[Adopted 9-19-2007 by L.L. No. 13-2007[1]]
[1]
Editor's Note: This local law also repealed former Art. VII, Electronic Price Scanning Devices, adopted 5-21-1996 by L.L. No. 7-1996. Section 4 of this local law provided that the Director may promulgate regulations to implement the provisions of Article II and of Article VII of this chapter. The provisions of Article II and of Article VII and any regulations promulgated thereunder shall be enforced by the Director. The Director shall refer cases of unpaid penalties to the Rockland County Attorney's office for appropriate legal action.
As used in this article, the following terms
shall have the following meanings:
Any electronic device, computer system or machine which determines
the selling price of a stock-keeping item by interpreting its universal
product code, or by use of its price look-up function.
The Rockland County Director of Weights and Measures, or
the Director's designee(s).
The authorized government official and his agents or employees
having jurisdiction to enforce the provisions of this article. For
the purpose of this article, the inspector shall be the Rockland County
Director of Weights and Measures.
The tag, stamp or mark affixed to a stock-keeping item by
an authorized person which sets forth, in clearly readable arabic
numerals, the selling price.
The capability of any checkout system to determine the selling
price of a stock-keeping item by way of the manual entry into the
system of a code number assigned to that particular unit by the retail
store or by way of the checkout operator's consultation of a file
maintained at the point of sale.
A store selling stock-keeping units at retail. A store which
is not open to the general public but is reserved for use by its members
shall come within the provisions of this definition unless the members
must pay a direct fee to the store to qualify for membership and the
store is not required to collect sales tax on transactions with members.
Pursuant to this section, a retail store shall not include any store
which:
Has as its only full-time employee the owner
thereof, or the parent, or the spouse or child of the owner, or in
addition thereto, not more than two full-time employees; or
Had County-wide annual gross sales of stock-keeping
units in a previous calendar year of less than $3,000,000; or
Engages primarily in the sale of food for consumption
on the premises or in a specialty trade, which the Director of Weights
and Measures determines, by regulation, would be inappropriate for
item pricing.
The sign or tags placed by an authorized person at each point
of display of a stock-keeping unit, which clearly sets forth the retail
price of the stock-keeping items within that stock-keeping unit.
Each individual item of a stock-keeping unit offered for
sale.
Each group of items offered for sale of the same brand name,
quantity of contents, retail price, and variety within the following
categories:
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 tissues, toilet tissues, and
any disposable wrapping or container for the storage, handling or
serving of food; and
Detergents, soaps or other cleansing agents,
and cleaning implements; and
Nonprescription drugs, feminine hygiene products
and health and beauty aids.
Any system of coding which entails electronic pricing.
A.
Any store which has been granted a waiver from item pricing pursuant to § 331-35 of this article shall provide a clear and readable shelf label for every stock-keeping unit. Each stock-keeping item's retail price shall be printed on a shelf label in characters no less than three-quarters of an inch in height. Shelf price labels on bottom shelves shall be tilted upward at an angle of between 30° and 60° from the floor.
(1)
Stock-keeping items that are individually priced are exempt from the requirements of this Subsection A; and
(2)
In cases where the width of the facings of a particular stock-keeping item is smaller than the width of the store's standard shelf label, the store may decrease the size requirement specified in this Subsection A. In these situations the lettering cannot be reduced below three-eighths of an inch.
B.
The Director may, by regulation, specify standard
shape, typeface, placement, and format of shelf labels, and may set
other requirements to ensure the readability of shelf labels and the
ability of consumers to identify which shelf label applies to each
stock-keeping unit.
C.
No provision of this section shall be construed to
diminish the requirements of § 214-h of the Agriculture
and Markets Law, which shall control.
A.
Item pricing inspection procedures. For the purposes of determining a store's compliance with the requirements of § 331-4.1 of Article II of Chapter 331 of the Rockland County Code, an inspection shall be conducted of a sample of no fewer than 50 stock-keeping units. However, in the event the inspector has received a specific consumer complaint, no such minimum sample shall be required in the investigation of same.
B.
Laser scanning accuracy inspection procedures. For any inspection under § 331-8.1 of Article II of Chapter 331 of the Rockland County Code, the store representative shall afford the inspector access to the test mode of the checkout system in use at that store or to a comparable function of said system and to the retail price information contained in a price look-up function.
C.
Stop-removal order. An inspector shall have the authority to issue a stop-removal order with respect to any device, system, or stock-keeping unit being used, handled or offered for sale in violation of § 331-4.1 or § 331-8.1 of Article II of Chapter 331 of the Rockland County Code. Any such order shall be in writing and direct that the device, system or stock-keeping unit, as the case may be, shall be removed from use or sale pending correction.
D.
Penalties for item pricing violations. Subject to a ninety-eight-percent stock-keeping unit compliance rate as hereinafter provided for, a penalty shall be imposed for a violation of § 331-4.1 of Article II of Chapter 331 of the Rockland County Code if the enforcing inspector determines that less than ninety-eight-percent of the stock-keeping items inspected in a stock-keeping unit at an individual point of sale contain clearly readable and correct item prices. The retail store shall not be found to have failed inspection nor shall a penalty be imposed for a violation of § 331-4.1 of Article II of Chapter 331 of the Rockland County Code if the enforcing inspector determines that more than 98% of all stock-keeping units inspected comply with the provisions of this article. Any retail store found in violation of § 331-4.1 of Article II of Chapter 331 of the Rockland County Code shall be subject to the following civil penalties: for the first failed inspection, the store shall pay up to $50 for each offense, up to $100 for each offense for the second failed inspection, up to $250 for each offense for the third failed inspection, and up to $500 for each offense for the fourth and any subsequent failed inspection. Each stock-keeping unit not in compliance is deemed to be a separate offense.
E.
Civil penalties for scanner accuracy violations.
(1)
In the event that the programmed computer prices exceed the item, shelf, sale or advertised price of any stock-keeping item, the store will be subject to the following penalties for violation of the provisions of § 331-8.1 of Article II of Chapter 331 of the Rockland County Code: a penalty of up to $50 shall be imposed for the first two violations of the stock-keeping items compared; up to $100 per violation shall be imposed for the next two violations; up to $200 per violation for the next three violations; and up to $300 per violation for any additional violations; but in no event shall the total penalty therefor exceed $5,000 for any one inspection.
(2)
For a second or subsequent violation in any twelve-month
period, the above penalties shall be doubled.
F.
Penalties for shelf label violations. In the event that shelf labels do not conform with the provisions of § 331-33 of this article, the store will be subject to the following penalties: for violations of the provisions of § 331-33 of this article in the first inspection following any twelve-month period within which no such violations have been found, a penalty in the amount of up to $25 per violation will be imposed, but in no event will the total penalty for all violations identified at such first inspection exceed $1,000. For violations identified in a second or subsequent inspection in a twelve-month period following a previous violation of this same section of this article, the penalties shall be doubled, up to a maximum of $5,000 per inspection. Each stock-keeping unit for which proper shelf labeling is not provided shall constitute a separate violation. Each day a violation is continued shall constitute a separate violation.
G.
Nothing herein shall prevent the Director from proceeding to enforce the requirements of this article by any one or any combination, successively or simultaneously, of the following: criminal proceedings to impose fines as provided in Subsection F of this section, imposition of a civil penalty as provided in Subsection H of this section, or civil action for injunctive, declaratory, monetary, or other relief.
H.
Notwithstanding any of the provisions of this article
to the contrary, the violation of any provision of any section of
this article shall render it a violation liable for the payment to
the County of a civil penalty, to be imposed by the Director recoverable
in a civil action, in the sum of not more than $500 for each such
violation.
A.
Every retail store which uses a computer-assisted checkout system and which otherwise would be required to item price as provided in Article II of Chapter 331 of the Rockland County Code may make application in writing to the Director for a waiver of said item pricing requirement. A separate application shall be required for each store.
B.
Every retail store subject to this article may apply
in writing to the Director for a waiver from the item pricing requirements
as contained herein. All written requests for an item-pricing waiver
shall include an annual waiver fee payable to the Rockland County
Commissioner of Finance as follows: $1,000 for retail stores having
a gross store size no greater than 5,000 square feet; $3,000 for retail
stores having a gross store size greater than 5,000 square feet but
not greater than 30,000 square feet; and $7,500 for retail stores
having a gross store size greater than 30,000 square feet. Waivers
must be renewed annually. Failure to renew and pay the yearly waiver
fee shall result in the retail store being immediately subject to
the item pricing provisions as contained herein.
C.
Upon receipt of an application and fee as provided in Subsections A and B of this section, the Director 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 stock-keeping unit with the computer-assisted checkout system price. In the event that any violations are detected, penalties shall be assessed as provided in § 331-34. If, considering both inspections together, the number of stock-keeping units found to be in violation does not exceed 2% of all stock-keeping units inspected, the Director shall grant to the applicant a revocable waiver from item pricing requirements. Any store with a current waiver shall not be subject to the item pricing provisions.
D.
An annual waiver from item pricing shall be valid
until such time as a store falls below the ninety-eight-percent accuracy
on two consecutive pricing accuracy inspections. Failure to meet the
scanning accuracy requirement shall subject the retail store to the
item pricing provision of this article within 10 days from the last
inspection.
E.
In the event the total violations in excess of 2% are discovered in inspections provided for in Subsection C or D of this section, the Director shall not grant a waiver to the applicant. Such a store must promptly reapply for a waiver and pay the required fee to the Director within five business days after being notified of the failure.
F.
In the event that the Director is unable to conduct inspections pursuant to Subsection C of this section within 30 days of receipt of a completed written waiver application, the Director shall grant a temporary waiver pending completion of the inspections. If, upon completion, the item pricing inspections detect a violation rate of 2% or less, the Director shall issue an annual waiver. If the inspections detect a violation rate in excess of 2%, the temporary waiver shall be immediately revoked and the item pricing provisions of this article shall apply.
G.
As a condition of the waiver from item pricing pursuant
to this section, each store which accepts a waiver must agree in writing
to meet the following requirements, and no regular or temporary waiver
shall be granted to a store which has not agreed to these requirements
in writing:
(1)
The store shall designate and make available a price
check scanner to enable consumers to confirm the price of a stock-keeping
item. This price check scanner shall be in a location convenient to
consumers with a sign of sufficient-sized lettering identifying this
unit to the consumers. Stores will submit their proposed sign and
device location along with their application for waiver to the Director
for approval;
(2)
The store shall post in a conspicuous location(s), accessible to all consumers by the director, sign(s) explaining the rights of consumers consistent with the waiver as set forth in § 331-35 of this article. The Director will specify the content, size and numbers of this sign(s) by regulation. The store is also required to post the temporary or annual waiver in the area designated for handling price discrepancies;
(3)
The store shall make payment to consumers who have been overcharged as provided in § 331-36 of this article. Each store is required to designate at least one individual who is authorized to make these payments during all of the store's operating hours; and
(4)
The store shall correct all pricing errors identified
by consumers at the store level within three hours, and, if applicable,
at their firm, partnership, corporation, or association within 24
hours.
Any person who suffers a loss because the price
charged for a stock-keeping item, by a store which has been granted
a waiver from item pricing pursuant to this article, is greater than
the least of the item, shelf, sale, or advertised price may seek special
payment by notifying the store in person or in writing that the price
charged is more than the item, sale, shelf or advertised price. The
notice shall include evidence of the loss suffered by the consumer.
As soon as practicable, and in any case within one hour after receipt
of such notification and verification of the overcharge, the store
shall tender to the consumer an amount equal to the difference between
the price charged and the least 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. If the loss is suffered by one consumer
within one transaction on two or more identical stock-keeping items,
the amount to be tendered by the store shall be the difference on
each item, plus an amount equal to 10 times the difference on a single
item, but not less than $1 nor more than $10.
A.
Every store which has been granted a waiver from item pricing pursuant to § 331-35 of this article shall maintain records of the number, dates, times and amount of claims made by consumers pursuant to this section, and the disposition of each claim, and shall provide copies of such records to the Director upon request. The Director may develop and specify forms for use by consumers in presenting claims for such payment.
B.
Every store which has been granted a waiver from item pricing pursuant to § 331-35 of this article shall make a good-faith effort to resolve all legitimate complaints of overcharges by tendering payment consistent with the provisions of this section. Failure to tender this payment or use the form specified pursuant to Subsection A of this section may be grounds for the Director to revoke that store location's waiver from item pricing.
