediate action to regain control.

They turned the lights on and began asking the patrons to leave.

Indeed, the Board adopted the hearing officer's finding that

"management acted to stop the record and close the

establishment."
     In A.B.C. Board v. Village Grill, 217 Va. 632, 231 S.E.2d

327 (1977), the Supreme Court held that the licensee "allowed"

misconduct to occur on the premises where the president of the

licensee assaulted a customer and the vice president of the

licensee directed abusive language toward police officers.     See

id. at 634, 231 S.E.2d at 328-29.    No evidence proved that

Harding or any of the employees of Fever's engaged in misconduct

on July 31, 1994.    In addition, no evidence proved that Harding

simply watched as the situation deteriorated.   Rather, the record

proved that Harding took reasonable precautions to prepare for

his event and reacted promptly and reasonably after the crowd

became disruptive.

     The Board made no findings that suggest additional

precautions that Harding could have taken.   The trial judge found

that "the establishment had approximately 600 people there off

and on throughout the evening."   The record established, however,

that the dance hall permit issued to Fever's did not contain a



                                - 7 -
capacity limitation and that Harding was not informed that the

county had established a capacity for the restaurant until after

July 1994.   Furthermore, the evidence is undisputed that the

unexpected playing of music for slam dancing by a disc jockey was

the precipitating event.    Based on this record, we hold that "'a

reasonable mind would necessarily'" conclude that Harding did not

"allow" the misconduct to occur at Fever's on July 31, 1994.

Atkinson, 1 Va. App. at 176, 336 S.E.2d at 530 (citation

omitted).    Harding took reasonable action to prevent the incident

and to stop the disorder when it occurred.
                                III.

     The Board also found that the evidence supported a finding

that "the place occupied by the licensee is so located that

violations of the ABC Act or the laws of the Commonwealth

relating to peace and good order have resulted from issuance of

the license."   The trial judge, however, failed to review that

finding by the Board because he found sufficient evidence to

support the finding that Harding allowed misconduct to occur at

Fever's on July 31, 1994.   Because we hold that ruling to be

erroneous, we remand this case to the trial judge for a ruling on

the Board's other ground for revoking the licenses.   On remand,

the trial judge must determine whether substantial evidence in

the agency record proves: (1) "that violations of the . . . Act

or other laws of the Commonwealth relating to peace and good

order have taken place at [Fever's]," and (2) "that there is some



                                - 8 -
nexus between these violations and the location of [Fever's]."

Atkinson, 1 Va. App. at 177, 336 S.E.2d at 530.
                                        Reversed and remanded.




                              - 9 -
