H. B. 4116
(By Mr. Speaker, Mr. Kiss, and Delegates Stemple,
Williams, Varner, Swartzmiller, Staton and Mezzatesta)
[Introduced January 22, 2002; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section one hundred two, article six,
chapter forty-six-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to further amend said
chapter by adding thereto a new article, designated article
six-j, all relating to protecting consumers from price gouging
and unfair pricing practices during and shortly after a
natural or man-made disaster or other state of emergency; and
providing remedies and penalties.
Be it enacted by the Legislature of West Virginia:
That section one hundred two, article six, chapter forty-six-a
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; and that said chapter be
further amended by adding thereto a new article, designated article six-j, all to read as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-102. Definitions.
When used in this article the following words, terms and
phrases, and any variations thereof required by the context, shall
have the meaning ascribed to them in this article, except where the
context indicates a different meaning:
(a) "Advertisement" means the publication, dissemination or
circulation of any matter, oral or written, including labeling,
which tends to induce, directly or indirectly, any person to enter
into any obligation, sign any contract or acquire any title or
interest in any goods or services, and includes every word device
to disguise any form of business solicitation by using such terms
as "renewal," "invoice," "bill," "statement" or "reminder," to
create an impression of existing obligation when there is none, or
other language to mislead any person in relation to any sought-
after commercial transaction.
(b) "Consumer" means a natural person to whom a sale or lease
is made in a consumer transaction, and a "consumer transaction"
means a sale or lease to a natural person or persons for a
personal, family, household or agricultural purpose.
(c) "Merchantable" means, in addition to the qualities prescribed in section three hundred fourteen, article two, chapter
forty-six of this code, that the goods conform in all material
respects to applicable state and federal statutes and regulations
establishing standards of quality and safety of goods and, in the
case of goods with mechanical, electrical or thermal components,
that the goods are in good working order and will operate properly
in normal usage for a reasonable period of time.
(d) "Sale" includes any sale, offer for sale or attempt to
sell any goods for cash or credit or any services or offer for
services for cash or credit.
(e) "Trade" or "commerce" means the advertising, offering for
sale, sale or distribution of any goods or services and shall
include any trade or commerce, directly or indirectly, affecting
the people of this state.
(f) "Unfair methods of competition and unfair or deceptive
acts or practices" means and includes, but is not limited to, any
one or more of the following:
(1) Passing off goods or services as those of another;
(2) Causing likelihood of confusion or of misunderstanding as
to the source, sponsorship, approval or certification of goods or
services;
(3) Causing likelihood of confusion or of misunderstanding as
to affiliation, connection or association with, or certification by
another;
(4) Using deceptive representations or designations of
geographic origin in connection with goods or services;
(5) Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits or
quantities that they do not have, or that a person has a
sponsorship, approval, status, affiliation or connection that he
does not have;
(6) Representing that goods are original or new if they are
deteriorated, altered, reconditioned, reclaimed, used or
secondhand;
(7) Representing that goods or services are of a particular
standard, quality or grade, or that goods are of a particular style
or model, if they are of another;
(8) Disparaging the goods, services or business of another by
false or misleading representation of fact;
(9) Advertising goods or services with intent not to sell them
as advertised;
(10) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity;
(11) Making false or misleading statements of fact concerning
the reasons for, existence of or amounts of price reductions;
(12) Engaging in any other conduct which similarly creates a
likelihood of confusion or of misunderstanding;
(13) The act, use or employment by any person of any
deception, fraud, false pretense, false promise or
misrepresentation, or the concealment, suppression or omission of
any material fact with intent that others rely upon such
concealment, suppression or omission, in connection with the sale
or advertisement of any goods or services, whether or not any
person has in fact been misled, deceived or damaged thereby;
(14) Advertising, printing, displaying, publishing,
distributing or broadcasting or causing to be advertised, printed,
displayed, published, distributed or broadcast in any manner, any
statement or representation with regard to the sale of goods or the
extension of consumer credit including the rates, terms or
conditions for the sale of such goods or the extension of such
credit, which is false, misleading or deceptive or which omits to
state material information which is necessary to make the statements therein not false, misleading or deceptive;
(15) Representing that any person has won a prize, one of a
group of prizes or any other thing of value, if receipt of the
prize or thing of value is contingent upon any payment of a service
charge, mailing charge, handling charge or any other similar charge
by the person or upon mandatory attendance by the person at a
promotion or sales presentation at the seller's place of business
or any other location:
Provided, That a person may be offered one
item or the choice of several items conditioned on the person
listening to a sales promotion or entering a consumer transaction
if the true retail value and an accurate description of the item or
items are clearly and conspicuously disclosed along with the
person's obligations upon accepting the item or items; such
description and disclosure shall be typewritten or printed in at
least eight point regular type, in upper or lower case, where
appropriate;
or
(16) Violating any provision or requirement of article six-b
of this chapter;
or
(17) Violating any provision or requirement of article six-j
of this chapter.
(g) "Warranty" means express and implied warranties described and defined in sections three hundred thirteen, three hundred
fourteen and three hundred fifteen, article two, chapter forty-six
of this code and expressions or actions of a merchant which assure
the consumer that the goods have described qualities or will
perform in a described manner.
ARTICLE 6J. PROTECTION OF CONSUMERS FROM PRICE GOUGING AND UNFAIR
PRICING PRACTICES DURING AND SHORTLY AFTER A STATE
OF EMERGENCY.
§46A-6J-1. Emergencies and natural disasters - Taking unfair
advantage of consumers.
The Legislature hereby finds that during emergencies and major
disasters, including, but not limited to, tornadoes, earthquakes,
fires, floods or civil disturbances, some merchants have taken
unfair advantage of consumers by greatly increasing prices for
essential consumer goods or services. While the pricing of consumer
goods and services is generally best left to the marketplace under
ordinary conditions, when a declared state of emergency results in
abnormal disruptions of the market, the public interest requires
that excessive and unjustified increases in the prices of essential
consumer goods and services be prohibited. It is the intent of the
Legislature in enacting this article to protect citizens from
excessive and unjustified increases in the prices charged during or shortly after a declared state of emergency for goods and services
that are vital and necessary for the health, safety and welfare of
consumers. Further, it is the intent of the Legislature that this
article be liberally construed so that its beneficial purposes may
be served.
§46A-6J-2. Definitions.
(a) "State of emergency" means a natural or man-made disaster
or emergency resulting from a tornado, earthquake, flood, fire,
riot or storm for which a state of emergency has been declared by
the president of the United States or the governor of West
Virginia.
(b) "Local emergency" means a natural or man-made disaster or
emergency resulting from a tornado, earthquake, flood, fire, riot
or storm for which a local emergency has been declared by the
executive officer or governing body of any city or county in West
Virginia.
(c) "Consumer food item" means any article that is used or
intended for use for food, drink, confection or condiment by a
person or animal.
(d) "Repair or reconstruction services" means services
performed by any person for repairs to residential or commercial property of any type that is damaged as a result of a disaster.
(e) "Emergency supplies" includes, but is not limited to,
water, flashlights, radios, batteries, candles, blankets, soap,
diapers, temporary shelters, tape, toiletries, plywood, nails and
hammers.
(f) "Medical supplies" includes, but is not limited to,
prescription and nonprescription medications, bandages, gauze,
isopropyl alcohol and antibacterial products.
(g) "Building materials" means lumber, construction tools,
windows and anything else used in the building or rebuilding of
property.
(h) "Gasoline" means any fuel used to power any motor vehicle
or power tool.
(i) "Transportation, freight and storage services" means any
service that is performed by any company that contracts to move,
store or transport personal or business property or rents equipment
for those purposes.
(j) "Housing" means any rental housing leased on a
month-to-month term.
(k) "Goods" means any tangible property, coupons, or
certificates, whether bought or leased.
§46A-6J-3. Prohibited unfair pricing practices.
(a) (1) Upon the proclamation of a state of emergency
resulting from a tornado, earthquake, flood, fire, riot, storm or
natural or man-made disaster declared by the president of the
United States or the governor, and upon the declaration of a local
emergency resulting from a tornado, earthquake, flood, fire, riot,
storm or natural or man-made disaster by the executive officer of
any city or county and for a period of thirty days following that
declaration, it is unlawful for any person, contractor, business,
or other entity to sell or offer to sell any consumer food items or
goods, goods or services used for emergency cleanup, emergency
supplies, medical supplies, home heating oil, building materials,
housing, transportation, freight and storage services, or gasoline
or other motor fuels for a price of more than ten percent above the
price charged by that person for those goods or services
immediately prior to the proclamation of emergency.
(2) A greater price increase is not unlawful if that person
can prove that the increase in price was directly attributable to
additional costs imposed on it by the supplier of the goods or
directly attributable to additional costs for labor or materials
used to provide the services:
Provided, That in those situations where the increase in price is attributable to additional costs
imposed by the seller's supplier or additional costs of providing
the good or service during the state of emergency, the price
represents no more than ten percent above the total of the cost to
the seller plus the markup customarily applied by the seller for
that good or service in the usual course of business immediately
prior to the onset of the state of emergency.
(b)(1) Upon the proclamation of a state of emergency resulting
from a tornado, earthquake, flood, fire, riot or storm declared by
the president of the United States or the governor, or upon the
declaration of a local emergency resulting from a tornado,
earthquake, flood, fire, riot or storm by the executive officer of
any city or county, and for a period of one hundred eighty days
following that declaration, it is unlawful for any contractor to
sell or offer to sell any repair or reconstruction services or any
services used in emergency cleanup for a price of more than ten
percent above the price charged by that person for those services
immediately prior to the proclamation of emergency.
(2) A greater price increase is not unlawful if that person
can prove that the increase in price was directly attributable to
additional costs imposed on it by the supplier of the goods or directly attributable to additional costs for labor or materials
used to provide the services:
Provided, That in those situations
where the increase in price is attributable to the additional costs
imposed by the contractor's supplier or additional costs of
providing the service during the state of emergency, the price
represents no more than ten percent above the total of the cost to
the contractor plus the markup customarily applied by the
contractor for that good or service in the usual course of business
immediately prior to the onset of the state of emergency.
(c) The provisions of this section may be extended for
additional thirty-day periods by a local governing body or the
Legislature if considered necessary to protect the lives, property
or welfare of the citizens.
(d) Any business offering an item for sale at a reduced price
immediately prior to the proclamation of the emergency may use the
price at which it usually sells the item to calculate the price
pursuant to subsection (a) or (b) of this section.
§46A-6J-4. Penalties, remedies and enforcement.
(a) A violation of this article is an unfair or deceptive act
or practice within the meaning of section one hundred two, article
six of this chapter and is subject to the enforcement provisions and remedies provided by that article.
(b) Any person violating the provisions of this article is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in the county
or regional jail not more that one year, or both fined and
imprisoned.
(c) The remedies and penalties provided by this article are
cumulative, and do not prohibit any other remedy or punishment
available under the laws of this state.
§46A-6J-5. Preemption.
Nothing in this section preempts any local ordinance
prohibiting the same or similar conduct or imposing a more severe
penalty for the same conduct prohibited in this section.
Article six-j is new; therefore, strike-throughs and
underscoring have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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