[HISTORY: Adopted by the County Legislature
of the County of Ulster as indicated in article histories. Amendments
noted where applicable.]
[1]
Editor's Note: Subsequent amendments noted where applicable.
This article updates Local Law Number 5 of 2000.
The Ulster County Legislature recognizes that clear, accurate pricing
and checkout accuracy are basic consumer rights. It is the intent
of this article to ensure that consumer goods offered for sale in
Ulster County are clearly, accurately and adequately marked as to
their selling prices.
In this article, unless the context otherwise
requires:
A.
This article applies to every person engaged in the
business of the selling consumer commodities in Ulster County, as
the term "consumer commodities" is defined in § 214-h of
the New York State Agriculture and Markets Law.
B.
Nothing in this article shall be construed to limit
or restrict any right or remedy to which a person may be subject under
common law or any other federal, state or local statute.
C.
Pursuant to this section, and provided that the selling
prices are clearly displayed in Arabic numerals on signs clearly designating
the consumer goods to which they refer, this article shall not apply
to any retail store which:
(1)
Has as its only full-time employee the owner thereof,
and the parent or the spouse or the child of the owner, and (in the
addition thereto) not more than two other full-time employees;
(2)
Had annual gross sales in a previous calendar year
of less than $500,000, unless the retail store is part of a network
of subsidiaries, affiliates or other member stores under direct or
indirect common control which, as a group, had annual gross sales
in a previous calendar year of $500,000 or more; or
(3)
Engages primarily in the sale of food for consumption
on the premises or in a specialty trade that the Legislature decides,
by resolution, would be inappropriate for item pricing.
As used in this article, the following terms
shall have the meanings indicated:
Any electronic device, computer system or machine, including
but not limited to laser scanners, which determines the selling price
of consumer goods by interpreting coded information.
The following, however packaged or contained:
Food, including all material, solid, liquid
or mixed, whether simple or compound, used or intended for consumption
by human beings or domestic animals normally kept as household pets
and all substances or ingredients to be added thereto for any purpose;
Napkins, facial towels, toilet tissue, foil
wrapping, plastic wrapping, paper toweling, and disposable plates;
Detergents, soaps and other cleansing agents;
and
Nonprescription drugs, female hygiene products
and toiletries.
Consumer commodities sold by any person, firm, partnership,
corporation or association who or which sells, offers for sale or
exposes for sale at retail in a food store or grocery department of
a general merchandise store a consumer commodity as defined in § 214-h
of the New York State Agriculture and Markets Law.
A store selling primarily food at retail, which store is
not primarily engaged in the sale of food for consumption on the premises
or which is not primarily engaged in a specialty trade which the Legislature
determines, by regulation, would be inappropriate for unit pricing.
[Amended 8-17-2010 by L.L. No. 3-2010]]
A food store containing retail space of more than 15,000
square feet.
An error of $0.25 or more on any individual item.
Includes without limitation any individual, firm, joint venture,
association, copartnership, group, corporation or any other legal
entity or combination of entities whatsoever.
The capability of any checkout system to determine the retail
price for an item of consumer goods by way of either automatic or
manual entry into the system of a code assigned to that particular
item.
A food store containing retail space of up to 15,000 square
feet.
Each individual item within a stockkeeping unit.
Each group of items offered for sale of the same brand name,
quantity of contents, variety and retail price.
A.
The selling price shall be clearly stamped, tagged,
labeled or otherwise marked in Arabic numerals on each item of consumer
goods offered for sale in Ulster County.
B.
The provisions of this Subsection A of this section shall not apply to the following consumer goods, provided that the selling price and the unit of measure are clearly displayed in Arabic numerals on a sign, clearly designating the particular consumer goods to which it refers, located as close as practical, and closer than other signs, to the location at which the goods are displayed:
(1)
Fresh milk.
(2)
Fresh eggs.
(3)
Consumer goods which are displayed loose in bulk,
not packaged prior to sale, and which are packaged for or by the consumer
at the time of sale, such as but not limited to fresh produce, fresh
baked goods, and coffee beans.
(4)
Frozen food.
(5)
Foods sold for consumption on the premises as well
as foods prepared for immediate consumption but sold as takeout or
sold from vending machines operated by the consumer.
(6)
Snack food, such as but not limited to gum, candy,
cakes, chips and nuts, offered for sale in single packages, weighing
five ounces or less and costing less than $1.
(7)
Cigarettes and cigars sold by the pack or by the carton.
(8)
Single containers of nonalcoholic beverages where
the selling prices for different flavors packaged in identical sizes
or quantities are the same.
(9)
Nonfood stockkeeping units which are under three cubic
inches in size and weigh less than three ounces and are priced under
$1.
(10)
Baby foods in containers with a net weight of six
ounces or less.
(11)
Yogurt packaged and sold in single containers.
(12)
Packaged nonrefrigerated gelatin, pudding and gelatin
or pudding products.
C.
The provisions of Subsection B of this section may be subsequently modified either by adding or deleting consumer goods from the list of exemptions, provided that a resolution supporting such modification is passed by the Ulster County Legislature.
D.
The County Sealer of Weights and Measures may further
direct the manner in which the selling price of the exempted consumer
goods shall be posted.
E.
It shall be a violation of this article to:
(1)
Stamp, tag, label or otherwise mark more than one
selling price upon an item of consumer goods offered for sale in Ulster
County unless the prior selling price is unmistakably deleted or obliterated
or is otherwise marked so as to indicate clearly that the prior selling
price is not the current selling price.
(2)
Stamp, tag, label or otherwise mark any item of consumer
goods at a selling price greater than the selling price advertised
or displayed for that item.
(3)
Sell or offer for sale any consumer goods or services
at a greater price than the price displayed or advertised therefor.
(5)
Use a computer-assisted checkout system or price lookup
function that determines a retail selling price that exceeds the lower
of any shelf, sale or advertised price for any item of consumer goods
offered for sale.
A.
Every person, store, firm, partnership, corporation, or association which uses a computer-assisted checkout system and which would otherwise be required to item price as provided in § 169-5 of this article may make application in writing to the County Sealer of Weights and Measures (County Sealer) for a waiver of said item pricing requirement. A separate application shall be required for each store. Each application shall be subject to a nonrefundable processing fee to cover the cost of conducting scanner accuracy inspections as provided in Subsection B of this section. The County Sealer shall determine the processing fee and may revise it from time to time, but in no event shall said fee exceed $1,500 per application for a large food store or $1,000 per application for a small food store.
B.
Upon receipt of an application and fee as provided in Subsection A of this section, the County Sealer shall cause to be conducted two scanner accuracy inspections of the store for which the application has been submitted. These inspections shall be conducted on two separate days and shall consist of comparing the shelf, sale or advertised price of any stockkeeping unit (SKU) with the computer-assisted checkout system price. Such inspection shall consist of at least 100 SKUs, but no more than 500, selected at the discretion of the County Sealer. In the event that any violations are detected, penalties shall be assessed as provided in § 169-7F, G and H of this article. If, considering both inspections together, the number of SKUs found in violation does not exceed 2% of all SKUs inspected, the County Sealer shall grant to the applicant a one-year revocable waiver from the item pricing requirement. Any store with a current waiver shall be exempt from the requirements of § 169-5 of this article.
C.
A waiver from item pricing shall be valid for a period
of one year from the date of issuance. Stores may reapply annually
for renewal of a waiver. A processing fee and two inspections shall
be required for each annual renewal application, as required for an
original waiver application.
D.
In the event that total violations in excess of 2% are discovered in the inspections provided for in Subsection B or C of this section, the County Sealer shall deny a waiver to the applicant. If the owner of the store still wishes a waiver, such store must promptly reapply for a waiver and pay the required fee to the County Sealer within five business days after being notified of the failure. Stores that do not reapply must promptly come into compliance with all requirements of § 169-5 and may not again reapply for a waiver until at least one year after denial by the County Sealer.
E.
In the event that the County Sealer is unable to conduct inspection pursuant to Subsection B of this section within 90 days of receipt of a complete waiver application and proper processing fee, the County Sealer may grant a temporary waiver pending completion of inspections. The County Sealer shall cause said inspections to be completed as soon as practicable. If, upon completion, the inspections detect a violation rate of 2% or less, the County Sealer shall issue a regular waiver with an expiration date one year from the commencement date of the temporary waiver. If the inspections detect a violation rate in excess of 2%, the temporary waiver shall be immediately revoked and compliance with § 169-5 shall be required and the provisions of Subsection D of this section shall apply.
[Amended 8-17-2010 by L.L. No. 3-2010]]
F.
As a condition of the waiver from item pricing pursuant
to this section, each store that accepts a waiver must agree to meet
the following requirements, and no regular or temporary waiver shall
be granted to a store that has not agreed to these requirements in
writing:
(1)
The store shall designate and make available price
check scanners to enable consumers to confirm the prices of stockkeeping
items (SKIs). These price check scanners shall be in locations convenient
to consumers with signs of sufficient sized lettering identifying
these units to consumers. Stores will submit their proposals for signs,
numbers of devices and device locations to the County Sealer for approval.
(2)
The store shall not charge any customer a price for
any SKI that exceeds the item, shelf, sale or advertising price of
the SKI, whichever is least.
(3)
The store shall cause to be posted in a conspicuous location, accessible by all consumers and approved by the County Sealer, a sign explaining the rights of consumers consistent with § 169-7 of this article. The County Sealer will specify the content and size of the sign by regulation. The store is also required to post the temporary or annual waiver in the area designated for handling price discrepancies.
(4)
The store shall make payment to consumers who have been overcharged as provided in § 169-7 of this article. Each store is required to designate at least one individual who is authorized to issue these payments during all of the store's operating hours.
(5)
The store shall correct all pricing errors identified
by consumers at store level within one hour and, if applicable, at
their firm, partnership, corporation, or association within 24 hours.
(6)
The store shall clearly display the selling price
at the point of SKU display by either placing signs or shelf tags
as close as practical to the location at which the SKUs are displayed
and/or by stamping, tagging, labeling or otherwise marking each stockkeeping
item. Failure to display the selling price for a SKU, consistent with
this subsection, constitutes a scanner error.
(7)
At any time, the Sealer of Weights and Measures may direct compliance inspections of any store accepting a waiver. These inspections shall consist of comparing the item, shelf, sale or advertised price of any stockkeeping unit (SKU) with the computer-assisted checkout system price. Such inspection shall consist of not fewer than 100 nor more than 500 SKUs selected at the discretion of the County Sealer. In the event that any violations are detected, penalties shall be assessed as provided in § 169-7F, G and H of this article. In the event that the number of SKUs found in violation equals or exceeds 2% of all SKUs inspected, the County Sealer may revoke the store's waiver from the item pricing requirement. A store may promptly reapply for a waiver and pay the required fee to the County Sealer within five business days after being notified of the failure. Stores that do not reapply must promptly come into compliance with all the requirements of § 169-5 and may not again reapply for a waiver until at least one year after revocation.
A.
Any person who violates any provision of this article,
or who fails to comply with any order made by an enforcement officer
pursuant to this article, shall be guilty of a violation and subject
to a civil penalty. Noncompliance within a stockkeeping unit shall
constitute a single violation, unless otherwise indicated by this
article.
B.
For failure to clearly, accurately or adequately mark
consumer goods as to their selling prices as required by this article,
civil penalties shall be imposed and fixed by the County Sealer of
Weights and Measures.
C.
For failure to clearly, accurately or adequately mark
consumer goods as to their selling prices as required by this article,
penalties shall not exceed $500 for each violation nor exceed a total
penalty of $15,000 per day.
D.
The primary responsibility for administration and
enforcement of this article shall be with the County Sealer of Weights
and Measures, except where otherwise noted herein. The County Sealer
of Weights and Measures and his designees shall act as enforcement
officers for this article, and the County Sealer may bring an action
in any court of competent jurisdiction to recover any penalties and
shall also recover in such action as an additional penalty reasonable
attorney fees to be fixed and assessed by the court, irrespective
of whether or not the County Sealer is represented by the County Attorney
in such action.
E.
In stores with computer-assisted checkouts, enforcement
officers shall be permitted to compare the item, shelf, sale or advertised
price of any consumer goods with the programmed computer price. A
store representative shall afford the enforcement officer access to
the test mode of the checkout system in use or to a comparable function
of the checkout system and to the retail price information contained
in the price lookup function.
F.
For violations resulting from a computer-assisted
checkout system or price lookup function that determines a retail
selling price exceeding the lower of any item, shelf, sale or advertised
price for any item of consumer goods offered for sale, penalties shall
not exceed $500 for each violation nor exceed a total penalty of $15,000
per day.
G.
An enforcement officer shall have the authority to issue a stop-removal order with respect to any device, system or consumer goods being used, handled, offered for sale or exposed for sale in violation of § 169-5 of this article.
(1)
Any stop-removal order issued with respect to any
stockkeeping item shall be in writing, shall list the violations and
shall direct that any stockkeeping unit in violation shall not be
sold, offered for sale or exposed for sale until the violations are
corrected.
(2)
Any stop-removal order issued with respect to any
device or system shall be in writing and shall list the violations.
Such stop-removal order shall be stayed for up to two hours after
the inspector provides the written stop-removal order to the retail
store, provided that, until the violations are corrected, either the
stockkeeping units which are affected by the violations are not sold,
offered for sale or exposed for sale or signs are posted conspicuously
at or near each checkout which clearly disclose to store employees
and consumers which stockkeeping units are affected by the violations
and their correct price, and the retail store ensures that consumers
are charged the correct prices.
H.
The County Attorney, in the name of the County, may,
upon request of the County Sealer of Weights and Measures, in addition
to any other action authorized hereunder, maintain an action or proceeding
in court of competent jurisdiction on behalf of the County Sealer
of Weights and Measures to compel compliance with or restrain by injunction
any violation of this article, notwithstanding any other provision
hereof providing for a penalty or other punishment.
A.
Any consumer who suffers a loss because the price
charged for a SKI is greater than the item, shelf, sale, or advertised
price may seek a super-refund. A super-refund entitles the consumer
to receive the overcharged SKI free, the difference between the price
charged and the lower of the item, sale, shelf or advertised price,
plus an amount equal to 10 times that difference but not less than
$1 nor more than $10. Within the same transaction, each subsequent
overcharge for the same SKU entitles a consumer to an additional refund
equal to the difference between the price charged and the lower of
the item, sale, shelf or advertised price, plus $1.
B.
To collect a super-refund, a consumer must notify the store in person or in writing that the price charged is more than the item, sale, shelf, or advertised price. The consumer shall provide evidence of the overcharge. As soon as practical, and in any case within one hour after receipt of such notification and verification of the overcharge, the store shall compensate the consumer as specified in Subsection A of this section.
C.
If the store fails to tender a super-refund within the time set forth in this article, the consumer may request a review by the County Sealer. Within 10 working days of the receipt of such a request, the County Sealer shall determine what payment, if any, is due under this section. A store that fails to comply with the County Sealer's determination or any other provision of this section is considered in violation and subject to penalties under § 169-7 of this article.
D.
A store may set an overcharge refund policy more generous
than required by this article, provided that policy is approved by
the Sealer of Weights and Measures and a copy of the Sealer's approval
is kept on file in the store.
All fines and penalties imposed and collected
by reason of civil enforcement of this article shall be paid to the
County of Ulster and credited to the general fund.
On consent of the County Sealer of Weights and
Measures and a person accused of violating this article, a consent
decree or agreement may be entered into. No such consent decree or
agreement shall restrict any legal right or remedy to which any consumer
complaining of the matter which is the subject of such consent decree
or agreement might otherwise be entitled, unless such consumer is
a party thereto.
[Adopted 8-18-2020 by L.L. No. 7-2020]
No person shall engage in any deceptive or unconscionable trade
practices in the sale, lease, rental or loan, or in the offering for
sale, lease, rental or loan, of any consumer goods or services within
the County of Ulster.
As used in this article, the following terms shall have the
meanings indicated:
An individual who buys or leases or agrees to buy or lease
consumer goods or services or procures credit, including as a co-guarantor
or surety.
Any goods or services, including contracts, projects, credit
or debt, primarily used or applied for personal or residential household
or property improvements or personal or family purposes.
Any false, falsely disparaging, or misleading oral or written
statement, visual description or other representation of any kind,
which has the capacity, tendency or effect of deceiving or misleading
consumers and is made in connection with the sale, lease, rental or
loan of consumer goods or services; the offering for sale, lease,
rental or loan of consumer goods or services; or the extension of
consumer credit. Deceptive trade practices include but are not limited
to:
Representations that:
Goods or services have sponsorship, approval, accessories, characteristics,
ingredients, uses, benefits, or quantities that they do not actually
have;
The seller has a sponsorship, approval, status, affiliation,
or connection that the seller does not actually have;
Goods are original or new if they are deteriorated, altered,
reconditioned, reclaimed, or secondhand;
Goods or services are of a particular standard, design, quality,
grade, style, value, or model, if they are of another.
A false representation as to a material fact;
Failure to state a material fact if such use or failure deceives
or tends to deceive;
Offering goods or services without intent to sell them;
Advertising goods or services without the intent to supply the
reasonably expectable public demand, unless the offer disclosed the
limitation; a seller must show dated proof the seller has ordered,
in time to arrive by the beginning of sale, more than normal everyday
supply;
Making false or misleading representations of fact concerning
the reason for, existence of, or amounts of, price reductions; or
the price in comparison to prices of competitors or one's own
price at a past or future time;
Falsely stating that a consumer transaction involves consumer
rights, remedies or obligations that it does not actually involve;
Falsely stating that services, replacements or repairs are needed
if they are not;
Falsely stating the reasons for offering or supplying goods
or services at sale or discount prices;
Abandonment or willful failure to perform any home improvement
contract or project engaged in or willful deviation from or disregard
of plans or specifications in any material respect without the consent
of the homeowner; and
Failure to complete a consumer contract, service, or project
in a workmanlike manner or failure to return and perform repairs under
warranty.
Director of the Ulster County Bureau of Weights and Measures.
Goods, services or products used, bought or rendered primarily
for personal, family, or household purposes immediately after or during
the pendency of any declared state of emergency, and such term shall
include, but not be limited to, bandages, gauze, or dressings; hand
sanitizer and wipes, antibiotic ointment, rubbing alcohol, hydrogen
peroxide, saline solution; medical or surgical masks; medical or surgical
gloves; tissues, paper towels and toilet paper; bottled water; foodstuffs,
fuel, batteries; over-the-counter medications; household cleaning
supplies and wipes, and any other goods, services or products that
may be identified as "essential" by the Director, in consultation
with the Ulster County Commissioner of Health, during the pendency
of a declared state of emergency.
Any individual, corporation, unincorporated association,
firm, partnership, limited liability company, organization or other
entity.
A manufacturer, supplier, merchant, contractor, lessor, creditor
or person making consumer goods or services available to consumers,
either directly or indirectly.
Any act or practice which unfairly takes advantage of the
lack of knowledge, ability, experience or capacity of the consumer
or which results in a gross disparity between the value received by
a consumer and the price paid by the consumer, for any consumer goods
and services, and shall also mean any instance in which a seller sets
a price for essential goods and services immediately after, or during
the pendency of, any declared state of emergency impacting Ulster
County by any federal, state or County authority that is higher than
the price set immediately prior to the declaration of the state of
emergency in accord with the following sliding scale:
|
Essential Goods and Services Price Set Immediately Prior to
Declaration of State of Emergency:
|
Any Price Increase Immediately After or During a Declared State
of Emergency in Excess of the Percentage Specified Herein Will Create
a Rebuttable Presumption of an Unconscionable Trade Practice
|
|---|---|
|
Less than $499.99
|
25%
|
|
$500.00 - $2,499.99
|
15%
|
|
$2,500.00 - $9,999.99
|
10%
|
|
$10,000.00 - $99,999.99
|
5%
|
|
$100,000 or more
|
2%
|
|
provided that it shall not be an unconscionable trade practice
to set prices in excess of those specified in the sliding scale specified
herein where the seller can show evidence satisfactory to the Director
that any such price increase was solely due to additional costs not
within the control of the seller that were imposed on the seller.
|
The Director may, after a public hearing, adopt such rules and
regulations as may be necessary to effectuate the purposes of this
article, including regulations defining specific deceptive or unconscionable
trade practices. Prior notice of such a public hearing shall be published
according to law in the official newspapers of the County. A copy
of all rules and regulations promulgated hereunder and any amendments
thereto shall be filed in the office of the Clerk of the Ulster County
Legislature. No such regulation or rule shall become effective unless
first approved by resolution of the Ulster County Legislature.
The Director of the Ulster County Bureau of Weights and Measures
shall have the responsibility of enforcing this article.
A.
A violation of any provision of this article or any rule or regulation
promulgated hereunder shall be punishable upon proof thereof, by the
payment of a civil penalty in the sum of not less than $250 nor more
than $5,000 per day for each such violation, to be recovered in a
civil action as provided for herein.
B.
Upon finding a violation of this article or any rules and regulations
promulgated pursuant thereto, the Director shall expeditiously cause
the same to be corrected, or where there is evidence of intent to
defraud, refer evidence of any such violation to the District Attorney
of Ulster County for prosecution, or in the absence of intent to defraud,
refer to the Ulster County Attorney for commencement of a civil action
in the name of the County to recover a civil penalty in the amounts
prescribed. A cause of action for recovery of such penalty may be
released, settled or compromised by the Director before the matter
is referred to the County Attorney or thereafter by the County Attorney.
C.
Whenever any person has engaged in any acts or practices which constitute
repeated or persistent violations of any provision of this article
or any rule or regulation promulgated hereunder, the County Attorney,
upon the request of the Director, may commence an action in the name
of the County for a restraining order, temporary or permanent injunction
or other equitable relief.
D.
In lieu of instituting or continuing an action pursuant to this article,
the Director may accept written assurance of the actual discontinuance
of any act or practice that is in violation of this act. Such assurance
may include a stipulation for the voluntary payment by the alleged
violator for the costs of investigation and the restitution, by the
alleged violator, to consumers of money, property, or other things
received from such consumers in connection with a violation of this
article.
E.
An assurance entered into pursuant to this section shall not be deemed
to admit the violation unless it does so by its terms.
F.
A violation of an assurance entered into pursuant to this section
shall be treated as a violation of this article and shall be subject
to all the penalties provided for therein.
Nothing in this article shall apply to any internet platform,
television, or radio broadcasting station or to any publisher or printer
of a newspaper, magazine or other form of printed advertising who
merely hosts, broadcasts, publishes or prints the advertisement.
If any provision of this article or the application thereof
to any person or circumstance is held unconstitutional or otherwise
unlawful, the remainder of this article and the application of such
remaining provision(s) to other persons or circumstances shall not
be affected thereby.
The Director shall render to the Ulster County Legislature and
the County Executive an annual report of all activities under this
article no later than June 1 of each year.
