Any individual, partnership, association, or corporation that is a licensee, retail tobacco permittee, or applicant for any license or retail tobacco permit, or any interested party shall have the right to be represented by counsel at any Virginia Alcoholic Beverage Control Authority hearing for which the licensee, retail tobacco permittee, or applicant has received notice. The licensee, retail tobacco permitted, 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 administrative law judges.

Communications regarding hearings before administrative law judges upon licenses and applications for licenses, retail tobacco permits, and applications for retail tobacco permits should be addressed to the Chief Clerk, Hearings, Appeals, and Judicial Services Division.

The Virginia Alcoholic Beverage Control Authority, in its discretion and for good cause shown, may arrange a hearing upon the complaint of any aggrieved party against the continuation of a license or retail tobacco permit. The complaint shall be in writing directed to the Chief of the Bureau of Law Enforcement, setting forth the name and post office address of the person 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.

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 administrative law judge 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 Virginia Alcoholic Beverage Control Authority (authority) 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 the other interested 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 the interested party designated to represent each group shall exercise the right of cross-examination. If the administrative law judge deems it necessary, in order to expedite the proceedings, a merger of such groups shall be arranged.

C. Cumulative testimony. The introduction of cumulative, corroborative, or collateral evidence shall be avoided. The administrative law judge may limit the testimony of any witness that is judged to be cumulative, corroborative, or collateral; however, the interested party offering such testimony may make a short avowal of the testimony that 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 requests for admissions. Subpoenas, depositions de bene esse, and requests for admissions may be taken, directed, and issued in accordance with § 2.2-4022 and subdivision 21 of § 4.1-103 of the Code of Virginia.

E. Stenographic report. All evidence, stipulations, and argument arguments in the stenographic report that are relevant to the matters in issue shall be deemed to have been introduced for the consideration of the administrative law judge or the authority.

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.

A. Hearings before the administrative law judge shall be held, insofar as practicable, at the county seat of the county in which the establishment of the applicant or licensee, retail tobacco permittee, or applicant 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 Virginia Alcoholic Beverage Control Authority maintains a hearing room in a district office, such hearings may be held in such hearing room. Notwithstanding this subsection, administrative law judges may conduct hearings at locations convenient to the greatest numbers of persons in order to expedite the hearing process. Hearings may also be held via telephone or virtually.

B. At any hearing held by an administrative law judge, 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.

A. Administrative law judges 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 Virginia Alcoholic Beverage Control Authority (authority).

B. Each administrative law judge shall have authority, subject to the published rules of the authority 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, retail tobacco permittee, or applicant expressly waives notice thereof. The waiver shall be made a part of the stenographic report of the hearing;

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

10. Take any other action authorized by the rules of the authority;

11. Conduct mediation between interested parties; and

12. Require the designation of an interested person to act as a representative for proceedings involving groups of individuals present for the same purpose.

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

1. The applicant;

2. The licensee;

3. The retail tobacco permittee;

4. Persons who would be aggrieved by a decision of the Virginia Alcoholic Beverage Control Authority (authority); and

4. 5. 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 an administrative law judge.

Where in this chapter reference is made to "licensee," the term likewise shall be applicable to a permittee (i.e., a person that holds or held a permit issued by the authority) that holds a permit issued by the authority pursuant to § 4.1-212 of the Code of Virginia or a designated manager to the extent that this chapter is not inconsistent with the statutes and regulations relating to such persons. Where in this chapter reference is made to "applicant," the term shall be applicable to all applicants applying for any license or permit issued by the authority.

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

A. Generally. The Virginia Alcoholic Beverage Control Authority (authority) or the authority's designee may offer to resolve disciplinary cases when the nature of the proceeding and public interest permit. In appropriate cases, the authority or the authority's designee will extend an offer for a consent settlement to the licensee or retail tobacco permittee.

B. Who may accept. The licensee or, retail tobacco permittee, the licensee's attorney, or the retail tobacco permittee's attorney may accept an offer of consent settlement. If the licensee or retail tobacco permittee 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, retail tobacco permittee, or the licensee's attorney or the retail tobacco permittee's attorney 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 authority. Failure to respond within the time period will may result in a withdrawal of the offer by the agency and a formal hearing will may 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 Alcoholic Beverage Control Act (§ 4.1-100 et seq. of the Code of Virginia) or authority 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 or retail tobacco permittee is not precluded from submitting an offer in compromise under 3VAC5-10-160.

E. Authority review. Prior to extending an offer of consent settlement to the licensee or retail tobacco permittee, the authority or the authority's designee may reject any proposed settlement that is contrary to law or policy or that, in the authority's 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.

A. Following notice of a disciplinary proceeding, a licensee or retail tobacco permittee 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 the license or retail tobacco permittee, where, in the discretion of the Virginia Alcoholic Beverage Control Authority (authority), the nature of the proceeding and the public interest permit. Such offer should be addressed to the chief administrative law judge. Acceptance of the offer in compromise shall constitute an admission of the alleged violation of the Alcoholic Beverage Control Act (§ 4.1-100 et seq. of the Code of Virginia) or authority 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 is 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 authority issues a final decision in an appeal. The authority may waive any provision of this section for good cause shown.

B. Following notice of a disciplinary proceeding or objection from the authority to the issuance of a license, a licensee, retail tobacco permittee, or applicant in conjunction with the authority may agree to a negotiated resolution in lieu of a suspension or in addition thereto, in lieu of revocation of the license or retail tobacco permittee, or in lieu of a denial of the application where, in the discretion of the authority, the nature of the proceeding and the public interest permit. Such negotiation shall be handled by the interested party and the authority. Acceptance of a negotiated resolution may constitute an admission of the alleged violation of the Alcoholic Beverage Control Act or authority regulations and shall result in a waiver of the right to a formal hearing and the right to appeal or otherwise contest the charges or objections. Unless good cause is shown, continuances for purposes of finalizing a negotiated resolution will not be granted. Negotiated resolutions may be submitted anytime following notice of a disciplinary proceeding or objections hearing and before the authority issues a final decision in an appeal.

If any witness subpoenaed to appear on behalf of the Virginia Alcoholic Beverage Control Authority (authority) shall testify in a hearing before an administrative law judge on complaints against a licensee or retail tobacco permittee as to any violation in which the witness, as a licensee, retail tobacco permittee, or an applicant, has participated, such testimony shall not be used against the witness. The authority shall take no administrative action against the witness for the offense to which the witness testifies.

A. A pre-hearing conference will be conducted when an applicant for a license or, a licensee, or a retail tobacco permittee who is the subject of a disciplinary proceeding does not waive the right to such a conference. A waiver may be verbal or in writing. Unless the parties are advised otherwise, the Virginia Alcoholic Beverage Control Authority (authority) will automatically waive the pre-hearing conference when the applicant or, licensee, or retail tobacco permittee does so. When the applicant or, licensee, or retail tobacco permittee 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 and the evidence in support of the charges or objections, 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, the interested parties' attorneys-at-law or other qualified representatives, and designated authority representatives. The pre-hearing conference may be held virtually or by telephone 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, or retail tobacco permittee 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, or retail tobacco permittee 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.

Any individual, partnership, association, or corporation that is a licensee or, retail tobacco permittee, applicant for any license, or any interested party shall have the right to be represented by counsel at any Virginia Alcoholic Beverage Control Authority (authority) hearing for which the licensee, retail tobacco permittee, applicant, or interested party has received notice. The licensee, retail tobacco permittee, 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 authority.

Communications regarding appeal hearings upon licenses, retail tobacco permits, and applications for licenses should be addressed to the Chief Clerk of the Hearing, Appeals, and Judicial Services Division.

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 administrative law judges.

B. Additional evidence. Should the appeal panel or Virginia Alcoholic Beverage Control Authority (authority) 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 an administrative law judge to fix a time and place for the taking of such evidence within the limits prescribed by the authority 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, or retail tobacco permittee are such as to cast substantial doubt upon the eligibility of the place for a license or retail tobacco permit, 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 administrative law judge.

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.

The Virginia Alcoholic Beverage Control Authority (authority) and its administrative law judges may conduct hearings by telephone only when the applicant or, licensee, or retail tobacco permittee expressly waives the in-person hearing. The authority will determine whether or not certain hearings might practically be conducted by telephone. The provisions of Part I (3VAC5-10-10 through 3VAC5-10-230) of this chapter shall apply only to Part IV (3VAC5-10-410 through 3VAC5-10-470) of this chapter where applicable.

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 applicant, licensee, or retail tobacco permittee can be reached.