Justice Matters with Bryan Porter: COVID-19 and state code

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Bryan Porter in his office at the Alexandria Courthouse. (Photo Credit: Missy Schrott)
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On March 12, Gov. Ralph Northam declared a state of emergency in the Commonwealth of Virginia in response to the continued spread of COVID-19. Given the impact the virus is having on our community, I thought it prudent to explore what a state of emergency entails and to look at a few additional code sections that could apply.

A declaration of a state of emergency brings to bear a litany of special powers. During an emergency, the State Health Commissioner may authorize certain persons to administer or dispense drugs when they would not normally be allowed to do so. More importantly, the Commissioner may order the “quarantine, isolation … or treatment of any individual” and the use of any “private or public building” to enforce the quarantine or isolation.

Please note that isolation means the “physical separation … of an individual who (is) infected with a communicable disease … in order to prevent” further transmission. A quarantine is defined as the “physical separation … of individuals who are present within an affected area … or who are known to have been exposed … to a communicable disease… and who do not yet show symptoms of infection.” An “affected area” may be an area as large as a county or as small as an individual building. In other words, isolation is used to separate sick people, while quarantines separate healthy people who may have been exposed to a disease.

Given that a person who is subject to a quarantine or isolation order may be temporarily detained, a host of due process rights are built into the code. Persons subject to such an order have the right to a court hearing at which they may contest the issuance of the order. They also have the right to counsel at the hearing and a limited right of appeal.

Failure to comply with a validly issued order of quarantine or isolation constitutes a class 1 misdemeanor. Interestingly, the Code tasks the Commonwealth’s Attorney for a locality with the “duty to prosecute, without delay, any violation” of a quarantine or isolation order. The Commissioner has not yet ordered any individual be quarantined or isolated.

A separate body of law that could be at issue is Virginia’s Post-Disaster Anti-Price Gouging Act which was activated upon the declaration of the state of emergency. During an emergency, it is illegal for a supplier to sell any “necessary goods … at an unconscionable price.” Necessary goods are defined in the code and include “water, ice, consumer food, emergency supplies, communication supplies and services, medical supplies and services, housing, transportation and motor fuels.”

A price is “unconscionable” as the section envisions when the price charged “grossly exceed(s)” the price charged during the 10 days immediately prior to the emergency. However, if the price increase is “attributable solely to additional costs incurred by the supplier, including additional costs imposed by the sup- plier’s source,” the price is not “unconscionable.” In other words, if a local seller is passing on a price raise their source has charged them for an item, the local seller is not violating the statute. Citizens who wish to complain about suspected price gouging are encouraged to contact the Attorney General’s Consumer Protection Section at [email protected].

Finally, it is a sad fact that con artists often strike during times of public worry and fear. Citizens should remain wary of scams related to the coronavirus. Raise an eyebrow at any email that purports to be from the Centers for Disease Control and Prevention, particularly if the email is unsolicited and/or asks you to click on a link. Such emails are likely to be “phishing expeditions” designed to obtain personal identifying information.

While work on it continues apace, there is no approved vaccine for the virus and citizens therefore should ignore any emails touting one. Likewise, no treatment has currently proved effective. If one did, it would be breaking news.

Therefore, citizens who receive an unsolicited advertisement for a cure or treatment that has not been widely reported would be well-advised to simply press the delete button. If a citizen believes they have been the subject of an attempted scam, they should call the non-emergency number of the Alexandria Police.

The writer is Commonwealth’s Attorney for Alexandria.

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