Department of Alcoholic Beverage Control

Posted: Wednesday, January 15, 2014 10:32 pm | Updated: 9:20 am, Thu Jan 16, 2014. by K. Burnell Evans

5263139a7e75a_preview-300Gov. Terry McAuliffe appointed two commissioners to the state Alcoholic Beverage Control board Wednesday, riling rival Republicans while ending a four-day vacuum of power at the embattled agency.

GOP operative Boyd Gov. Terry McAuliffe appointed two commissioners to the state Alcoholic Beverage Control board Wednesday, riling rival Republicans while ending a four-day vacuum of power at the embattled agency.Marcus, who endorsed McAuliffe over Republican gubernatorial nominee Ken Cuccinelli last fall, and former ABC top administrator Jeffrey Painter were sworn in Wednesday afternoon.

The move came a day after a lawyer argued in a Virginia Beach misdemeanor case that the agency lacks enforcement power without commissioners. A judge dismissed a charge against a bartender accused of selling alcohol to an underage buyer.

Asked whether that case spurred Wednesday’s appointments, McAuliffe spokesman Brian Coy said, “the timing was driven by when we were ready to make the announcements.”

Last week’s departures of former Chairman J. Neal Insley and Commissioner Sandra Canada left all three seats on ABC’s governing panel empty in what agency insiders described as an unprecedented void. Several people at ABC privately said Insley and Canada both had been told during the preceding week to clear out their offices by 5 p.m. last Friday. McAuliffe was inaugurated the following day.

Neither Coy nor ABC officials would comment on whether Insley and Canada resigned.

Virginia Beach attorney Mike Joynes said he successfully argued Tuesday that the absence of commissioners sapped ABC agents of authority to enforce the law, which flows through the board.

“From what I know, this is a case of first impression. Since the end of Prohibition, we’ve always had a board,” Joynes said. “There’s always been a transition period when old members worked with new members.”

Joynes said he referred District Judge Daniel Lahne to a section in state code governing ABC’s police powers that stipulates board members “are vested, and such agents and employees of the Board designated by it shall be vested, with like power to enforce the provisions of (i) this title and the criminal laws of the Commonwealth.”

Lahne declined to comment Wednesday on the ruling. A spokeswoman for the Virginia Beach Commonwealth’s Attorney’s Office said city prosecutors did not handle the case and had nothing to say about the decision.

“It may sound like a technical argument, but it’s important that we hold people in Richmond to the fire and make them do the right thing,” Joynes said.

Del. David Albo, R-Springfield, an attorney who specializes in alcohol cases and authors ABC legislation, said Joynes had “a novel argument” but called it “a pretty big stretch.”

“From an attorney’s perspective, he deserves a high-five, but I could see both sides of that argument,” Albo said. “If [Joynes’] argument is correct, the governor did make a mistake, but how would [McAuliffe] know he had to fill those seats immediately?”

Asked Tuesday night about the case, Coy said the governor’s office was “looking into the situation.”

He did not comment on the subject Wednesday. The Attorney General’s Office did not immediately respond to requests for comment.

ABC commissioner appointments are regarded as plum posts, paying the chairman more than $130,000 annually and remaining commissioners more than $120,000 apiece, the highest salaries in the nation.

But the agency under Insley’s watch spent much of last year mired in controversy over last spring’s arrest of a University of Virginia student by agents who mistook sparkling water for beer. Insley eventually announced more than a dozen policy and procedural changes as a result of the incident. Since then, lawmakers have filed a half-dozen bills targeting ABC, and UVa student Elizabeth Daly has hired a civil lawyer.

Both Insley and Canada were appointed by Bob McDonnell, the Republican governor whose term ended with McAuliffe’s inauguration. A third seat on the board has been vacant for more than a year.

Marcus and Painter’s names surfaced as possible picks in the weeks leading up to the announcement. Neither responded to requests for comment before or after their appointments.

“The Governor is confident that these two appointees will help ensure that the ABC is run in a professional manner worthy of the Virginia taxpayers it serves,” Coy said in an email when asked whether the appointments move the agency past last year’s troubles.

Republicans, however, were quick to question Marcus’ appointment. House Speaker William Howell said it would be scrutinized. Although Marcus and Painter both can serve immediately as commissioners, their appointments still must be confirmed by the General Assembly.

“I am disappointed the governor would make a blatantly political appointment for such an important position,” Howell said. “As with all appointments that are subject to General Assembly confirmation, we will review Mr. Marcus’ qualifications with care. In light of recent events and a rough transition at ABC, I think this appointment deserves additional scrutiny.”

State Republican Party Chairman Pat Mullins issued a press release sarcastically congratulating Marcus.

“It’s nice to know the exchange rate for 30 pieces of silver these days is about $122,000 per year plus benefits,” Mullins said.

Marcus served as chief of staff to former Republican Gov. Jim Gilmore and Rep. Eric Cantor, R-Henrico, and former GOP Rep. Tom Bliley. Marcus graduated from UVa in 1974, according to a news release.

Painter, a native of Page County, graduated from Emory and Henry College and owned a business specializing in managing and investing in vacation properties before joining ABC during the administration of former Democratic Gov. Timothy M. Kaine. Painter most recently served as executive director of the Virginia League of Conservation Voters.

Both Marcus and Painter have donated to state and local political candidates and causes, according to the nonpartisan Virginia Public Access Project. Online records show that Marcus gave about $7,000 over the past 20 years; Painter has given $1,100, almost exclusively to Democrats, since 2007.

Under a bill proposed by Albo, ABC would be transformed from a state department to an authority led by a board of five directors who would be barred along with their spouses and immediate relatives from donating political money. The directors would be required to have at least five years’ experience each in business or law and a related degree.

They would work part-time and be paid $50 a day, plus expenses.


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