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 "sightseeing 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 sightseeing 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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