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  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE XV REGULATION OF TRADE
  • CHAPTER 94 INSPECTION AND SALE OF FOOD, DRUGS AND VARIOUS ARTICLES
  • Section 184D Inspection of food stores and food departments for compliance with Secs. 184B to 184E; violations and fines; consumer complaint of noncompliance

  Section 184D. (a) The deputy director or the deputy director's inspectors and sealers of weights and measures and those deputies, as defined in section 1 of chapter 98, shall inspect each food store or food department for compliance with sections 184B to 184E, inclusive. The inspections shall be conducted pursuant to the national industry standards adopted by the National Conference on Weights and Measures of the National Institute of Standards and Technology or any other rules or guidelines promulgated by the division pertaining to the implementation and enforcement of sections 184B to 184E, inclusive. Nothing shall inhibit the oversampling of sale items during inspections. A food store or food department shall provide the inspector with access necessary to conduct an inspection. The deputy director shall notify the food store or food department in writing of violations of this section and of any fines imposed pursuant to sections 184B to 184E, inclusive.

[ Subsection (b) effective until July 1, 2013. For text effective July 1, 2013, see below.]

  (b) Violations of sections 184B to 184E, inclusive, for which fines shall be levied shall include, but not be limited to: (1) having no price marked on a unit that is required to be priced and is not exempted; (2) having an incorrect price on a unit; (3) having an incorrect or missing sign; or (4) overcharging on a unit. A unit shall be deemed to be overcharged once it is rung up at a price higher than any represented price. Notwithstanding the method for determining the amount of civil fines under section 29A of chapter 98, a civil citation may be issued for $200 for each violation, up to a maximum of $5,000 per inspection. If an item is advertised either in a food store, food department or in a circular as on sale or discounted because of a loyalty card price and the item registers at a higher price at the checkout counter than indicated by a sale or loyalty card price, a civil citation shall be issued for $300 for each violation, up to a maximum of $5,000 per inspection. The deputy director shall not issue a fine under sections 184B to 184E, inclusive, and section 56D of chapter 98 for the same violation.

[ Subsection (b) as amended by 2013, 38, Sec. 84 effective July 1, 2013. See 2013, 38, Sec. 219. For text effective until July 1, 2013, see above.]

  (b) Violations of sections 184B to 184E, inclusive, for which fines shall be levied shall include, but not be limited to: (1) having no price marked on a unit that is required to be priced and is not exempted; (2) having an incorrect price on a unit; (3) having an incorrect or missing sign; or (4) overcharging on a unit. A unit shall be deemed to be overcharged once it is rung up at a price higher than any represented price. Notwithstanding the method for determining the amount of civil fines under section 29A of chapter 98, a civil citation may be issued for $200 for each violation, up to a maximum of $5,000 per inspection, for a food store or a food department utilizing a consumer price scanner system. Notwithstanding the method for determining the amount of civil fines under said section 29A of said chapter 98, a civil citation may be issued for $100 per violation, up to a maximum of $2,500 per inspection, for a food store or food department utilizing an individual item pricing system. For a food store or a food department utilizing a consumer price scanner system, if an item is advertised either in a food store, food department or in a circular as on sale or discounted because of a loyalty card price and the item registers at a higher price at the checkout counter than indicated by a sale or loyalty card price, a civil citation shall be issued for $300 per violation, up to a maximum of $5,000 per inspection. The deputy director shall not issue a fine under sections 184B to 184E, inclusive, and section 56D of chapter 98 for the same violation.

  (c) A fine imposed by the deputy director shall be paid within 21 days of issuance of the notice, unless the seller appeals pursuant to the civil citation appeal process found in section 29A of chapter 98. The food store or food department shall immediately correct any noncompliance with sections 184B to 184E, inclusive, when notified by the inspector.

  (d) The deputy director or any representative authorized by the division may conduct inspections of any item and shall issue notices of violation to any food store or food department for any violation of sections 184B to 184E, inclusive; provided, however, that no food store or food department shall be inspected more than once a month, unless such inspection is intended to verify the correction of violations found during a recent inspection or to verify the validity of a specific consumer complaint made through the process in subsection (e). For the purposes of this section, each occasion that an item scans erroneously during an inspector's attempt to verify its correct price shall constitute a separate civil violation. The seller shall immediately correct all violations.

  (e) A consumer may submit a complaint to the attorney general or to the deputy director regarding noncompliance with sections 184B to 184E, inclusive. All food stores or food departments subject to sections 184B to 184E, inclusive, shall provide, upon request, a complaint form for the consumer to complete and submit. Each submitted complaint shall be investigated. In the case of any verified consumer complaint, fines for overcharging shall be limited to 1 violation per item. A fine shall be issued upon verification of any consumer complaint alleging overcharging or improper price marking.

  (f) If the deputy director determines that a food store or a food department is either intentionally or through gross negligence violating any provisions of sections 184B to 184E, inclusive, the deputy director shall provide written notice of such determination to the food store or food department and the food store or food department shall have 30 days to cure these violations. If upon re-inspection, the deputy director determines that the food store or food department still is not in substantial compliance with this section and sections 184B to 184E, inclusive, all of the food store's or food department's exemptions shall be rescinded for a period of 12 months and the matter shall be referred to the attorney general for action against that food store or food department.

  (g) Sections 184B to 184E, inclusive, shall only apply to food stores and to grocery items in food departments. Said sections shall not diminish any obligations under other laws or regulations regarding item pricing for sellers other than food stores or for items other than grocery items in food departments. If a seller is also subject to the item pricing regulations or guidelines of another agency, in cases where a specified number of items is allowed to be exempted under 2 similar exceptions to the requirement of item pricing, such similar provisions shall not be additive. Compliance with another agency's regulations or guidelines which differ from said sections 184B to 184E, inclusive, or any regulations issued under those sections by the deputy director shall not be a defense to a violation of said sections or any regulations promulgated under said sections hereunder.

  (h) The division may retain all registration fees and fines it collects under sections 184B to 184E, inclusive, sections 56D and 56E of chapter 98 not to exceed $2,500,000 annually in order to support its enforcement activities; provided, however, that any excess fees and fines, up to $1,000,000 in excess of this figure, shall be used to fund the division of standards municipal grant program for approved agents to assist the division in lieu of a legislative appropriation. In the event that the division and the municipal grant program are fully funded, all additional revenue shall be turned over to the General Fund.