[HISTORY: Adopted by the Common Council of the City of St. Francis 4-20-2004
by Ord. No. 1161 (Ch. 21 of the 1981 Code). Amendments noted
where applicable.]
As used in this chapter, the following terms shall have the meanings
indicated:
- CITY
- The City of St. Francis.
- CITY SEALER
- The Sealer of Weights and Measures in the City.
- DEPARTMENT
- The Environmental Health Consortium consisting of the Cudahy, St. Francis and South Milwaukee Health Departments.
- DUPLICATE PERMIT FEE
- A fee for the replacement of the original permit.
- GOVERNING BODY
- The local health department in that city in which the business is located or its successor organization, if any, or in its absence the Medical Advisor.
- LATE FEE
- A fee for failure to pay established fees by June 30 or the due date.
- PERMIT/LICENSE
- The document issued by the regulatory authority that authorizes a person to operate a weighing and measuring device. The words "permit" and "license" as used throughout this chapter shall be interchangeable.
- REINSPECTION FEE
- A fee for the third and subsequent inspections needed to address compliance issues with the statutes, administrative codes and City ordinance.
- WEIGHT
- Net weight when used in reference to a commodity.
- WEIGHTS AND MEASURES
- Any device 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.
The following federal standards, Wisconsin Statutes and state rules
are adopted by reference and shall be enforced under this chapter:
A.
Wisconsin Statutes Chapter 98, Weights and Measures.
B.
Wisconsin Administrative Code, Chapter ATCP 90, Fair
Packaging and Labeling.
C.
Wisconsin Administrative Code, Chapter ATCP 91, Selling
Commodities by Weight, Measure or Count.
D.
Wisconsin Administrative Code, Chapter ATCP 109, Freezer
Meat and Food Service Plans.
E.
Wisconsin Administrative Code, Chapter ATCP 92, Weights
and Measures.
F.
Wisconsin Statutes Chapter 97, Food Regulation.
G.
Wisconsin Statutes Chapter 100, Marketing; Trade Practices.
H.
National Institute of Standards and Technology (NIST)
Handbook 44, United States Department of Commerce, Specifications, Tolerances
and Other Technical Requirements and Commercial Weighing and Measuring Devices.
I.
Wisconsin Administrative Code, Chapter ATCP 124, Price
Comparison Advertising.
There shall be supplied by the Department such field standards and such
equipment as may be found necessary to carry out the provisions of this chapter.
The field standards shall be certified by the State Weights and Measures Office
as provided by § 98.04(1), Wis. Stats.
A.
Appointment; compensation. The City Sealer shall be appointed
by the Mayor, subject to confirmation by the Council. The Sealer shall be
allowed a salary as determined by the Council.
B.
General powers and duties. The Sealer shall have the
custody of the City standards of weight and measure and of the other standards
and equipment provided for by this chapter and shall keep accurate records
of the same. The Sealer shall enforce the provisions of this chapter and of
the State Weights and Measures Act.[1] He shall have and keep a general supervision over the weights
and measures offered for sale, sold or in use in the City. The Sealer shall
keep a complete record of his work and annually shall file a report thereof
with the State Department of Agriculture, Trade and Consumer Protection and
the Common Council.
[1]
Editor's Note: See Ch. 98, Wis. Stats.
C.
Specific powers and duties.
(1)
Testing at City-supported institutions. The Sealer shall
from time to time test all weights and measures used in checking the receipt
or disbursement of supplies in every institution for the maintenance of which
moneys are appropriated by the Council, reporting his findings in writing
to the executive officer of the institution concerned.
(2)
General testing.
(a)
When not otherwise provided by law, the Sealer may inspect and
test, to ascertain if they are correct, all weights and measures kept, offered
or exposed for sale. The Sealer shall at least once within a twelve-month
period, and as more frequently as he may deem necessary, inspect and test,
to ascertain if they are correct, all weights and measures commercially used:
(b)
With respect to single-service devices, that is, devices to be
used commercially only once and to be then discarded, and with respect to
devices uniformly mass produced, as by means of a mold or die, and not susceptible
of individual adjustment, tests may be made on representative samples of such
devices, and the lots of which such samples are representative shall be held
to be correct or incorrect upon the basis of the results of the inspections
and tests on such samples.
(3)
Investigations. The Sealer shall investigate complaints made
to him concerning violations of the provisions of this chapter and shall,
upon his own initiative, conduct such investigations as he deems appropriate
and advisable to develop information on prevailing procedures in commercial
quantity determination and on possible violations of the provisions of this
chapter and to promote the general objective of accuracy in the determination
and representation of quantity in commercial transactions.
(4)
Inspection of packages. The Sealer shall, from time to time,
weigh or measure and inspect packages or amounts of commodities kept, offered
or exposed for sale, sold or in the process of delivery to determine whether
the same contain the amounts represented and are kept, offered or exposed
for sale or sold in accordance with law, and when such packages or amounts
of commodities are found not to contain the amounts represented or are found
to be kept, offered or exposed for sale in violation of law, the Sealer may
order them off sale and may so mark or tag them as to show them to be illegal.
In carrying out the provisions of this subsection, the Sealer may employ recognized
sampling procedures under which the compliance of a given lot of packages
will be determined on the basis of the result obtained on a sample selected
from the representative of such lot.
(5)
Disposition of correct and incorrect apparatus. The Sealer shall
approve for use and seal or mark with appropriate devices such weights and
measures as he finds upon inspection and test to be correct and shall reject
and mark or tag as "Rejected" such weights and measures as he finds, upon
inspection or test, to be incorrect but which in his best judgment can be
satisfactorily repaired. The Sealer shall condemn, and may seize and destroy,
weights and measures found to be incorrect that in his best judgment cannot
be satisfactorily repaired. Weights and measures that have been rejected may
be confiscated and destroyed by the Sealer if not correct, or if used or disposed
of contrary to this chapter.
(6)
Police powers; right of entry and stoppage. With respect to the
enforcement of this chapter and any ordinance or state statute dealing with
weights and measures that he is or may be empowered to enforce, the Sealer
is vested with special police powers and may arrest, without formal warrant,
any violator of this chapter, ordinance or statute and seize for use as evidence,
without formal warrant, incorrect or unsealed weights and measures or amounts
or packages of commodity found to be used, retained, offered or exposed for
sale or sold in violation of law. In the performance of his official duties,
the Sealer may enter or go into or upon, without formal warrant, any structure
or premises and stop any person and require him to proceed, with or without
any vehicle of which he may be in charge, to some place which the Sealer may
specify.
No person may assault, restrain, threaten, intimidate, impede, interfere
with or otherwise obstruct the City Sealer or authorized agent in the performance
of his or her duties under this chapter, nor shall the operator give false
information with the intent to mislead the City Sealer or authorized agent.
No person shall operate weights and measures or weighing or measuring
devices and systems and accessories relating thereto which are used commercially
within the City 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
chapter. Transients operating at a City farm market are exempted from this
license.
All applicants must apply on forms furnished by the Department. All
applications for permits shall be made in writing to the local governing body
where the business is located. All applications shall list the true, legal
names of the owners or operators of the business, whether person, firm, partnership
or corporation, and address. All corporations applying for licensure shall
be registered with the state and the name of the registered agents shall be
placed on the application. The agent's name and address shall be kept current.
The applicant shall provide documents which reflect the aforementioned registration
to the Department. The Department shall either approve the application or
deny the permit with 30 days after receipt of a complete application.
Any person refused or denied a license may appeal the denial through
the appeal procedure provided under the provisions of §§ 68.07
through 68.16, Wis. Stats.
The City Sealer shall issue a license under this chapter 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 City of the applicable fee. The fee for licensing of weighing
and measuring devices shall be on file with the City Clerk.
The Department or authorized agent shall issue a license to each applicant
for a new or renewal license that meets all the requirements of this chapter
and has paid to the City the fee required in the City fee schedule. A licensee
must get approval from the city in which the business is located if its license
has been suspended or revoked within the last three years.
All persons licensed under the provisions of this chapter 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.
A.
A licensee shall notify the Department whenever there
is a change in any information that is reported in the application form. The
licensee shall make this notification in writing within five days after the
change occurs.
B.
The owner of any premises for which a license has been
granted shall promptly notify the Department in writing of his or her intention
to cease operations.
No license issued under this chapter may be transferred unless otherwise
provided for by the ordinances of the City. No license shall be issued to
or used by any person acting for or in the employ of another.
A.
If funds are to be found insufficient, upon lack of payment
or if for any other reason the funds are not honored, the license will be
null and void. Upon notification, the permit must be submitted to the Department
for detainment until the time of reissuance. A license will not be issued
until all applicable fees, late fees and processing charges are paid.
B.
Any individual or corporation that owes the City for
unpaid property taxes, late fees, or license fees relating to a current or
previous weights and measures license shall pay all such outstanding fees
before a license is issued.
A.
One copy of the inspection report shall be given to the
owner, operator or employee of the establishment and another copy shall remain
on file at the Department.
B.
As a condition of license renewal, all establishments
licensed under this chapter shall consent to an annual inspection and reinspection.
License renewal may be withheld pending inspection, reinspections and compliance
with these regulations.
C.
Whenever an order or directive is issued by the City
Sealer which requires a reinspection to determine compliance, two reinspections
shall be made without charge and documented by the Department following the
time period given in the order or directive.
D.
If, upon the second reinspection, the order or directive
is found not to have been complied with and additional reinspections are required,
a fee shall be assessed the responsible party for each additional reinspection
to compensate for the costs of such reinspections. Payment is due on written
demand from the Department.
Weights and measures that have been rejected under the authority of
the Sealer shall remain subject to his control until such time as suitable
repair or disposition thereof has been made as required by this chapter. The
owners of such rejected weight and measure shall cause the same to be made
correct within 30 days or such longer period as may be authorized by the Sealer
or, in lieu of this, may dispose of the same in such manner as is authorized
by the Sealer. Weights and measures that have been rejected shall not again
be used commercially until they have been officially reexamined and found
to be correct or until specific written permission for such use is issued
by the Sealer.
Fractional parts of any unit of weight or measure shall mean like fractional
parts of the value of such unit as prescribed or defined in § 98.02,
Wis. Stats., and all contracts concerning the sale of commodities and services
shall be construed in accordance with this requirement.
No person shall, except with the specific approval of the Sealer, in
any manner:
A.
Sell, keep, offer or expose for sale in intrastate commerce
any package or amount of commodity that has been ordered off sale or marked
or tagged as provided in this chapter until such package or amount of commodity
has been brought into full compliance with all legal requirements.
B.
Dispose of any package or amount of commodity that has
been ordered off sale or marked or tagged as provided in this chapter and
that has not been brought into compliance with legal requirements.
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 fractions shall be prominently displayed, and
the numeral or numerals expressing the fraction shall be immediately adjacent
to, of the same general design and style as, and at least 1/2 the height and
width of the numerals representing the whole cents.
No person shall violate any provisions of this chapter.
A.
Enforcement agent. The Department or its designee shall
enforce any provision of this chapter.
B.
Enforcement procedure.
(1)
Inspection. If, upon inspection, the Department or designee
finds that any licensed or unlicensed place is conducted or managed in violation
of the ordinances or regulations of the City, laws of the state or regulations
of any agency of the state prescribing standards of weights and measures,
the Department or designee shall serve a written order upon the licensee,
his agent or employee in charge of the premises, or the person responsible
for the violation, notifying him of such violations.
(2)
Noncompliance with order. If a person does not comply
with a written order from the Department or designee, the person may be subject
to one or more of the following actions and/or penalties:
(a)
The issuance of a citation.
(b)
A reinspection fee.
(c)
Suspension of license.
(d)
Revocation of license.
(e)
Commencement of legal action against the person seeking
a court-imposed forfeiture and/or imprisonment.
(f)
Commencement of legal action against the person seeking
an injunction to stop, abate the violations and/or correct the damage created
by the violation.
(g)
Any other action authorized by this chapter or by other
applicable laws as deemed necessary by the Department or designee.
(3)
Additional remedies. The initiation of one action or penalty
under this section does not exempt the apparent violator from any additional
actions and/or penalties listed in this section.
Notwithstanding any other provisions of this chapter, whenever the City
Sealer finds that business on any premises licensed under this chapter is
conducted or managed in such a manner that there are serious or repeated violations
of this chapter or violations of any ordinances or regulations of the City,
the laws of the state or regulations of the National Institute of Standards
and Technology relating to weights and measures, he may 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 weight and measuring operations are to be discontinued. Any person
to whom such an order is issued shall comply immediately.
The license holder whose license has been suspended may at any time
make application for reinstatement of the license. Within one week after the
receipt of satisfactory application, accompanied by a signed statement by
the applicant that the violations have been corrected, the City Sealer shall
make a reinspection and thereafter as many additional reinspections as he
deems necessary to assure himself that the applicant has complied with the
requirements. If the finding indicates compliance the Department may reinstate
the license.
For serious or repeated violations of any of the requirements of this
chapter or for interference with the City Sealer in the performance of his
duties, the City Sealer may permanently revoke the license issued
under this chapter. Prior to such action, the City Sealer shall notify the
license holder in writing, stating the reasons for which the license is revoked.
The license holder shall comply immediately.
Any person whose license has been revoked may appeal the denial through
the appeal procedure provided under the provisions of §§ 68.07
through 68.16, Wis. Stats.
The following offenses are subject to penalty:
A.
The use or possession for the purpose of using for any commercial purpose specified in § 446-4C(2)(a), or the sale or offering or exposing for sale or hire, or having in possession for the purpose of selling or hiring, an incorrect weight or measure or any device or instrument used to or calculated to falsify any weight or measure.
B.
The use or possession for the purpose of current use for any commercial purpose specified in § 446-4C(2)(a) a weight or measure that does not bear a seal or mark such as is specified in § 446-4C(5), unless such weight or measure has been exempted from testing by the provisions of § 446-4C(2)(b).
C.
The disposal of any rejected or condemned weight or measure
in a manner contrary to law or regulation.
D.
The removal from any weight or measure, contrary to law
or regulation, of any tag, seal or mark placed thereon by the appropriate
authority.
E.
Selling or offering or exposing for sale less than the
quantity he represents of any commodity, thing or service.
F.
Taking more than the quantity he represents of any commodity,
thing or service when, as a buyer, he furnishes the weight or measure by means
of which the amount of the commodity, thing or service is determined.
G.
Keeping for the purpose of sale or advertising or offering
or exposing for sale or selling any commodity, thing or service in a condition
or manner contrary to law or regulation.
H.
The use in retail trade, except in the preparation of
packages put up in advance of sale and of medical prescriptions, of a weight
or measure that is not so positioned that its indications may be accurately
read and the weighting or measuring operation observed from some position
which may reasonably be assumed by a customer.
I.
Violating any provision of this chapter or the regulations
promulgated under the provisions of this chapter for which a specific penalty
has not been prescribed.
For the purpose of this chapter, proof of the existence of a weight
or measure or a weighing or measure 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 weighting or measuring device for commercial purposes and of such use by
the person in charge of such building, enclosure, stand or vehicle.
A.
Determination. The fees for services and activities performed
by the Department in carrying out its responsibilities under this chapter
shall be determined by resolution of the Common Council and published in the
administrative fee schedule.
B.
Fees to accompany application. License fees imposed under
this chapter shall accompany the license application. If a license is granted,
the Department shall issue the applicant a receipt for his license fee.
C.
No proration. There will be no proration of license fees.
D.
Refunds. No license fee paid shall be refunded, unless
a refund is requested prior to an inspection.
E.
Late fees. A late fee, as enumerated in the administrative
fee schedule, shall be charged for all licenses issued under provision of
this chapter.
(1)
This shall apply when an application is not renewed before
the expiration date, unless waived by the Department.
(2)
A late fee shall also apply to a new establishment or
any establishment with a new operator who does business before obtaining the
required license, as provided for in this chapter.
F.
Duplicate license fee. A duplicate license fee as enumerated
in the administrative fee schedule shall be charged to duplicate any license
provided for in this chapter.
G.
License fees. License fees shall be charged as enumerated
in the administrative fee schedule.
H.
Accounting and application. All fees shall be accounted
for separately and applied to the expenses under this chapter.
I.
Reinspection. A reinspection fee shall be charged as
enumerated in the administrative fee schedule.
The license issued under provisions of this chapter shall expire, unless
otherwise ordered by the Department or authorized agent, on June 30.
A.
Renewal notices shall be furnished by the Department
prior to the expiration date. It is the responsibility of the owner/operator
to complete the application form and pay the appropriate fee before the expiration
date of such license.
B.
Uncooperative, habitual violators may be refused license
renewal.
Whenever conflicts between theses rules and regulations and other City
ordinances or state and federal regulations occur, the most stringent rule
shall apply.
Except as otherwise provided in this chapter, any person who shall violate any provision of this chapter, or any regulation, rule or order made herein, or who shall fail to obtain a license or permit as required by this chapter, shall be subject to a penalty as provided in § 1-4 of this Code.
