Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Whiting, S.J.
COMMONWEALTH OF VIRGINIA
DEPARTMENT OF MOTOR VEHICLES
OPINION BY
v. Record No. 000868 SENIOR JUSTICE HENRY H. WHITING
March 2, 2001
WARNER ATHEY
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Philip L. Russo, Judge Designate
In this appeal, we consider whether the operator of a daily
cruising service is required to obtain a certificate of public
convenience and necessity as a “sight-seeing carrier by boat”
pursuant to Code § 46.2-2607.
Warner Athey owns a boat that he operates in the Chesapeake
Bay and Atlantic Ocean to transport paying passengers on daily
cruises that Athey advertises as "Adventure Cruises." These
cruises begin and end in Lynnhaven Inlet in the City of Virginia
Beach. Athey advertises his cruises as "Adventure Cruises" and
does not mention sight-seeing as a part of his service. During
"Adventure Cruises," passengers may sunbathe, fish, and
participate in wildlife and oceanic educational activities. In
addition, Athey and his employees note for passenger viewing
such things as seabirds, dolphins, fish, different types of
boats, navigational markers, and channels, but do not identify
either historical sites or places of interest. In order for
passengers to view schools of fish and different types of boats,
Athey's boat follows routes that vary with the location of the
items to be observed.
Athey received a notice from the Commonwealth of Virginia
Department of Motor Vehicles (DMV) advising Athey that he
"should cease and desist" his cruising operation until DMV
determined whether such operation was subject to the provisions
of Code §§ 46.2-2600 through -2610, which regulate "sight-seeing
carrier[s] by boat" and provide misdemeanor penalties for
violations. Athey filed a motion for declaratory judgment
against DMV, seeking a determination that his operation was not
subject to the statutory provisions at issue.
After hearing evidence and argument, the court stated in a
bench ruling that Athey's operation was not that of a "sight-
seeing carrier by boat" because Athey's practice of observing
moving fish and boats did not permit his boat to travel the
"regular routes" that must be specified in the certificate
mandated by Code § 46.2-2601. ∗ In its final order, the court
held that Athey was not subject to regulation as a "sight-seeing
carrier by boat" because neither he nor any employee:
∗
Code § 46.2-2601 provides:
Contents of certificate. — A certificate issued under this
chapter shall authorize the holder named in the certificate to
transport sightseers and special or charter parties from the
point of origin named in the certificate over regular routes to
the point or points of interest named in the certificate and
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point[s] out or describe[s] any historical sites or points
of interest which may be visible on the shore but rather
describes and facilitates the observation by his passengers
of seabirds, dolphins and other wildlife as well as
navigational aids and watercraft in and on the water, that
[Athey] therefore is not engaged in business as a sight-
seeing carrier by boat as defined in said Chapter 26.
On its appeal, DMV argues that, although not defined by
statute, the terms "sightseers" and "sight-seeing" as used in
these statutes have plain and unambiguous meanings. DMV
provides a dictionary definition of a "sightseer" as "one that
visits places of interest: one that goes about in search of
novelty or picturesque sights or scenery." Webster's Third New
International Dictionary 2115 (1993). Likewise, DMV notes a
definition of "sight-seeing" as referring to buses and other
means of transport that are "engaged in, devoted to, or used for
seeing sights . . . ." Id.
DMV contends that nothing in the pertinent statutes or in
the plain meaning of the terms "sightseers" and "sight-seeing"
limits the sights to be seen to permanent historical sites or
fixed objects on the shore, as the court held in its final
order. DMV further urges that Athey's advertisement of his
cruises as "Adventure Cruises" cannot exclude his activity and
his passengers' conduct from those of a "sight-seeing carrier by
back to the point of origin. Only one point of origin shall be
named in a certificate.
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boat" and "sightseers" as those terms are used in the statutes
at issue.
In response, Athey contends that since violations of these
statutes are misdemeanors, the statutes are criminal in nature
and must be strictly construed. He argues that when these
statutes are so construed, they cannot be applied to his
operation because while on the "Adventure Cruise": (1) neither
he nor any employee notes or describes historical sites or
places of interest that may be visible from his boat; and (2)
his boat cannot follow "regular routes," as that term is used in
Code § 46.2-260l, and thus could not qualify as a "sight-seeing
carrier by boat" under Code §§ 46.2-2600 though -2610.
We agree with Athey that penal statutes must be "strictly
construed against the State" and that such statutes "cannot be
extended by implication or construction, or be made to embrace
cases which are not within their letter and spirit." Berry v.
City of Chesapeake, 209 Va. 525, 526, 165 S.E.2d 291, 292
(1969). However, the construction for which Athey argues would
unduly restrict the plain and unambiguous terms of the statutes
at issue and improperly place his cruising operation outside
their intended scope.
Nothing in Code §§ 46.2-2600 through –2610 limits
"sightseers" and "sight-seeing" to observing fixed objects on
the shore. Instead, the plain meanings of these terms clearly
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encompass Athey's boat trips, a purpose of which is to observe
any object or objects of interest, whether fixed or moving, on
land or in or on water, i.e., moving fish and boats,
navigational markers, and channels. Hence, we agree with DMV's
contention that the court erred in concluding that Athey was not
engaged in the business of a "sight-seeing carrier by boat."
We also reject Athey’s argument that his inability to
follow the "regular routes" prescribed in Code § 46.2-2601
supports the trial court's conclusion that his cruising
operation cannot be that of a "sight-seeing carrier by boat."
Code § 46.2-2601 does not define the business of "sight-seeing
carrier by boat" but merely specifies what must be contained in
the certificate DMV issues to a business that qualifies as a
"sight-seeing carrier by boat." As we have held supra, Athey's
operation does qualify as a "sight-seeing carrier by boat," and
he is required to obtain a certificate to conduct the operation.
What ultimately may be included in the certificate concerning
"regular routes" is a matter for DMV's future determination and
not an issue here.
For these reasons, we will reverse the trial court's
judgment and enter final judgment declaring that Athey's
business is that of a "sight-seeing carrier by boat” subject to
the provisions of Code §§ 46.2-2600 through -2610.
Reversed and final judgment.
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