
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Michael E. Locks v. Virginia Motor Vehicle Dealer Board
    November 4, 1997
    Case No. HI-709-1
   By Judge Melvin R. Hughes, Jr.

This case is an appeal of a state administrative agency decision revolting petitioner’s motor vehicle salesperson’s license. The parties are petitioner Michael E. Locks and defendant Motor Vehicle Dealer Board.

The parties do not dispute the pertinent facts and matters in foe record. Locks sustained a felony conviction in 1986 and received a sentence of forty years in foe penitentiary and a fine of $25,000. In December 1995, Locks was paroled and is to remain on parole until June 2020. In January 1996, Locks applied to foe Board for a motor vehicle salesperson license pursuant to § 46.2-1508. The application asked if foe applicant had ever been convicted of a felony to which Locks answered in foe affirmative. Later that month, despite his statement of foe felony conviction as a disqualifier for licensure under § 46.2-1575(13), foe Board issued Locks a motor vehicle salesperson license. Almost four months after granting foe license, foe Board notified Locks that his license “has been denied.” Thereafter Locks requested a hearing. The Board then notified Lodes that he could have a hearing to determine whether his license would be revoked due to a felony conviction. A bearing was held after which a hearing officer submitted proposed findings of fact and conclusions of law to tire Board. The hearing officer recommended that Locks be allowed to retain foe license. However, foe Board decided otherwise and revoked foe license.

Locks urges reversal on any one of several grounds as follows:

(1) The record does not support die Board’s decision under the substantial evidence test

(2) The Board's decision was arbitrary and capricious.

(3) The Board cannot issue the license and later revoke it without a later change in circumstances supported by evidence.

(4) The decision violates Locks’ constitutional rights under due process of law.

(5) The decision is not consistent with Virginia law and Board policy because Board policy has been that a conviction must be within die preceding five years and the notice of hearing did not assert parole as a basis for revocation.

(6) There is no proven nexus between a felony conviction and promoting die interests of car buyers or preventing unfair competition or disruptive practices.

(7) There is no statutory authority to revoke a salesperson’s license as opposed to a dealer’s license.

(8) There is no evidence that the decision to first issue the license was erroneous.

(9) The Board failed to consider Locks’ unblemished record during the time he did possess a license.

(10) The record lacks evidence to support the Board’s finding that Locks is a risk to engage in iliegal acts in the future.

This appeal is under the Virginia Administrative Process Act (APA), §§ 9-6.14:1 et seq. With respect to the scope of review for cases appealed under the APA, § 9-6.14:17 sets the issues on review in its pertinent parts as follows:

The burden shall be upon the party complaining of agency action to designate and demonstrate an error of law subject to review by the court Such issues of law include: (i) accordance with constitutional right, power, privilege or immunity, (ii) compliance with statutory authority, jurisdiction, limitations, or right as provided in tire basic laws as to subject matter, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions, (iii) observance of required procedure where any failure therein is not mese harmless error, and (iv) the substantiality of the evidential support for findings of fact.... When the decision on review is so to be made on such agency record, die duty of die court with respect to issues of fací are limited to ascertaining whether there was substantial evidence in die agency record upon which the agency as the trier of die facts could reasonably find them as they did.... die court shall dike due account of die presumption of official regularity, the experience and specialized competence of die agency, and die purposes of the basic law under which the agency has acted.

It is die court’s view that grounds 3,5, and 8 are essentially a call to apply die doctrine of estoppel to the Board’s reverse of position in first granting Locks the license and later deciding to revoke. The court finds these grounds have no merit because estoppel does not apply to a state agency in its performance of & governmental function. Falls v. Virginia State Bar, 240 Va. 416, 418 (1990), citing Gwinn v. Alwood, 235 Va. 616, 621 (1988).

Ground No. 1

As the statute governing review states, die standard of review of a state agency decision is substantial evidence. This is in keeping with court decisions. See Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231 (1988). The question under this standard is whether a reasonable mind considering die record could reach the decision the agency did. The court finds under this test that a reasonable mind could come to the same conclusion the Board did under the evidence. There is no merit to this ground.

Ground No. 2

Because the Board’s decision meets the applicable test of substantial evidence, there can be no determination that die Board’s decision in this instance was arbitrary or capricious. This ground fails.

Ground No. 3

It is apparent from the record that the proceedings before the agency comported with the procedural requirements of the A.P.A. Locks had a hearing after notice, a decision within die meaning of “case decision” as defined in die A.P. A was rendered, and he is now seeking judicial review. While Locks complains of a constitutional deprivation, he has not presented a case in this regard. The differences he has with what was done and how it was done do not rise to die level of a constitutional deprivation.

Ground No. 6

The court does not find any merit in Locks’ contentions under this ground, hi deciding that a felony conviction disqualifies one from holding a motor vehicle salesperson's license, the General Assembly by enacting §46.2-1575(13) apparently found that a nexus exists between a felony conviction mid its charge to the Commissioner of die Division of Motor Vehicles to “promote the interests of retail buyers" and “prevent unfair methods of competition and unfair or deceptive acts or practices." See §46.2-1501. The function of a state agency like the Board is to carry out the charge the Legislature has given it in keeping with the findings necessary under that charge. On examination of §46.2-1575(13), no such finding is required and the Board was not required to make a specific finding that Locks’ felony conviction has a connection with promoting car buying, unfair competition, or illegal sales practices.

Ground No. 7

Under § 9-6.14:17, the court must determine whether the question before die state agency complied with statutory authority on the subject matter. As noted, Locks argues that diere is no statutory authority to revoke a salesperson’s license as opposed to a dealer’s license.

A “dealer” and a “salesperson" are each separately defined in § 46.2-1500. Each requires a license for each activity as defined. Because under §46.2-1575 tiie Board may revoke “a license ... issued under this subsection* the court finds that die Board clearly has the authority to act on a salesperson’s license.

Ground No. 9

The court has no reason to conclude that Locks’ activity during die time he had a license was anything other than proper. However, considering the standard of review and the statutory mandate die General Assembly has given the Board to cany out its duties, there is no direction to consider this factor in determining whether one is disqualified due to a felony conviction.

Ground No. JO

As has been pointed out, the Board in its decision in this case has the legal justification to do what it did under §46.2-1575(13). Whatever finding the Board may have made concerning Locks’ posing a risk to engage in illegal acts in die future because of the felony conviction was not necessary given die substantiality of the evidence. While the court tends to agree with Locks that there is no basis for such finding, still the question overall is whether die record satisfies the substantial evidence test The court has found that it does.

Conclusion

For die foregoing reasons die court finds that diere is no merit in any of the petitioner’s contentions and die appeal is dismissed.  