PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and Powell, JJ., and Russell, S.J.
VIRGINIA DEPARTMENT OF HEALTH OPINION BY v. Record No. 140100 JUSTICE WILLIAM C. MIMS January 8, 2015 KEPA, INC., d/b/a SHE-SHA CAFÉ AND HOOKAH LOUNGE
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in construing the Virginia Indoor Clean Air Act to exempt
a retailer of tobacco and tobacco products from regulation,
despite the fact that it also serves food.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
A. Background
Kepa, Inc. has owned and operated She-Sha Café and Hookah
Lounge ("She-Sha") in Blacksburg since 2003. She-Sha sells
tobacco and tobacco products to its customers. Customers may
purchase tobacco to smoke on-site through "hookahs," which are
available for rent at the café, or to smoke off-site. 1 It also
sells food for on-site consumption in the same area where
tobacco is smoked.
She-Sha is licensed as a "Food Establishment,"
specifically a "Full Service Restaurant," by the Virginia
1 A "hookah" is a "pipe for smoking that has a long flexible tube whereby the smoke is cooled by passing through water." Webster's Third New International Dictionary 1088 (1993). Department of Health ("Department"). It is also licensed as an
"Other Tobacco Product Retailer" by the Virginia Department of
Taxation. On its business license application to the Town of
Blacksburg, She-Sha lists the nature of its business as
"Restaurant and Retail Tobacco Store."
On January 22, 2010, the Montgomery County Health
Department received a complaint indicating that She-Sha was
allowing customers to smoke in its restaurant in violation of
the Virginia Indoor Clean Air Act, Code § 15.2-2820 et seq.
("VICAA"), which went into effect on December 1, 2009. VICAA
makes smoking in restaurants generally unlawful, subject to six
narrow exceptions. Code § 15.2-2825(A)(1) through (A)(6). On
January 27, 2010, the Department conducted an investigation and
subsequently charged She-Sha with two violations. 2
B. Relevant Statutory Provisions and Material Proceedings Below
At issue in this appeal is the proper interpretation of
two statutory provisions from VICAA that appear to conflict
when applied to She-Sha. First, Code § 15.2-2821, which states
VICAA's general applicability, provides:
2 The Department charged She-Sha with violating Code § 15.2- 2825(D), which requires restaurants to post "No Smoking" signs in non-smoking areas, and Code § 15.2-2825(F), which prohibits smoking in any non-smoking area of a restaurant. She-Sha agrees that it had not posted any "No Smoking" signs and that it had not divided its establishment into smoking and non- smoking areas.
2 Nothing in this chapter shall be construed to:
1. Permit smoking where it is otherwise prohibited or restricted by other applicable provisions of law; or
2. Regulate smoking in retail tobacco stores, tobacco warehouses, or tobacco manufacturing facilities.
Next, Code § 15.2-2825, which prohibits smoking in restaurants,
provides in relevant part:
A. Effective December 1, 2009, smoking shall be prohibited and no person shall smoke in any restaurant in the Commonwealth or in any restroom within such restaurant, except that smoking may be permitted in:
. . . .
3. Any restaurants located on the premises of any manufacturer of tobacco products;
5. Any portion of a restaurant that is constructed in such a manner that the area where smoking may be permitted is (i) structurally separated from the portion of the restaurant in which smoking is prohibited and to which ingress and egress is through a door and (ii) separately vented to prevent the recirculation of air from such area to the area of the restaurant where smoking is prohibited.
It is also relevant to note that, for the purposes of VICAA, a
"Restaurant" is "any place where food is prepared for service
to the public on or off the premises, or any place where food
3 is served." Code § 15.2-2820. However, the term "retail
tobacco store" is undefined in the Act.
She-Sha requested an informal hearing to contest the
charges. On July 8, 2010, the Department upheld the
violations, stating that She-Sha was "properly labeled as a
restaurant" and that none of the exceptions in VICAA applied to
the establishment.
After the informal hearing, She-Sha requested a formal
hearing pursuant to the Virginia Administrative Process Act,
Code § 2.2-4000 et seq. At the hearing, She-Sha claimed it was
a "retail tobacco store," and thus, exempt from regulation
under VICAA as provided in Code § 15.2-2821(2). She-Sha
presented evidence, which the Department did not contest, that
it derived approximately two-thirds of its revenue from
tobacco-related sales.
In his findings of fact and conclusions of law, the
hearing officer noted that the Department's official
interpretation of Code § 15.2-2825 treats all establishments
meeting the definition of a "restaurant" in Code § 15.2-2820 as
4 subject to regulation under VICAA. 3 The hearing officer also
found that the General Assembly had "specifically exempted
stand alone retail tobacco stores and restaurants operation
[sic] on the premises of tobacco manufacturing facilities." He
reasoned that, by not specifically exempting "restaurants
operating within retail tobacco stores," the General Assembly
had signaled its intent to regulate establishments such as She-
Sha. The State Health Commissioner concurred with the
recommendations contained in the letter and upheld the charged
violations.
She-Sha appealed the Department's decision to the Circuit
Court of Montgomery County. After considering the record
compiled during the administrative proceedings and the oral
arguments of both parties, the circuit court ruled that VICAA
did not provide an exemption for She-Sha's establishment.
Thus, the circuit court found that the Department did not make
an error of law when it interpreted VICAA to regulate hookah
bars that serve food in areas where smoking occurs.
Next, She-Sha pursued its case to the Court of Appeals. A
three-judge panel affirmed the circuit court by a 2-1 vote in a
3 Department Program Implementation Manual 09-02 states that "[h]ookah bars are subject to the [smoking] ban if they prepare and serve food." Virginia Department of Health, Program Implementation Manual #09-02, at 6 (Sept. 17, 2009). It also notes that a hookah bar may continue to serve food if it erects "a structural separation between the non-smoking area and the smoking areas." Id.
5 published opinion. Kepa, Inc. v. Virginia Dept. of Health, 61
Va. App. 696, 740 S.E.2d 26 (2013) (Kepa I). The majority
found that to adopt She-Sha's reading of Code § 15.2-2821, and
exempt She-Sha from regulation as a "retail tobacco store,"
would force a conflict with Code § 15.2-2825. Id. at 707, 740
S.E.2d at 32. Noting that a court interpreting "multiple,
related statutory provisions must give full effect to each
provision while remaining true to the purpose and intent behind
them," the majority concluded that the General Assembly did not
intend to provide an exemption to "retail tobacco stores not
operating exclusively as such." Id.
The majority began with the premise that, "[a]s a
restaurant, She-Sha must comply with the restaurant smoking
ban, unless it falls within one of the six expressly stated
exemptions." Id. at 704, 740 S.E.2d at 30. It then turned to
the exemptions listed under Code § 15.2-2825(A)(1)-(6),
focusing in particular on Code § 15.2-2825(A)(3), which
specifically exempts "[a]ny restaurants located on the premises
of any manufacturer of tobacco products." Drawing on the maxim
"expressio unius est exclusio alterius," the majority reasoned
that the express exemption of tobacco manufacturers, and
corresponding omission of tobacco retailers, signaled an intent
to regulate restaurants on the premises of tobacco retailers.
Id. at 706, 740 S.E.2d at 31. To conclude otherwise, the
6 majority continued, would allow She-Sha to "circumvent the
statutory obligations associated with being a restaurant." Id.
at 707, 740 S.E.2d at 32.
Then, She-Sha petitioned the full Court of Appeals for a
rehearing en banc. In a 6-3 decision, the Court of Appeals
overruled the panel, holding that She-Sha, as a restaurant, was
exempt from VICAA because it is also a retail tobacco store.
Kepa, Inc. v. Virginia Dept. of Health, 62 Va. App. 614, 617,
751 S.E.2d 671, 672 (2013) (Kepa II).
Again, the majority found that Code §§ 15.2-2821 and -2825
were "inconsistent or ambiguous when read together" and sought
to harmonize the provisions. Id. at 623, 751 S.E.2d at 675.
This time, the majority declined to infer that the General
Assembly signaled its intent to regulate restaurants located on
the premises of a retail tobacco store by not providing a
specific exemption under Code § 15.2-2825. Id. at 625, 751
S.E.2d at 676. Rather, the majority found that the plain
language of Code § 15.2-2821 clearly indicated that VICAA did
not apply to retail tobacco stores. Id.
The majority further concluded that Code § 15.2-2821
trumped Code § 15.2-2825, because "[h]ad the General Assembly
intended to permit the Department to regulate smoking in any
facility that prepares and sells food, it would have included
such authority in Chapter 2 of Title 35.1," which generally
7 authorizes the Department to regulate restaurants. Id. at 626,
751 S.E.2d at 677. In a footnote, the majority also noted that
"She-Sha's primary business is the retail sale of tobacco,"
suggesting that the percentage of revenue attributable to such
sales should guide the inquiry into whether Code § 15.2-2821
exempts an establishment from regulation. Id. at 621 n.8, 751
S.E.2d at 674 n.8.
The dissent argued that the interpretation adopted by the
majority "ascribes a broad meaning to the term 'retail tobacco
store' that is not contextually supported." Id. at 627, 751
S.E.2d at 677 (Chafin, J., dissenting). As a result, the
dissent contended, the majority opinion elevated Code § 15.2-
2821(2) at the expense of Code §§ 15.2-2821(1) and -2825,
thereby permitting smoking where it is "otherwise prohibited"
and frustrating the public policy behind VICAA. Id. at 629-30,
751 S.E.2d at 678 (noting that VICAA is "undoubtedly a public
health initiative"). Moreover, the dissent took issue with the
majority's failure to define "retail tobacco store," and
asserted that the opinion would permit any restaurant to avoid
VICAA by merely selling packs of cigarettes. Id. at 630-31,
751 S.E.2d at 679.
The Department's appeal to this Court followed.
8 II. DISCUSSION
A. Standard of Review
"[W]e give deference to the decisions of administrative
agencies when those decisions 'fall within an area of the
agency's specialized competence.'" Virginia Marine Res. Comm'n
v. Chincoteague Inn, 287 Va. 371, 380, 757 S.E.2d 1, 5 (2014)
(quoting Virginia Dep't of Health v. NRV Real Estate, LLC, 278
Va. 181, 185, 677 S.E.2d 276, 278 (2009)). "'However, when an
issue involves a pure question of statutory interpretation,
that issue does not invoke the agency's specialized competence
but is a question of law to be decided by the courts.'" Id.
(quoting Alliance to Save the Mattaponi v. Commonwealth Dep't
of Envtl. Quality, 270 Va. 423, 442, 621 S.E.2d 78, 88 (2005)).
This appeal presents a pure question of statutory construction
which we review de novo. Id.
B. The Parties' Arguments
On appeal, the parties presented the same arguments that
they advanced at each stage below. The parties do not dispute
that, by definition, She-Sha operates a restaurant and a retail
tobacco store on its premises. The only dispute between the
parties is how to read and apply Code §§ 15.2-2821 and -2825
given She-Sha's dual business identities.
The Department argues that She-Sha is not exclusively a
retail tobacco store, so Code § 15.2-2821 does not apply.
9 Rather, it contends that She-Sha is a restaurant as defined by
VICAA, and therefore, it is subject to regulation under Code §
15.2-2825. In support, the Department points to Code § 15.2-
2821(1), which it reads to disallow the exemption in subsection
(2) if an establishment is otherwise subject to regulation
under VICAA. The Department also invokes the maxim "expressio
unius est exclusio alterius" to construe the two provisions
together. It argues that by expressly providing an exemption
for "tobacco manufacturing facilities" in Code § 15.2-2825, but
not for "retail tobacco stores" or "tobacco warehouses," the
General Assembly signaled its intent to regulate restaurants
operating on the premises of such stores or warehouses.
Finally, the Department argues that She-Sha's interpretation
will ultimately require courts to graft a "primary purpose
test" onto VICAA, whereby courts must determine which aspect of
the business predominates.
She-Sha argues that the plain language of Code § 15.2-2821
exempts a retail tobacco store from all smoking regulations
even if the store is also a "restaurant" as defined by VICAA.
First, it contends that Code § 15.2-2821(1) means that nothing
in VICAA should operate by negative inference to permit smoking
where it is otherwise prohibited by other applicable provisions
of law "outside the chapter." Thus, She-Sha posits that
subsection (1) does not invite conflict with Code § 15.2-2825,
10 because it provides a rule for applying VICAA to other,
external smoking prohibitions, while subsection (2) provides a
rule for applying the smoking regulations contained within
VICAA. Consequently, She-Sha asserts that subsection (2)
forbids the application of any VICAA regulation to an entity
that could "fairly be described as a retail tobacco store."
Thus, although Code § 15.2-2825 prohibits smoking in
restaurants, Code § 15.2-2821 preemptively exempts retail
tobacco stores from regulation under VICAA. Finally, She-Sha
argues that the Department misapplied the maxim "expressio
unius est exlusio alterius" to Code § 15.2-2825(A), because the
Department failed to account for the difference in language
between Code § 15.2-2821(2) ("manufacturing facilities") and
Code § 15.2-2825(A)(3) ("premises of any manufacturer").
C. Whether Code § 15.2-2821 Exempts She-Sha from Regulation Under Code § 15.2-2825
"The primary objective in statutory construction is to
determine and give effect to the intent of the legislature as
expressed in the language of the statute." Appalachian Power
Co. v. State Corp. Comm'n, 284 Va. 695, 706, 733 S.E.2d 250,
256 (2012) (citing Halifax Corp. v. First Union Nat'l Bank, 262
Va. 91, 99-100, 546 S.E.2d 696, 702 (2001)). "If a statute is
subject to more than one interpretation, we must apply the
interpretation that will carry out the legislative intent
11 behind the statute." Conyers v. Martial Arts World of
Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)
(collecting cases). Moreover, "where, as here, a regulatory
statute is designed to promote the public welfare and the scope
of the coverage intended is drawn in doubt by a regulated
[business] claiming exemption, courts must determine what was
intended." Virginia Electric & Power Co. v. Board of Cnty.
Supervisors, 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983).
With these principles in mind, and for the four reasons
stated below, we agree with the Department that Code § 15.2-
2825 applies to She-Sha.
1. Code § 15.2-2821 Recognizes a Three-Tier Industry and Code § 15.2-2825 Exempts Only One Tier from Regulation
She-Sha, and the Court of Appeals in Kepa II, appears to
begin with the premise that Code § 15.2-2821(2) applies to its
business model. That premise is not supported by the statutory
framework. Nothing in subsection (2) references a "retail
tobacco store and restaurant." Even so, She-Sha suggests that
subsection (2) precludes regulation of its restaurant because
the restaurant is "in" the retail store. On brief, She-Sha
identifies Code § 15.2-2824(A)(i), which prohibits smoking in
elevators, and it notes that Code § 15.2-2821(2) overrides that
prohibition if the elevator is in a retail tobacco store.
Thus, She-Sha suggests that we should treat the restaurant the
12 same way that we would treat an elevator within a retail
tobacco store and exempt it from regulation under Code § 15.2-
2825. Of course, this analogy ignores fundamental differences
between an elevator and a restaurant. Moreover, the analogy
relies on the premise that Code § 15.2-2821(2) applies to its
business model in the first place. The analogy is not
sustainable because She-Sha's business identity as a restaurant
is not separate from its business identity as a retail tobacco
store: the restaurant and the retail tobacco store are one and
the same. Therefore, we cannot, and do not, begin with the
premise that Code § 15.2-2821(2) applies to exclude regulation
within She-Sha's establishment.
Rather, we begin by noting that Code § 15.2-2821 defines
VICAA's general applicability. The statute, in full, provides
that:
Nothing in this chapter shall be construed to:
1. Permit smoking where it is otherwise prohibited or restricted by other applicable provisions of law; or
2. Regulate smoking in retail tobacco stores, tobacco warehouses, or tobacco manufacturing facilities.
Thus, the General Assembly clearly recognized three tiers
within the tobacco industry: manufacturing, shipping and
storage, and retail, and it exempted such businesses from
13 regulation under VICAA. Yet, the General Assembly only
addressed manufacturers in Code § 15.2-2825(A). The section
does not address restaurants located on the premises of tobacco
warehouses or tobacco stores. In relevant part, the statute
provides that:
[S]moking shall be prohibited and no person shall smoke in any restaurant in the Commonwealth or in any restroom within such restaurant, except that smoking may be permitted in:
3. Any restaurants located on the premises of any manufacturer of tobacco products . . . .
Code § 15.2-2825(A)(3) (emphasis added). By its plain
language, Code § 15.2-2825(A) applies to "any restaurant"
without exception other than those specifically enumerated in
subsections (A)(1) through (A)(6). By contrast, Code § 15.2-
2821(2) deals generally with certain exempt businesses within
the tobacco industry. In our view, subsection (A)(3) shows
that the General Assembly considered the distinct possibility
that a restaurant could be located in or on the premises of an
exempted store, warehouse, or manufacturing facility, and
elected to exempt only one of the three. 4 "[W]hen one statute
4 She-Sha's argument that the term "premises" must necessarily mean something other than a "manufacturing facility" assumes a "gap" left by Code § 15.2-2821 that would need to be construed away. See Kepa I, 61 Va. App. at 713, 740 S.E.2d at 35 (Petty,
14 speaks to a subject in a general way and another deals with a
part of the same subject in a more specific manner, the two
should be harmonized, if possible, and where they conflict, the
latter prevails." Virginia Nat'l Bank v. Harris, 220 Va. 336,
340, 257 S.E.2d 867, 870 (1979) (citations omitted).
Section 15.2-2825(A) specifically prohibits smoking in
"any restaurant," which in turn is "any place where food is
served," regardless of its location or the nature of business
it is combined with. See Code § 15.2-2820 (defining
"Restaurant"). The term "retail tobacco store" does not
connote the degree of inclusivity that the General Assembly
specifically attributed to a "restaurant." The General
Assembly could have specifically exempted "retail tobacco
stores" and "tobacco warehouses" in the same manner that it
exempted manufacturers in Code § 15.2-2825(A)(3). It did not.
By omitting stores and warehouses from the exemptions in Code §
15.2-2825(A), the General Assembly signaled its intent to treat
such establishments differently under VICAA.
J., dissenting) (construing "premises" to "presumably" fill a gap in Code § 15.2-2821). However, the General Assembly made no effort to fill the supposed gap in the case of tobacco retail stores or warehouses. Thus, She-Sha's interpretation is redundant to the extent that the "premises" include the "manufacturing facility." To the extent "premises" include property in addition to the "manufacturing facility," it introduces ambiguity that would require even more harmonization.
15 2. Code § 15.2-2825(A)(5) Reflects a Balanced Approach to Regulating Smoking in Restaurants
Next, we note that Code § 15.2-2825(A)(5) clearly
accommodates businesses that would like to operate a restaurant
and allow smoking therein, such as She-Sha. After the
introductory clause prohibiting smoking in "any restaurant,"
subsection (A)(5) goes on to permit smoking in:
Any portion of a restaurant that is constructed in such a manner that the area . . . is (i) structurally separated from the portion of the restaurant in which smoking is prohibited and to which ingress and egress is through a door and (ii) separately vented to prevent the recirculation of air from such area to the area of the restaurant where smoking is prohibited.
This provision balances VICAA's public health initiatives with
the interests of businesses that cater to the smoking public.
Subsection (A)(5) allows She-Sha to accommodate its patrons who
wish to smoke and eat at the same time, as long as it provides
a separate nonsmoking area. Thus, the General Assembly created
viable options for businesses that sell both tobacco and food
for on-site consumption.
The Court of Appeals in Kepa II never considered
subsection (A)(5), and thus, failed to construe the statute as
a whole. See City of Lynchburg v. English Constr. Co., 277 Va.
574, 584, 675 S.E.2d 197, 202 (2009). Indeed, the majority in
Kepa II stated that "[t]he only Code § 15.2-2825(A) exemption
16 at issue in this case is an exemption for 'restaurants located
on the premises of any manufacturer of tobacco products.'" 62
Va. App. at 624 n.10, 751 S.E.2d at 675 n.10. By neglecting
the applicability of subsection (A)(5), the Court of Appeals
failed "to give force and effect" to each provision. City of
Lynchburg, 277 Va. at 584, 675 S.E.2d at 202. Had it done so,
it would have recognized that the General Assembly did create
an exception that allows hybrid restaurant and retail tobacco
establishments to conduct both aspects of their business
simultaneously, thereby obviating the need to draw a bright
line between retail tobacco store and restaurant. 5
3. VICAA Does Not Contain a Primary Business Purpose Test and Courts May Not Graft Such a Test onto the Act
As we have already noted, She-Sha's restaurant and She-
Sha's retail store are one and the same. Yet, She-Sha and the
Court of Appeals would fashion an exemption for restaurants in
retail tobacco stores, or more accurately, an exemption for
combination restaurant/retail tobacco stores, provided that the
5 The majority below suggests that if the General Assembly had wanted to authorize "the Department to regulate smoking in any facility that prepares and serves food, [then] it would have included that authority in Chapter 2 of Title 35.1." Kepa II, 62 Va. App. at 626, 751 S.E.2d at 677. This disregards the definition of a "restaurant" in VICAA, which is broad enough to authorize the Department to regulate smoking in any such facility through Code § 15.2-2825(A). See Code § 15.2-2820 (defining restaurant to mean "any place where food is prepared for service to the public . . . or any place where food is served").
17 "primary business is the retail sale of tobacco." Kepa II, 62
Va. App. at 621 n.8, 751 S.E.2d at 674 n.8.
The term "retail tobacco store" is not defined anywhere in
VICAA. Moreover, construing "retail tobacco store" broadly
would invite any restaurant to avoid VICAA by selling tobacco
at retail or re-branding itself as a retail tobacco store that
happens to prepare and sell food. She-Sha protests that courts
could look through a business' self-representation to ensure
that the "core business model is based upon its sale of tobacco
to the consuming public."
In Kepa II, the majority adopted this argument. It
decided that resolving the practical issue raised by its
interpretation was "unnecessary" because "She-Sha's primary
business is the retail sale of tobacco," and thus the opinion
could be limited to similar scenarios. 62 Va. at 621 n.8, 751
S.E.2d at 674 n.8. However, the "primary business" test does
not appear anywhere in VICAA. When construing a statute, "we
are not free to add to language, nor to ignore language,
contained in statutes." BBF, Inc. v. Alstom Power, Inc., 274
Va. 326, 331, 645 S.E.2d 467, 469 (2007) (internal quotation
marks, alteration, and citation omitted). There is no
statutory support for defining what is, or what is not, a
"retail tobacco store" based on an establishment's "primary
business." Consequently, there is no statutory support for
18 construing Code § 15.2-2821(2) to exempt businesses that are
not exclusively retail tobacco stores.
4. The Purpose of VICAA is to Promote Public Health
"The purpose for which a statute is enacted is of primary
importance in its interpretation or construction." Virginia
Electric & Power Co., 226 Va. at 388, 309 S.E.2d at 311
(internal quotation marks and citation omitted). As the
dissent below recognized, VICAA "is undoubtedly a public health
initiative." Kepa II, 62 Va. App. at 630, 751 S.E.2d at 678
(Chafin, J., dissenting). The plain language of VICAA clearly
shows that the General Assembly intended VICAA to promote the
health of the Commonwealth by reducing exposure to second hand
smoke in public places. The enforcement framework buttresses
that conclusion. 6
VICAA promotes clean indoor air in public places, and it
promotes clean indoor air for the customers and employees of
such places. Not all employees have the luxury of working in
their preferred work environment, yet they must work, and the
General Assembly has determined that they should be able to
6 Under Article 2 of VICAA ("Statewide Regulation of Smoking"), all fines collected pursuant to its provisions are paid into the Virginia Health Care Fund, which is "used solely for the provision of health care services." Code § 32.1-367. And under Article 3 ("Local Regulation of Smoking"), all fines collected pursuant to local ordinances are paid into local treasury and "shall be expended solely for public health purposes." Code § 15.2-2833(D).
19 work in an environment that limits their exposure to second
hand smoke if that concerns them. Construing Code § 15.2-
2821(2) broadly to include "retail tobacco stores and
restaurants" would frustrate the purpose of VICAA and roll back
its protections for restaurant customers and employees
throughout Virginia, and not just in a single hookah bar in
Blacksburg.
III. CONCLUSION
For the reasons stated, we hold that Code § 15.2-2821 does
not exempt She-Sha from regulation under Code § 15.2-2825,
because it is not exclusively a retail tobacco store. 7 The
General Assembly authorized the Department to regulate smoking
in "any restaurant," defined broadly as "any place where food
is served," except as permitted by Code § 15.2-2825(A)(1)-(6).
We will not lightly create a judicial exception to such broad
language so as to frustrate the General Assembly's public
health purpose. Therefore, we reverse the judgment of the
Court of Appeals and enter final judgment.
Reversed and final judgment.
7 Because we find that Code § 15.2-2821(2) is inapplicable to She-Sha, we do not decide whether Code § 15.2-2821(1) would require Code § 15.2-2825 to preempt Code § 15.2-2821(2).
20 JUSTICE McCLANAHAN, dissenting.
I dissent for the reasons stated by the Court of Appeals'
majority in the decision below, Kepa, Inc. v. Virginia Dep't of
Health, 62 Va. App. 614, 751 S.E.2d 671 (2013)(en banc).