                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton

CAPITAL LAND, INC. T/A
 LONGHORN II SALOON & GRILLE

v.   Record No. 3042-96-2                    MEMORANDUM OPINION *
                                                 PER CURIAM
VIRGINIA ALCOHOLIC BEVERAGE CONTROL             JULY 15, 1997
 BOARD, ELLEN B. SLAYMAKER, KENNETH
 WILLIS, LLOYD JACKSON AND GARY FOX


                                         FROM THE CIRCUIT COURT OF
HENRICO COUNTY
                     L. A. Harris, Jr., Judge

           (Joseph W. Kaestner; Brian R. Pitney; Kaestner,
           Pitney & Jones, P.C., on brief), for appellant.

           (James S. Gilmore, III, Attorney General; Michael
           K. Jackson, Senior Assistant Attorney General;
           Louis E. Matthews, Jr., Assistant Attorney
           General, on brief), for appellee Virginia
           Alcoholic Beverage Control Board.

           (Thomas A. Lisk; LeClair, Ryan, P.C., on
           brief), for appellees Ellen B. Slaymaker,
           Kenneth Willis, Lloyd Jackson and Gary Fox.



     The Virginia Alcoholic Beverage Control Board ("ABC Board")

denied a beer on-premises license to Capital Land, Inc., t/a

Longhorn II Saloon & Grille ("Capital Land").     Capital Land

appeals the decision of the circuit court affirming that ruling

and raises the following issues on appeal:   (1) whether the

circuit court erred in affirming the ABC Board's denial of

Capital Land's license when the ABC Board's findings of fact do

not support the conclusion that the place to be occupied will
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
substantially interfere with the usual quietude and tranquility

of the residential area; and (2) whether the circuit court erred

in affirming the ABC Board's decision when the ABC Board

unlawfully exercised unauthorized administration and enforcement

of zoning.   Upon reviewing the record and briefs of the parties,

we conclude that this appeal is without merit.   Accordingly, we

summarily affirm the decision of the trial court.   Rule 5A:27.

                               FACTS
     Capital Land submitted an application for a mixed beverage

and wine and beer on-premises license with the ABC Board on

December 15, 1995.   Capital Land later withdrew the application

to sell mixed beverages and wine.

     On February 23, 1996, a formal hearing concerning Capital

Land's application for an on-premises beer license was held

before an ABC Board hearing officer.   The hearing officer made

findings of fact and granted the license.   Citizen-objectors

appealed the hearing officer's decision to the ABC Board.   After

reviewing the record and hearing arguments of counsel, the ABC

Board concluded that
          the portion of the objection pertaining to
          substantially interfering with the usual
          quietude and tranquility of the surrounding
          residential area is substantiated by evidence
          which shows a likelihood that the operation
          of the applicant establishment under an on-
          premises A.B.C. license will substantially
          and adversely affect the peace and
          tranquility of the surrounding residential
          area.


     The ABC Board then refused the application for a license.


                                 2
         I.   THE RECORD SUPPORTS THE ABC BOARD'S DECISION

     Code § 4.1-222(A)(2)(d) grants the ABC Board discretion to

refuse to issue an ABC license in instances where the place to be

occupied by the applicant "[i]s so located with respect to any

residence or residential area that the operation of such place

under such license will . . . substantially interfere with the

usual quietude and tranquility of such residence or residential

area."
     Although the hearing officer found that the citizen

objections were not substantiated, the ABC Board acted within its

discretionary authority when it refused to issue the license.

Capital Land argues that the ABC Board's findings of fact do not

support its decision.   However, on appeal, "[t]he sole

determination as to factual issues is whether substantial

evidence exists in the agency record to support the agency's

decision."    Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242,

369 S.E.2d 1, 7 (1988).   Moreover, "where the question involves

an interpretation which is within the specialized competence of

the agency and the agency has been entrusted with wide discretion

by the General Assembly, the agency's decision is entitled to

special weight in the courts."    Id. at 244, 369 S.E.2d at 8.    "A

court may not merely substitute its judgment for that of an

administrative agency."    Jackson v. W., 14 Va. App. 391, 400, 419

S.E.2d 385, 390 (1992).   We find that the ABC Board's decision

was based on substantial evidence.



                                  3
              Capacity of the Facility and Parking

     The facility is located on a two lane road on an area

"dominated by residential property," although it is zoned B-3

which allows for commercial establishments.    Barbara Graham,

President of Capital Land, testified that she expected 400

patrons per night at the business, but that the certificate of

occupancy allows 645 people in the building.   Thus, the evidence

that the building capacity is 645 persons and is located in a

predominately residential neighborhood supports the ABC Board's

reliance on the large capacity of the facility as a primary

factor in its decision to refuse the on-premises ABC license.
    Further, Graham stated that the parking lot had about 225

parking spaces and had only one ingress and egress outlet.    One

nearby resident testified that, in the past, patrons of the

facility drove through the neighborhood searching for parking

spaces when the parking lot was full.   This evidence, combined

with the building's capacity of 645 people and only 225 parking

spaces, further supports the ABC Board's decision.
         Late Night Operation of the Applicant Business

     The facility's anticipated hours of operation are from 7:30

p.m. until 2:00 a.m. on Thursday through Saturday nights.    Ellen

Slaymaker, who lives about seventy feet from the establishment,

testified that when the facility was leased by another

individual, she had called the police to the location at least

eight times for drunk and disorderly conduct and a noisy party.




                                4
She stated that she and her husband have been awakened numerous

times by the noise from the facility and that she has heard music

from the building until 1:30 a.m. or 2:00 a.m.

     Gary Fox, who lives three blocks from the location,

expressed concern for noise and vibrations from music on the

premises, especially late at night or in the early morning hours.

     Graham testified that in 1987 she constructed a ten foot

fence and planted trees behind the fence to help decrease the

sound or noise emanating from the building.   However, she also

stated that several of the trees have died and the fence is in

need of repair.
     Therefore, evidence in the record supports the ABC Board's

reliance on this factor in denying the issuance of the ABC

license.

            Residential Character of the Neighborhood

     Fox and two other nearby residents expressed concern for

neighborhood children's safety while bicycling or walking along

the road with the increased traffic associated with the business.

     Kenneth Willis expressed similar concerns, especially

considering that the parking lot has only one entrance and exit,

and considering the fact that the patrons would likely have

consumed alcohol prior to their departure from the facility.

Willis also expressed concern for the safety of the neighborhood

children who, in summertime evenings, walk to convenience stores

located near the Capital Land property.   Slaymaker complained



                                5
that patrons of the facility threw trash into her yard in the

past.

        Therefore, considering the testimony of the citizens and

residents of the community, substantial evidence in the record

supports the ABC Board's decision that there is a likelihood that

"the operation of the applicant establishment under an

on-premises ABC license will substantially and adversely affect

the peace and tranquility of the surrounding residential area."

See Hamm v. Yeatts, 479 F. Supp. 267, 273 (W.D. Va. 1979) (In

determining whether an establishment may impact on the "'usual

quietude and tranquility'" of a residential area, the most

important factor may be "the will of the citizens and residents

of the community.").

                      II.   ABC BOARD'S AUTHORITY

        Appellant argues that because the facility is located in an

area that is zoned for commercial development, the ABC Board

exercised unauthorized zoning authority when it denied Capital

Land's application for an on-premises ABC license.      However,

former Code § 4.1-103(13), recodified as Code § 4.1-103(14),

empowered the ABC Board to grant licenses for the distribution

and sale of alcoholic beverages.       Code § 4.1-222 establishes

conditions under which the ABC Board may refuse to grant

licenses.    The ABC Board based its decision on the finding that

the evidence showed "a likelihood that the operation of the

applicant establishment under an on-premises ABC license will



                                   6
substantially and adversely affect the peace and tranquility of

the surrounding residential area."   Code § 4.1-222(A)(2)(d)

clearly empowers the ABC Board to refuse to grant an ABC license

on this basis.   The fact that the building is located in an area

zoned for commercial use does not automatically qualify the

proposed business for an ABC license.   Therefore, Capital Land's

zoning argument is without merit.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                        Affirmed.




                                 7
