Present: All the Justices
ANTHONY CONYERS, JR., COMMISSIONER,
COMMONWEALTH OF VIRGINIA DEPARTMENT OF
SOCIAL SERVICES
OPINION BY
v. Record No. 060232 JUSTICE LAWRENCE L. KOONTZ, JR.
January 12, 2007
MARTIAL ARTS WORLD OF RICHMOND, INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Judge
In this appeal, we review the judgment of the circuit court
that a particular martial arts instruction program for children,
which qualifies as a “child day program” generally subject to
licensure by the Virginia Department of Social Services, is
exempt from licensure under the “come and go” exemption set
forth in Code § 63.2-1715(A)(2). The dispositive issue is the
proper interpretation of this statute.
BACKGROUND
Appellant, the Commissioner of Social Services, is
responsible for the supervision and management of the Virginia
Department of Social Services (“the Department”). Code § 63.2-
200. The Commissioner has the duty, among other things, to
enforce statutory licensure requirements for any person who
operates a “child welfare agency.” Code § 63.2-1701(A). A
child welfare agency is statutorily defined to include a “child
day center.” Code § 63.2-100. A child day center is any “child
day program offered to (i) two or more children under the age of
13 in a facility that is not the residence of the provider or of
any of the children in care or (ii) 13 or more children at any
location.” A child day program is a “regularly operating
service arrangement for children where, during the absence of a
parent or guardian, a person or organization has agreed to
assume responsibility for supervision, protection, and well-
being of a child under the age of 13 for less than a 24-hour
period.” Id.
The statutory scheme that establishes the licensure
requirements also provides a list of exemptions for certain
child day programs. Code § 63.2-1715. The exemption that is
relevant to this appeal provides that a child day program does
not have to be licensed “where, by written policy given to and
signed by a parent or guardian, children are free to enter and
leave the premises without permission or supervision.” Code
§ 63.2-1715(A)(2).
Appellees Martial Arts World of Richmond, Inc., Martial
Arts World of West End, Inc., Martial Arts World of Chester,
Inc., and Martial Arts World of Powhatan, Inc. (collectively
“Martial Arts World”) operate facilities in which they provide
martial arts instruction to children as well as adults. Martial
Arts World offers two martial arts programs that potentially
subject it to licensure as a child day program: an after school
2
program and a “summer camp” for children ages six and older.
The general purpose of the after school and summer camp programs
is to benefit the children who participate not only by
developing physical martial arts skills but also to build
character and instill discipline in a highly structured
environment.
At all times relevant to this appeal, in order to be exempt
from licensure pursuant to the “come and go” exemption of Code
§ 63.2-1715(A)(2), Martial Arts World provided the parent or
guardian of each child participating in the after school and
summer camp programs with a form stating that “Martial Arts
World is not a licensed child day center.” The form further
provided that, by signing the form, each parent or guardian
“understand[s] that Martial Arts World is a drop-in facility and
as required by Virginia law . . . my child is free to enter and
leave the premises without permission or supervision of Martial
Arts World staff.”
The record reflects that, up until 2004, the Department
considered Martial Arts World to qualify for the exemption under
Code § 63.2-1715(A)(2) and did not require Martial Arts World to
be licensed. However, in 2004 personnel of the Department
observed the Martial Arts World after school and summer programs
and determined that, despite the written policy to the contrary,
3
the children in those programs were not actually free to “come
and go” without permission. Accordingly, the Department
concluded that Martial Arts World was not exempt from licensure
under Code § 63.2-1715(A)(2). The Department notified Martial
Arts World that it would need to obtain a license or discontinue
operating the after school and summer programs.
As a result, Martial Arts World initiated a lawsuit in the
Circuit Court of the City of Richmond against the Commissioner
and the Department that proceeded upon an amended bill of
complaint. In the amended bill of complaint, Martial Arts World
sought a declaratory judgment that it was not a “child day
center” or “child day program” subject to licensure or, in the
alternative, that Martial Arts World was exempt from licensure
under Code § 63.2-1715(A)(2). Martial Arts World also sought
injunctive relief to prevent the Department from demanding that
Martial Arts World be licensed or face civil and criminal
penalties.
The Commissioner1 subsequently filed separate but materially
identical bills of complaint against the four Martial Arts World
1
Maurice Jones, who was the Commissioner when the initial
pleadings were filed, resigned during the course of the case and
Anthony Conyers, Jr. became the Commissioner. Jones was
replaced by Conyers as a party and, for purposes of this appeal,
we refer to both Jones and Conyers collectively as “the
Commissioner.”
4
facilities and the individuals responsible for operating each
facility. The Commissioner’s bills of complaint alleged that
the Department had learned a number of facts indicating that
Martial Arts World should not be exempt under Code § 63.2-
1715(A)(2) and, thus, that Martial Arts World was required to
have a license to operate its after school and summer camp
programs. The bills of complaint sought an injunction under
Code § 63.2-1711 prohibiting Martial Arts World from operating
the after school and summer camp programs without a license.2
The actions filed by Martial Arts World and the
Commissioner were consolidated by the circuit court.3
Thereafter, the court held a two-day evidentiary hearing in
which the parties presented evidence relating to Martial Arts
World’s after school and summer camp programs and the
authorization of the children enrolled therein to enter and
leave the premises of Martial Arts World without permission or
2
Code § 63.2-1711 authorizes the circuit court in the
locality where the principal office of a child welfare agency is
located to enjoin that child welfare agency from unlawfully
operating without a license.
3
The Commissioner’s bills of complaint not filed in the
Circuit Court of the City of Richmond were transferred to that
court pursuant to motions filed by Martial Arts World in the
other circuit courts where the bills of complaint were filed.
The Circuit Court of the City of Richmond subsequently entered
an order consolidating Martial Arts World’s bill of complaint
and the four bills of complaint filed by the Commissioner.
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supervision. Following the presentation of the evidence, the
parties presented argument that focused on two issues. The
first issue was whether Code § 63.2-1715(A)(2) required a child
day program not only to have a written policy that children are
free to enter and leave the premises without permission or
supervision but also that the agency actually comply with that
policy. The second issue was whether Martial Arts World in fact
allowed the children in the after school and summer programs to
leave and enter its premises without permission or supervision.
The circuit court ruled that Martial Arts World is a “child
day program” as statutorily defined. The court further ruled
that “Martial Arts World’s after school program and summer camp
comply with § 63.2-1715[(A)](2) as written. Therefore, Martial
Arts World’s programs are exempt from licensure.” The court
gave the following reasons for its ruling from the bench:
There are certain aspects of this program as it
works, seems to me, [that are] antithetical or opposed
to this come and go policy. As I alluded to earlier,
the program itself, the way the program is structured,
and some of the ancillary things that the parents are
required to do, with the sign up and the listing of
authorized persons, seems to me it suggests that
that’s opposed to [a] come and go policy. But I think
the [c]ourt here has to deal with the statute as . . .
written. And I find that the statute as written—this
organization has complied with it. It’s not up to the
[c]ourt to graft on the statute more than what the
General Assembly has provided . . . . I think as
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written the statute says what it says. There’s a
program whereby written policy given to and signed by
parents and guardians they’re free to leave the
premises without permission or supervision . . . .
[T]he statute is what it is, and that’s what it reads.
And I think this organization, these groups here, come
within it.
The circuit court entered a final order on November 4, 2005,
incorporating by reference the reasons stated from the bench.
The court further denied injunctive relief to both parties.
This appeal followed.
DISCUSSION
As a threshold matter, we are presented with the
remarkable, if not unique, circumstance in which the parties
dispute what the circuit court’s interpretation of Code § 63.2-
1715(A)(2) actually was. The Commissioner’s third assignment of
error reflects his belief that the circuit court interpreted
Code § 63.2-1715(A)(2) such that “a child day program merely
needs to have a policy [to be exempt from licensure], but does
not have to follow it.” The Commissioner asserts that the
evidence presented at trial “clearly established that Martial
Arts World does not allow children to freely enter and leave the
premises without permission [or] supervision,” and that the
circuit court ruled that Martial Arts World was exempt by virtue
of having “nothing more than a permission slip that is signed by
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the parents” without an expectation that the program actually
comply with the policy.
Martial Arts World maintains that the circuit court
“concluded that Martial Arts World not only had a policy, but
complied with it” and emphasizes that the majority of the
evidence presented over the two-day trial pertained to whether
it complied with its written policy. Martial Arts World asserts
that for the Commissioner to dispute on appeal “that actual
compliance with the exemption was not addressed factually . . .
cannot be reconciled with the record.”
In determining which party’s interpretation of the circuit
court’s ruling is correct, we turn to the well-established
principle that a court speaks only through its written orders.
Rose v. Jaques, 268 Va. 137, 147, 597 S.E.2d 64, 70 (2004);
Upper Occoquan Sewage Authority v. Blake Construction Co., 266
Va. 582, 588, 587 S.E.2d 721, 724 (2003). Considering the
language used by the circuit court in its final order which
incorporated by reference the court’s statements from the bench,
we agree with the Commissioner that the circuit court did not
render a ruling on the evidence as to whether Martial Arts World
actually complied with its written “come and go” policy and,
instead, based its ruling solely on an interpretation of Code
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§ 63.2-1715(A)(2) to require only a written policy for an
exemption to licensure.
In its statements from the bench, the circuit court did not
address the evidence except to note that certain evidence
suggested Martial Arts World does not comply with its written
“come and go” policy. However, the circuit court stopped short
of ruling on the issue of Martial Arts World’s compliance with
its policy. Rather, using language that was recited verbatim in
the final order, the circuit court stated that Martial Arts
World complied with Code § 63.2-1715(A)(2) “as written.” These
statements, while not explicit in their terms, reflect a ruling
by the circuit court that the existence of a written “come and
go” policy renders a child day program exempt from licensure
under Code § 63.2-1715(A)(2) without regard to whether the child
day program actually complies with that policy. Martial Arts
World’s assertion of the fact that the parties went to
considerable lengths to produce evidence regarding compliance
with the policy does not alter the circuit court’s ultimate
interpretation of Code § 63.2-1715(A)(2).
Thus, the sole issue to be resolved is whether the circuit
court erred in interpreting Code § 63.2-1715(A)(2) to allow a
child day program to avoid licensure solely by issuing a written
policy that children enrolled in the program are free to enter
9
and leave the premises of the program without permission or
supervision, regardless of whether the child day program
actually complies with that policy.4 In doing so, we note that
Martial Arts World does not assign cross-error to the circuit
court’s ruling that it meets the statutory definition of a
“child day program” and, therefore, is required to be licensed
by the Commonwealth unless it is exempt from licensure under the
statutory exemption under consideration here. We also note that
it is undisputed that the form issued by Martial Arts World
indicating that the children in its program are free to enter
and leave its premises without permission or supervision
constitutes a “written policy” as that term is used in Code
§ 63.2-1715(A)(2).
Under well-established principles, an issue of statutory
interpretation is a pure question of law which we review de
novo. Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d 127,
4
The Commissioner made three assignments of error.
However, he failed to brief his first assignment of error and,
thus, it is waived. Rule 5:27; Rule 5:17(c); Elliott v.
Commonwealth, 267 Va. 396, 422, 593 S.E.2d 270, 286 (2004).
Additionally, assignment of error two is insufficient. It
states: “[t]he Chancellor’s finding that Martial Arts World’s
after school and summer camp programs are in compliance with
Virginia Code § 63.2-1715[(A)](2) is plainly wrong and without
evidence to support it.” Our rules provide that “[a]n
assignment of error which merely states that the judgment or
award is contrary to the law and the evidence is not
sufficient.” Rule 5:17(c).
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129 (2005); Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246,
248 (2003). When the language of a statute is unambiguous, we
are bound by the plain meaning of that language. Campbell v.
Harmon, 271 Va. 590, 597-98, 628 S.E.2d 308, 311-312 (2006);
Virginia Polytechnic Inst. & State Univ. v. Interactive Return
Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006).
Furthermore, we must give effect to the legislature’s intention
as expressed by the language used unless a literal
interpretation of the language would result in a manifest
absurdity. Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d
922, 925-26 (2006); Williams v. Commonwealth, 265 Va. 268, 271,
576 S.E.2d 468, 470 (2003); Woods v. Mendez, 265 Va. 68, 74-75,
574 S.E.2d 263, 266 (2003). If a statute is subject to more
than one interpretation, we must apply the interpretation that
will carry out the legislative intent behind the statute.
Garrison v. First Federal Savings & Loan Ass’n., 241 Va. 335,
340, 402 S.E.2d 25, 28 (1991); McDaniel v. Commonwealth, 199 Va.
287, 294, 99 S.E.2d 623, 629 (1957); Rockingham Co-Operative
Farm Bureau, Inc. v. City of Harrisonburg, 171 Va. 339, 344, 198
S.E. 908, 910 (1938).
The language of Code § 63.2-1715(A)(2) provides an
exemption to the general requirement that child day programs be
licensed by the Commonwealth for a child day program that “by
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written policy given to and signed by a parent or guardian,
children are free to enter and leave the premises without
permission or supervision.” (Emphasis added.) This language is
not ambiguous. This language clearly contemplates the
circumstances in which children are in fact free to enter and
leave the premises of the child day program without permission
or supervision. This language also clearly contemplates that
the child day program have a “written policy” which is given to
and signed by a parent or guardian to ensure that the parent or
guardian is fully aware that the children are, in reality, free
to come and go. Accordingly, we conclude that, for the
exemption from licensure under Code § 63.2-1715(A)(2) to apply,
a child day program must not only have a written policy given to
and signed by parents that the children are free to enter and
leave the premises without permission or supervision, but that
the children must actually be free to enter and leave the
premises.
The undeniable purpose behind the General Assembly’s
requirement that certain child-care facilities or programs be
licensed by the Commonwealth is to protect the well-being of the
children in those facilities or programs through supervision by
the Department. Since protecting children is without question
an objective of the utmost importance, we are of opinion that
12
exceptions to licensing requirements should be narrowly
construed. Considering Code § 63.2-1715(A)(2) in such a manner,
we hold that for this exemption to apply a child day program
cannot avoid licensure simply by adopting a written policy
concerning a child’s ability to “come and go” that it does not
in fact follow. The circuit court’s interpretation of this
statute would allow a child day program to escape licensure
simply by issuing a written policy statement that is meaningless
for practical purposes; a result that we will not conclude the
General Assembly intended.
For these reasons, we hold that the circuit court erred in
determining that Martial Arts World was exempt from licensure
under Code § 63.2-1715(A)(2) simply by virtue of issuing its
written policy. We take this opportunity, however, to clarify
that our holding does not require a child day program, in order
to be exempt under Code § 63.2-1715(A)(2), to refuse to take
basic steps to restrain the movement of children in order to
protect their safety and well-being. The fact that a child day
program implements basic protective measures that any
responsible organization or program must take to protect a child
in their care, does not exclude a proper conclusion that a child
is actually free to “come and go” without permission or
supervision as contemplated by Code § 63.2-1715(A)(2).
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CONCLUSION
We will reverse the judgment of the circuit court because
it erred in its interpretation of Code § 63.2-1715(A)(2).
Because our holding requires a determination of whether Martial
Arts World actually complied with its written policy that
children may enter and leave its premises without permission or
supervision in order to determine whether the exemption from
licensure under Code § 63.2-1715(A)(2) applies, we will remand
the case so that the circuit court can make that determination.
Reversed and remanded.
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