Del. C. Todd Gilbert (R-Shenandoah) called the move “unprecedented” and said it caused a power “vacuum” at the state agency that administers liquor licenses, enforces the state’s liquor laws and runs its liquor stores. The three-member board had only the two active members when McAuliffe removed them.
During the four-day period that ended Wednesday, when no board members were in place, a Virginia Beach lawyer argued successfully in court that charges against his bartender client should be dismissed.
Because ABC agents derive their power from the ABC Board, the lawyer argued, the agents had no authority to pursue the case against his client — who was accused of serving an underage patron — while the ABC Board was vacant.
Moran, who was appointed to oversee the ABC and other law enforcement agencies, called that a “spaghetti-against-the-wall” type of argument that just happened to stick. He said he “was not informed of any legal ramifications of a void.” Besides, he said, “we have taken steps. There are two commissioners now, and no attorney can use that argument again.”
But Gilbert pressed Moran further, saying a vacuum might still exist.
“It could be argued there’s some limbo we’re all in,” Gilbert said. Gilbert cited the Alcoholic Beverage Control Act, which says that the board “shall consist of three members appointed by the Governor, subject to confirmation by the General Assembly.” And because the new board members have not been confirmed, he said, “I’m not sure the powers are fully, statutorily vested in those members.”
Republican delegates have bristled at McAuliffe’s choice of one nominee, Boyd Marcus, a longtime Republican political operative who served as chief of staff in the administration of Gov. James S. Gilmore III. Marcus defected to McAuliffe’s campaign, and some angry Republicans are opposed to his receiving a plum patronage job with a six-figure salary.
Moran referred Gilbert’s question to the attorney general’s office.
Ellen Qualls, a spokeswoman for Attorney General Mark R. Herring, said there was, and is, no vacuum. Qualls said ABC agents in the field received their authority from the board that was in office when they were appointed. “The ABC’s enforcement authority derives from individual officers’ commissions they receive when they’re appointed,” she said.
As to whether the current board members are “statutorily vested,” Qualls said: “We regard them as board members. From our office’s standpoint, they’re on the job doing the job.”
Another critic of the ABC personnel maneuvers, Del. Benjamin L. Cline (R-Rockbridge), told Moran that reports about the removal and appointment of board members were “very disconcerting.” He also said the new nominees “have very little experience” in law enforcement and alcohol beverage control matters.
But Moran said that Jeff Painter, one of the nominees, had served as chief administrative officer of the Virginia Department of Alcoholic Beverage Control and that Marcus’s former job as Gilmore’s chief of staff was “an extremely important position.”
“Those two appointments are worthy of your consideration,” Moran said.
Cline has submitted a bill to transfer enforcement of ABC laws from the ABC Board to the state police, responding to the case of a University of Virginia student, Elizabeth Daly. Daly was arrested after fleeing plainclothes ABC agents who mistook sparkling water she was carrying for beer.
Moran told Cline that he could not endorse such a change “without proper consideration” and suggested that “additional study” is needed.