GOVERNOR'S VETO EXPLANATION (March 27, 1995)

In accordance with Article V, Section 6 of the Constitution of Virginia, I am vetoing this bill.

There were three bills that were passed by the 1995 General Assembly that amended various provisions (and in some cases, the same provisions) of the Virginia Consumer Protection Act (the "Act"): Senator Wampler's Senate Bill No. 800, Delegate Keating's House Bill No. 1623, and this one. Both S. B. 800 and H. B. 1623 will take effect in due course later this year.

This bill, however, conflicts with certain provisions of S. B. 800, specifically the provisions amending §§ 3.1-18.2 and 59.1-206 of the Code of Virginia. Both S. B. 800 and this bill increase the civil penalty for a willful violation of the Act from the current $1,000 per violation to $2,500, a 150% increase. That is a substantial increase of which I approve, and that increase will take place when S. B. 800 becomes effective on July 1st of this year.

This bill also contains a provision, however, that neither S. B. 800 nor H. B. 1623 contains, establishing a $10,000 penalty for willfully engaging in a continuing series of violations against "consumers who cannot reasonably protect their interests because of physical disability, mental infirmity, or inability to understand the language of the consumer transaction." (emphasis added) See proposed Va. Code § 59.1-206.C in H. B. 1628.

I support the imposition of a heightened penalty on those who willfully and repeatedly victimize mentally or physically disabled persons. However, this bill's establishment of a nebulous standard -- "inability to understand the language of the consumer transaction" -- as grounds for a $10,000 penalty is dangerously vague, overbroad and onerous. One could easily envision a scenario in which a small "mom and pop" retailer was put at risk of a devastating $10,000 penalty (in addition to costs and attorney's fees) because consumers who speak a primary language other than English claimed the Act was violated because the retailer did not conduct his transactions, or print advertising or promotional materials, in the consumers' primary language. Conversely, one could envision a scenario in which a small business run by a family who had recently immigrated legally from a non-English speaking country would be put at risk of a $10,000 penalty because it was unable to conduct business in fluent English.

Given the provision's potential unintended and dangerous consequences for small businesses in Virginia, and given the important new protections for consumers already provided through Senate Bill 800 and House Bill 1623, I am returning this bill without my signature.

GOVERNOR'S RECOMMENDATION

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C. In any action brought under this chapter and in addition to any other amount awarded, if the court finds that a person has willfully engaged in a continuing series or pattern of violations of this chapter against consumers who cannot reasonably protect their interests because of physical disability, mental infirmity, or inability to understand the language of the consumer transaction, the Attorney General, the attorney for the Commonwealth, or the attorney for the county, city, or town may recover for the Literary Fund, upon petition to the court, a civil penalty of not more than $10,000 from any person who has obtained substantial income or resources as a result of such violations.

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, or C

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civil penalty or penalties,

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