AN ACT RELATIVE TO THE CONSUMER AND MERCHANT PROTECTION ACT.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Section 115A of chapter 6 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting after the word "section", in line 19, the first time it appears, the following words:- , and shall issue notices of violations of this section.
SECTION 2. Said section 115A of said chapter 6, as so appearing, is hereby further amended by inserting after the word "dollars", in line 22, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 3. Section 92B of chapter 94 of the General Laws, as so appearing, is hereby amended by inserting after the word "dollars", in line 7, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 4. Section 96 of said chapter 94, as so appearing, is hereby amended by inserting after the word "dollars", in line 16, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 5. Section 98 of said chapter 94, as so appearing, is hereby amended by inserting after the word "dollars", in line 18, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 6. Section 174A of said chapter 94, as so appearing, is hereby amended by inserting after the word "dollars", in line 16, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 7. Section 176 of said chapter 94, as so appearing, is hereby amended by inserting after the word "dollars", in line 9, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 8. Section 177 of said chapter 94, as so appearing, is hereby amended by inserting after the word "dollars", in line 19, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 9. Section 181 of said chapter 94, as so appearing, is hereby amended by striking out the last paragraph and inserting in place thereof the following paragraph:-
Any representative authorized by the director of standards and any person authorized under section 34, 35 or 36 of chapter 98, shall enforce this section and sections 182 to 184E, inclusive, except section 184A. Enforcement shall include, but shall not be limited to, conducting inspections and issuing notices of violations as provided in section 29A of said chapter 98.
SECTION 10. Section 183 of said chapter 94, as so appearing, is hereby amended by inserting after the word "dollars", in line 4, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 11. Section 184B of said chapter 94, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words "one hundred and eighty-four C to one hundred and eighty-four E" and inserting in place thereof the following words:- 184C to 184E.
SECTION 12. Section 184E of said chapter 94, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-
Any representative authorized by the director of standards may conduct inspections of any item and shall issue notices of violation to any food store or food department for any violation of this section and sections 184B to 184D, inclusive, provided, however, that no food store or food department shall be inspected more than once a week. Violations shall be punished for the first offense by a fine of $100, for the second offense by a fine of $250, and for a subsequent offense, by a fine of $500. Notwithstanding the method for determining the amount of civil fines pursuant to section 29A of said chapter 98, a civil citation may be issued for $100 for each violation, up to a maximum of $2,500 per inspection. For purposes of this section each item which scans erroneously shall constitute a separate civil violation. The seller shall immediately correct all violations including those where a tolerance was granted.
SECTION 13. Section 295H of said chapter 94, as so appearing, is hereby amended by inserting after the word "division", in line 1, the following words:- and any representative authorized by the director of standards and any person authorized under section 34, 35 or 36 of chapter 98.
SECTION 14. Section 295K of said chapter 94, as so appearing, is hereby amended by adding after the word "dollars", in line 5, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 15. Section 299 of said chapter 94, as so appearing, is hereby amended by inserting after the word "dollars", in line 13, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 16. Section 303F of said chapter 94, as so appearing, is hereby amended by adding after the word "dollars", in line 53, the following words:- or shall be subject to a civil citation as provided in section 29A of chapter 98.
SECTION 17. Section 1 of chapter 98 of the General Laws, as so appearing, is hereby amended by striking out the definitions of "Deputy", "Inspector" and "Sealer", and inserting in place thereof the following three definitions:-
"Deputy", deputy sealer of weights and measures certified by the director.
"Inspector", inspector of standards certified by the director.
"Sealer", sealer of weights and measures certified by the director.
"Committee", the certification within the division of standards. Said committee shall consist of the director of standards, and a designee from each of the following organizations: the Massachusetts Weights and Measures Association, the Eastern Massachusetts Weights and Measures Association, the Western Massachusetts Weights and Measures Association, and the city of Boston's department of inspectional services.
SECTION 18. Section 19 of said chapter 98, as so appearing, is hereby amended by adding after the word "sold", in line 5, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 19. Said section 19 of said chapter 98, as so appearing, is hereby further amended by striking out, in line 10, the word "offence" and inserting in place thereof the following words:- offense or shall be subject to a civil citation as provided in section 29A.
SECTION 20. Section 24 of said chapter 98, as so appearing, is hereby amended by inserting after the word "dollars", in line 7, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 21. Section 25 of said chapter 98, as so appearing, is hereby amended by inserting after the word "dollars", in line 9, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 22. Section 26 of said chapter 98, as so appearing, is hereby amended by inserting after the word "dollars", in line 4, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 23. Section 29 of said chapter 98, as so appearing, is hereby amended by adding the following paragraph:-
The committee shall certify all inspectors, sealers and deputies in accordance with sections 34, 35 and 36 and regulations promulgated by the committee including, but not limited to, regulations covering initial written certification testing for inspectors, sealers and deputies and mandatory continuing education programs for inspectors, sealers and deputies to maintain their certificates. Every store, retail establishment, food store or food department and all merchants within the jurisdiction of the division of standards shall provide adequate space for the display of information relative to how the local sealer or inspector or the division of standards can be contacted as provided in regulations to be promulgated by the committee. Notwithstanding any certification exemption, all sealers, inspectors and deputy sealers and deputy inspectors shall participate in continuing education programs. The committee shall establish a training and education fee to be paid by the municipality which employs such sealer, inspector, deputy sealer and deputy inspector sufficient to offset the cost of providing such training and education.
There shall be a permanent standing advisory committee comprised of the director of the division of standards or his designee, and a designee from each of the following organizations: the Massachusetts Weights and Measures Association, The Eastern Massachusetts Weights and Measures Association, the western Massachusetts Weights and Measures Association, and the city of Boston's department of inspectional services. Members of said board shall serve without compensation. Said committee shall be chaired by the director or deputy director of the division of standards. The committee shall develop, and from time to time, revise the certification and continuing education requirements that are established by the division of standards.
SECTION 24. Said chapter 98 is hereby amended by inserting after section 29, as so appearing, the following section:-
Section 29A. As an alternative to initiating criminal proceedings for violations of the following weights and measures laws: section 115A of chapter 6; sections 92B, 96, 98, 174A, 176, 177, sections 181 to 183, inclusive, section 184E, sections 295A to 295K, inclusive, sections 299 and 303F of chapter 94; sections 19, 24, 25, 26, 31, 35, 42, 45, 48, 55, and 56A to 56D, inclusive, of chapter 98, any representative authorized by the director of standards and any person authorized under sections 34, 35 or 36 of this chapter may issue a civil citation for violations of said weights and measures laws in the amount of 75 per cent of the maximum criminal fine provided for said violation, to be paid within 21 days of the date of issuance of such citation.
Any person aggrieved by any citation issued pursuant to this section may appeal said citation by filing a notice of appeal with the director of standards within seven days of the receipt of the citation. Any such appellant shall be granted a hearing before a representative of the director of standards in accordance with chapter 30A. The hearing officer may affirm, vacate or modify the citation. Any person aggrieved by a decision of the hearing officer may file an appeal in the superior court pursuant to the provisions of said chapter 30A.
If a person fails to comply with the requirement set forth in any citation issued pursuant to this section, or shall fail to pay any civil penalty provided thereby within 21 days of the date of issuance of such citation, or within 30 days following the decision of the hearing officer if such citation has been appealed, excluding any time during which judicial review of the hearing officer's decision remains pending, the director of the division of standards may apply for a criminal complaint against such person for the violation, or may initiate a civil action in the district court.
All monies collected by a municipality or local consumer aid groups authorized by the director of standards under said civil citations, less any fee owed to the division of standards for contracted enforcement services pursuant to section 35, shall be retained by such municipality or local consumer aid group authorized by the director of standards, and shall be expended for the purposes of enforcement of item pricing and weights and measures laws. All monies collected by the division of standards under said civil citations shall be credited to the general fund.
Any citation issued by a municipality with a population of over 400,000 is exempt from this appellate procedure. All notices of appeals should be filed with said municipality's appellate board.
SECTION 25. Section 31 of said chapter 98, as so appearing, is hereby amended by inserting after the word "dollars", in line 18, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 26. Section 34 of said chapter 98, as so appearing, is hereby amended by striking out, in line 2, the words "ten thousand" and inserting in place thereof the following figure:- 20,000.
SECTION 27. Said section 34 of said chapter 98, as so appearing, is hereby further amended by adding the following sentence:- The sealer and all deputies shall be certified by the committee within one year after assuming their powers and duties. Failure to become certified within one year shall be cause for termination; provided, however, that sealers, inspectors or deputy sealers or deputy inspectors, employed by the division or a municipality upon the effective date of this paragraph, shall become certified within two years. Sealers, inspectors or deputy sealers or deputy inspectors who pass a civil service exam for a position as a sealer, inspector or deputy sealer or deputy inspector of weights and measures, shall be exempt from certification requirements. Notwithstanding any certification exemption, all sealers, inspectors and deputy sealers and deputy inspectors shall participate in continuing education programs. The committee shall establish a training and education fee to be paid by the municipality which employs such sealer, inspector, deputy sealer and deputy inspector sufficient to offset the cost of providing such training and education.
SECTION 28. Said chapter 98 is hereby further amended by striking out section 35, as so appearing, and inserting in place thereof the following section:-
Section 35. (a) The mayor of each city and the selectmen of each town of more than 5,000 and less than 20,000 inhabitants shall establish a comprehensive weights measures enforcement system, subject to annual review by the director, by adopting one of the following three methods:
(1) The mayor of each city and the selectmen of each town of more than 5,000 and less than 20,000 inhabitants may annually appoint a sealer and may appoint one or more deputies to act under his direction. The sealer and all deputies shall be certified by the committee within one year after assuming their powers and duties. Such sealers and deputies shall have the same powers and duties as sealers and deputies appointed under section 34 and shall receive such compensation as may be determined by the selectmen and mayor and an additional allowance for transportation and other necessary expenses. The selectmen and mayor may at any time remove such sealers or deputies and appoint others in their places.
(2) The mayor of each city and the selectmen of each town of more than 5,000 and less than 20,000 inhabitants may contract with the director for the enforcement of the laws pertaining to the sealing of weighing and measuring devices, inspections of item and unit pricing laws and enforcement of other laws relative to weights and measures. The committee shall adopt and shall enforce all such reasonable regulations as may be necessary to establish such contracts. The committee shall set a fee schedule for such enforcement services sufficient to offset the cost of providing such services.
(3) The mayor of each city and the selectmen of each town of more than 5,000 and less than 20,000 inhabitants may combine the whole or part of their territories to establish a weights and measures program as set forth in section 36.
(b) The sealer and all deputies shall be certified by the committee within one year after assuming their powers and duties. Failure to become certified within one year shall be cause for termination. Sealers, inspectors or deputy sealers or deputy inspectors, employed by the division or a municipality upon the effective date of this section, shall become certified within two years; provided, however, that sealers, inspectors or deputy sealers or deputy inspectors who pass a civil service exam for a position as a sealer, inspector or deputy sealer or deputy inspector of weights and measures, shall be exempt from certification requirements. Regardless of any certification exemption, all sealers, inspectors, and deputy sealers and deputy inspectors shall participate in continuing education programs. The committee shall establish a training and education fee to be paid by the municipality which employs each sealer, inspector, deputy sealer and deputy inspector sufficient to offset the cost of providing such training and education.
SECTION 29. Section 36 of said chapter 98, as so appearing, is hereby amended by adding the following five sentences:- The sealer and all deputies shall be certified by the director within one year after assuming their powers and duties. Failure to become certified within one year shall be cause for termination; provided, however, that sealers, inspectors or deputy sealers or deputy inspectors, employed by the division or a municipality upon the effective date of this section, shall become certified within two years. Sealers, inspectors or deputy sealers or deputy inspectors who pass a civil service exam for a position as a sealer, inspector or deputy sealer or deputy inspector of weights and measures, shall be exempt from certification requirements. Notwithstanding any certification exemption, all sealers, inspectors, deputy sealers and deputy inspectors shall participate in continuing education programs. The committee shall establish a training and education fee to be paid by the municipality which employs each sealer, inspector, deputy sealer and deputy inspector sufficient to offset the cost of providing such training and education.
SECTION 30. Said chapter 98 is hereby further amended by inserting after section 36, as so appearing, the following section:-
Section 36A. For a city or town where the mayor or board of selectmen have appointed a sealer pursuant to paragraph (1) of subsection (a) of section 35, or for a city or town where the mayor or board of selectmen have appointed a sealer pursuant to section 34, or for a city or town where the mayor or board of selectmen have failed to appoint a sealer, or for municipalities which have combined their territories pursuant to section 36, the director may, upon complaint and after investigation, determine that such city or town has an inadequate weights and measures enforcement system for the purposes of this section the term inadequate shall be defined as the failure to name a sealer, failure to file an annual report, or gross failure to complete mandatory inspections of weighing and measuring devices and retail scanners. Upon such determination, the director shall send notice to such city or town of the intent of the director to take responsibility for enforcing the weights and measures laws in such city or town. If within 60 days of the notification by the director, such city or town has not improved the weights and measures enforcement system to the satisfaction of the director, the director shall assume responsibility for weights and measures enforcement, including inspectional services, in such city or town and the director may charge such city or town for the cost of said services, until such time as the director determines that an adequate local program is in place.
SECTION 31. Said chapter 98 is hereby further amended by striking out section 37, as so appearing, and inserting in place thereof the following section:-
Section 37. Each municipality shall annually, between January 1 and January 31, submit to the director a written report that describes the components of the municipality's weights and measures program, including, but not limited to, an inventory of all weighing and measuring devices and equipment and the date of the most recent certification for each device or piece of equipment, inspection results by category, results of tests performed pursuant to section 56D, total citations issued by category, the net loss restored to consumers and merchants as a result of its enforcement program, and any other information required by the director.
A municipality that does not report to the director in the manner prescribed in this section shall not be eligible to retain any revenues generated by the municipality as a result of imposing civil citations as provided in section 29A.
SECTION 32. Section 42 of said chapter 98, as so appearing, is hereby amended by inserting after the word "offense", in line 37, the following words:- , or shall be subject to a civil citation or order as provided in section 29A.
SECTION 33. Section 45 of said chapter 98, as so appearing, is hereby amended by inserting after the word "dollars", in line 14, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 34. Section 48 of said chapter 98, as so appearing, is hereby amended by inserting after the word "dollars", in line 5, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 35. Section 55 of said chapter 98, as so appearing, is hereby amended by adding after the word "dollars", in line 12, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 36. The first paragraph of section 56 of said chapter 98, as so appearing, is hereby amended by striking out the introductory paragraph and inserting in place thereof the following introductory paragraph:-
Except as otherwise established in a town by town meeting action and in a city by city council action, by adoptions of the appropriate by-laws and ordinances to set such fees, sealers shall receive and inspectors may demand the following fees for sealing and inspecting the following weighing or measuring devices:.
SECTION 37. Said first paragraph of said section 56 of said chapter 98, as so appearing, is hereby further amended by adding the following three subparagraphs:-
(n) Each automated electronic retail checkout system with fewer than four cash registers or computer terminals, not more than $75.
(o) Each automated electronic retail checkout system with no less than four and no more than 11 cash registers or computer terminals, not more than $150.
(p) Each automated electronic retail checkout system with greater than 11 cash registers or computer terminals, not more than $250.
SECTION 38. Said chapter 98 is hereby further amended by striking out section 56A and inserting in place thereof the following section:-
Section 56A. Whoever places a scale or weighing device when used in weighing food sold at retail by weight in the presence of the purchaser so that the weight indicator may not be read and the weighing operations be observed by the purchaser shall be punished by a fine of $50, or shall be subject to a civil citation as provided in section 29A.
SECTION 39. Section 56B of said chapter 98, as so appearing, is hereby amended by inserting after the word "dollars", in line 6, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 40. Section 56C of said chapter 98, as so appearing, is hereby amended by inserting after the word "dollars", in line 5, the following words:- or shall be subject to a civil citation as provided in section 29A.
SECTION 41. Section 56D of said chapter 98, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following two paragraphs:-
The director or his inspectors, and sealers and inspectors of weights and measures and their deputies, shall in every 24-month period, examine and test the operation of all automated retail checkout systems, in all establishments with three or more cash registers, and shall upon complaint to said officials examine and test the operation of any automated retail checkout system to determine whether the price which an item is offered or advertised for sale, including any advertised special price offered to a customer with a store-issued discount card, conforms to the unit and/or net prices displayed to the customer on the visual display and conforms to the price for which a purchaser is charged by such automated retail checkout system to determine whether the total price for items purchased is correctly represented, and may issue notices of violations of this section, pursuant to section 29A and this section; provided, however, that nothing herein shall prohibit the director or his inspectors and sealers and inspectors of weights and measures and their deputies from examining and testing any system at any time irrespective of the number of cash registers within the establishment. If such examination and test reveals that there is evidence of price misrepresentation, or misleading or deception of the purchaser of items, the owner, manager or the designee of said owner or manager of the retail establishment using such automatic checkout system shall be punished for the first offense by a fine of $100, for the second offense by a fine of $250, and for a subsequent offense, by a fine of $500. Notwithstanding the method for determining the amount of civil fines pursuant to said section 29A, a civil citation may be issued for $100 for each violation, up to a maximum of $2500 per inspection. For purposes of this section each item which scans erroneously shall constitute a separate civil violation.
The director shall promulgate and shall enforce regulations based on national industry standards and other criteria necessary to carry out the provisions of this section.
SECTION 42. Said chapter 98 is hereby further amended by striking out section 57, as so appearing, and inserting in place thereof the following section:-
Section 57. The director of the office of consumer affairs shall prepare and submit to the governor, the general court and the senate and house committees on post audit and oversight an annual report of the acts of the division of standards. Said report shall include a description of the activities of inspectors of the division of standards and sealers for cities and towns, a description of the components of the weights and measures program, including but not limited to, an inventory of all weighing and measuring devices and equipment held by the division of standards, the most recent date of certification for each device or piece of equipment, total inspection results by category, results of tests performed pursuant to section 56D, total citations issued by category, and the net loss restored to consumers and merchants as a result of its enforcement program.
SECTION 43. Section 30A of chapter 266 of the General Laws, as so appearing, is hereby amended by inserting after the third subparagraph the following subparagraph:-
any person who intentionally and falsely requests a payment from a seller under the provisions of section 56E of chapter 98; or.
SECTION 44. The regulations required to be promulgated by the director of the division of standards in section 41 of this act shall not take effect until 180 days after the effective date of this act.
SECTION 45. The division of standards shall promulgate regulations requiring that any retail outlet which uses an automated retail checkout system, as defined in section 56D, shall employ as part of its automated retail checkout system, a visual price display mechanism so that the price is readable to the customer.