S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   57

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced by M. of A. CAHILL -- read once and referred to the Committee
  on Consumer Affairs and Protection

AN  ACT  to  amend  the agriculture and markets law, in relation to item
  pricing

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. The agriculture and markets law is amended by adding a new
section 214-i to read as follows:
  S 214-I.  ITEM PRICING.  1.  DECLARATION OF LEGISLATIVE  FINDINGS  AND
INTENT.    THE LEGISLATURE HEREBY FINDS AND DECLARES THAT THERE IS TECH-
NOLOGY UTILIZING A LASER SCANNING DEVICE OFFERING NUMEROUS  EFFICIENCIES
AND  ECONOMIES  TO THE OPERATION OF THE RETAIL FOOD INDUSTRY, THE USE OF
WHICH MAY MAKE IT ECONOMICALLY ADVANTAGEOUS FOR RETAIL STORES TO  REMOVE
PRICE  MARKINGS  ON  INDIVIDUAL GROCERY ITEMS.   THE LEGISLATURE FURTHER
FINDS THAT PRICE MARKING CONSTITUTES AN INDISPENSABLE  INGREDIENT  TO  A
CONSUMER'S  RIGHT  TO  ALL  REASONABLE  INFORMATION  IN ORDER TO MAKE AN
INFORMED PURCHASE CHOICE.
  THEREFORE, THE LEGISLATURE DECLARES THAT REQUIRING ITEM PRICE  MARKING
IS  NECESSARY  TO  PROTECT  THE  INTEREST  OF  THE CONSUMING PUBLIC, AND
FURTHER DECLARES THAT IT IS IN THE PUBLIC  INTEREST  TO  PROMOTE  USEFUL
TECHNOLOGY  BY  PERMITTING  CONTINUED  TESTING  AND  DEVELOPMENT  OF THE
UNIVERSAL PRODUCT CODE CHECKOUT SYSTEM WITHOUT THE REMOVAL OF ITEM PRIC-
ES.
  IT IS THE INTENT OF THIS LEGISLATION TO  ENSURE  THAT  CONSUMER  GOODS
OFFERED  FOR  SALE  IN NEW YORK STATE ARE CLEARLY, ADEQUATELY, AND ACCU-
RATELY PRICE MARKED AS PROVIDED IN THIS SECTION.
  2.  DEFINITIONS.  THE FOLLOWING TERMS SHALL HAVE THE  FOLLOWING  MEAN-
INGS FOR THE PURPOSE OF THIS SECTION:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01053-01-1

              

A. 57                               2

  A.  "STOCK  KEEPING  UNIT"  OR  "UNIT"  SHALL MEAN EACH GROUP OF ITEMS
OFFERED FOR SALE OF THE SAME BRAND NAME, QUANTITY  OF  CONTENTS,  RETAIL
PRICE, AND VARIETY WITHIN THE FOLLOWING CATEGORIES:
  (I)    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;
  (II)  NAPKINS, FACIAL TISSUES, TOILET TISSUES, PAPER TOWELING AND  ANY
DISPOSABLE  WRAPPING OR CONTAINER FOR THE STORAGE, HANDLING, SERVING, OR
DISPOSAL OF FOOD;
  (III)  DETERGENTS, SOAPS AND OTHER CLEANSING AGENTS; AND
  (IV)  NON-PRESCRIPTION DRUGS, FEMININE HYGIENE PRODUCTS AND HEALTH AND
BEAUTY AIDS.
  B.  "STOCK KEEPING ITEM" OR "ITEM" SHALL MEAN EACH  ITEM  OF  A  STOCK
KEEPING UNIT OFFERED FOR SALE.
  C.    "RETAIL STORE" SHALL MEAN 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  DEFI-
NITION  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:
  (I)  HAS AS ITS ONLY FULL-TIME EMPLOYEE  THE  OWNER  THEREOF,  OR  THE
PARENT,  SPOUSE  OR CHILD OF THE OWNER, AND IN ADDITION THERETO NOT MORE
THAN TWO FULL-TIME EMPLOYEES; OR
  (II)  HAD ANNUAL GROSS SALES OF STOCK KEEPING UNITS  IN  THE  PREVIOUS
CALENDAR  YEAR  OF  LESS  THAN  THREE MILLION DOLLARS, 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 OF STOCK KEEPING ITEMS IN THE PREVIOUS CALENDAR  YEAR
OF THREE MILLION DOLLARS OR MORE; OR
  (III)    ENGAGES  PRIMARILY IN THE SALE OF FOOD FOR CONSUMPTION ON THE
PREMISES OR IN A SPECIALTY TRADE WHICH THE COMMISSIONER  DETERMINES,  BY
REGULATION, WOULD BE INAPPROPRIATE FOR ITEM PRICING.
  D.   "ITEM PRICE" SHALL MEAN THE TAG, STAMP OR MARK AFFIXED TO A STOCK
KEEPING ITEM WHICH SETS FORTH, IN  ARABIC  NUMERALS,  THE  RETAIL  PRICE
THEREOF.
  E.    "ADVERTISED  PRICE" SHALL MEAN THE PRICE OF A STOCK KEEPING UNIT
WHICH A RETAIL STORE HAS CAUSED TO BE DISSEMINATED BY  MEANS  OF  PROMO-
TIONAL METHODS SUCH AS AN IN-STORE SIGN, NEWSPAPER, CIRCULAR, TELEVISION
OR RADIO ADVERTISING.
  F.    "SHELF PRICE" SHALL MEAN THE TAG OR SIGN 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.
  G. "SALE PRICE" SHALL MEAN THE PRICE OF STOCK KEEPING ITEMS OFFERED ON
SALE IN GOOD FAITH AT A PRICE BELOW THE PRICE FOR WHICH SUCH STOCK KEEP-
ING  ITEMS  ARE USUALLY SOLD IN THE RETAIL STORE, FOR A STATED PERIOD OF
TIME NOT TO EXCEED SEVEN DAYS.
  H.   "COMPUTER-ASSISTED CHECKOUT SYSTEM"  SHALL  MEAN  ANY  ELECTRONIC
DEVICE,  COMPUTER  SYSTEM  OR  MACHINE WHICH DETERMINES OR INDICATES THE
SELLING PRICE OF A STOCK KEEPING  ITEM  BY  INTERPRETING  ITS  UNIVERSAL
PRODUCT  CODE, OR AN IN-HOUSE PRODUCT CODE, OR BY USE OF ITS PRICE LOOK-
UP FUNCTION.
  I.  "PRICE LOOK-UP FUNCTION" SHALL MEAN THE CAPABILITY OF ANY CHECKOUT
SYSTEM TO DETERMINE THE RETAIL PRICE OF A STOCK KEEPING ITEM BY  WAY  OF

A. 57                               3

ENTRY  INTO  THE  SYSTEM OF A CODE NUMBER OR OTHER INDICATOR ASSIGNED TO
THAT ITEM'S STOCK KEEPING UNIT BY THE RETAIL STORE  OR  BY  WAY  OF  THE
CHECKOUT  OPERATOR'S  CONSULTATION  OF A FILE MAINTAINED AT THE POINT OF
SALE.
  J.    "INSPECTOR"  SHALL MEAN AN AUTHORIZED GOVERNMENT OFFICIAL HAVING
THE JURISDICTION TO ENFORCE THE PROVISIONS OF THIS SECTION.
  3.   ITEM PRICING REQUIRED.   A.   EVERY  PERSON,  FIRM,  PARTNERSHIP,
CORPORATION  OR  ASSOCIATION WHICH SELLS, OFFERS FOR SALE OR EXPOSES FOR
SALE A STOCK KEEPING UNIT IN A  RETAIL  STORE,  SHALL  DISCLOSE  TO  THE
CONSUMER THE ITEM PRICE OF EACH STOCK KEEPING ITEM EXCEPT AS PROVIDED IN
PARAGRAPH B OF THIS SUBDIVISION BY CAUSING THE ITEM PRICE TO BE CONSPIC-
UOUSLY, CLEARLY AND PLAINLY MARKED, STAMPED, TAGGED OR AFFIXED THERETO.
  B.  CERTAIN ITEMS EXEMPTED. STOCK KEEPING ITEMS OF THE FOLLOWING STOCK
KEEPING  UNITS  NEED  NOT BE ITEM PRICED AS PROVIDED IN THIS SUBDIVISION
PROVIDED THAT A SHELF PRICE AND A PRICE LOOK-UP FUNCTION ARE  MAINTAINED
FOR SUCH STOCK KEEPING UNITS:
  (I)  MILK;
  (II)  EGGS;
  (III)  UNPACKAGED FRESH PRODUCE;
  (IV)  UNPACKAGED FOOD OFFERED FOR SALE IN BULK;
  (V)  FOOD SOLD FOR CONSUMPTION ON THE PREMISES;
  (VI)   STOCK KEEPING ITEMS WHICH ARE UNDER THREE CUBIC INCHES IN SIZE,
AND WEIGH LESS THAN THREE OUNCES, AND ARE PRICED UNDER ONE DOLLAR;
  (VII)  SNACK FOODS SUCH AS CAKES, GUM, CANDIES, CHIPS AND NUTS OFFERED
FOR SALE IN SINGLE PACKAGES AND WEIGHING FIVE OUNCES OR LESS;
  (VIII)  CIGARETTES, CIGARS, TOBACCO AND TOBACCO PRODUCTS;
  (IX)  ITEMS SOLD THROUGH A VENDING MACHINE;
  (X) ITEMS OFFERED AT A SALE PRICE, PROVIDED THAT THE  SALE  PRICE  AND
BEGINNING  AND  ENDING  DATES  OF THE SALES ARE CLEARLY INDICATED TO THE
CONSUMER BY CONSPICUOUS SIGNS LOCATED AT OR NEAR  THE  DISPLAY  OF  SUCH
ITEMS; AND
  (XI) FROZEN FOOD PACKAGED IN PLASTIC OR POLYETHYLENE BAGS.
  C.  THE COMMISSIONER MAY PROMULGATE RULES AND REGULATIONS AS HE OR SHE
DEEMS NECESSARY, TO ENSURE THAT UNIT PRICES, AS REQUIRED  UNDER  SECTION
TWO  HUNDRED FOURTEEN-H OF THIS ARTICLE, ARE OF ADEQUATE SIZE, COLOR AND
LOCATION TO ENHANCE VISIBILITY BY THE CONSUMER FOR THE  UNITS  INDICATED
BY PARAGRAPH B OF THIS SUBDIVISION.
  4.    PRICE ACCURACY.  NO RETAIL STORE SHALL CHARGE A RETAIL PRICE FOR
ANY EXEMPT OR NON-EXEMPT STOCK KEEPING ITEM WHICH EXCEEDS THE  LOWER  OF
ANY ITEM, SHELF, SALE OR ADVERTISED PRICE OF SUCH STOCK KEEPING ITEM.
  5.  ENFORCEMENT,  INSPECTION PROCEDURES.   A.  GENERAL ENFORCEMENT AND
INSPECTION PROCEDURES. FOR ANY INSPECTION UNDER THIS SECTION, THE  STORE
REPRESENTATIVE SHALL AFFORD THE INSPECTOR ACCESS TO THE TEST MODE OF THE
CHECKOUT SYSTEM AND TO THE RETAIL PRICE INFORMATION CONTAINED IN A PRICE
LOOK-UP FUNCTION.
  B.  PRICE DISCLOSURE. FOR THE PURPOSE OF DETERMINING A STORE'S COMPLI-
ANCE WITH THE REQUIREMENTS OF SUBDIVISION  THREE  OF  THIS  SECTION,  AN
INSPECTION  SHALL  BE  CONDUCTED OF A SAMPLE OF NO LESS THAN FIFTY STOCK
KEEPING UNITS. HOWEVER, IN THE EVENT THE  COMMISSIONER  HAS  RECEIVED  A
SPECIFIC  WRITTEN COMPLAINT, NO SUCH MINIMUM SAMPLE SHALL BE REQUIRED IN
THE INVESTIGATION OF SAME.
  C. PRICE ACCURACY ENFORCEMENT.  IN A STORE WITH A  LASER  SCANNING  OR
OTHER  COMPUTER  ASSISTED  CHECKOUT SYSTEM, THE ENFORCING AGENT SHALL BE
PERMITTED TO COMPARE THE ITEM, SHELF, SALE OR ADVERTISED  PRICE  ON  ANY
ONE  OR  MORE  STOCK KEEPING ITEMS SOLD IN THE STORE, NOT TO EXCEED FIVE
HUNDRED STOCK KEEPING ITEMS AT ANY ONE INSPECTION, WITH  THE  PROGRAMMED

A. 57                               4

COMPUTER  PRICE.   NO MINIMUM SAMPLE SHALL BE REQUIRED FOR AN INSPECTION
FOR PRICE ACCURACY.  THE STORE SHALL PROVIDE SUCH ACCESS TO THE COMPUTER
AS IS NECESSARY FOR THE ENFORCING AGENT TO MAKE THE DETERMINATION.
  6.  WAIVER  FROM  ITEM  PRICING  BASED  ON CHECKOUT ACCURACY. 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 SUBDIVISION THREE OF THIS SECTION
MAY MAKE APPLICATION IN WRITING TO THE  COUNTY  SEALER  OF  WEIGHTS  AND
MEASURES  FOR  A  WAIVER  OF  SAID ITEM PRICING REQUIREMENTS. A SEPARATE
APPLICATION SHALL BE REQUIRED FOR EACH STORE. EACH APPLICATION SHALL  BE
SUBJECT TO A NON-REFUNDABLE PROCESSING FEE TO COVER THE COST OF CONDUCT-
ING  SCANNER  ACCURACY  INSPECTIONS  AS  PROVIDED IN PARAGRAPH B OF THIS
SUBDIVISION. THE COUNTY SEALER OF WEIGHTS AND MEASURES  SHALL  DETERMINE
THE  PROCESSING  FEE AND MAY REVISE IT FROM TIME TO TIME, BUT IN NO CASE
SHALL SAID FEE EXCEED ONE THOUSAND DOLLARS PER APPLICATION.
  B. UPON RECEIPT OF AN APPLICATION AND FEE AS PROVIDED IN  PARAGRAPH  A
OF  THIS  SUBDIVISION,  THE  COUNTY SEALER OF WEIGHTS AND MEASURES 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 (SKU) WITH THE COMPU-
TER-ASSISTED CHECKOUT SYSTEM PRICE. SUCH INSPECTION SHALL CONSIST OF  AT
LEAST  ONE  HUNDRED SKUS, BUT NO MORE THAN FIVE HUNDRED, SELECTED AT THE
DISCRETION OF THE COUNTY SEALER OF WEIGHTS AND MEASURES.  IN  THE  EVENT
THAT  ANY  VIOLATIONS  ARE  DETECTED,  PENALTIES  SHALL  BE  ASSESSED AS
PROVIDED IN SUBDIVISION SEVEN OF  THIS  SECTION.  IF,  CONSIDERING  BOTH
INSPECTIONS  TOGETHER,  THE  NUMBER  OF SKUS FOUND IN VIOLATION DOES NOT
EXCEED TWO PERCENT OF ALL SKUS INSPECTED, THE COUNTY SEALER  OF  WEIGHTS
AND  MEASURES  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 SUBDIVISION THREE OF THIS SECTION.
  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 APPLICA-
TION.
  D. IN THE EVENT THAT TOTAL VIOLATIONS IN EXCESS  OF  TWO  PERCENT  ARE
DISCOVERED IN THE INSPECTIONS PROVIDED FOR IN PARAGRAPHS B AND C OF THIS
SUBDIVISION,  THE  COUNTY  SEALER  OF  WEIGHTS AND MEASURES SHALL DENY A
WAIVER TO THE APPLICANT. IF THE OWNER OF THE STORE STILL WISHES A  WAIV-
ER,  SUCH STORE MUST PROMPTLY RE-APPLY FOR A WAIVER AND PAY THE REQUIRED
FEE TO THE COUNTY SEALER OF WEIGHTS AND MEASURES  WITHIN  FIVE  BUSINESS
DAYS  AFTER  BEING  NOTIFIED OF THE FAILURE. STORES THAT DO NOT RE-APPLY
MUST PROMPTLY COME INTO COMPLIANCE WITH ALL THE REQUIREMENTS OF SUBDIVI-
SION THREE OF THIS SECTION, AND, MAY NOT AGAIN  RE-APPLY  FOR  A  WAIVER
UNTIL AT LEAST ONE YEAR AFTER DENIAL BY THE COUNTY SEALER OF WEIGHTS AND
MEASURES.
  E.  IN  THE  EVENT  THAT  THE COUNTY SEALER OF WEIGHTS AND MEASURES IS
UNABLE TO CONDUCT INSPECTIONS PURSUANT TO PARAGRAPH B OF  THIS  SUBDIVI-
SION  WITHIN NINETY DAYS OF RECEIPT OF A COMPLETE WAIVER APPLICATION AND
PROPER PROCESSING FEE, THE COUNTY SEALER OF  WEIGHTS  AND  MEASURES  MAY
GRANT  A  TEMPORARY WAIVER PENDING COMPLETION OF INSPECTIONS. THE COUNTY
SEALER OF WEIGHTS AND  MEASURES  SHALL  CAUSE  SAID  INSPECTIONS  TO  BE
COMPLETED  AS  SOON AS PRACTICABLE. IF, UPON COMPLETION, THE INSPECTIONS
DETECT A VIOLATION RATE IN EXCESS OF TWO PERCENT  OR  LESS,  THE  COUNTY
SEALER  OF  WEIGHTS  AND  MEASURES  SHALL ISSUE A REGULAR WAIVER WITH AN

A. 57                               5

EXPIRATION DATE ONE YEAR FROM THE COMMENCEMENT  DATE  OF  THE  TEMPORARY
WAIVER.  IF  THE  INSPECTIONS  DETECT  A VIOLATION RATE IN EXCESS OF TWO
PERCENT, THE TEMPORARY WAIVER SHALL BE IMMEDIATELY REVOKED  AND  COMPLI-
ANCE  WITH  SUBDIVISION  THREE OF THIS SECTION SHALL BE REQUIRED AND THE
PROVISIONS OF PARAGRAPH D OF THIS SUBDIVISION SHALL APPLY.
  F. AS A CONDITION OF THE WAIVER FROM ITEM  PRICING  PURSUANT  TO  THIS
SUBDIVISION,  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:
  (I)  THE STORE SHALL DESIGNATE AND MAKE AVAILABLE PRICE CHECK SCANNERS
TO ENABLE CONSUMERS TO CONFIRM THE PRICES OF STOCK-KEEPING ITEMS (SKIS).
THESE PRICE CHECK SCANNERS SHALL BE IN LOCATIONS CONVENIENT TO CONSUMERS
WITH SIGNS OF SUFFICIENT SIZED LETTERING IDENTIFYING THESE UNITS TO  THE
CONSUMERS.  STORES  WILL  SUBMIT  THEIR  PROPOSALS  FOR SIGNS, NUMBER OF
DEVICES AND DEVICE LOCATIONS TO THE COUNTY SEALER OF WEIGHTS  AND  MEAS-
URES FOR APPROVAL.
  (II)  THE STORE SHALL NOT CHARGE ANY CUSTOMER A PRICE FOR ANY SKI THAT
EXCEEDS THE ITEM, SHELF, SALE OR ADVERTISED PRICE OF THAT SKI, WHICHEVER
IS LEAST.
  (III) THE STORE SHALL CAUSE TO BE POSTED IN  A  CONSPICUOUS  LOCATION,
ACCESSIBLE BY ALL CONSUMERS AND APPROVED BY THE COUNTY SEALER OF WEIGHTS
AND  MEASURES  A SIGN EXPLAINING THE RIGHTS OF CONSUMERS CONSISTENT WITH
SUBDIVISION EIGHT OF THIS SECTION. THE  COUNTY  SEALER  OF  WEIGHTS  AND
MEASURES  WILL  SPECIFY THE CONTENT AND SIZE OF THIS SIGN BY REGULATION.
THE STORE IS ALSO REQUIRED TO POST THE TEMPORARY OR ANNUAL WAIVER IN THE
AREA DESIGNATED FOR HANDLING PRICE DISCREPANCIES.
  (IV) THE STORE SHALL PARTICIPATE IN THE SUPER-REFUND PROGRAM AND SHALL
MAKE PAYMENT TO CONSUMERS WHO HAVE BEEN OVERCHARGED IN  ACCORDANCE  WITH
SUBDIVISION  EIGHT  OF THIS SECTION. 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.
  (V) THE STORE SHALL CORRECT ALL PRICING ERRORS IDENTIFIED BY CONSUMERS
AT STORE LEVEL WITHIN ONE HOUR AND, IF APPLICABLE, AT THEIR FIRM,  PART-
NERSHIP, CORPORATION, OR ASSOCIATION WITHIN TWENTY-FOUR HOURS.
  (VI)  THE  STORE  SHALL CLEARLY DISPLAY SELLING PRICES 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 STOCK KEEPING ITEMS. FAILURE
TO  DISPLAY  THE  SELLING PRICE FOR A SKU, CONSISTENT WITH THIS SUBDIVI-
SION, CONSTITUTES A SCANNER ERROR.
  (VII) AT ANY TIME, THE COUNTY  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  ADVER-
TISED  PRICE  OF ANY STOCK-KEEPING UNIT (SKU) WITH THE COMPUTER-ASSISTED
CHECKOUT SYSTEM PRICE. SUCH INSPECTION SHALL CONSIST OF  NOT  LESS  THAN
ONE  HUNDRED  NOR MORE THAN FIVE HUNDRED SKUS SELECTED AT THE DISCRETION
OF THE COUNTY SEALER OF WEIGHTS AND MEASURES.  IN  THE  EVENT  THAT  ANY
VIOLATIONS  ARE  DETECTED,  PENALTIES  SHALL  BE ASSESSED AS PROVIDED IN
SUBDIVISION SEVEN OF THIS SECTION. IN THE EVENT THAT THE NUMBER OF  SKUS
FOUND  IN VIOLATION EQUALS OR EXCEEDS TWO PERCENT OF ALL SKUS INSPECTED,
THE COUNTY SEALER OF WEIGHTS AND MEASURES 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  OF  WEIGHTS  AND
MEASURES  WITHIN FIVE BUSINESS DAYS AFTER BEING NOTIFIED OF THE FAILURE.
STORES THAT DO NOT REAPPLY MUST PROMPTLY COME INTO COMPLIANCE  WITH  ALL

A. 57                               6

THE REQUIREMENTS OF SUBDIVISION THREE OF THIS SECTION, AND MAY NOT AGAIN
REAPPLY FOR A WAIVER UNTIL AT LEAST ONE YEAR AFTER REVOCATION.
  7. PENALTIES. A. ITEM PRICING PENALTIES. (I) THE FAILURE TO ITEM PRICE
THREE  OR  MORE  STOCK  KEEPING ITEMS OF A PARTICULAR STOCK KEEPING UNIT
SHALL CONSTITUTE A SINGLE VIOLATION.
  (II)  ANY RETAIL STORE FOUND IN VIOLATION OF SUBDIVISION THREE OF THIS
SECTION SHALL BE SUBJECT TO  THE  FOLLOWING  PENALTIES:  FOR  VIOLATIONS
DISCOVERED  UPON  THE  FIRST  INSPECTION  IN ANY TWELVE MONTH PERIOD THE
STORE SHALL PAY A PENALTY OF FIFTY DOLLARS FOR EACH OF  THE  FIRST  FOUR
VIOLATIONS;  ONE HUNDRED DOLLARS FOR EACH OF THE NEXT TWELVE VIOLATIONS;
AND ONE HUNDRED FIFTY DOLLARS FOR EACH SUBSEQUENT VIOLATION, BUT  IN  NO
EVENT SHALL THE TOTAL PENALTY THEREFOR EXCEED FIVE THOUSAND DOLLARS. FOR
VIOLATIONS  DISCOVERED  UPON  A  SECOND  OR SUBSEQUENT INSPECTION IN ANY
TWELVE MONTH PERIOD, THE ABOVE PENALTIES SHALL BE DOUBLED, WITHOUT LIMI-
TATION. EACH DAY A VIOLATION IS CONTINUED SHALL  CONSTITUTE  A  SEPARATE
VIOLATION.
  B. PRICE ACCURACY PENALTIES. IN THE EVENT THAT THE PROGRAMMED COMPUTER
PRICE  EXCEEDS  THE  ITEM,  SHELF, SALE OR ADVERTISED PRICE OF ANY STOCK
KEEPING ITEM, THE STORE WILL BE SUBJECT TO THE FOLLOWING PENALTIES:  FOR
A VIOLATION OF SUBDIVISION FOUR OF THIS SECTION, A PENALTY IN THE AMOUNT
OF FIFTY DOLLARS PER VIOLATION SHALL BE IMPOSED ON THE FIRST TWO PERCENT
OF THE STOCK KEEPING ITEMS COMPARED ROUNDED TO THE NEAREST WHOLE NUMBER;
ONE  HUNDRED DOLLARS PER VIOLATION FOR THE NEXT TWO PERCENT; TWO HUNDRED
DOLLARS FOR THE NEXT TWO PERCENT; AND THREE  HUNDRED  DOLLARS  FOR  EACH
ADDITIONAL VIOLATION.  FOR VIOLATIONS DISCOVERED UPON A SECOND OR SUBSE-
QUENT  INSPECTION  IN A TWELVE MONTH PERIOD THE ABOVE PENALTIES SHALL BE
DOUBLED.
  C.  STOP-REMOVAL ORDER.   AN INSPECTOR SHALL  HAVE  THE  AUTHORITY  TO
ISSUE  A  STOP-REMOVAL  ORDER  WITH  RESPECT  TO ANY STOCK KEEPING ITEM,
DEVICE OR SYSTEM BEING USED, HANDLED, SOLD, OFFERED FOR SALE OR  EXPOSED
FOR SALE IN VIOLATION OF THIS SECTION.
  (I)    ANY STOP-REMOVAL ORDER ISSUED WITH RESPECT TO ANY STOCK KEEPING
ITEM SHALL BE IN WRITING, SHALL LIST THE  VIOLATIONS  AND  SHALL  DIRECT
THAT  ANY STOCK KEEPING ITEM IN VIOLATION SHALL NOT BE SOLD, OFFERED FOR
SALE OR EXPOSED FOR SALE UNTIL THE VIOLATIONS ARE CORRECTED.
  (II)  ANY STOP-REMOVAL ORDER ISSUED WITH  RESPECT  TO  ANY  DEVICE  OR
SYSTEM SHALL BE IN WRITING AND SHALL LIST THE VIOLATIONS.  SUCH STOP-RE-
MOVAL  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 STOCK KEEPING
ITEMS 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 CASH REGISTER WHICH CLEARLY DISCLOSE TO STORE EMPLOYEES AND CONSUM-
ERS WHICH STOCK KEEPING ITEMS ARE AFFECTED BY THE VIOLATIONS  AND  THEIR
CORRECT  PRICES, AND THE RETAIL STORE ENSURES THAT CONSUMERS ARE CHARGED
THE CORRECT PRICE.
  D.  VIOLATIONS OF THIS SECTION SHALL NOT BE SUBJECT TO  THE  PENALTIES
SPECIFIED IN SECTION FORTY-ONE OF THIS CHAPTER.
  8.  CONSUMER  RIGHTS  WHEN OVERCHARGED BY A STORE. A. ANY CONSUMER WHO
SUFFERS A LOSS BECAUSE THE PRICE CHARGED FOR A STOCK KEEPING ITEM  (SKI)
IS  GREATER  THAN  THE ITEM, SHELF, SALE, OR ADVERTISED PRICE MAY SEEK A
SUPER-REFUND. SUCH SUPER-REFUND SHALL ENTITLE THE  CONSUMER  TO  RECEIVE
THE  OVERCHARGED  STOCK  KEEPING  ITEM  (SKI) FREE OF CHARGE, AND TO THE
DIFFERENCE BETWEEN THE PRICE CHARGED AND THE LOWER OF  THE  ITEM,  SALE,
SHELF  OR  ADVERTISED PRICE, IN ADDITION TO AN AMOUNT EQUAL TO TEN TIMES
THAT DIFFERENCE BUT NOT LESS THAN ONE DOLLAR NOR MORE THAN TEN  DOLLARS.

A. 57                               7

WITHIN  THE  SAME  TRANSACTION,  EACH SUBSEQUENT OVERCHARGE FOR THE SAME
STOCK KEEPING UNIT (SKU) ENTITLES A CONSUMER  TO  AN  ADDITIONAL  REFUND
EQUAL  TO THE DIFFERENCE BETWEEN THE PRICE CHARGED WITH THE LOWER OF THE
ITEM, SALE, SHELF OR ADVERTISED PRICE, PLUS ONE DOLLAR.
  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 PARAGRAPH A OF  THIS
SUBDIVISION.
  C.  IF THE STORE FAILS TO TENDER A SUPER-REFUND OR WITHIN THE TIME SET
FORTH IN THIS LOCAL LAW, THE CONSUMER MAY REQUEST A REVIEW BY THE COUNTY
SEALER OF WEIGHTS AND MEASURES. WITHIN TEN WORKING DAYS  OF  RECEIPT  OF
SUCH  A  REQUEST, THE COUNTY SEALER OF WEIGHTS AND MEASURES SHALL DETER-
MINE WHAT PAYMENT, IF ANY, IS DUE UNDER THIS SUBDIVISION. A  STORE  THAT
FAILS  TO COMPLY WITH THE COUNTY SEALER OF WEIGHTS AND MEASURES DETERMI-
NATION OR ANY OTHER PROVISIONS OF  THIS  SUBDIVISION  IS  CONSIDERED  IN
VIOLATION  AND  SUBJECT  TO  PENALTIES  UNDER  SUBDIVISION SEVEN OF THIS
SECTION.
  D. A STORE MAY SET AN OVERCHARGE  REFUND  POLICY  MORE  GENEROUS  THAN
REQUIRED  BY  THIS  SUBDIVISION, PROVIDED THAT POLICY IS APPROVED BY THE
COUNTY SEALER OF WEIGHTS AND MEASURES AND A COPY OF THE COUNTY  SEALER'S
APPROVAL IS KEPT ON FILE IN THE STORE.
  9.   JURISDICTION.   A.   THE PROVISIONS OF THIS SECTION AND THE REGU-
LATIONS PROMULGATED HEREUNDER MAY BE ENFORCED BY THE  DEPARTMENT  OR  BY
THE  MUNICIPAL  DIRECTOR OF A CONSUMER AFFAIRS OFFICE AND/OR A MUNICIPAL
DIRECTOR OF WEIGHTS AND MEASURES.   NOTWITHSTANDING  THE  PROVISIONS  OF
SECTION  FORTY-FIVE OF THIS CHAPTER, ALL MONEYS COLLECTED HEREUNDER BY A
MUNICIPALITY SHALL BE RETAINED BY THE MUNICIPALITY.  IN THE EVENT THAT A
MUNICIPALITY ELECTS TO ENFORCE THIS SECTION, IT  SHALL  GIVE  NOTICE  OF
SUCH  INTENTION  TO  THE  COMMISSIONER  WHO,  UPON RECEIPT THEREOF, WILL
DIRECT THAT  THE  DEPARTMENT'S  INSPECTIONS  FOR  COMPLIANCE  WITH  THIS
SECTION BE DISCONTINUED IN SUCH MUNICIPALITY UNLESS AND UNTIL SUCH MUNI-
CIPALITY  GIVES  FURTHER  NOTICE  THAT IT NO LONGER INTENDS TO ENGAGE IN
ENFORCEMENT OF THIS SECTION.  THE PROCEDURES SET FORTH IN  PARAGRAPHS  B
AND  C  OF THIS SUBDIVISION SHALL BE APPLICABLE TO MUNICIPAL ENFORCEMENT
OF THIS SECTION.
  B.  EACH MUNICIPAL DIRECTOR OF A  CONSUMER  AFFAIRS  OFFICE  AND/OR  A
MUNICIPAL DIRECTOR OF WEIGHTS AND MEASURES PERSONALLY, OR THROUGH HIS OR
HER AUTHORIZED AGENTS, SHALL, UPON FINDING A VIOLATION OF THE PROVISIONS
OF  THIS SECTION OR OF THE RULES AND REGULATIONS PROMULGATED PURSUANT TO
THIS SECTION, EXPEDITIOUSLY CAUSE THE SAME  TO  BE  CORRECTED  OR  SHALL
REFER  THE MATTER TO THE ATTORNEY FOR THE MUNICIPALITY, FOR COMMENCEMENT
OF A CIVIL ACTION IN THE NAME OF THE MUNICIPALITY  TO  RECOVER  A  CIVIL
PENALTY  IN THE AMOUNTS PRESCRIBED BY THIS SECTION AND BY SECTIONS THIR-
TY-NINE AND FORTY OF THIS CHAPTER.  A CAUSE OF ACTION  FOR  RECOVERY  OF
SUCH  PENALTY  MAY  BE RELEASED, SETTLED OR COMPROMISED BY THE MUNICIPAL
DIRECTOR BEFORE THE MATTER IS REFERRED  TO  THE  MUNICIPAL  ATTORNEY  OR
THEREAFTER BY SUCH ATTORNEY.
  C.    THE MUNICIPAL DIRECTOR MAY HOLD A HEARING TO DETERMINE WHETHER A
VIOLATION OF THE PROVISIONS OF THIS SECTION HAS OCCURRED.  AT LEAST  TWO
WEEKS  WRITTEN  NOTICE OF A HEARING SHALL BE SERVED EITHER PERSONALLY ON
THE INDIVIDUAL IN CHARGE OF THE PLACE  OF  BUSINESS  WHERE  THE  ALLEGED
VIOLATION  OCCURRED OR BY CERTIFIED OR REGISTERED MAIL ADDRESSED TO SUCH
PLACE OF BUSINESS.  SUCH NOTICE SHALL CONTAIN A CONCISE STATEMENT OF THE

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FACTS CONSTITUTING THE ALLEGED VIOLATION AND SHALL SET FORTH  THE  DATE,
TIME  AND  PLACE  THAT  THE  HEARING WILL BE HELD.   UPON A FINDING OF A
VIOLATION OF THE PROVISIONS OF  THIS  SECTION,  THE  MUNICIPAL  DIRECTOR
SHALL  BE  AUTHORIZED TO RECOVER ANY CIVIL PENALTY PROVIDED FOR IN PARA-
GRAPH B OF THIS SUBDIVISION.
  10. LOCAL OPTION. NOTHING HEREIN SHALL BE CONSTRUED  TO  RESTRICT  THE
POWER  OF  ANY  COUNTY, CITY, TOWN OR VILLAGE TO ADOPT AND ENFORCE ADDI-
TIONAL LOCAL LAWS, ORDINANCES, OR REGULATIONS WHICH EXCEED  THE  MINIMUM
APPLICABLE STANDARDS IN THIS SECTION.
  11.    RULES  AND  REGULATIONS.   THE COMMISSIONER MAY PROMULGATE SUCH
RULES AND REGULATIONS AS HE OR SHE MAY DEEM NECESSARY OR APPROPRIATE  TO
EFFECTUATE THE PURPOSES OF THIS SECTION.
  S  2.   This act shall take effect on the thirtieth day after it shall
have become a law.