Administrative Code

Virginia Administrative Code
9/24/2022

Chapter 10. Procedural Rules for the Conduct of Hearings Before the Board and Its Hearing Officers

Part I
Hearings Before Hearing Officers

3VAC5-10-10. Appearance.

A. Any interested party who would be aggrieved by a decision of the board upon any application or in a disciplinary proceeding may appear and be heard in person, or by duly authorized representative, and produce under oath evidence relevant and material to the matters in issue. Upon due notice a hearing may be conducted by telephone as provided in Part IV.

B. The interested parties will be expected to appear or be represented at the place and on the date of hearing or on the dates to which the hearing may be continued.

C. If an interested party fails to appear at a hearing, the hearing officer may proceed in his absence and render a decision.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.1, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-20. Argument.

Oral or written argument, or both, may be submitted to and limited by the hearing officer. Oral argument is to be included in the stenographic report of the hearing.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.2, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-30. Attorneys; representation.

Any individual, partnership, association or corporation who is a licensee or applicant for any license or any interested party shall have the right to be represented by counsel at any board hearing for which he has received notice. The licensee, applicant or interested party shall not be required to be represented by counsel during such hearing. Any officer or director of a corporation may examine, cross-examine and question witnesses, present evidence on behalf of the corporation, draw conclusions and make arguments before the hearing officers.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.3, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-40. Communications.

Communications regarding hearings before hearing officers upon licenses and applications for licenses should be addressed to the Chief Hearing Officer, Hearings and Appeals Division.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.4, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 23, Issue 13, eff. May 19, 2007.

3VAC5-10-50. Complaints.

The board, in its discretion and for good cause shown, may arrange a hearing upon the complaint of any aggrieved party(s) against the continuation of a license. The complaint shall be in writing directed to the Director, Bureau of Law Enforcement Operations, setting forth the name and post office address of the person(s) against whom the complaint is filed, together with a concise statement of all the facts necessary to an understanding of the grievance and a statement of the relief desired.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.5, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 23, Issue 13, eff. May 19, 2007.

3VAC5-10-60. Continuances.

Motions to continue a hearing will be granted as in actions at law. Requests for continuances should be addressed to the Chief Hearing Officer, Hearings and Appeals Division, or the hearing officer who will preside over the hearing.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.6, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 23, Issue 13, eff. May 19, 2007.

3VAC5-10-70. Decisions.

A. Initial decisions. The decision of the hearing officer shall be deemed the initial decision, shall be a part of the record and shall include:

1. A statement of the hearing officer's findings of fact and conclusions, as well as the reasons or bases therefor, upon all the material issues of fact, law or discretion presented on the record; and

2. The appropriate rule, order, sanction, relief or denial thereof as to each such issue.

B. Summary decisions. At the conclusion of a hearing, the hearing officer, in his discretion, may announce the initial decision to the interested parties.

C. Notice. At the conclusion of any hearing, the hearing officer shall advise interested parties that the initial decision will be reduced to writing and the notice of such decision, along with notice of the right to appeal to the board, will be mailed to them or their representative and filed with the board in due course. (See 3VAC5-10-240 for Appeals).

D. Prompt filing. The initial decision shall be reduced to writing, mailed to interested parties at the address on record with the board by certified mail, return receipt requested, and by regular mail, and filed with the board as promptly as possible after the conclusion of the hearing or the expiration of the time allowed for the receipt of additional evidence.

E. Request for early or immediate decision. Where the initial decision is deemed to be acceptable, an interested party may file, either orally before the hearing officer or in writing, a waiver of his right of appeal to the board and request early or immediate implementation of the initial decision. The board or hearing officer may grant the request for early or immediate implementation of the decision by causing issuance or surrender of the license and prompt entry of the appropriate order.

F. Timely review. The board shall review the initial decision and may render a proposed decision, which may adopt, modify or reject the initial decision unless immediate implementation is ordered. In any event, the board shall issue notice of any proposed decision, along with notice of right to appeal, within the time provided for appeals as stated in 3VAC5-10-240.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.7, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 17, Issue 10, eff. February 28, 2001.

3VAC5-10-80. Docket.

Cases will be placed upon the docket in the order in which they mature except that, for good cause shown or for reasons appearing to the board or to the chief hearing officer, the order may be varied.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.8, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-90. Evidence.

A. Generally. All relevant and material evidence shall be received, except that:

1. The rules relating to privileged communications and privileged topics shall be observed; and

2. Secondary evidence of the contents of a document shall be received only if the original is not readily available. In deciding whether a document is readily available the hearing officer shall balance the importance of the evidence against the difficulty of obtaining it, and the more important the evidence the more effort should be made to have the original document produced.

B. Cross-examination. Subject to the provisions of subsection A of this section, any interested party shall have the right to cross-examine adverse witnesses and any agent or subordinate of the board whose report is in evidence and to submit rebuttal evidence except that:

1. Where the interested party is represented by counsel, only counsel shall exercise the right of cross-examination;

2. Where there is more than one interested party, only counsel or other representatives of such parties shall exercise the right of cross-examination; and

3. Where there is more than one group of interested parties present for the same purpose, only counsel or other representative of such groups shall exercise the right of cross-examination. If the hearing officer deems it necessary, in order to expedite the proceedings, a merger of such groups shall be arranged.

C. Cumulative testimony. The introduction of evidence which is cumulative, corroborative or collateral shall be avoided. The hearing officer may limit the testimony of any witness which is judged to be cumulative, corroborative or collateral; however, the interested party offering such testimony may make a short avowal of the testimony which would be given and, if the witness asserts that such avowal is true, this avowal shall be made a part of the stenographic report.

D. Subpoenas, depositions and request for admissions. Subpoenas, depositions de bene esse and requests for admissions may be taken, directed and issued in accordance with §§ 4.1-103 10 and 9-6.14:13 of the Code of Virginia.

E. Stenographic report. All evidence, stipulations and argument in the stenographic report which are relevant to the matters in issue shall be deemed to have been introduced for the consideration of the board.

F. Stipulations. Insofar as possible, interested parties will be expected to stipulate as to any facts involved. Such stipulations shall be made a part of the stenographic report.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.9, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-100. Hearings; penalty.

A. Hearings before the hearing officer shall be held, insofar as practicable, at the county seat of the county in which the establishment of the applicant or licensee is located, or, if the establishment is located within the corporate limits of any city, then in such city. However, if it is located in a county or city within a metropolitan area in which the board maintains a hearing room in a district office, such hearings may be held in such hearing room. Notwithstanding the above, hearing officers may conduct hearings at locations convenient to the greatest numbers of persons in order to expedite the hearing process.

B. At any hearing held by a hearing officer, any person hindering the orderly conduct or decorum of the hearing shall be guilty of a violation of this regulation and shall be subject to the penalty prescribed by § 4.1-349 of the Code of Virginia.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.10, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-110. Hearing officers.

A. Hearing officers are charged with the duty of conducting fair and impartial hearings and of maintaining order in a form and manner consistent with the dignity of the board.

B. Each hearing officer shall have authority, subject to the published rules of the board and within its powers, to:

1. Administer oaths and affirmations;

2. Issue subpoenas as authorized by law;

3. Rule upon offers of proof and receive relevant and material evidence;

4. Take or cause depositions and interrogatories to be taken, directed and issued;

5. Examine witnesses and otherwise regulate the course of the hearing;

6. Hold conferences for the settlement or simplification of issues by consent of interested parties;

7. Dispose of procedural requests and similar matters;

8. Amend the issues or add new issues provided the applicant or licensee expressly waives notice thereof. The waiver shall be made a part of the stenographic report of the hearing;

9. Submit initial decisions to the board and to other interested parties or their representatives; and

10. Take any other action authorized by the rules of the board.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.11, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-120. Interested parties.

As used in this chapter, "interested parties" shall mean the following persons:

1. The applicant;

2. The licensee;

3. Persons who would be aggrieved by a decision of the board; and

4. For purposes of appeal pursuant to 3VAC5-10-240, interested parties shall be only those persons who appeared at and asserted an interest in the hearing before a hearing officer.

Where in this chapter reference is made to "licensee," the term likewise shall be applicable to a permittee or a designated manager to the extent that this chapter are not inconsistent with the statutes and regulations relating to such persons.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.12, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-130. Motions or requests.

Motions or requests for ruling made prior to the hearing before a hearing officer shall be in writing, addressed to the Chief Hearing Officer, Hearings and Appeals Division, and shall state with reasonable certainty the ground therefor. Argument upon such motions or requests will not be heard without special leave granted by the hearing officer who will preside over the hearing.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.13, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 23, Issue 13, eff. May 19, 2007.

3VAC5-10-140. Notice of hearings.

Interested parties shall be afforded reasonable notice of a pending hearing. The notice shall state the time, place and issues involved.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.14, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-150. Consent settlement.

A. Generally. The board, or its designee, may offer to resolve disciplinary cases when the nature of the proceeding and public interest permit. In appropriate cases, the board or its designee will extend an offer for a consent settlement to the licensee.

B. Who may accept. The licensee or his attorney may accept an offer of consent settlement. If the licensee is a corporation, only an attorney or an officer, director or majority stockholder of the corporation may accept an offer of consent settlement.

C. How to accept. The licensee shall return the properly executed consent order along with the payment in full of any monetary penalty no later than 21 calendar days from the date of mailing by the board. Failure to respond within the time period will result in a withdrawal of the offer by the agency and a formal hearing will be held on the date specified in the notice of hearing.

D. Effect of acceptance. Acceptance of the consent settlement offer shall constitute an admission of the alleged violation of the A.B.C. laws or regulations and will result in a waiver of the right to a formal hearing and the right to appeal or otherwise contest the charges. The offer of consent settlement is not negotiable; however, the licensee is not precluded from submitting an offer in compromise under 3VAC5-10-160.

E. Board review. Prior to extending an offer of consent settlement to the licensee, the board or its designee may reject any proposed settlement which is contrary to law or policy or which, in its sole discretion, is not appropriate.

F. Record. Unaccepted offers of consent settlement will become a part of the record only after completion of the hearing process.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.15, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 23, Issue 13, eff. May 19, 2007; Volume 35, Issue 2, eff. November 1, 2018.

3VAC5-10-160. Offers in compromise.

Following notice of a disciplinary proceeding, a licensee may be afforded opportunity for the submission of an offer in compromise in lieu of suspension or in addition thereto, or in lieu of revocation of his license, where in the discretion of the board, the nature of the proceeding and the public interest permit. Such offer should be addressed to the chief hearing officer. Acceptance of the offer in compromise shall constitute an admission of the alleged violation of the A.B.C. laws or regulations, and shall result in a waiver of the right to a formal hearing and the right to appeal or otherwise contest the charges. The reason for the acceptance of such an offer shall be made a part of the record of the proceeding. Unless good cause be shown, continuances for purposes of considering an offer in compromise will not be granted. Offers in compromise may be submitted anytime following notice of a disciplinary proceeding and before the conclusion of an appeal hearing. Any such offer may not be accepted at the informal conference and no offer shall be submitted after the conclusion of the appeal hearing. The board may waive any provision of this section for good cause shown.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.16, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 35, Issue 1, eff. October 22, 2018.

3VAC5-10-170. Record.

A. The certified transcript of testimony, argument and exhibits, together with all papers and requests filed in the proceeding, shall constitute the exclusive record of the initial decision.

B. Upon due application made to the chief hearing officer, copies of the record of a hearing shall be made available to parties entitled thereto at a fee established by the board.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.17, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-180. Rehearings.

A rehearing before a hearing officer shall not be held in any matter unless it be affirmatively shown that relevant and material evidence, which ought to produce an opposite result on rehearing, is available, is not merely cumulative, corroborative or collateral, and could not have been discovered before the original hearing by the use of ordinary diligence; provided, that the board, in its discretion, may cause a rehearing to be held before a hearing officer in the absence of the foregoing conditions, as provided in 3VAC5-10-290.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.18, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-190. Self-incrimination.

If any witness subpoenaed to appear on behalf of the board shall testify in a hearing before a hearing officer on complaints against a licensee as to any violation in which the witness, as a licensee or an applicant, has participated, such testimony shall not be used against him nor shall the board take any administrative action against him for the offense to which he testifies.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.19, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-200. Subpoenas.

Upon request of any interested party, the chief hearing officer, or a hearing officer is authorized to issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers and other documents at a hearing before a hearing officer.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.20, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-210. Witnesses.

A. Interested parties shall arrange to have their witnesses present at the time and place designated for the hearing.

B. Upon request of any party entitled to cross-examine witnesses, as set forth in 3VAC5-10-90 B, the hearing officer may separate the witnesses, including agents of the board.

C. A person subpoenaed as a witness to appear on behalf of the board shall be entitled to the same allowance for expenses as witnesses for the Commonwealth in criminal cases.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.21, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-220. Pre-hearing conferences.

A. A pre-hearing conference will be conducted when an applicant for a license or a licensee who is the subject of a disciplinary proceeding does not waive its right to such a conference. A waiver may be verbal or in writing. Unless the parties are advised otherwise, the agency will automatically waive the pre-hearing conference when the applicant or licensee does so. When the applicant or licensee is offered a pre-hearing conference and fails to respond within 10 calendar days after the date of such offer, the pre-hearing conference will be deemed to be waived.

B. The pre-hearing conference will serve as a vehicle to acquaint the interested party, in a general way, with the nature of the charges or objections, the evidence in support thereof and to hear any matters relevant thereto presented by the interested parties and to explore whether (i) administrative proceedings or objections should be terminated or (ii) the case should proceed to formal hearing and stipulations can be reached. The conference will be open to the public, but participation will be limited to the interested parties, their attorneys-at-law or other qualified representatives, and designated board representatives. The pre-hearing conference may be held virtually or telephonically, and at least five days prior to the formal hearing. The conference may be held, when practical, at the county or city in which the establishment of the applicant or licensee is located. Reasonable notice of administrative charges or objections and the date, time, and place of the conference shall be given to the participants. The failure of the applicant or licensee to appear at a scheduled conference will be deemed a waiver of the pre-hearing conference. The pre-hearing conference will not be recorded. Sworn testimony will not be taken, nor will subpoenas be issued. Any initial decision will include a summary of the pre-hearing conference.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.22, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 35, Issue 1, eff. October 22, 2018; Volume 38, Issue 9, eff. February 7, 2022.

3VAC5-10-230. Agency representation.

The Director, Bureau of Law Enforcement Operations or his designee may (i) represent the Bureau of Law Enforcement Operations before the board or any hearing officer; (ii) petition the board for modification of the hearing officer's decision; or (iii) request a ruling on other motions as may be necessary. This authority does not extend to complaints under the Franchise Acts.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 1.23, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 23, Issue 13, eff. May 19, 2007.

Part II
Hearings Before the Board

3VAC5-10-240. Appeals.

A. An interested party may appeal to the board an adverse initial decision, including the findings of fact and the conclusions, of a hearing officer or a proposed decision, or any portion thereof, of the board provided a request therefor in writing identifying any alleged errors in the decision is received within 30 days after the date of mailing of the initial decision or the proposed decision, whichever is later.

B. At his option, an interested party may submit written exceptions to the initial or proposed decision within the 30-day period and waive further hearing proceedings.

C. If an interested party fails to appear at a hearing, the board may proceed in his absence and render a decision.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.1, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 17, Issue 9, eff. February 28, 2001; Volume 34, Issue 24, eff. September 10, 2018.

3VAC5-10-250. Attorneys; representation.

Any individual, partnership, association or corporation who is a licensee or applicant for any license or any interested party shall have the right to be represented by counsel at any board hearing for which he has received notice. The licensee, applicant or interested party shall not be required to be represented by counsel during such hearing. Any officer or director of a corporation may examine, cross-examine and question witnesses, present evidence on behalf of the corporation, draw conclusions and make arguments before the board.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.2, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-260. Communications.

Communications regarding appeal hearings upon licenses and applications for licenses should be addressed to the secretary to the board.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.3, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-270. Continuances.

Continuances will be granted as in actions at law. Requests for continuances of appeal hearings should be addressed to the secretary to the board.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.4, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-280. Decision of the board.

The final decision of the board, together with any written opinion, should be transmitted to each interested party or to his representative.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.5, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-290. Evidence.

A. Generally. Subject to the exceptions permitted in this section, and to any stipulations agreed to by all interested parties, all evidence should be introduced at hearings before hearing officers.

B. Additional evidence. Should the appeal panel determine at an appeal hearing, either upon motion or otherwise, that it is necessary or desirable that additional evidence be taken, the appeal panel may:

1. Direct that a hearing officer fix a time and place for the taking of such evidence within the limits prescribed by the board and in accordance with 3VAC5-10-180; and

2. Upon unanimous consent of the appeal panel, permit the introduction of after-discovered or new evidence at the appeal hearing.

If the initial decision indicates that the qualifications of the establishment of an applicant or licensee are such as to cast substantial doubt upon the eligibility of the place for a license, evidence may be received at the appeal hearing limited to the issue involved and to the period of time subsequent to the date of the hearing before the hearing officer.

C. Examination. Any appeal panel member may examine a witness upon any question relevant to the matters in issue.

D. Cross-examination. The right to cross-examine and the submission of rebuttal evidence as provided in 3VAC5-10-90 shall be allowed in any appeal hearing where the introduction of additional evidence is permitted.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.6, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 35, Issue 1, eff. October 22, 2018.

3VAC5-10-300. Hearings.

Hearings before the board in the absence of notice to the contrary will be held in the office of the board, Virginia A.B.C. Building, 7450 Freight Way, Mechanicsville, Virginia 23116.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.7, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 38, Issue 6, eff. December 8, 2021.

3VAC5-10-310. Motions or requests.

Motions or requests for rulings, made after a hearing before a hearing officer and prior to an appeal hearing before the board, shall be in writing, addressed to the secretary to the board, and shall state with reasonable certainty the grounds therefor. Argument upon such motions or requests will not be heard without special leave granted by the board.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.8, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-320. Notice of hearing.

Reasonable notice of the time and place of an appeal hearing shall be given to each interested party who appeared at the initial hearing or his representative.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.9, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-330. Record.

A. The record of the hearing before the hearing officer, including the initial decision, and the transcript of testimony, argument and exhibits together with all papers and requests filed in the proceeding before the board, shall constitute the exclusive record for the final decision of the board.

B. Upon due application made to the secretary to the board, copies of the record, including the decision of the board and any opinion setting forth the reasons for the decision shall be made available to parties entitled thereto at a rate established by the board.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.10, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-340. Rehearings and reconsideration.

The board may, in its discretion for good cause shown, grant a rehearing or reconsideration on written petition of an interested party addressed to the Secretary to the Board and received within 30 days after the date of the final decision of the board. The petition shall contain a full and clear statement of the facts pertaining to the grievance, the grounds in support thereof, and a statement of the relief desired. The board may grant such at any time on its own initiative for good cause shown.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.11, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-350. Scope of hearing.

A. Except as provided in 3VAC5-10-290, the appeal hearing shall be limited to the record made before the hearing officer.

B. The provisions of Part I of this chapter shall be applicable to proceedings held under this part except to the extent such provisions are inconsistent herewith.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 2.12, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

Part III
Wine and Beer Franchise Acts

3VAC5-10-360. Complaints.

Complaints shall be referred in writing to the secretary to the board.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 3.1, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 23, Issue 13, eff. May 19, 2007.

3VAC5-10-370. Hearings.

Hearings will be conducted in accordance with the provisions of Part I of this chapter (3VAC5-10-10 et seq.). Further, the board and the hearing officers designated by it may require an accounting to be submitted by each party in determining an award of costs and attorneys' fees.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 3.2, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-380. Appeals.

The decision of the hearing officer may be appealed to the board as provided in 3VAC5-10-240. Appeals shall be conducted in accordance with the provisions of Part II of this chapter (3VAC5-10-240 et seq.).

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 3.3, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-390. Hearings on notification of price increases.

Upon receipt from a winery, brewery or wine or beer importer of a request for notice of a price increase less than 30 days in advance, a hearing will be scheduled before the board, not a hearing officer, as soon as practicable with five days notice to all parties which include at a minimum all the wholesalers selling the winery or brewery's product. There will be no continuances granted and the board must rule within 24 hours of the hearing.

Statutory Authority

§§ 4.1-103, 4.1-108, 4.1-109, 4.1-111, 4.1-319, 4.1-350, 4.1-400 et seq., 4.1-500 et seq., and 9-6.14:1 et seq. of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 3.4, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-400. Discovery, prehearing procedures and production at hearings; definitions.

The Rules of the Supreme Court of Virginia Parts One, One A, Two, Two A, Three, and Four shall apply in all proceedings under the Wine and Beer Franchise Acts, Chapters 4 (§ 4.1-400 et seq.) and 5 (§ 4.1-500 et seq.) of Title 4.1 of the Code of Virginia, including mediation and arbitration proceedings when necessary pursuant to §§ 4.1-409 and 4.1-508 of the Code of Virginia. Any references to a "court" contained in the rules shall be deemed to mean the hearing officer or officers of the board conducting the proceeding.

No provision of this section shall affect the practice of taking evidence at a hearing, but such practice, including that of generally taking evidence ore tenus only at hearings before hearing officers, shall continue unaffected hereby.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 3.5, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 23, Issue 13, eff. May 19, 2007; Volume 34, Issue 24, eff. September 10, 2018.

Part IV
Telephone Hearings

3VAC5-10-410. Applicability.

The board and its hearing officers may conduct hearings by telephone only when the applicant/licensee expressly waives the in-person hearing. The board will determine whether or not certain hearings might practically be conducted by telephone. The provisions of Part I (3VAC5-10-10 et seq.) shall apply only to Part IV (3VAC5-10-410 et seq.) where applicable.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 4.1, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-420. Appearance.

The interested parties will be expected to be available by telephone at the time set for the hearing and may produce, under oath, evidence relevant and material to the matters in issue. The board will arrange for telephone conference calls at its expense.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 4.2, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-430. Argument.

Oral or written argument may be submitted to and limited by the hearing officer. Oral argument is to be included in the stenographic report of the hearing. Written argument, if any, must be submitted to the hearing officer and other interested parties in advance of the hearing.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 4.3, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-440. Documentary evidence.

Documentary evidence, which an interested party desires to be considered by the hearing officer, must be submitted to the hearing officer and other interested parties in advance of the hearing.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 4.4, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-450. Hearings.

A. Telephone hearings will usually originate from the central office of the board in Richmond, Virginia, but may originate from other locations. Interested parties may participate from the location of their choice where a telephone is available. If an interested party is not available by telephone at the time set for the hearing, the hearing may be conducted in his absence.

B. If at any time during a telephone hearing the hearing officer determines that the issues are so complex that a fair and impartial hearing cannot be accomplished, the hearing officer shall adjourn the telephone hearing and reconvene an in-person hearing as soon as practicable.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 4.5, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-460. Notice of hearing.

Interested parties shall be afforded reasonable notice of a pending hearing. The notice shall state the time, issues involved, and the telephone number where the applicant/licensee can be reached.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 4.6, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-470. Witnesses.

Interested parties shall arrange to have their witnesses present at the time designated for the telephone hearing, or should supply a telephone number where the witnesses can be reached, if different from that of the interested party.

Statutory Authority

§§ 4.1-103 and 4.1-111 of the Code of Virginia.

Historical Notes

Derived from VR125-01-1 § 4.7, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994.

3VAC5-10-480. (Repealed.)

Historical Notes

Derived from VR125-01-1 § 5.1, eff. December 12, 1985; amended, Virginia Register Volume 4, Issue 6, eff. January 21, 1988; Volume 5, Issue 2, eff. November 24, 1988; Volume 6, Issue 2, eff. November 23, 1989; Volume 8, Issue 6, eff. January 15, 1992; Volume 10, Issue 11, eff. March 23, 1994; Volume 23, Issue 13, eff. May 19, 2007; repealed, Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

Forms (3VAC5-10-9999)

Rules of the Supreme Court of Virginia, Part One: General Rules Applicable to All Proceedings

Rules of the Supreme Court of Virginia, Part One A: Foreign Attorneys

Rules of the Supreme Court of Virginia, Part Two: Virginia Rules of Evidence

Rules of the Supreme Court of Virginia, Part Two A: Appeals Pursuant to the Administrative Process Act

Rules of the Supreme Court of Virginia, Part Three: Practice and Procedures in Civil Actions

Rules of the Supreme Court of Virginia, Part Four: Pretrial Procedures, Depositions, and Production at Trial

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