[HISTORY: Adopted by the County Legislature of the County of Ulster by L.L. No. 5-2000; amended in its entirety 7-11-2007 by L.L. No. 12-2007. Subsequent amendments noted where applicable.]
This chapter updates Local Law Number 5 of 2000. The Ulster County Legislature recognizes that clear, accurate pricing and checkout accuracy are basic consumer rights. It is the intent of this chapter to ensure that consumer goods offered for sale in Ulster County are clearly, accurately and adequately marked as to their selling prices.
In this chapter, unless the context otherwise requires:
This chapter applies to every person engaged in the business of the selling consumer commodities in Ulster County, as the term "consumer commodities" is defined in § 214-h of the New York State Agriculture and Markets Law.
Nothing in this chapter shall be construed to limit or restrict any right or remedy to which a person may be subject under common law or any other federal, state or local statute.
Pursuant to this section, and provided that the selling prices are clearly displayed in Arabic numerals on signs clearly designating the consumer goods to which they refer, this chapter shall not apply to any retail store which:
Has as its only full-time employee the owner thereof, and the parent or the spouse or the child of the owner, and (in the addition thereto) not more than two other full-time employees;
Had annual gross sales in a previous calendar year of less than $500,000, 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 in a previous calendar year of $500,000 or more; or
Engages primarily in the sale of food for consumption on the premises or in a specialty trade that the Legislature decides, by resolution, would be inappropriate for item pricing.
As used in this chapter, the following terms shall have the meanings indicated:
- COMPUTER-ASSISTED CHECKOUT SYSTEM
- Any electronic device, computer system or machine, including but not limited to laser scanners, which determines the selling price of consumer goods by interpreting coded information.
- CONSUMER COMMODITIES
- The following, however packaged or contained:
- A. 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;
- B. Napkins, facial towels, toilet tissue, foil wrapping, plastic wrapping, paper toweling, and disposable plates;
- C. Detergents, soaps and other cleansing agents; and
- D. Nonprescription drugs, female hygiene products and toiletries.
- CONSUMER GOODS
- Consumer commodities sold by any person, firm, partnership, corporation or association who or which sells, offers for sale or exposes for sale at retail in a food store or grocery department of a general merchandise store a consumer commodity as defined in § 214-h of the New York State Agriculture and Markets Law.
- FOOD STORE
- A store selling primarily food at retail, which store is not primarily engaged in the sale of food for consumption on the premises or which is not primarily engaged in a specialty trade which the Legislature determines, by regulation, would be inappropriate for unit pricing.
- LARGE FOOD STORE
- A food store containing retail space of more than 15,000 square feet.
- LARGE OVERCHARGE
- An error of $0.25 or more on any individual item.
- Includes without limitation any individual, firm, joint venture, association, copartnership, group, corporation or any other legal entity or combination of entities whatsoever.
- PRICE LOOKUP FUNCTION
- The capability of any checkout system to determine the retail price for an item of consumer goods by way of either automatic or manual entry into the system of a code assigned to that particular item.
- SMALL FOOD STORE
- A food store containing retail space of up to 15,000 square feet.
- STOCKKEEPING ITEM (SKI)
- Each individual item within a stockkeeping unit.
- STOCKKEEPING UNIT (SKU)
- Each group of items offered for sale of the same brand name, quantity of contents, variety and retail price.
The selling price shall be clearly stamped, tagged, labeled or otherwise marked in Arabic numerals on each item of consumer goods offered for sale in Ulster County.
The provisions of this Subsection A of this section shall not apply to the following consumer goods, provided that the selling price and the unit of measure are clearly displayed in Arabic numerals on a sign, clearly designating the particular consumer goods to which it refers, located as close as practical, and closer than other signs, to the location at which the goods are displayed:
Consumer goods which are displayed loose in bulk, not packaged prior to sale, and which are packaged for or by the consumer at the time of sale, such as but not limited to fresh produce, fresh baked goods, and coffee beans.
Foods sold for consumption on the premises as well as foods prepared for immediate consumption but sold as takeout or sold from vending machines operated by the consumer.
Snack food, such as but not limited to gum, candy, cakes, chips and nuts, offered for sale in single packages, weighing five ounces or less and costing less than $1.
Cigarettes and cigars sold by the pack or by the carton.
Single containers of nonalcoholic beverages where the selling prices for different flavors packaged in identical sizes or quantities are the same.
Nonfood stockkeeping units which are under three cubic inches in size and weigh less than three ounces and are priced under $1.
Baby foods in containers with a net weight of six ounces or less.
Yogurt packaged and sold in single containers.
Packaged nonrefrigerated gelatin, pudding and gelatin or pudding products.
The provisions of Subsection B of this section may be subsequently modified either by adding or deleting consumer goods from the list of exemptions, provided that a resolution supporting such modification is passed by the Ulster County Legislature.
The County Sealer of Weights and Measures may further direct the manner in which the selling price of the exempted consumer goods shall be posted.
It shall be a violation of this chapter to:
Stamp, tag, label or otherwise mark more than one selling price upon an item of consumer goods offered for sale in Ulster County unless the prior selling price is unmistakably deleted or obliterated or is otherwise marked so as to indicate clearly that the prior selling price is not the current selling price.
Stamp, tag, label or otherwise mark any item of consumer goods at a selling price greater than the selling price advertised or displayed for that item.
Sell or offer for sale any consumer goods or services at a greater price than the price displayed or advertised therefor.
Use a computer-assisted checkout system or price lookup function that determines a retail selling price that exceeds the lower of any shelf, sale or advertised price for any item of consumer goods offered for sale.
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 § 169-5 of this chapter may make application in writing to the County Sealer of Weights and Measures (County Sealer) for a waiver of said item pricing requirement. A separate application shall be required for each store. Each application shall be subject to a nonrefundable processing fee to cover the cost of conducting scanner accuracy inspections as provided in Subsection B of this section. The County Sealer shall determine the processing fee and may revise it from time to time, but in no event shall said fee exceed $1,500 per application for a large food store or $1,000 per application for a small food store.
Upon receipt of an application and fee as provided in Subsection A of this section, the County Sealer 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 stockkeeping unit (SKU) with the computer-assisted checkout system price. Such inspection shall consist of at least 100 SKUs, but no more than 500, selected at the discretion of the County Sealer. In the event that any violations are detected, penalties shall be assessed as provided in § 169-7F, G and H of this chapter. If, considering both inspections together, the number of SKUs found in violation does not exceed 2% of all SKUs inspected, the County Sealer 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 § 169-5 of this chapter.
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 application.
In the event that total violations in excess of 2% are discovered in the inspections provided for in Subsection B or C of this section, the County Sealer shall deny a waiver to the applicant. If the owner of the store still wishes a waiver, such store must promptly reapply for a waiver and pay the required fee to the County Sealer within five business days after being notified of the failure. Stores that do not reapply must promptly come into compliance with all requirements of § 169-5 and may not again reapply for a waiver until at least one year after denial by the County Sealer.
In the event that the County Sealer is unable to conduct inspection pursuant to Subsection B of this section within 90 days of receipt of a complete waiver application and proper processing fee, the County Sealer may grant a temporary waiver pending completion of inspections. The County Sealer shall cause said inspections to be completed as soon as practicable. If, upon completion, the inspections detect a violation rate of 2% or less, the County Sealer shall issue a regular waiver with an expiration date one year from the commencement date of the temporary waiver. If the inspections detect a violation rate in excess of 2%, the temporary waiver shall be immediately revoked and compliance with § 169-5 shall be required and the provisions of Subsection D of this section shall apply.
As a condition of the waiver from item pricing pursuant to this section, 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:
The store shall designate and make available price check scanners to enable consumers to confirm the prices of stockkeeping items (SKIs). These price check scanners shall be in locations convenient to consumers with signs of sufficient sized lettering identifying these units to consumers. Stores will submit their proposals for signs, numbers of devices and device locations to the County Sealer for approval.
The store shall not charge any customer a price for any SKI that exceeds the item, shelf, sale or advertising price of the SKI, whichever is least.
The store shall cause to be posted in a conspicuous location, accessible by all consumers and approved by the County Sealer, a sign explaining the rights of consumers consistent with § 169-7 of this chapter. The County Sealer will specify the content and size of the sign by regulation. The store is also required to post the temporary or annual waiver in the area designated for handling price discrepancies.
The store shall make payment to consumers who have been overcharged as provided in § 169-7 of this chapter. 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.
The store shall correct all pricing errors identified by consumers at store level within one hour and, if applicable, at their firm, partnership, corporation, or association within 24 hours.
The store shall clearly display the selling price 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 stockkeeping item. Failure to display the selling price for a SKU, consistent with this subsection, constitutes a scanner error.
At any time, the 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 advertised price of any stockkeeping unit (SKU) with the computer-assisted checkout system price. Such inspection shall consist of not fewer than 100 nor more than 500 SKUs selected at the discretion of the County Sealer. In the event that any violations are detected, penalties shall be assessed as provided in § 169-7F, G and H of this chapter. In the event that the number of SKUs found in violation equals or exceeds 2% of all SKUs inspected, the County Sealer 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 within five business days after being notified of the failure. Stores that do not reapply must promptly come into compliance with all the requirements of § 169-5 and may not again reapply for a waiver until at least one year after revocation.
Any person who violates any provision of this chapter, or who fails to comply with any order made by an enforcement officer pursuant to this chapter, shall be guilty of a violation and subject to a civil penalty. Noncompliance within a stockkeeping unit shall constitute a single violation, unless otherwise indicated by this chapter.
For failure to clearly, accurately or adequately mark consumer goods as to their selling prices as required by this chapter, civil penalties shall be imposed and fixed by the County Sealer of Weights and Measures.
For failure to clearly, accurately or adequately mark consumer goods as to their selling prices as required by this chapter, penalties shall not exceed $500 for each violation nor exceed a total penalty of $15,000 per day.
The primary responsibility for administration and enforcement of this chapter shall be with the County Sealer of Weights and Measures, except where otherwise noted herein. The County Sealer of Weights and Measures and his designees shall act as enforcement officers for this chapter, and the County Sealer may bring an action in any court of competent jurisdiction to recover any penalties and shall also recover in such action as an additional penalty reasonable attorney fees to be fixed and assessed by the court, irrespective of whether or not the County Sealer is represented by the County Attorney in such action.
In stores with computer-assisted checkouts, enforcement officers shall be permitted to compare the item, shelf, sale or advertised price of any consumer goods with the programmed computer price. A store representative shall afford the enforcement officer access to the test mode of the checkout system in use or to a comparable function of the checkout system and to the retail price information contained in the price lookup function.
For violations resulting from a computer-assisted checkout system or price lookup function that determines a retail selling price exceeding the lower of any item, shelf, sale or advertised price for any item of consumer goods offered for sale, penalties shall not exceed $500 for each violation nor exceed a total penalty of $15,000 per day.
An enforcement officer shall have the authority to issue a stop-removal order with respect to any device, system or consumer goods being used, handled, offered for sale or exposed for sale in violation of § 169-5 of this chapter.
Any stop-removal order issued with respect to any stockkeeping item shall be in writing, shall list the violations and shall direct that any stockkeeping unit in violation shall not be sold, offered for sale or exposed for sale until the violations are corrected.
Any stop-removal order issued with respect to any device or system shall be in writing and shall list the violations. Such stop-removal 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 stockkeeping units 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 checkout which clearly disclose to store employees and consumers which stockkeeping units are affected by the violations and their correct price, and the retail store ensures that consumers are charged the correct prices.
The County Attorney, in the name of the County, may, upon request of the County Sealer of Weights and Measures, in addition to any other action authorized hereunder, maintain an action or proceeding in court of competent jurisdiction on behalf of the County Sealer of Weights and Measures to compel compliance with or restrain by injunction any violation of this chapter, notwithstanding any other provision hereof providing for a penalty or other punishment.
Any consumer who suffers a loss because the price charged for a SKI is greater than the item, shelf, sale, or advertised price may seek a super-refund. A super-refund entitles the consumer to receive the overcharged SKI free, the difference between the price charged and the lower 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. Within the same transaction, each subsequent overcharge for the same SKU entitles a consumer to an additional refund equal to the difference between the price charged and the lower of the item, sale, shelf or advertised price, plus $1.
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 Subsection A of this section.
If the store fails to tender a super-refund within the time set forth in this chapter, the consumer may request a review by the County Sealer. Within 10 working days of the receipt of such a request, the County Sealer shall determine what payment, if any, is due under this section. A store that fails to comply with the County Sealer's determination or any other provision of this section is considered in violation and subject to penalties under § 169-7 of this chapter.
A store may set an overcharge refund policy more generous than required by this chapter, provided that policy is approved by the Sealer of Weights and Measures and a copy of the Sealer's approval is kept on file in the store.
All fines and penalties imposed and collected by reason of civil enforcement of this chapter shall be paid to the County of Ulster and credited to the general fund.
On consent of the County Sealer of Weights and Measures and a person accused of violating this chapter, a consent decree or agreement may be entered into. No such consent decree or agreement shall restrict any legal right or remedy to which any consumer complaining of the matter which is the subject of such consent decree or agreement might otherwise be entitled, unless such consumer is a party thereto.