03/31/15

Many people are familiar with the Virginia Consumer Protection Act (the “VCPA” or the “Act”) and are aware that it provides courts the discretion to award a plaintiff its attorneys’ fees and up to treble damages.  Many are unaware, however, that the VCPA, in addition to protecting ordinary consumers, also protects churches and other religious bodies.  This article will focus first on the protections the Act provides and second on the “religious bodies” that are covered under the Act.

I. The Act’s Protections

The VCPA provides the consuming public broad protection against unscrupulous business practices. The Act prohibits suppliers from engaging in conduct that the Act deems to constitute “fraudulent acts and practices.”  Va. Code Ann. § 59.1-200 (2006 & Supp. 2013).  The Act lists 53 categories of such prohibited conduct, and includes the following catch-all, “Using any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction.”  Id. at ¶ (A)(14). 

The Act defines terms such as “Supplier” and “Consumer Transaction” broadly, thus bringing within its ambit a vast array of transactions that go far beyond what one might ordinarily expect a “consumer transaction” to include.  For example, the Act the defines Supplier to be a “seller, lessor or licensor who advertises, solicits or engages in consumer transactions, or a manufacturer, distributor or licensor who advertises and sells, leases or licenses goods or services to be resold, leased or sublicensed by other persons in consumer transactions.” Va. Code Ann. § 59.1-198 (2006 & Supp. 2013).  It defines “Consumer Transaction” to include various actions related to “goods and services,” including the sale, lease, or advertisement of the same “for personal, family or household purposes.”Id.  The Act defines “Goods” to include “all real, personal or mixed property, tangible or intangible.” Id.  Courts have held that this surprisingly broad definition of “goods,” has brought within the Act’s scope the sale of a roofing system, the sale of condominium units, and even the lease of an apartment.  See e.g.Gottlieb v. Ryerson, Inc., No. 1:10-CV-1215, 2010 WL 5300879 (E.D. Va. Dec. 22, 2010) (Alexandria Division) (denying the defendant’s motion to dismiss the plaintiffs’ VCPA claim arising out of the sale of a roofing system for the plaintiffs’ house); Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 361-62, 699 S.E.2d 483, 489 (2010) (holding that the sale of  condominium units was a sale of goods “for personal, family or household purposes”); Park v. Gates Hudson & Assoc., Inc., 83 Va. Cir. 45 (Fairfax County 2011) (overruling the defendant’s demurrer to the plaintiffs’ VCPA claim arising out of the lease of an apartment unit).  As these cases make clear, the Act covers much more than what one might ordinarily think of as a “consumer transaction.”

The question, then, is who qualifies for these broad protections. 

II. Religious Organizations Protected by The VCPA

In general, the VCPA protects consumers in the ordinary sense of that word.  As discussed above, the Act covers transactions involving the advertisement, sale, or lease of goods and services “for personal, family or household purposes.”  But, in addition to these ordinary consumers, the Act also specifically protects churches and “religious bodies.”  Va. Code Ann. § 59.1-198 (2006 & Supp. 2013) (defining “consumer transaction” to include: “5. Transactions involving the advertisement, sale, lease, or license, or the offering for sale, lease or license, of goods or services to a church or other religious body”). 

So how do you know if your religious organization is covered by the Act?  Surprisingly, this question is not well settled.  The Act itself does not define “other religious body,” and this author has not found any cases on point.  Absent such authority, courts will typically apply the ordinary rules of statutory construction.  Applying these rules to the term “other religious body,” there would seem to be at least two alternative constructions.  First, the Act could simply mean houses of worship that are like churches, such as synagogues, and mosques; I call this the “Narrow View.”  Or, the definition could be much more sweeping, and include any organization created to carry out some ecclesiastical or religious purpose; I call this the “Broad View.” 

  1. The Narrow View

The phrase “other religious body” follows the word “church” in our definition.  Some may argue that the canon of esjudem generis would require the general “other religious body” to be limited by the more specific “church,” thus limiting the “other religious bod[ies]” covered by the Act to those that are like or on par with a church, such as synagogues, mosques, and other houses of worship.  One problem with this view is that this canon generally applies where a general term is preceded by a list of at least two more specific terms.  Here, the statute only has one: “church.”  For this, and for the reasons that follow, the Broad View is probably the better interpretation.

  1. The Broad View

The broad view relies on two canons of statutory construction: first, where a statute is remedial in nature, it should be construed liberally; and second, words in statutes should be given their ordinary meaning.    

  1. Liberal Interpretation of Remedial Statutes

The VCPA expressly states that its purpose is remedial.  Va. Code Ann. § 59.1-197 (2006) (“It is the intent of the General Assembly that this chapter shall be applied as remedial legislation to promote fair and ethical standards of dealings between suppliers and the consuming public.”).  In general, remedial statutes should be construed liberally.  E.g.Clodfelter v. Republic of Sudan, 720 F.3d 199, 211 (4th Cir. 2013) (holding that remedial statutes must be construed liberally); Carroll v. Johnson, 278 Va. 683, 693, 685 S.E.2d 647, 652 (2009) (“In interpreting this language, we are guided by the principle of statutory construction that remedial statutes are to be construed liberally.”); Earley v. Landsidle, 257 Va. 365, 369, 514 S.E.2d 153, 155 (1999) (same); Univ. of Va. v. Harris, 239 Va. 119, 124, 387 S.E.2d 772, 775 (1990) (same).  Because the purpose of the VCPA is remedial, its terms should be construed liberally (as opposed to narrowly). 

  1. The Ordinary Meaning of “Religious Body”

Next, where not specifically defined, words used in statutes should be given their ordinary meaning.  E.g.Country Vintner of N.C., LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249, 258 (4th Cir. 2013) (“Because the term is not defined in the statute, we must apply its ordinary meaning.”) (internal citations omitted); Lawlor v. Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847, 875 (2013) (“[A]n undefined term must be given its ordinary meaning, given the context in which it is used. Furthermore, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction, and a statute should never be construed in a way that leads to absurd results.”) (internal citations omitted). 

Black’s Law Dictionary defines “religious corporation” as “A corporation created to carry out some ecclesiastical or religious purpose.”  Black’s Law Dictionary 394 (9th ed. 2009).  “Religious body” would seem to mean something similar to this.  The ordinary meaning of “body,” in this context, is a corporation or some other type of association.  E.g.Black’s Law Dictionary 198 (9th ed. 2009) (defining “body” as “3. An artificial person created by a legal authority.  See CORPORATION.”).  The ordinary meaning of “religious,” is something that is “of, relating to, or concerned with religion.” Collins English Dictionary (10th ed. 2009).  Thus, the ordinary meaning of “religious body,” is a corporation or other association pertaining to or concerned with religion, or, more specifically, one created for a religious purpose.  E.g.Black’s Law Dictionary 394 (9th ed. 2009) (defining “religious corporation” as “A corporation created to carry out some ecclesiastical or religious purpose.”).  

  1. What entities might be covered under the Broad View?

Under this Broad View, the Act should protect those corporations or similar entities that were created to carry out some ecclesiastical or religious purpose.  There is substantial case law in other contexts dealing with the question of what an ecclesiastical or religious purpose is.  For example, in a recent case involving a religious entity’s eligibility for a certain tax exemption, the Virginia Supreme Court had to decide whether operating a retirement home for the elderly qualified as a religious purpose.   Va. Baptist Homes, Inc. v. Botetourt County, 276 Va. 656, 668 S.E.2d 119 (2008).  Despite arguments that the facility required neither residents nor staff to practice or adhere to any specific religion, the court held that the organization’s purpose was in fact religious.  Id. at 669, 668 S.E.2d at 125 (“[W]e hold that The Glebe is used exclusively for a religious purpose.”). 

Conclusion

The Virginia Consumer Protection Act offers broad protections against unscrupulous business practices.  These protections apply to many more transactions than most realize, including the sale, lease, and even advertising of services, real property, personal property, and mixed property.  The Act provides a powerful remedy for aggrieved plaintiffs because it provides the courts discretion to award attorneys’ fees and up to treble damages.  Many are unaware that these remedies are equally available to religious organizations that find themselves on the wrong end of a dishonest business transaction.  

 

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