S-0146

AN ACT Relating to consumer protection; amending RCW 19.86.010 and 19.86.090; reenacting and amending RCW 43.10.067; adding a new chapter to Title 43 RCW; adding a new section to chapter 19.86 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. As used in this chapter:

(1) "Commission" means the Washington state consumer protection commission.

(2) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes political or civil subdivisions of the state and an agency or instrumentality of the state or of a political or civil subdivision thereof.

NEW SECTION. Sec. 2. There is created the "Washington state consumer protection commission," which is composed of five members to be appointed by the governor with the advice and consent of the senate, one of whom shall be designated as chairperson by the governor.

NEW SECTION. Sec. 3. One of the original members of the commission is appointed for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years, one for a term of five years, but their successors shall be appointed for terms of five years each, except that an individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom the individual succeeds.

A member is eligible for reappointment.

A vacancy in the commission shall be filled within thirty days, the remaining members to exercise all powers of the commission.

A member of the commission may be removed by the governor for inefficiency, neglect of duty, misconduct or malfeasance in office, after being given a written statement of the charges and an opportunity to be heard.

NEW SECTION. Sec. 4. Each member of the commission shall be compensated in accordance with RCW 43.03.250 and, while in session or on official business, shall receive reimbursement for travel expenses incurred during such time in accordance with RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 5. The commission may employ personnel and take administrative actions deemed appropriate for carrying out the powers and duties of the commission under this chapter. The commission may delegate any of its powers or duties to employees or members of the office staff.

NEW SECTION. Sec. 6. The commission shall adopt an official seal, which shall be judicially noticed.

NEW SECTION. Sec. 7. The principal office of the commission shall be in the city of Olympia, but it may meet and exercise any or all of its powers at any other place in the state, and may establish district offices as it deems necessary.

NEW SECTION. Sec. 8. The commission, each biennium, shall report to the governor, describing the investigations, proceedings, and hearings it has conducted and their outcome, the decisions it has rendered, the recommendations it has issued, and the other work performed by it, and shall make recommendations for further legislation as may appear desirable. The commission may present its reports to the legislature; the commission's reports shall be made available upon request.

NEW SECTION. Sec. 9. The commission shall formulate policies to effectuate the purposes of this chapter and may make recommendations to agencies and officers of the state or local subdivisions of government in aid of policies and purposes.

NEW SECTION. Sec. 10. The commission has the following functions, powers, and duties:

(1) To appoint an executive secretary and chief examiner, and investigators, examiners, clerks, and other employees and agents as it may deem necessary except attorneys, which are provided by the attorney general under chapter 43.10 RCW, fix their compensation within the limitations provided by law, and prescribe their duties;

(2) To obtain upon request and utilize the services of all governmental departments and agencies;

(3) To adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission;

(4) To receive, investigate, and pass upon complaints alleging violations of consumer protection laws;

(5) To issue publications and results of investigations and research as in its judgment will tend to promote good will and minimize or eliminate violations of consumer protection laws;

(6) To make technical studies as are appropriate to effectuate the purposes and policies of this chapter and to publish and distribute the reports of studies;

(7) To cooperate and act jointly or by division of labor with the United States or other states, and with political subdivisions of the state of Washington and their respective consumer agencies to carry out the purposes of this chapter. The commission may perform and be reimbursed for services for these agencies;

(8) To foster consumer awareness through seminars, conferences, educational programs, and other activities.

NEW SECTION. Sec. 11. The commission has power to create advisory agencies and councils, local, regional, or state‑wide, as in its judgment will aid in effectuating the purposes of this chapter. The commission may empower them to study consumer issues and to make recommendations to the commission for the development of policies and procedures in general and in specific instances, and for programs of formal and informal education which the commission may recommend to the appropriate state agency.

Advisory agencies and councils shall be composed of representative citizens, serving without pay, but with reimbursement for travel expenses in accordance with RCW 43.03.050 and 43.03.060, and the commission may make provision for technical and clerical assistance to agencies and councils and for the expenses of assistance. The commission may use organizations specifically experienced in dealing with consumer issues.

NEW SECTION. Sec. 12. The commission has power to hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of a person under oath, and in connection therewith, to require the production for examination of books or papers relating to any matter under investigation or in question before the commission. The commission may make rules as to the issuance of subpoenas by individual members, as to service of complaints, decisions, orders, recommendations, and other process or papers of the commission, its member, agent, or agency, either personally or by registered mail, return receipt requested, or by leaving a copy at the principal office or place of business of the person required to be served. The return post office receipt, when service is by registered mail, shall be proof of service of the same.

NEW SECTION. Sec. 13. No person shall be excused from attending and testifying or from producing records, correspondence, documents, or other evidence in obedience to the subpoena of the commission or of an individual member, on the ground that the testimony or evidence required of the person may tend to incriminate or subject the person to a penalty or forfeiture, but no person shall be prosecuted or subjected to a penalty or forfeiture for or on account of a transaction, matter, or thing concerning which the person is compelled, after having claimed the privilege against self‑incrimination, to testify or produce evidence, except that a person so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying. Such immunity shall extend only to natural persons so compelled to testify.

NEW SECTION. Sec. 14. In case of contumacy or refusal to obey a subpoena issued to a person, the superior court of a county within the jurisdiction of which the investigation, proceeding, or hearing is carried on or within the jurisdiction of which the person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the commission shall have jurisdiction to issue to the person an order requiring the person to appear before the commission, its member, agent, or agency, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question. A failure to obey an order of the court may be punished by the court as contempt.

NEW SECTION. Sec. 15. Witnesses before the commission, its member, agent, or agency, shall be paid the same fees and mileage that are paid witnesses in the courts of this state. Witnesses whose depositions are taken and the person taking the same shall be entitled to same fees as are paid for like services in the courts of the state.

NEW SECTION. Sec. 16. It is unlawful for an employer or other person to discharge, expel, or otherwise discriminate against a person because he or she has opposed a violation of consumer protection laws, or because he or she has reported a violation of consumer protection laws, testified, or assisted in a proceeding under this chapter.

NEW SECTION. Sec. 17. It is unlawful for a person to aid, abet, encourage, or incite the commission of a violation of consumer protection laws, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued under this chapter.

NEW SECTION. Sec. 18. When the commission has reason to believe that a person has been or is using an unfair method of competition or unfair or deceptive act or practice in commerce, and if the commission determines that a proceeding by it would be in the public interest, it shall issue and serve upon the person a complaint stating its charges and containing a notice of a hearing upon a day and at a place stated in the notice at least thirty days after the service of the complaint. The person receiving the complaint shall have the right to appear at the place and time stated in the notice and show cause why an order should not be entered by the commission requiring the person to cease and desist from the violation of the law charged in the complaint. A person may make application, and upon good cause shown may be allowed by the commission to intervene and appear in the proceeding by counsel or in person. The testimony in such proceeding shall be reduced to writing and filed in the office of the commission.

If after the hearing the commission is of the opinion that the method of competition or the act or practice in question is prohibited by chapter 19.86 RCW or other law of this state, it shall make a report in writing in which it states its findings as to the facts and shall issue and cause to be served on the person an order requiring the person to cease and desist from using the method of competition or the act or practice. Until the expiration of the time allowed for filing a petition for review, if no petition has been duly filed, or, if a petition for review has been filed within the time then until the record in the proceeding has been filed in a superior court of this state as provided in section 19 of this act, the commission may at any time, upon notice and in such manner as it deems proper, modify or set aside, in whole or in part, any report or order made or issued by it under this section.

After the expiration of the time allowed for filing a petition for review, if no petition has been duly filed within such time, the commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, when in the opinion of the commission conditions of fact or of law have so changed as to require such action or if the public interest requires it. A person may, within sixty days after service upon him, her, or it of a report or order under this section entered after a reopening, obtain a review in the appropriate superior court of this state in the manner provided in this chapter.

NEW SECTION. Sec. 19. (1) A person required by an order of the commission to cease and desist from using a method of competition or act or practice may obtain a review of the order in the superior court of the county where the method of competition or the act or practice in question was used or where the person resides or carries on business, by filing in the court, within sixty days from the date of the service of the order, a written petition praying that the order of the commission be set aside. A copy of the petition shall be transmitted by the clerk of the court to the commission, and the commission shall file with the court the record in the proceeding. Upon the filing of the petition the court shall have jurisdiction of the proceeding and of the question determined therein concurrently with the commission until the filing of the record and shall have power to make and enter a decree affirming, modifying, or setting aside the order of the commission, and enforcing the same to the extent that the order is affirmed and to issue such writs as are ancillary to its jurisdiction or are necessary in its judgment to prevent injury to the public or to competitors pendente lite. The findings of the commission as to the facts, if supported by evidence, shall be conclusive. To the extent that the order of the commission is affirmed, the court shall issue its own order commanding obedience to the terms of the order of the commission. If either party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the commission, the court may order additional evidence to be taken before the commission and to be adduced upon the hearing in the manner and upon the terms and conditions as to the court may seem proper. The commission may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken, and it shall file the modified or new findings, which, if supported by evidence, shall be conclusive, and its recommendation, if any, for the modification or setting aside of its original order, with the return of the additional evidence. The judgment and decree of the court shall be final, except that the same shall be subject to review by the Washington supreme court upon certiorari, as provided in this chapter.

(2) Upon the filing of the record with the superior court the jurisdiction of the superior court to affirm, enforce, modify, or set aside orders of the commission shall be exclusive.

Such proceedings in the superior court shall be given precedence over other cases pending, and shall be in every way expedited.

NEW SECTION. Sec. 20. Complaints, orders, and other processes of the commission under sections 18 through 23 of this act may be served by anyone duly authorized by the commission, either by: (1) Delivering a copy to the person to be served, or to a member of the partnership to be served, or the president, secretary, or other executive officer or a director of the corporation to be served; (2) leaving a copy at the residence or the principal office or place of business of the person, partnership, or corporation; or (3) mailing a copy by registered mail or by certified mail addressed to the person, partnership, or corporation at his, her, or its residence or principal office or place of business. The verified return by the person serving the complaint, order, or other process setting forth the manner of the service shall be proof of the same, and the return post office receipt for the complaint, order, or other process mailed by registered mail or by certified mail shall be proof of service.

NEW SECTION. Sec. 21. An order of the commission to cease and desist shall become final:

(1) Upon the expiration of the time allowed for filing a petition for review, if no petition has been duly filed; but the commission may thereafter modify or set aside its order to the extent provided in section 18 of this act;

(2) Upon the expiration of the time allowed for filing a petition for certiorari, if the order of the commission has been affirmed, or the petition for review dismissed by the superior court, and no petition for certiorari has been duly filed;

(3) Upon the denial of a petition for certiorari, if the order of the commission has been affirmed or the petition for review dismissed by the court of appeals; or

(4) Upon the expiration of thirty days from the date of issuance of the final decision of the Washington supreme court, if the court directs that the order of the commission be affirmed or the petition for review dismissed.

NEW SECTION. Sec. 22. (1) If the Washington supreme court directs that the order of the commission be modified or set aside, the order of the commission rendered in accordance with the final decision of the Washington supreme court shall become final upon the expiration of thirty days from the time it was rendered, unless within the thirty days either party has instituted proceedings to have the order corrected to accord with the final decision, in which event the order of the commission shall become final when so corrected.

(2) If the order of the commission is modified or set aside by the superior court, and if (a) the time allowed for filing a petition for certiorari has expired and no petition has been duly filed, (b) the petition for certiorari has been denied, or (c) the decision of the court has been affirmed by the Washington supreme court, then the order of the commission rendered in accordance with the final decision of the superior court shall become final on the expiration of thirty days from the time the order of the commission was rendered, unless within the thirty days either party has instituted proceedings to have the order corrected so that it will accord with the final decision, in which event the order of the commission shall become final when so corrected.

(3) If the Washington supreme court orders a rehearing; or if the case is remanded by the superior court to the commission for a rehearing, and if (a) the time allowed for filing a petition for certiorari has expired, and no petition has been duly filed, (b) the petition for certiorari has been denied, or (c) the decision of the court has been affirmed by the Washington supreme court, then the order of the commission rendered upon the rehearing shall become final in the same manner as though no prior order of the commission had been rendered.

NEW SECTION. Sec. 23. A person who violates an order of the commission to cease and desist after it has become final, and while the order is in effect, shall forfeit and pay to the state of Washington a civil penalty of not more than five thousand dollars for each violation, which shall accrue to the state and may be recovered in a civil action brought by the state. Each separate violation of an order shall be a separate offense, except that in the case of a violation through continuing failure or neglect to obey a final order of the commission each day of continuance of such failure or neglect shall be deemed a separate offense.

NEW SECTION. Sec. 24. A person who willfully resists, prevents, impedes, or interferes with the commission or its members or representatives in the performance of duty under this chapter, or who willfully violates an order of the commission, is guilty of a misdemeanor, however procedure for the review of the order shall not be deemed to be such willful conduct.

NEW SECTION. Sec. 25. The provisions of this chapter shall be construed liberally for the accomplishment of the purposes of this chapter. Nothing contained in this chapter shall be deemed to repeal any of the provisions of any other law of this state relating to consumer protection other than a law which purports to require or permit doing an act which is unlawful under this chapter. Nor shall anything herein contained be construed to deny the right to a person to institute an action or pursue a civil or criminal remedy based upon an alleged violation of a law relating to consumer protection.

Sec. 26. RCW 43.10.067 and 1987 c 364 s 1 and 1987 c 186 s 7 are each reenacted and amended to read as follows:

No officer, director, administrative agency, board, or commission of the state, other than the attorney general, shall employ, appoint or retain in employment any attorney for any administrative body, department, commission, agency, or tribunal or any other person to act as attorney in any legal or quasi legal capacity in the exercise of any of the powers or performance of any of the duties specified by law to be performed by the attorney general, except where it is provided by law to be the duty of the judge of any court or the prosecuting attorney of any county to employ or appoint such persons: PROVIDED, That RCW 43.10.040, and RCW 43.10.065 through 43.10.080 shall not apply to the administration of the judicial council, the commission on judicial conduct, the state law library, the law school of the state university, the administration of the state bar act by the Washington State Bar Association, or the representation of an estate administered by the director of the department of revenue or the director's designee pursuant to chapter 11.28 RCW.

The authority granted by chapter 1.08 RCW, RCW 44.28.140, and 47.01.061 shall not be affected hereby.

This section does not apply to the Washington state consumer protection commission.

Sec. 27. RCW 19.86.010 and 1961 c 216 s 1 are each amended to read as follows:

As used in this chapter:

(1) "Person" shall include, where applicable, natural persons, corporations, trusts, unincorporated associations and partnerships.

(2) "Trade" and "commerce" shall include the sale of assets or services, and any commerce directly or indirectly affecting the people of the state of Washington.

(3) "Assets" shall include any property, tangible or intangible, real, personal, or mixed, and wherever situate, and any other thing of value.

(4) "Commission" means the Washington state consumer protection commission created in section 2 of this act.

Sec. 28. RCW 19.86.090 and 1987 c 202 s 187 are each amended to read as follows:

Any person who is injured in his or her business or property by a violation of RCW 19.86.020, 19.86.030, 19.86.040, 19.86.050, or 19.86.060, or any person so injured because he or she refuses to accede to a proposal for an arrangement which, if consummated, would be in violation of RCW 19.86.030, 19.86.040, 19.86.050, or 19.86.060, may bring a civil action in the superior court to enjoin further violations, to recover the actual damages sustained by him or her, or both, together with the costs of the suit, including a reasonable attorney's fee, and the court may in its discretion, increase the award of damages to an amount not to exceed three times the actual damages sustained: PROVIDED, That such increased damage award for violation of RCW 19.86.020 may not exceed ((~~ten~~)) twenty-five thousand dollars: PROVIDED FURTHER, That such person may bring a civil action in the district court to recover his or her actual damages, except for damages which exceed the amount specified in RCW 3.66.020, and the costs of the suit, including reasonable attorney's fees. The district court may, in its discretion, increase the award of damages to an amount not more than three times the actual damages sustained, but such increased damage award shall not exceed the amount specified in RCW 3.66.020. For the purpose of this section "person" shall include the counties, municipalities, and all political subdivisions of this state.

Whenever the state of Washington is injured by reason of a violation of RCW 19.86.030, 19.86.040, 19.86.050, or 19.86.060, it may sue therefor in the superior court to recover the actual damages sustained by it and to recover the costs of the suit including a reasonable attorney's fee.

Proof of public interest or public injury is not required in an action brought under this section.

NEW SECTION. Sec. 29. A violation of a consumer‑oriented statute is a violation of this chapter.

For the purposes of this section, "consumer‑oriented statute" means a statute granting specific legal rights to the consumer of a product, good, or service.

NEW SECTION. Sec. 30. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 31. (1) Sections 1 through 25 of this act shall constitute a new chapter in Title 43 RCW.

(2) Section 29 of this act is added to chapter 19.86 RCW.