[HISTORY: Adopted by the Village Board of the Village of Fox Crossing 7-13-2020 by Ord. No. 200713-1.[1] Amendments noted where applicable.]
[1]
Editor's Note: This chapter derives from Ch. 27 of the former Municipal Code, adopted 7-9-2018 by Ord. No. 180625-1.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.
DEPARTMENT
The East Central Weights and Measures Consortium administered by the City of Appleton Health Department.
INCORRECT
As applied to weights and measures and commodities, includes any failure to comply with the requirements of this article.
PACKAGE
Any commodity put up or packaged in any manner in advance of sale in units suitable for either wholesale or retail sale.
SEALER and DEPUTY SEALER
A Sealer of Weights and Measures and Deputy Sealer of Weights and Measures of the Village who shall at all times be the same Sealer and Deputy Sealer of the Department.
SELL, SALE and SOLD
Includes barter or exchange, and any offering or exposing for sale or possession with the intent to sell.
WEIGHT
Net weight when used in reference to a commodity.
WEIGHTS AND MEASURES
Weights and measures of every kind, instruments and devices for weighing and measuring, and any appliances and accessories used with any or all such instruments and devices, except meters for the measurement of electricity, gas (natural and manufactured) or water when the meters are operated in a public utility system, and scales under the control of the Department of Agriculture, Trade and Consumer Protection.
A. 
Police power is hereby conferred upon the Sealer and Deputy Sealers of Weights and Measures. The Sealer and Deputy Sealers shall be provided with suitable badges or insignia of authority and in the exercise of their functions shall exhibit the same upon demand to any person questioning their powers. They are empowered to make arrests, with or without formal warrant, of any persons violating any statute or ordinance relating to weights and measures.
B. 
The Sealer and Deputy Sealers may enter and go into or upon any structure or premises and may stop any person or vehicle for the purpose of enforcing this chapter. They shall inspect and test any weights and measures or commodities which are sold or used commercially as often as necessary to secure compliance with this chapter, and shall approve for use and seal or mark with appropriate devices such weights and measures as found upon inspection and test to be correct, and may seize as evidence or reject and mark or tag as "rejected" those which are incorrect but which in their best judgment are susceptible of satisfactory repair. Weights and measures that have been rejected or condemned may be confiscated and may be destroyed by the Sealer if not corrected as required by the Sealer, or if used or disposed of contrary to this chapter.
C. 
The Sealer or Deputy Sealer shall have the power to issue stop orders, stop-sale orders and disposal orders with respect to weights and measures being, or susceptible of being, commercially used and to issue stop-sale orders and disposal orders with respect to packages or amounts of commodities kept, offered or exposed for sale, sold, or in process of delivery whenever in the course of their enforcement of the provisions of this article they deem it necessary or expedient to issue such orders. No person shall use, remove from the premises specified, or fail to remove from the premises specified any weight, measure or package or amount of commodity contrary to the terms of a stop-use order, stop-sale order or disposal order issued under the authority of this article.
D. 
The Sealer shall investigate complaints made to him/her concerning violations of the provisions of this article and shall, upon his/her own initiative, conduct such investigations as he/she deems appropriate and advisable to develop information on prevailing procedures in commercial quantity determination and on possible violations of the provisions of this article and to promote the general objective of accuracy in the determination and representation of quantity in commercial transactions.
E. 
The Sealer shall inspect and regulate closing-out sales and other terminations of business. Upon completion of such inspection, the Sealer shall submit a written report of his/her findings to the Village Clerk.
For the purpose of this chapter, proof of the existence of a weight or measure or a weighting or measuring device in or about any building, enclosure, stand or vehicle in which or from which it is shown that buying or selling is commonly carried on shall, in the absence of conclusive evidence to the contrary, be presumptive proof of the regular use of such weight or measure or weighing or measuring device for commercial purposes and of such use by the person in charge of such building, enclosure, stand or vehicle.
The Village Sealer and Deputy Sealers shall be appointed by the Village Manager subject to confirmation by the Village Board but shall at all times be the same Sealer and Deputy Sealer of the Department. The Department shall keep a complete record of its work and annually shall file a report thereof with the State Department of Agriculture, Trade and Consumer Protection (ATCP) and the Village Board. The Department shall also file such other reports as may be required.
The following federal standards, state statutes, and state rules are adopted by reference and shall be enforced under this article, with violations of such provisions subject to the penalties set forth in § 376-7.
A. 
Sections of Chapter 97, Wisconsin Statutes, pertaining to product labeling, specifically including the following:
(1) 
Section 97.03, Standards; misbranding.
(2) 
Section 97.07, Interpretation.
(3) 
Section 97.09, Rules.
(4) 
Section 97.12, Enforcement.
B. 
Chapter 98, Weights and Measures, Wisconsin Statutes.
C. 
Sections of Chapter 100, Wisconsin Statutes, pertaining to advertising, specifically including § 100.18, Fraudulent representations, and § 100.183, Fraud, advertising foods.
D. 
Wisconsin Administrative Code, Chapter ATCP 90, Fair Packaging and Labeling.
E. 
Wisconsin Administrative Code, Chapter ATCP 91, Selling Commodities by Weight, Measure or Count.
F. 
Wisconsin Administrative Code, Chapter ATCP 92, Weights and Measures.
G. 
Wisconsin Administrative Code, Chapter ATCP 109, Freezer Meat and Food Service Plans.
H. 
Wisconsin Administrative Code Chapter ATCP 124, Price Comparison Advertising.
I. 
Wisconsin Administrative Code Chapter ATCP 127, Direct Marketing.
J. 
National Institute of Standards Technology (NIST) Handbook 44, United States Department of Commerce, Specifications, Tolerances and Other Technical Requirements and Commercial Weighing and Measuring Devices.
A. 
There shall be supplied by the Village such field standards and equipment as may be found necessary to carry out the provisions of this chapter. The field standards shall be verified by the State Department of Agriculture, Trade, and Consumer Protection upon their initial receipt and at regular intervals thereafter stipulated by the state.
B. 
The specifications, tolerances and regulations for commercial weighing and measuring devices issued by the National Institute of Standards and Technology shall apply in the Village except as modified by rules issued by the State Department of Agriculture, Trade and Consumer Protection.
Whoever does any of the following acts shall be subject to the penalty provided in Chapter A450, Fines and Penalties:
A. 
Hinders, obstructs, or impersonates a sealer or inspector.
B. 
Uses or has in possession for use in buying or selling any commodity or service, or sells, any incorrect weight or measure or causes a weight or measure to be incorrect.
C. 
Represents in any manner a false quantity or price in connection with the purchase or sale, or any advertising thereof, of any commodity, thing or service.
D. 
Uses or disposes of any rejected weight or measure, or commodity, or removes therefrom any official tag, seal, stamp, or mark, without written authority from the Sealer or Inspector.
E. 
Uses any weighing or measuring device in determining the quantity of any commodity or service to be sold or purchased without having the device approved and sealed by the Sealer and the proper certificate obtained in accordance with § 376-8.
F. 
Violates any other provision of this chapter or any rules promulgated under this chapter for which no specific penalty is prescribed.
The owner, operator, or user of any commercial weights and measures equipment, devices, or associated equipment is responsible for the accuracy and maintenance of the equipment.
A. 
It shall be the duty of every owner, operator, or user to notify the Sealer, in writing, of the acquisition of any device, whether new, rebuilt, or used, or of the major repair, conversion, or calibration of any device already in use. The notification shall be accomplished within 72 hours of the introduction or reintroduction into use of the device.
B. 
Commercial weights and measures devices regulated by this chapter shall bear security seals appropriately affixed to any adjustment mechanisms designed to be sealed. The security seals shall bear the mark or imprint of the Sealer or Deputy Sealer or other weights and measures official, or service persons authorized by the Sealer. The security seal may only be removed to facilitate repairs of devices. The Sealer or Deputy Sealer shall be notified of the repairs and removal of the seal within 72 hours of removal or of the introduction of a new, rebuilt, or used device so that the devices may be sealed or resealed.
C. 
Transient merchants purchasing or selling commodities or services by weight or measure either from bulk or in packaged form shall notify the Village Clerk and receive the approval of the Sealer before purchasing or selling activities may be commenced. Sellers of farm produce and seafood vendors operating from other than a continuous, permanent location shall also meet these requirements. Transients operating as part of an authorized Village farm market are exempted from this requirement.
A. 
Commodities in liquid form shall be sold by liquid measure and commodities not in liquid form shall be sold by weight, provided that liquid commodities may be sold by weight and commodities not in liquid form may be sold by count or measure if such methods are in general use and give accurate information as to the quantity of commodity sold.
B. 
Berries and small fruits may be sold by measure only if in containers having capacities of one-half dry pint, one dry pint, or one dry quart.
C. 
It shall be unlawful to advertise, offer for sale or sell within the Village firewood, fireplace wood, slab wood or stovewood in any other manner than by cord, fractions of a cord, volumetric measure or by weight.
(1) 
Mill ends, lumber scraps, and irregular pieces when sold for fuel shall be sold by net weight.
(2) 
The term "cord" is hereby defined for purposes of this section as the amount of wood, or a combustible, fibrous growth, which is contained in a space of 128 cubic feet when the wood is ranked and well-stowed.
(3) 
A single log and packages of such individual logs containing less than four cubic feet commonly referred to as "bundles" shall be sold by net weight.
(4) 
Per custom, "128 cubic feet" generally means a stack of wood four feet by four feet by eight feet. "Ranked and well-stowed" shall be construed to mean pieces of wood placed in a line or row with individual pieces touching and parallel to each other and stacked in a compact manner.
D. 
This section shall not apply to commodities sold in compliance with a state or federal law which prescribes another method of sale or to commodities for immediate consumption on the premises where sold.
A. 
No commodity which is marked, tagged, or labeled, or for which a sign is displayed, with a selling price based upon a price per unit of weight or measure, shall be sold unless the weight or measure of the commodity is conspicuously declared on the commodity or its tag, label, or sign. If a commodity is wrapped or labeled in advance of sale with a price affixed to the commodity or wrapping, the quantity that determines that price shall appear on the package with the price even though the quantity may already appear on a counter card or sign.
B. 
No commodity shall be wrapped or its container made, formed, or filled so as to mislead the purchaser; nor shall the qualifying term "when packaged," or the terms "jumbo" or "giant" or "full," or words of similar import that tend to mislead the purchaser as to the amount of the commodity, be used in connection with a declaration of quantity.
C. 
In addition to the other declarations required by this section, any commodity in package form, the package being one of a lot containing random weights, measures or counts of the same commodity and bearing the total selling price of the package, shall bear on the outside of the package a plain and conspicuous declaration of the price per single unit of weight, measure or count.
The magnitude of permitted variations from declared quantity shall be determined as follows:
A. 
The compliance of commodities sold, either in bulk or in prepackaged form, shall be based upon the results of the application of inspection procedures and tolerances as set forth by the State Department of Agriculture, Trade, and Consumer Protection.
B. 
Commodities, both in bulk or prepackaged form, found in violation of this chapter after test and analysis of a random or statistical sample shall be acted upon either individually or on a by-the-lot basis.
Whenever a commodity in bulk or packaged form is advertised in any manner and the price of the commodity is stated in the advertisement, there shall be closely and conspicuously associated with such statement of price a declaration of the quantity, of contents offered in the case of packaged commodity, or of the price per unit and the unit based upon in the case of a bulk commodity.
A. 
When the commodity is in packaged form, the quantity, as it appears on the package, shall likewise appear in the advertisement, provided that where the law or regulation requires a dual declaration, only that declaration setting forth the quantity in terms of the smaller unit of weight or measure (the declaration that is required to appear first on the package) need appear in the advertisement.
B. 
Whenever any commodity is advertised as described the appropriate method of sale as set forth in § 376-9 and in State Statutes and rules adopted by reference shall also be applied in the advertisement.
C. 
There shall not be included as part of the declaration required under this section such qualifying terms as "when packaged," "minimum," "not less than," or any other terms of similar import, nor any term qualifying a unit of weight, measure, or count, for example the terms "jumbo," "giant," "full," and the like, that tends to exaggerate the amount of commodity in the package.
A. 
Generally. Whenever any commodity or service is sold or is offered, exposed, or advertised for sale, by weight, measure or count, the price shall not be misrepresented, nor shall the price be represented in any manner calculated or tending to mislead or deceive an actual or prospective purchaser. Whenever an advertised, posted or labeled price per unit of weight, measure or count includes a fraction of a cent, all elements of the fraction shall be prominently displayed, and the numerals expressing the fraction shall be immediately adjacent to, of the same general design and style as, and at least one-half the height and width of the numerals representing the whole cents.
B. 
Cash registers and similar devices. Prices generated by a device such as a cash register or scanning system are also affected under this section. The Sealer shall inspect and test such systems and monitor pricing declarations made by a relative to them, such as pricing signs, shelf tags or individually price-marked units, to ensure agreement of all prices. Prices generated by these systems shall wholly agree with posted or premarked prices for the item being sold.
(1) 
Cash registers. Each cash register used in buying and selling transactions shall be maintained in proper operating condition by its owner. All components, attachments and functions of the register shall be operating correctly as designed. All pricing representations shall be accurate.
(2) 
UPC, scanning and point of sale systems. Pricing systems utilizing a scanning device such as a handheld gun or wand, or counter-mounted scanner units at retail checkouts which read universal product code systems or other bar code labels and the like, shall be maintained in proper operating conditions and be so calibrated to accurately read the intended systems and then generate the proper description and price for the given code.
C. 
Price refunds; price information.
(1) 
A person who uses an electronic scanner to record the price of a commodity or thing at a price higher than the posted, tagged or advertised price of that commodity or thing at least shall refund to a person who purchases the commodity or thing the difference between the posted or advertised price of the commodity or thing and the price charged at the time of sale.
(2) 
A person who sells a commodity or thing and who uses an electronic scanner to record the price of that commodity or thing shall display, in a conspicuous manner, a sign stating the requirements of Subsection C(1) above.
A. 
All coal, coke, and charcoal shall be sold by weight. Unless the fuel is delivered to the purchaser in package form, each delivery of coal, coke, or charcoal to an individual purchaser shall be accompanied by duplicate tickets on which, in ink or other indelible substance, there is clearly stated:
(1) 
The name and address of the vendor;
(2) 
The name and address of the purchaser; and
(3) 
The net weight of the delivery and the gross tare weights, from which the net weight is computed, each expressed in pounds.
B. 
One of these tickets shall be retained by the vendor and the other shall be delivered to the purchaser at the time of delivery of the fuel, or shall be surrendered on demand to the Sealer or a Deputy Sealer who, if he desires to retain it as evidence, shall issue a weight slip in lieu thereof for delivery to the purchaser. If the purchaser carries away his purchase, the vendor shall be required only to give the purchaser at the time of sale a delivery ticket stating the number of pounds of fuel delivered to him.
A. 
As set forth in § 376-9C, firewood, fireplace wood, slab wood, or stovewood shall be sold only by units of a cord or fractions of a cord, by volumetric measure, or by weight. A delivery ticket or invoice shall be presented by the seller to the purchaser whenever any nonpackaged fireplace or stovewood is sold. The delivery ticket or sales invoice shall clearly and legibly state in ink or other indelible substance at least the following information:
(1) 
Name and address of seller;
(2) 
Name and address of purchaser;
(3) 
Date of delivery;
(4) 
Quantity delivered and the quantity upon which the price is based, if this differed from the delivered quantity;
(5) 
The price of the amount delivered; and
(6) 
The identity of the wood in the most descriptive terms commercially practicable, including any quality representation made in connection with the sale.
B. 
Units for firewood of less than four cubic feet, whether sold as single logs or in packages consisting of two or more logs, commonly referred to as "bundles," shall be sold by net weight. No delivery ticket or invoice is required; however, each package of two or more logs shall be clearly and legibly labeled, tagged, or marked with the name, address, and zip code of the packager or distributor, the net weight contained and the species of wood provided, for example, "birch firewood" or "mixed hardwood."
C. 
No person shall advertise to residents of the Village, nor sell and deliver within the Village, any firewood, fireplace wood, slab wood or stovewood without first having obtained an annual license as required in this article. The license fee shall be as set forth in the Fees Schedule on file. Firewood sellers shall ensure that their current weights and measures license number is placed in any advertisements, including those publications or broadcasts that originate outside of the Village but that are directed all or in part to Village residents.
All heating oil and motor fuels shall be sold by liquid measure or by net weight. In the case of each delivery of liquid fuel not in package form and in an amount greater than 10 gallons in the case of sale by liquid measure or 100 pounds in the case of sale by weight, there shall be rendered to the purchaser, either at the time of delivery or within a period mutually agreed upon, in writing or otherwise, between the vendor and the purchaser, a delivery ticket or a written statement on which, in ink or other indelible substance, there shall be clearly and legibly stated:
A. 
The name and address of the vendor;
B. 
The name and address of the purchaser;
C. 
The identity of the type of fuel comprising the delivery;
D. 
The unit price, that is, the price per gallon or per pound, as the case may be, of the fuel delivered;
E. 
In the case of sale by liquid measure, the liquid volume of the delivery, together with the print meter readings from which such liquid volume has been computed, expressed in terms of the gallon and its binary or decimal subdivisions; and
F. 
In the case of sale by weight, the net weight of the delivery, together with any weighing scale readings, from which such net weight has been computed, expressed in terms of tons or pounds avoirdupois.
Every wholesaler, retailer, and every other person selling or distributing motor fuel, heating oil, or solvents in the Village shall keep posted in a conspicuous place, accessible to the public, at his place of business and on every pump from which delivery is made directly into the fuel tank attached to a motor vehicle or into any other vessel brought into the same premises by the user a placard, sign, or the like clearly stating the identity of each product dispensed, i.e., the grade, blend or mixture of the product, and the net selling price per gallon, along with the amount of all taxes per gallon thereon, except that no such placard shall be required on a computer pump whereupon the information described is legibly shown on the face.
For purposes of this article, the term "commercial weighing or measuring devices" means those devices used or employed in establishing the size, quantity, extent, area or measurement of quantities, things, produce or articles for sale, hire or award, or in computing any basic charge or payment for services rendered on the basis of weight or measure.
No person shall operate weights and measures, weighing, or measuring devices and systems and accessories relating thereto, which are used commercially within the Village in determining the weight, measure, or count of commodities or things sold or purchased or offered or exposed for sale on the basis of weight, measure, or count, unless licensed pursuant to the provisions of this article. Transients operating as a part of an authorized Village farm market are exempted from this license. Those who may legally sell from bulk or who prepackage for on-premises sale by weight or measure without weighing and measuring devices shall also be licensed.
A. 
Licenses shall be required under this article commencing January 1. All licenses shall expire or terminate on December 31 of each year. No license fee shall be refunded if a license or permit is denied or revoked for cause.
B. 
An annual processing fee shall be paid in addition to any license fee due. The amount of the annual processing fee shall be on file in the Village Clerk's office.
The application for a weighing or measuring license shall be made in writing on a form provided for such purpose by the Village Sealer. Such application shall state the type and number of weighing and measuring devices to be licensed, the business address where the devices are located, the applicant's full name, signature, and post office address, and whether such person is an individual, firm, corporation, or partnership. The names and addresses of all officers or partners shall be included.
The Village Sealer shall issue a license under this article to the applicant based on the total number of weighing and measuring devices operated by the applicant if the requirements of this chapter have been complied with and upon payment to the Village of the applicable fee. The fee for licensing of weighing and measuring devices shall be on file with the Village Clerk.
Notwithstanding the provision for the requirement of an annual license for weighing and measuring devices, whenever a special request is made for consultation or the inspection or testing of a noncategorized weighing or measuring device, the actual expenses may be charged to the person or firm receiving the service. Such payment or charge shall be based on the current hourly rate.
All persons licensed under the provisions of this article shall immediately post their license upon some conspicuous part of the premises on which the business is conducted and the license shall remain posted for the period the license is in force.
No license issued under this article may be transferred unless otherwise provided for by the ordinances of the Village. No license shall be issued to or used by any person acting for or in the employ of another.
Any person, firm or corporation who shall have in his or its possession any weighing or measuring device previously sealed and who shall move his or its place of business to a new location shall, at least 48 hours before using the said weighing or measuring devices at said new place of business, notify the sealer of weights and measures of his or its new business location.
Notwithstanding any other provisions of this article, whenever the Village Sealer finds that business on any premises licensed under this article is conducted or managed in such a manner that there are serious or repeated violations of this chapter or violation of any ordinances or regulations of the Village, the laws of the state or regulations of the National Institute of Standards and Technology relating to weights and measures, he/she may, without warning, notice or hearing, issue a written notice to the license holder, operator, or employee in charge of the licensed premises, citing such condition and specifying the corrective action to be taken. If deemed necessary, such order shall state that the license is immediately suspended and that all weighing and measuring operations are to be discontinued. Any person to whom such an order is issued shall comply immediately but, upon written petition to the Village Board, shall be afforded a hearing before the Village Board within 20 business days of such petition. Failure to allow an inspector immediate access to the premises to determine whether such grounds exist shall be grounds for suspension.
For serious or repeated violations of any of the requirements of this chapter or for interference with the Village Sealer in the performance of his duties, the Village Sealer may permanently revoke the license issued under this article. Prior to such action, the Village Sealer shall notify the license holder, in writing, stating the reasons for which the license is subject to revocation, and advising that the license shall be permanently revoked at the end of five days following service of such notice, unless a request for a hearing is filed with the Village Board by the license holder within such five-day period.
The hearings provided for in this article shall be conducted by the Board of Trustees at a time and place designated by the Village President. Based upon the record of such hearing, the Village Sealer shall be charged with enforcing the decisions of the Board. A written report of a hearing decision shall be furnished to the license holder by the Village Clerk.
An application for renewal shall be filed with the Village Clerk on or before December 31 of each year, together with the payment of the required permit fee. If the annual renewal fee is not paid prior to December 31, an additional late payment fee on file per establishment shall be required. Establishments operating on January 15 without a proper license shall be ordered closed by the Village Sealer. Failure to comply will result in the issuance of a uniform citation with current bond as set forth in the Municipal Code. Each violation and each day a violation continues or occurs shall constitute a separate offense. Firewood dealers are exempted from this provision.
Upon failure to make notification to the Village Sealer within 72 hours of the addition or replacement of any new or used weights and measures equipment, including any scale, pump, meter, etc., a penalty of triple the device fee herein prescribed shall be assessed. Payment of any fee mentioned in this section, however, shall in no way relieve any person or firm of the penalties that may be imposed for violation of this chapter.