Bill Text: NY A00057 | 2011-2012 | General Assembly | Introduced
Bill Title: Establishes a permanent state item pricing law; provides that such item pricing shall apply to food, certain paper products, certain cleaning products, and certain health and beauty aids; provides for the enforcement of item pricing by the department of agriculture and markets and by municipal directors of consumer affairs or weights and measures; provides for monetary penalties for violations; further permits a super-refund on certain items; and permits localities to enforce local laws which are more stringent than state standards.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-04 - referred to consumer affairs and protection [A00057 Detail]
Download: New_York-2011-A00057-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 57 2011-2012 Regular Sessions I N A S S E M B L Y (PREFILED) January 5, 2011 ___________ Introduced by M. of A. CAHILL -- read once and referred to the Committee on Consumer Affairs and Protection AN ACT to amend the agriculture and markets law, in relation to item pricing THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The agriculture and markets law is amended by adding a new 2 section 214-i to read as follows: 3 S 214-I. ITEM PRICING. 1. DECLARATION OF LEGISLATIVE FINDINGS AND 4 INTENT. THE LEGISLATURE HEREBY FINDS AND DECLARES THAT THERE IS TECH- 5 NOLOGY UTILIZING A LASER SCANNING DEVICE OFFERING NUMEROUS EFFICIENCIES 6 AND ECONOMIES TO THE OPERATION OF THE RETAIL FOOD INDUSTRY, THE USE OF 7 WHICH MAY MAKE IT ECONOMICALLY ADVANTAGEOUS FOR RETAIL STORES TO REMOVE 8 PRICE MARKINGS ON INDIVIDUAL GROCERY ITEMS. THE LEGISLATURE FURTHER 9 FINDS THAT PRICE MARKING CONSTITUTES AN INDISPENSABLE INGREDIENT TO A 10 CONSUMER'S RIGHT TO ALL REASONABLE INFORMATION IN ORDER TO MAKE AN 11 INFORMED PURCHASE CHOICE. 12 THEREFORE, THE LEGISLATURE DECLARES THAT REQUIRING ITEM PRICE MARKING 13 IS NECESSARY TO PROTECT THE INTEREST OF THE CONSUMING PUBLIC, AND 14 FURTHER DECLARES THAT IT IS IN THE PUBLIC INTEREST TO PROMOTE USEFUL 15 TECHNOLOGY BY PERMITTING CONTINUED TESTING AND DEVELOPMENT OF THE 16 UNIVERSAL PRODUCT CODE CHECKOUT SYSTEM WITHOUT THE REMOVAL OF ITEM PRIC- 17 ES. 18 IT IS THE INTENT OF THIS LEGISLATION TO ENSURE THAT CONSUMER GOODS 19 OFFERED FOR SALE IN NEW YORK STATE ARE CLEARLY, ADEQUATELY, AND ACCU- 20 RATELY PRICE MARKED AS PROVIDED IN THIS SECTION. 21 2. DEFINITIONS. THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEAN- 22 INGS FOR THE PURPOSE OF THIS SECTION: EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01053-01-1 A. 57 2 1 A. "STOCK KEEPING UNIT" OR "UNIT" SHALL MEAN EACH GROUP OF ITEMS 2 OFFERED FOR SALE OF THE SAME BRAND NAME, QUANTITY OF CONTENTS, RETAIL 3 PRICE, AND VARIETY WITHIN THE FOLLOWING CATEGORIES: 4 (I) FOOD, INCLUDING ALL MATERIAL, SOLID, LIQUID OR MIXED, WHETHER 5 SIMPLE OR COMPOUND, USED OR INTENDED FOR CONSUMPTION BY HUMAN BEINGS OR 6 DOMESTIC ANIMALS NORMALLY KEPT AS HOUSEHOLD PETS AND ALL SUBSTANCES OR 7 INGREDIENTS TO BE ADDED THERETO FOR ANY PURPOSE; 8 (II) NAPKINS, FACIAL TISSUES, TOILET TISSUES, PAPER TOWELING AND ANY 9 DISPOSABLE WRAPPING OR CONTAINER FOR THE STORAGE, HANDLING, SERVING, OR 10 DISPOSAL OF FOOD; 11 (III) DETERGENTS, SOAPS AND OTHER CLEANSING AGENTS; AND 12 (IV) NON-PRESCRIPTION DRUGS, FEMININE HYGIENE PRODUCTS AND HEALTH AND 13 BEAUTY AIDS. 14 B. "STOCK KEEPING ITEM" OR "ITEM" SHALL MEAN EACH ITEM OF A STOCK 15 KEEPING UNIT OFFERED FOR SALE. 16 C. "RETAIL STORE" SHALL MEAN A STORE SELLING STOCK KEEPING UNITS AT 17 RETAIL. A STORE WHICH IS NOT OPEN TO THE GENERAL PUBLIC BUT IS RESERVED 18 FOR USE BY ITS MEMBERS SHALL COME WITHIN THE PROVISIONS OF THIS DEFI- 19 NITION UNLESS THE MEMBERS MUST PAY A DIRECT FEE TO THE STORE TO QUALIFY 20 FOR MEMBERSHIP AND THE STORE IS NOT REQUIRED TO COLLECT SALES TAX ON 21 TRANSACTIONS WITH MEMBERS. PURSUANT TO THIS SECTION, A RETAIL STORE 22 SHALL NOT INCLUDE ANY STORE WHICH: 23 (I) HAS AS ITS ONLY FULL-TIME EMPLOYEE THE OWNER THEREOF, OR THE 24 PARENT, SPOUSE OR CHILD OF THE OWNER, AND IN ADDITION THERETO NOT MORE 25 THAN TWO FULL-TIME EMPLOYEES; OR 26 (II) HAD ANNUAL GROSS SALES OF STOCK KEEPING UNITS IN THE PREVIOUS 27 CALENDAR YEAR OF LESS THAN THREE MILLION DOLLARS, UNLESS THE RETAIL 28 STORE IS PART OF A NETWORK OF SUBSIDIARIES, AFFILIATES OR OTHER MEMBER 29 STORES, UNDER DIRECT OR INDIRECT COMMON CONTROL, WHICH AS A GROUP, HAD 30 ANNUAL GROSS SALES OF STOCK KEEPING ITEMS IN THE PREVIOUS CALENDAR YEAR 31 OF THREE MILLION DOLLARS OR MORE; OR 32 (III) ENGAGES PRIMARILY IN THE SALE OF FOOD FOR CONSUMPTION ON THE 33 PREMISES OR IN A SPECIALTY TRADE WHICH THE COMMISSIONER DETERMINES, BY 34 REGULATION, WOULD BE INAPPROPRIATE FOR ITEM PRICING. 35 D. "ITEM PRICE" SHALL MEAN THE TAG, STAMP OR MARK AFFIXED TO A STOCK 36 KEEPING ITEM WHICH SETS FORTH, IN ARABIC NUMERALS, THE RETAIL PRICE 37 THEREOF. 38 E. "ADVERTISED PRICE" SHALL MEAN THE PRICE OF A STOCK KEEPING UNIT 39 WHICH A RETAIL STORE HAS CAUSED TO BE DISSEMINATED BY MEANS OF PROMO- 40 TIONAL METHODS SUCH AS AN IN-STORE SIGN, NEWSPAPER, CIRCULAR, TELEVISION 41 OR RADIO ADVERTISING. 42 F. "SHELF PRICE" SHALL MEAN THE TAG OR SIGN PLACED BY AN AUTHORIZED 43 PERSON AT EACH POINT OF DISPLAY OF A STOCK KEEPING UNIT, WHICH CLEARLY 44 SETS FORTH THE RETAIL PRICE OF THE STOCK KEEPING ITEMS WITHIN THAT STOCK 45 KEEPING UNIT. 46 G. "SALE PRICE" SHALL MEAN THE PRICE OF STOCK KEEPING ITEMS OFFERED ON 47 SALE IN GOOD FAITH AT A PRICE BELOW THE PRICE FOR WHICH SUCH STOCK KEEP- 48 ING ITEMS ARE USUALLY SOLD IN THE RETAIL STORE, FOR A STATED PERIOD OF 49 TIME NOT TO EXCEED SEVEN DAYS. 50 H. "COMPUTER-ASSISTED CHECKOUT SYSTEM" SHALL MEAN ANY ELECTRONIC 51 DEVICE, COMPUTER SYSTEM OR MACHINE WHICH DETERMINES OR INDICATES THE 52 SELLING PRICE OF A STOCK KEEPING ITEM BY INTERPRETING ITS UNIVERSAL 53 PRODUCT CODE, OR AN IN-HOUSE PRODUCT CODE, OR BY USE OF ITS PRICE LOOK- 54 UP FUNCTION. 55 I. "PRICE LOOK-UP FUNCTION" SHALL MEAN THE CAPABILITY OF ANY CHECKOUT 56 SYSTEM TO DETERMINE THE RETAIL PRICE OF A STOCK KEEPING ITEM BY WAY OF A. 57 3 1 ENTRY INTO THE SYSTEM OF A CODE NUMBER OR OTHER INDICATOR ASSIGNED TO 2 THAT ITEM'S STOCK KEEPING UNIT BY THE RETAIL STORE OR BY WAY OF THE 3 CHECKOUT OPERATOR'S CONSULTATION OF A FILE MAINTAINED AT THE POINT OF 4 SALE. 5 J. "INSPECTOR" SHALL MEAN AN AUTHORIZED GOVERNMENT OFFICIAL HAVING 6 THE JURISDICTION TO ENFORCE THE PROVISIONS OF THIS SECTION. 7 3. ITEM PRICING REQUIRED. A. EVERY PERSON, FIRM, PARTNERSHIP, 8 CORPORATION OR ASSOCIATION WHICH SELLS, OFFERS FOR SALE OR EXPOSES FOR 9 SALE A STOCK KEEPING UNIT IN A RETAIL STORE, SHALL DISCLOSE TO THE 10 CONSUMER THE ITEM PRICE OF EACH STOCK KEEPING ITEM EXCEPT AS PROVIDED IN 11 PARAGRAPH B OF THIS SUBDIVISION BY CAUSING THE ITEM PRICE TO BE CONSPIC- 12 UOUSLY, CLEARLY AND PLAINLY MARKED, STAMPED, TAGGED OR AFFIXED THERETO. 13 B. CERTAIN ITEMS EXEMPTED. STOCK KEEPING ITEMS OF THE FOLLOWING STOCK 14 KEEPING UNITS NEED NOT BE ITEM PRICED AS PROVIDED IN THIS SUBDIVISION 15 PROVIDED THAT A SHELF PRICE AND A PRICE LOOK-UP FUNCTION ARE MAINTAINED 16 FOR SUCH STOCK KEEPING UNITS: 17 (I) MILK; 18 (II) EGGS; 19 (III) UNPACKAGED FRESH PRODUCE; 20 (IV) UNPACKAGED FOOD OFFERED FOR SALE IN BULK; 21 (V) FOOD SOLD FOR CONSUMPTION ON THE PREMISES; 22 (VI) STOCK KEEPING ITEMS WHICH ARE UNDER THREE CUBIC INCHES IN SIZE, 23 AND WEIGH LESS THAN THREE OUNCES, AND ARE PRICED UNDER ONE DOLLAR; 24 (VII) SNACK FOODS SUCH AS CAKES, GUM, CANDIES, CHIPS AND NUTS OFFERED 25 FOR SALE IN SINGLE PACKAGES AND WEIGHING FIVE OUNCES OR LESS; 26 (VIII) CIGARETTES, CIGARS, TOBACCO AND TOBACCO PRODUCTS; 27 (IX) ITEMS SOLD THROUGH A VENDING MACHINE; 28 (X) ITEMS OFFERED AT A SALE PRICE, PROVIDED THAT THE SALE PRICE AND 29 BEGINNING AND ENDING DATES OF THE SALES ARE CLEARLY INDICATED TO THE 30 CONSUMER BY CONSPICUOUS SIGNS LOCATED AT OR NEAR THE DISPLAY OF SUCH 31 ITEMS; AND 32 (XI) FROZEN FOOD PACKAGED IN PLASTIC OR POLYETHYLENE BAGS. 33 C. THE COMMISSIONER MAY PROMULGATE RULES AND REGULATIONS AS HE OR SHE 34 DEEMS NECESSARY, TO ENSURE THAT UNIT PRICES, AS REQUIRED UNDER SECTION 35 TWO HUNDRED FOURTEEN-H OF THIS ARTICLE, ARE OF ADEQUATE SIZE, COLOR AND 36 LOCATION TO ENHANCE VISIBILITY BY THE CONSUMER FOR THE UNITS INDICATED 37 BY PARAGRAPH B OF THIS SUBDIVISION. 38 4. PRICE ACCURACY. NO RETAIL STORE SHALL CHARGE A RETAIL PRICE FOR 39 ANY EXEMPT OR NON-EXEMPT STOCK KEEPING ITEM WHICH EXCEEDS THE LOWER OF 40 ANY ITEM, SHELF, SALE OR ADVERTISED PRICE OF SUCH STOCK KEEPING ITEM. 41 5. ENFORCEMENT, INSPECTION PROCEDURES. A. GENERAL ENFORCEMENT AND 42 INSPECTION PROCEDURES. FOR ANY INSPECTION UNDER THIS SECTION, THE STORE 43 REPRESENTATIVE SHALL AFFORD THE INSPECTOR ACCESS TO THE TEST MODE OF THE 44 CHECKOUT SYSTEM AND TO THE RETAIL PRICE INFORMATION CONTAINED IN A PRICE 45 LOOK-UP FUNCTION. 46 B. PRICE DISCLOSURE. FOR THE PURPOSE OF DETERMINING A STORE'S COMPLI- 47 ANCE WITH THE REQUIREMENTS OF SUBDIVISION THREE OF THIS SECTION, AN 48 INSPECTION SHALL BE CONDUCTED OF A SAMPLE OF NO LESS THAN FIFTY STOCK 49 KEEPING UNITS. HOWEVER, IN THE EVENT THE COMMISSIONER HAS RECEIVED A 50 SPECIFIC WRITTEN COMPLAINT, NO SUCH MINIMUM SAMPLE SHALL BE REQUIRED IN 51 THE INVESTIGATION OF SAME. 52 C. PRICE ACCURACY ENFORCEMENT. IN A STORE WITH A LASER SCANNING OR 53 OTHER COMPUTER ASSISTED CHECKOUT SYSTEM, THE ENFORCING AGENT SHALL BE 54 PERMITTED TO COMPARE THE ITEM, SHELF, SALE OR ADVERTISED PRICE ON ANY 55 ONE OR MORE STOCK KEEPING ITEMS SOLD IN THE STORE, NOT TO EXCEED FIVE 56 HUNDRED STOCK KEEPING ITEMS AT ANY ONE INSPECTION, WITH THE PROGRAMMED A. 57 4 1 COMPUTER PRICE. NO MINIMUM SAMPLE SHALL BE REQUIRED FOR AN INSPECTION 2 FOR PRICE ACCURACY. THE STORE SHALL PROVIDE SUCH ACCESS TO THE COMPUTER 3 AS IS NECESSARY FOR THE ENFORCING AGENT TO MAKE THE DETERMINATION. 4 6. WAIVER FROM ITEM PRICING BASED ON CHECKOUT ACCURACY. A. EVERY 5 PERSON, STORE, FIRM, PARTNERSHIP, CORPORATION, OR ASSOCIATION WHICH USES 6 A COMPUTER-ASSISTED CHECKOUT SYSTEM AND WHICH WOULD OTHERWISE BE 7 REQUIRED TO ITEM PRICE AS PROVIDED IN SUBDIVISION THREE OF THIS SECTION 8 MAY MAKE APPLICATION IN WRITING TO THE COUNTY SEALER OF WEIGHTS AND 9 MEASURES FOR A WAIVER OF SAID ITEM PRICING REQUIREMENTS. A SEPARATE 10 APPLICATION SHALL BE REQUIRED FOR EACH STORE. EACH APPLICATION SHALL BE 11 SUBJECT TO A NON-REFUNDABLE PROCESSING FEE TO COVER THE COST OF CONDUCT- 12 ING SCANNER ACCURACY INSPECTIONS AS PROVIDED IN PARAGRAPH B OF THIS 13 SUBDIVISION. THE COUNTY SEALER OF WEIGHTS AND MEASURES SHALL DETERMINE 14 THE PROCESSING FEE AND MAY REVISE IT FROM TIME TO TIME, BUT IN NO CASE 15 SHALL SAID FEE EXCEED ONE THOUSAND DOLLARS PER APPLICATION. 16 B. UPON RECEIPT OF AN APPLICATION AND FEE AS PROVIDED IN PARAGRAPH A 17 OF THIS SUBDIVISION, THE COUNTY SEALER OF WEIGHTS AND MEASURES SHALL 18 CAUSE TO BE CONDUCTED TWO SCANNER ACCURACY INSPECTIONS OF THE STORE FOR 19 WHICH THE APPLICATION HAS BEEN SUBMITTED. THESE INSPECTIONS SHALL BE 20 CONDUCTED ON TWO SEPARATE DAYS AND SHALL CONSIST OF COMPARING THE SHELF, 21 SALE OR ADVERTISED PRICE OF ANY STOCK-KEEPING UNIT (SKU) WITH THE COMPU- 22 TER-ASSISTED CHECKOUT SYSTEM PRICE. SUCH INSPECTION SHALL CONSIST OF AT 23 LEAST ONE HUNDRED SKUS, BUT NO MORE THAN FIVE HUNDRED, SELECTED AT THE 24 DISCRETION OF THE COUNTY SEALER OF WEIGHTS AND MEASURES. IN THE EVENT 25 THAT ANY VIOLATIONS ARE DETECTED, PENALTIES SHALL BE ASSESSED AS 26 PROVIDED IN SUBDIVISION SEVEN OF THIS SECTION. IF, CONSIDERING BOTH 27 INSPECTIONS TOGETHER, THE NUMBER OF SKUS FOUND IN VIOLATION DOES NOT 28 EXCEED TWO PERCENT OF ALL SKUS INSPECTED, THE COUNTY SEALER OF WEIGHTS 29 AND MEASURES SHALL GRANT TO THE APPLICANT A ONE-YEAR REVOCABLE WAIVER 30 FROM THE ITEM-PRICING REQUIREMENT. ANY STORE WITH A CURRENT WAIVER SHALL 31 BE EXEMPT FROM THE REQUIREMENTS OF SUBDIVISION THREE OF THIS SECTION. 32 C. A WAIVER FROM ITEM PRICING SHALL BE VALID FOR A PERIOD OF ONE YEAR 33 FROM THE DATE OF ISSUANCE. STORES MAY REAPPLY ANNUALLY FOR RENEWAL OF A 34 WAIVER. A PROCESSING FEE AND TWO INSPECTIONS SHALL BE REQUIRED FOR EACH 35 ANNUAL RENEWAL APPLICATION, AS REQUIRED FOR AN ORIGINAL WAIVER APPLICA- 36 TION. 37 D. IN THE EVENT THAT TOTAL VIOLATIONS IN EXCESS OF TWO PERCENT ARE 38 DISCOVERED IN THE INSPECTIONS PROVIDED FOR IN PARAGRAPHS B AND C OF THIS 39 SUBDIVISION, THE COUNTY SEALER OF WEIGHTS AND MEASURES SHALL DENY A 40 WAIVER TO THE APPLICANT. IF THE OWNER OF THE STORE STILL WISHES A WAIV- 41 ER, SUCH STORE MUST PROMPTLY RE-APPLY FOR A WAIVER AND PAY THE REQUIRED 42 FEE TO THE COUNTY SEALER OF WEIGHTS AND MEASURES WITHIN FIVE BUSINESS 43 DAYS AFTER BEING NOTIFIED OF THE FAILURE. STORES THAT DO NOT RE-APPLY 44 MUST PROMPTLY COME INTO COMPLIANCE WITH ALL THE REQUIREMENTS OF SUBDIVI- 45 SION THREE OF THIS SECTION, AND, MAY NOT AGAIN RE-APPLY FOR A WAIVER 46 UNTIL AT LEAST ONE YEAR AFTER DENIAL BY THE COUNTY SEALER OF WEIGHTS AND 47 MEASURES. 48 E. IN THE EVENT THAT THE COUNTY SEALER OF WEIGHTS AND MEASURES IS 49 UNABLE TO CONDUCT INSPECTIONS PURSUANT TO PARAGRAPH B OF THIS SUBDIVI- 50 SION WITHIN NINETY DAYS OF RECEIPT OF A COMPLETE WAIVER APPLICATION AND 51 PROPER PROCESSING FEE, THE COUNTY SEALER OF WEIGHTS AND MEASURES MAY 52 GRANT A TEMPORARY WAIVER PENDING COMPLETION OF INSPECTIONS. THE COUNTY 53 SEALER OF WEIGHTS AND MEASURES SHALL CAUSE SAID INSPECTIONS TO BE 54 COMPLETED AS SOON AS PRACTICABLE. IF, UPON COMPLETION, THE INSPECTIONS 55 DETECT A VIOLATION RATE IN EXCESS OF TWO PERCENT OR LESS, THE COUNTY 56 SEALER OF WEIGHTS AND MEASURES SHALL ISSUE A REGULAR WAIVER WITH AN A. 57 5 1 EXPIRATION DATE ONE YEAR FROM THE COMMENCEMENT DATE OF THE TEMPORARY 2 WAIVER. IF THE INSPECTIONS DETECT A VIOLATION RATE IN EXCESS OF TWO 3 PERCENT, THE TEMPORARY WAIVER SHALL BE IMMEDIATELY REVOKED AND COMPLI- 4 ANCE WITH SUBDIVISION THREE OF THIS SECTION SHALL BE REQUIRED AND THE 5 PROVISIONS OF PARAGRAPH D OF THIS SUBDIVISION SHALL APPLY. 6 F. AS A CONDITION OF THE WAIVER FROM ITEM PRICING PURSUANT TO THIS 7 SUBDIVISION, EACH STORE THAT ACCEPTS A WAIVER MUST AGREE TO MEET THE 8 FOLLOWING REQUIREMENTS, AND NO REGULAR OR TEMPORARY WAIVER SHALL BE 9 GRANTED TO A STORE THAT HAS NOT AGREED TO THESE REQUIREMENTS IN WRITING: 10 (I) THE STORE SHALL DESIGNATE AND MAKE AVAILABLE PRICE CHECK SCANNERS 11 TO ENABLE CONSUMERS TO CONFIRM THE PRICES OF STOCK-KEEPING ITEMS (SKIS). 12 THESE PRICE CHECK SCANNERS SHALL BE IN LOCATIONS CONVENIENT TO CONSUMERS 13 WITH SIGNS OF SUFFICIENT SIZED LETTERING IDENTIFYING THESE UNITS TO THE 14 CONSUMERS. STORES WILL SUBMIT THEIR PROPOSALS FOR SIGNS, NUMBER OF 15 DEVICES AND DEVICE LOCATIONS TO THE COUNTY SEALER OF WEIGHTS AND MEAS- 16 URES FOR APPROVAL. 17 (II) THE STORE SHALL NOT CHARGE ANY CUSTOMER A PRICE FOR ANY SKI THAT 18 EXCEEDS THE ITEM, SHELF, SALE OR ADVERTISED PRICE OF THAT SKI, WHICHEVER 19 IS LEAST. 20 (III) THE STORE SHALL CAUSE TO BE POSTED IN A CONSPICUOUS LOCATION, 21 ACCESSIBLE BY ALL CONSUMERS AND APPROVED BY THE COUNTY SEALER OF WEIGHTS 22 AND MEASURES A SIGN EXPLAINING THE RIGHTS OF CONSUMERS CONSISTENT WITH 23 SUBDIVISION EIGHT OF THIS SECTION. THE COUNTY SEALER OF WEIGHTS AND 24 MEASURES WILL SPECIFY THE CONTENT AND SIZE OF THIS SIGN BY REGULATION. 25 THE STORE IS ALSO REQUIRED TO POST THE TEMPORARY OR ANNUAL WAIVER IN THE 26 AREA DESIGNATED FOR HANDLING PRICE DISCREPANCIES. 27 (IV) THE STORE SHALL PARTICIPATE IN THE SUPER-REFUND PROGRAM AND SHALL 28 MAKE PAYMENT TO CONSUMERS WHO HAVE BEEN OVERCHARGED IN ACCORDANCE WITH 29 SUBDIVISION EIGHT OF THIS SECTION. EACH STORE IS REQUIRED TO DESIGNATE 30 AT LEAST ONE INDIVIDUAL WHO IS AUTHORIZED TO ISSUE THESE PAYMENTS DURING 31 ALL OF THE STORE'S OPERATING HOURS. 32 (V) THE STORE SHALL CORRECT ALL PRICING ERRORS IDENTIFIED BY CONSUMERS 33 AT STORE LEVEL WITHIN ONE HOUR AND, IF APPLICABLE, AT THEIR FIRM, PART- 34 NERSHIP, CORPORATION, OR ASSOCIATION WITHIN TWENTY-FOUR HOURS. 35 (VI) THE STORE SHALL CLEARLY DISPLAY SELLING PRICES AT THE POINT OF 36 SKU DISPLAY, BY EITHER PLACING SIGNS OR SHELF TAGS AS CLOSE AS PRACTICAL 37 TO THE LOCATION AT WHICH THE SKUS ARE DISPLAYED; AND/OR BY STAMPING, 38 TAGGING, LABELING OR OTHERWISE MARKING EACH STOCK KEEPING ITEMS. FAILURE 39 TO DISPLAY THE SELLING PRICE FOR A SKU, CONSISTENT WITH THIS SUBDIVI- 40 SION, CONSTITUTES A SCANNER ERROR. 41 (VII) AT ANY TIME, THE COUNTY SEALER OF WEIGHTS AND MEASURES MAY 42 DIRECT COMPLIANCE INSPECTIONS OF ANY STORE ACCEPTING A WAIVER. THESE 43 INSPECTIONS SHALL CONSIST OF COMPARING THE ITEM, SHELF, SALE OR ADVER- 44 TISED PRICE OF ANY STOCK-KEEPING UNIT (SKU) WITH THE COMPUTER-ASSISTED 45 CHECKOUT SYSTEM PRICE. SUCH INSPECTION SHALL CONSIST OF NOT LESS THAN 46 ONE HUNDRED NOR MORE THAN FIVE HUNDRED SKUS SELECTED AT THE DISCRETION 47 OF THE COUNTY SEALER OF WEIGHTS AND MEASURES. IN THE EVENT THAT ANY 48 VIOLATIONS ARE DETECTED, PENALTIES SHALL BE ASSESSED AS PROVIDED IN 49 SUBDIVISION SEVEN OF THIS SECTION. IN THE EVENT THAT THE NUMBER OF SKUS 50 FOUND IN VIOLATION EQUALS OR EXCEEDS TWO PERCENT OF ALL SKUS INSPECTED, 51 THE COUNTY SEALER OF WEIGHTS AND MEASURES MAY REVOKE THE STORE'S WAIVER 52 FROM THE ITEM-PRICING REQUIREMENT. A STORE MAY PROMPTLY REAPPLY FOR A 53 WAIVER AND PAY THE REQUIRED FEE TO THE COUNTY SEALER OF WEIGHTS AND 54 MEASURES WITHIN FIVE BUSINESS DAYS AFTER BEING NOTIFIED OF THE FAILURE. 55 STORES THAT DO NOT REAPPLY MUST PROMPTLY COME INTO COMPLIANCE WITH ALL A. 57 6 1 THE REQUIREMENTS OF SUBDIVISION THREE OF THIS SECTION, AND MAY NOT AGAIN 2 REAPPLY FOR A WAIVER UNTIL AT LEAST ONE YEAR AFTER REVOCATION. 3 7. PENALTIES. A. ITEM PRICING PENALTIES. (I) THE FAILURE TO ITEM PRICE 4 THREE OR MORE STOCK KEEPING ITEMS OF A PARTICULAR STOCK KEEPING UNIT 5 SHALL CONSTITUTE A SINGLE VIOLATION. 6 (II) ANY RETAIL STORE FOUND IN VIOLATION OF SUBDIVISION THREE OF THIS 7 SECTION SHALL BE SUBJECT TO THE FOLLOWING PENALTIES: FOR VIOLATIONS 8 DISCOVERED UPON THE FIRST INSPECTION IN ANY TWELVE MONTH PERIOD THE 9 STORE SHALL PAY A PENALTY OF FIFTY DOLLARS FOR EACH OF THE FIRST FOUR 10 VIOLATIONS; ONE HUNDRED DOLLARS FOR EACH OF THE NEXT TWELVE VIOLATIONS; 11 AND ONE HUNDRED FIFTY DOLLARS FOR EACH SUBSEQUENT VIOLATION, BUT IN NO 12 EVENT SHALL THE TOTAL PENALTY THEREFOR EXCEED FIVE THOUSAND DOLLARS. FOR 13 VIOLATIONS DISCOVERED UPON A SECOND OR SUBSEQUENT INSPECTION IN ANY 14 TWELVE MONTH PERIOD, THE ABOVE PENALTIES SHALL BE DOUBLED, WITHOUT LIMI- 15 TATION. EACH DAY A VIOLATION IS CONTINUED SHALL CONSTITUTE A SEPARATE 16 VIOLATION. 17 B. PRICE ACCURACY PENALTIES. IN THE EVENT THAT THE PROGRAMMED COMPUTER 18 PRICE EXCEEDS THE ITEM, SHELF, SALE OR ADVERTISED PRICE OF ANY STOCK 19 KEEPING ITEM, THE STORE WILL BE SUBJECT TO THE FOLLOWING PENALTIES: FOR 20 A VIOLATION OF SUBDIVISION FOUR OF THIS SECTION, A PENALTY IN THE AMOUNT 21 OF FIFTY DOLLARS PER VIOLATION SHALL BE IMPOSED ON THE FIRST TWO PERCENT 22 OF THE STOCK KEEPING ITEMS COMPARED ROUNDED TO THE NEAREST WHOLE NUMBER; 23 ONE HUNDRED DOLLARS PER VIOLATION FOR THE NEXT TWO PERCENT; TWO HUNDRED 24 DOLLARS FOR THE NEXT TWO PERCENT; AND THREE HUNDRED DOLLARS FOR EACH 25 ADDITIONAL VIOLATION. FOR VIOLATIONS DISCOVERED UPON A SECOND OR SUBSE- 26 QUENT INSPECTION IN A TWELVE MONTH PERIOD THE ABOVE PENALTIES SHALL BE 27 DOUBLED. 28 C. STOP-REMOVAL ORDER. AN INSPECTOR SHALL HAVE THE AUTHORITY TO 29 ISSUE A STOP-REMOVAL ORDER WITH RESPECT TO ANY STOCK KEEPING ITEM, 30 DEVICE OR SYSTEM BEING USED, HANDLED, SOLD, OFFERED FOR SALE OR EXPOSED 31 FOR SALE IN VIOLATION OF THIS SECTION. 32 (I) ANY STOP-REMOVAL ORDER ISSUED WITH RESPECT TO ANY STOCK KEEPING 33 ITEM SHALL BE IN WRITING, SHALL LIST THE VIOLATIONS AND SHALL DIRECT 34 THAT ANY STOCK KEEPING ITEM IN VIOLATION SHALL NOT BE SOLD, OFFERED FOR 35 SALE OR EXPOSED FOR SALE UNTIL THE VIOLATIONS ARE CORRECTED. 36 (II) ANY STOP-REMOVAL ORDER ISSUED WITH RESPECT TO ANY DEVICE OR 37 SYSTEM SHALL BE IN WRITING AND SHALL LIST THE VIOLATIONS. SUCH STOP-RE- 38 MOVAL ORDER SHALL BE STAYED FOR UP TO TWO HOURS AFTER THE INSPECTOR 39 PROVIDES THE WRITTEN STOP-REMOVAL ORDER TO THE RETAIL STORE PROVIDED 40 THAT, UNTIL THE VIOLATIONS ARE CORRECTED, EITHER: THE STOCK KEEPING 41 ITEMS WHICH ARE AFFECTED BY THE VIOLATIONS ARE NOT SOLD, OFFERED FOR 42 SALE OR EXPOSED FOR SALE, OR SIGNS ARE POSTED CONSPICUOUSLY AT OR NEAR 43 EACH CASH REGISTER WHICH CLEARLY DISCLOSE TO STORE EMPLOYEES AND CONSUM- 44 ERS WHICH STOCK KEEPING ITEMS ARE AFFECTED BY THE VIOLATIONS AND THEIR 45 CORRECT PRICES, AND THE RETAIL STORE ENSURES THAT CONSUMERS ARE CHARGED 46 THE CORRECT PRICE. 47 D. VIOLATIONS OF THIS SECTION SHALL NOT BE SUBJECT TO THE PENALTIES 48 SPECIFIED IN SECTION FORTY-ONE OF THIS CHAPTER. 49 8. CONSUMER RIGHTS WHEN OVERCHARGED BY A STORE. A. ANY CONSUMER WHO 50 SUFFERS A LOSS BECAUSE THE PRICE CHARGED FOR A STOCK KEEPING ITEM (SKI) 51 IS GREATER THAN THE ITEM, SHELF, SALE, OR ADVERTISED PRICE MAY SEEK A 52 SUPER-REFUND. SUCH SUPER-REFUND SHALL ENTITLE THE CONSUMER TO RECEIVE 53 THE OVERCHARGED STOCK KEEPING ITEM (SKI) FREE OF CHARGE, AND TO THE 54 DIFFERENCE BETWEEN THE PRICE CHARGED AND THE LOWER OF THE ITEM, SALE, 55 SHELF OR ADVERTISED PRICE, IN ADDITION TO AN AMOUNT EQUAL TO TEN TIMES 56 THAT DIFFERENCE BUT NOT LESS THAN ONE DOLLAR NOR MORE THAN TEN DOLLARS. A. 57 7 1 WITHIN THE SAME TRANSACTION, EACH SUBSEQUENT OVERCHARGE FOR THE SAME 2 STOCK KEEPING UNIT (SKU) ENTITLES A CONSUMER TO AN ADDITIONAL REFUND 3 EQUAL TO THE DIFFERENCE BETWEEN THE PRICE CHARGED WITH THE LOWER OF THE 4 ITEM, SALE, SHELF OR ADVERTISED PRICE, PLUS ONE DOLLAR. 5 B. TO COLLECT A SUPER-REFUND, A CONSUMER MUST NOTIFY THE STORE IN 6 PERSON OR IN WRITING THAT THE PRICE CHARGED IS MORE THAN THE ITEM, SALE, 7 SHELF, OR ADVERTISED PRICE. THE CONSUMER SHALL PROVIDE EVIDENCE OF THE 8 OVERCHARGE. AS SOON AS PRACTICAL, AND IN ANY CASE, WITHIN ONE HOUR AFTER 9 RECEIPT OF SUCH NOTIFICATION AND VERIFICATION OF THE OVERCHARGE, THE 10 STORE SHALL COMPENSATE THE CONSUMER AS SPECIFIED IN PARAGRAPH A OF THIS 11 SUBDIVISION. 12 C. IF THE STORE FAILS TO TENDER A SUPER-REFUND OR WITHIN THE TIME SET 13 FORTH IN THIS LOCAL LAW, THE CONSUMER MAY REQUEST A REVIEW BY THE COUNTY 14 SEALER OF WEIGHTS AND MEASURES. WITHIN TEN WORKING DAYS OF RECEIPT OF 15 SUCH A REQUEST, THE COUNTY SEALER OF WEIGHTS AND MEASURES SHALL DETER- 16 MINE WHAT PAYMENT, IF ANY, IS DUE UNDER THIS SUBDIVISION. A STORE THAT 17 FAILS TO COMPLY WITH THE COUNTY SEALER OF WEIGHTS AND MEASURES DETERMI- 18 NATION OR ANY OTHER PROVISIONS OF THIS SUBDIVISION IS CONSIDERED IN 19 VIOLATION AND SUBJECT TO PENALTIES UNDER SUBDIVISION SEVEN OF THIS 20 SECTION. 21 D. A STORE MAY SET AN OVERCHARGE REFUND POLICY MORE GENEROUS THAN 22 REQUIRED BY THIS SUBDIVISION, PROVIDED THAT POLICY IS APPROVED BY THE 23 COUNTY SEALER OF WEIGHTS AND MEASURES AND A COPY OF THE COUNTY SEALER'S 24 APPROVAL IS KEPT ON FILE IN THE STORE. 25 9. JURISDICTION. A. THE PROVISIONS OF THIS SECTION AND THE REGU- 26 LATIONS PROMULGATED HEREUNDER MAY BE ENFORCED BY THE DEPARTMENT OR BY 27 THE MUNICIPAL DIRECTOR OF A CONSUMER AFFAIRS OFFICE AND/OR A MUNICIPAL 28 DIRECTOR OF WEIGHTS AND MEASURES. NOTWITHSTANDING THE PROVISIONS OF 29 SECTION FORTY-FIVE OF THIS CHAPTER, ALL MONEYS COLLECTED HEREUNDER BY A 30 MUNICIPALITY SHALL BE RETAINED BY THE MUNICIPALITY. IN THE EVENT THAT A 31 MUNICIPALITY ELECTS TO ENFORCE THIS SECTION, IT SHALL GIVE NOTICE OF 32 SUCH INTENTION TO THE COMMISSIONER WHO, UPON RECEIPT THEREOF, WILL 33 DIRECT THAT THE DEPARTMENT'S INSPECTIONS FOR COMPLIANCE WITH THIS 34 SECTION BE DISCONTINUED IN SUCH MUNICIPALITY UNLESS AND UNTIL SUCH MUNI- 35 CIPALITY GIVES FURTHER NOTICE THAT IT NO LONGER INTENDS TO ENGAGE IN 36 ENFORCEMENT OF THIS SECTION. THE PROCEDURES SET FORTH IN PARAGRAPHS B 37 AND C OF THIS SUBDIVISION SHALL BE APPLICABLE TO MUNICIPAL ENFORCEMENT 38 OF THIS SECTION. 39 B. EACH MUNICIPAL DIRECTOR OF A CONSUMER AFFAIRS OFFICE AND/OR A 40 MUNICIPAL DIRECTOR OF WEIGHTS AND MEASURES PERSONALLY, OR THROUGH HIS OR 41 HER AUTHORIZED AGENTS, SHALL, UPON FINDING A VIOLATION OF THE PROVISIONS 42 OF THIS SECTION OR OF THE RULES AND REGULATIONS PROMULGATED PURSUANT TO 43 THIS SECTION, EXPEDITIOUSLY CAUSE THE SAME TO BE CORRECTED OR SHALL 44 REFER THE MATTER TO THE ATTORNEY FOR THE MUNICIPALITY, FOR COMMENCEMENT 45 OF A CIVIL ACTION IN THE NAME OF THE MUNICIPALITY TO RECOVER A CIVIL 46 PENALTY IN THE AMOUNTS PRESCRIBED BY THIS SECTION AND BY SECTIONS THIR- 47 TY-NINE AND FORTY OF THIS CHAPTER. A CAUSE OF ACTION FOR RECOVERY OF 48 SUCH PENALTY MAY BE RELEASED, SETTLED OR COMPROMISED BY THE MUNICIPAL 49 DIRECTOR BEFORE THE MATTER IS REFERRED TO THE MUNICIPAL ATTORNEY OR 50 THEREAFTER BY SUCH ATTORNEY. 51 C. THE MUNICIPAL DIRECTOR MAY HOLD A HEARING TO DETERMINE WHETHER A 52 VIOLATION OF THE PROVISIONS OF THIS SECTION HAS OCCURRED. AT LEAST TWO 53 WEEKS WRITTEN NOTICE OF A HEARING SHALL BE SERVED EITHER PERSONALLY ON 54 THE INDIVIDUAL IN CHARGE OF THE PLACE OF BUSINESS WHERE THE ALLEGED 55 VIOLATION OCCURRED OR BY CERTIFIED OR REGISTERED MAIL ADDRESSED TO SUCH 56 PLACE OF BUSINESS. SUCH NOTICE SHALL CONTAIN A CONCISE STATEMENT OF THE A. 57 8 1 FACTS CONSTITUTING THE ALLEGED VIOLATION AND SHALL SET FORTH THE DATE, 2 TIME AND PLACE THAT THE HEARING WILL BE HELD. UPON A FINDING OF A 3 VIOLATION OF THE PROVISIONS OF THIS SECTION, THE MUNICIPAL DIRECTOR 4 SHALL BE AUTHORIZED TO RECOVER ANY CIVIL PENALTY PROVIDED FOR IN PARA- 5 GRAPH B OF THIS SUBDIVISION. 6 10. LOCAL OPTION. NOTHING HEREIN SHALL BE CONSTRUED TO RESTRICT THE 7 POWER OF ANY COUNTY, CITY, TOWN OR VILLAGE TO ADOPT AND ENFORCE ADDI- 8 TIONAL LOCAL LAWS, ORDINANCES, OR REGULATIONS WHICH EXCEED THE MINIMUM 9 APPLICABLE STANDARDS IN THIS SECTION. 10 11. RULES AND REGULATIONS. THE COMMISSIONER MAY PROMULGATE SUCH 11 RULES AND REGULATIONS AS HE OR SHE MAY DEEM NECESSARY OR APPROPRIATE TO 12 EFFECTUATE THE PURPOSES OF THIS SECTION. 13 S 2. This act shall take effect on the thirtieth day after it shall 14 have become a law.