[HISTORY: Adopted by the Village Board of the Village of
Kimberly 10-3-1988 as Sec. 8-1-11 of the 1988 Code. Amendments noted
where applicable.]
As used in this chapter, the following terms shall have the
meanings indicated:
The Village of Kimberly Department of Health.
As applied to weights, measures and commodities, includes
any failure to comply with the requirements of this chapter.
Any commodity put up or packaged in any manner in advance
of sale in units suitable for either wholesale or retail sale.
The Sealer of Weights and Measures and Deputy Sealer of Weights
and Measures of the Village.
Includes barter or exchange and any offering or exposing
for sale or possession with the intent to sell.
Net weight when used in reference to a commodity.
Weights and measures of every kind, instruments and devices
for weighing and measuring, counting or pricing, and any appliances
and accessories used with any or all such instruments and devices,
except meters for the measurement of electricity, gas (natural and
manufactured), or water when the meters are operated in a public utility
system and scales under the control of the Department of Agriculture,
Trade and Consumer Protection.
A.
Police powers. Police power is hereby conferred upon the Sealer and
Deputy Sealers of Weights and Measures. The Sealer and Deputy Sealers
shall be provided with suitable badges or insignia of authority and
in the exercise of their functions shall exhibit the badge or insignia
upon demand to any person questioning their powers. They may make
arrests, with or without formal warrant, of any persons violating
any statute or ordinance relating to weights and measures.
B.
Premises entry. The Sealer and Deputy Sealers may enter and go into
or upon any structure or premises and may stop any person or vehicle
for the purpose of enforcing this chapter. They shall inspect and
test any weights or commodities which are sold or used commercially
as often as necessary to secure compliance with this chapter. The
Sealer or Deputy Sealers shall approve for use and seal or mark with
appropriate devices such weights and measures as found upon inspection
and test to be correct and shall reject and mark or tag as rejected
such weights and measures as found upon inspection or test to be incorrect
but which in their best judgment are susceptible to satisfactory repair.
Weights and measures that have been rejected or condemned may be confiscated
and may be destroyed by the Sealer if not corrected as required by
the Sealer or if used or disposed of contrary to this chapter.
C.
Authority to issue orders. The Sealer or Deputy Sealers shall have
the power to issue stop orders, stop sale orders and disposal orders
with respect to weights and measures being or susceptible of being
commercially used and to issue stop sale orders and disposal orders
with respect to packages or amounts of commodities kept, offered or
exposed for sale, sold or in process of delivery, whenever in the
course of their enforcement of the provisions of this chapter they
deem it necessary or expedient to issue such orders. No person shall
use, remove from the premises specified, or fail to remove from the
premises specified any weight, measure or package or amount of commodity
contrary to the terms of a stop use order, stop sale order or disposal
order issued under the authority of this chapter.
D.
Investigations. The Sealer shall investigate complaints made to him/her
concerning violations of the provisions of this chapter and shall,
upon his/her own initiative, conduct such investigations as he/she
deems appropriate and advisable to develop information on prevailing
procedures in commercial quantity determination and on possible violations
of the provisions of this chapter and to promote the general objective
of accuracy in the determination and representation of quantity in
commercial transactions.
E.
Inspections. The Sealer shall inspect and regulate closing-out sales
and other terminations of business. Upon completion of such inspection,
the Sealer shall submit a written report of his/her findings to the
Village Administrator.
For the purpose of this chapter, proof of the existence of a
weight or measure or a weighing or measuring device in or about any
building, enclosure, stand or vehicle in which or from which it is
shown that buying or selling is commonly carried on shall, in the
absence of conclusive evidence to the contrary, be presumptive proof
of the regular use of such weight or measure or weighing or measuring
device for commercial purposes and of such use by the person in charge
of such building, enclosure, stand or vehicle.
The Village Sealer and Deputy Sealers shall be appointed by
the Village Administrator subject to confirmation by the Village Board.
The Department shall keep a complete record of its work and annually
shall file a report thereof with the State Department of Agriculture,
Trade and Consumer Protection and the Village Board. The Department
shall also file such other reports as may be required.
The following federal standards, Wisconsin Statutes, and state administrative rules are adopted by reference and shall be enforced by this chapter, with violations of such provisions subject to the penalties set forth in § 476-19:
A.
Field standards and equipment. There shall be supplied by the Village,
through contract, such field standards and such equipment as may be
found necessary to carry out the provisions of this chapter. The field
standards shall be verified by the State Department of Agriculture,
Trade and Consumer Protection upon their initial receipt and at regular
intervals thereafter stipulated by the state.
B.
Specifications and tolerances. The specifications, tolerances and
regulations for commercial weighing and measuring devices issued by
the National Institute of Standards and Technology shall apply in
the Village except as modified by rules issued by the State Department
of Agriculture, Trade and Consumer Protection.
Whoever does any of the following acts shall be subject to the
penalty provided in § 467-19:
A.
Hinders, obstructs or impersonates the Sealer or Deputy Sealer.
B.
Uses or has in possession for use in buying or selling any commodity
or service or sells any incorrect weight or measure.
C.
Represents in any manner a false quantity or price in connection
with the purchase or sale or any advertising thereof of any commodity,
thing or service.
D.
Uses or disposes of any rejected weight or measure commodity or removes
therefrom any official tag, seal, stamp or mark without written authority
from the Sealer or Deputy Sealer.
E.
Uses any weighing or measuring device in determining the quantity of any commodity or service to be sold or purchased without having the device approved and sealed by the Sealer and the proper certificate obtained in accordance with § 476-8 below.
F.
Violates any other provision of this chapter.
The owner, operator or user of any commercial weights and measures
equipment, devices or associated equipment is responsible for the
accuracy and maintenance of the equipment.
A.
Duty to notify. It shall be the duty of every owner, operator or
user to notify the Sealer in writing of the acquisition of any device,
whether new, rebuilt or used, or of the major repair, conversion or
calibration of any device already in use. The notification shall be
accomplished within 72 hours of the introduction or reintroduction
into use of the device.
B.
Security seals. Commercial weights and measures devices regulated by this chapter shall bear security seals appropriately affixed to any adjustment mechanisms designed to be sealed. The security seals shall bear the mark and imprint of the Sealer or Deputy Sealer or other weights and measures official, or service persons authorized by the Sealer. The security seal may only be removed to facilitate repairs of devices. The Sealer or Deputy Sealer shall be notified of the repairs and removal of the seal within 72 hours of removal or of the introduction of a new, rebuilt or used device, in accordance with Subsection A above, so that the devices may be sealed or resealed.
C.
Transient merchants. Transient merchants purchasing or selling commodities
or services by weight or measure either from bulk or in packaged form
shall notify the Sealer and receive the approval of the Sealer before
purchasing or selling activities may be commenced. At the Sealer's
discretion, the transient merchant may be approved for a calendar
year and the subsequent notification requirement may be waived. Sellers of farm produce and seafood
vendors operating from other than a continuous, permanent location
shall also meet these requirements. Transients operating as part of
a licensed Village farm market are exempted from this requirement.
A.
Liquid form commodities. Commodities in liquid form shall be sold
by liquid measure and commodities not in liquid form shall be sold
by weight, provided that liquid commodities may be sold by weight
and commodities not in liquid form may by sold by count or measure
if such methods are in general use and give accurate information as
to the quantity of commodity sold.
B.
Small fruits. Berries and small fruits may be sold by measure only
if in containers having capacity of 1/2 dry pint, one dry pint or
one dry quart.
C.
Firewood. It shall be unlawful to advertise, offer for sale or sell
within the Village firewood, fireplace wood, slab wood or stove wood
in any other manner than by cord, fractions of a cord, volumetric
measure or by weight.
(1)
Mill ends, lumber scraps, and irregular pieces, when sold for fuel,
shall be sold by net weight.
(2)
The cord is hereby defined for purposes of this chapter as the amount
of wood, or a combustible, fibrous growth, which is contained in a
space of 128 cubic feet when the wood is ranked and well-stowed.
(3)
A single log and packages of such individual logs containing less
than four cubic feet, commonly referred to as "bundles," shall be
sold by weight. Per custom, 128 cubic feet generally means a stack
of wood four feet by four feet by eight feet. "Ranked and well-stowed"
shall be construed to mean pieces of wood placed in a line or row
with individual pieces touching and parallel to each other and stacked
in a compact manner.
D.
Exceptions. This subsection shall not apply to commodities sold in
compliance with a state or federal law which prescribes another method
of sale or to commodities for immediate consumption on the premises
where sold.
A.
Weight label. No commodity which is marked, tagged or labeled, or
for which a sign is displayed, with a selling price based upon a price
per unit of weight or measure, shall be sold unless the weight or
measure of the commodity is conspicuously declared on the commodity
or its tag, label or sign. If a commodity is wrapped or labeled in
advance of sale with a price affixed to the commodity or wrapping,
the quantity that determines that price shall appear on the package
with the price even though the quantity may already appear on a counter
card or sign.
B.
Qualifying terms. No commodity shall be wrapped or its container
made, formed or filled so as to mislead the purchaser, nor shall the
qualifying term "when packaged" or the terms "jumbo" or "giant" or
"full" or words of similar import that tend to mislead the purchaser
as to the amount of the commodity be used in connection with a declaration
of quantity.
C.
Package price per weight. In addition to the order declarations required
by this chapter, any commodity in package form, the package being
one of a lot containing random weights, measures or counts of the
same commodity and bearing the total selling price of the package,
shall bear on the outside of the package a plain and conspicuous declaration
of the price per single unit of weight, measure or count.
The magnitude of permitted variations from declared quantity
shall be determined as follows:
A.
Basis. The compliance of commodities sold, either in bulk or in prepackaged
form, shall be based upon the results of the application of inspection
procedures and tolerances as set forth by the State Department of
Agriculture, Trade and Consumer Protection.
B.
Post-testing violations. Commodities, both in bulk or prepackaged
form, found in violation of this chapter after test and analysis of
a random or statistical sample, shall be acted upon either individually
or on a by-the-lot basis.
Whenever a commodity in bulk or packaged form is advertised
in any manner and the price of the commodity is stated in the advertisement,
there shall be closely and conspicuously associated with such statement
of price a declaration of the quantity of the contents offered in
the case of packaged commodity or of the price per unit and the unit
based upon in the case of a bulk commodity.
A.
Consistency between package and advertising. When the commodity is
in packaged form, the quantity, as it appears on the package, shall
likewise appear in the advertisement, provided that, where the law
or regulation requires a dual declaration, only that declaration setting
forth the quantity in terms of the smaller unit of weight or measure
(the declaration that is required to appear first on the package)
need appear in the advertisement.
B.
Appropriate method of sale. Whenever any commodity is advertised as described, the appropriate method of sale as set forth in § 476-9 and in state statutes adopted by reference shall also be applied in the advertisement.
C.
Qualifying terms prohibited. There shall not be included as part
of the declaration required under this subsection such qualifying
terms as "when packaged," "minimum," "not less than," or any other
terms of similar import, nor any term qualifying a unit of weight,
measure or count (for example, "jumbo," "giant," "full," and the like)
that tends to exaggerate the amount of commodity in the package.
A.
Generally. Whenever any commodity or service is sold or is offered,
exposed or advertised for sale by weight, measure or count, the price
shall not be misrepresented, nor shall the price be represented in
any manner calculated or tending to mislead or deceive an actual or
prospective purchaser. Whenever an advertised, posted or labeled price
per unit of weight, measure or count includes a fraction of a cent,
all elements of the fraction shall be prominently displayed and the
numerals expressing the fraction shall be immediately adjacent to,
of the same general design and style as, and at least 1/2 the height
and width of the numerals representing the whole cents.
B.
Cash registers and similar devices. Prices generated by a device
such as a cash register or scanning system are also affected under
this chapter. The Sealer shall inspect and test such systems and monitor
pricing declarations made relative to them, such as pricing signs,
shelf tags or individually price-marked units, to ensure agreement
of all prices. Prices generated by these systems shall wholly agree
with posted or premarked prices for the item being sold.
(1)
Cash registers. Each cash register used in buying and selling transactions
shall be maintained in proper operating condition by its owner. All
components, attachments and functions of the register shall be operating
correctly as designed. All pricing representations shall be accurate.
(2)
UPC, scanning and point-of-sale systems. Pricing systems utilizing
a scanning device such as a handheld gun or wand or counter-mounted
scanner units at retail checkouts which read universal product code
systems or other bar code labels and the like shall be maintained
in proper operating condition and be so calibrated to accurately read
the intended system(s) and then generate the proper description and
price for the given code.
C.
Price refunds; price information.
(1)
A person who uses an electronic scanner to record the price of a
commodity or thing at a price higher than the posted, tagged or advertised
price of that commodity or thing at least shall refund to a person
who purchases the commodity or thing the difference between the posted
or advertised price of the commodity or thing and the price charged
at the time of sale.
A.
Sales. All coal, coke and charcoal shall be sold by weight. Unless
the fuel is delivered to the purchaser in package form, each delivery
of coal, coke or charcoal to an individual purchaser shall be accompanied
by duplicate tickets on which, in ink or other indelible substance,
there is clearly stated:
B.
Weight slips. One of these tickets shall be retained by the vendor
and the other shall be delivered to the purchaser at the time of delivery
of the fuel or shall be surrendered on demand to the Sealer or a Deputy
Sealer who, if he/she desires to retain it as evidence, shall issue
a weight slip in lieu thereof for delivery to the purchaser. If the
purchaser carries away his/her purchase, the vendor shall be required
only to give the purchaser at the time of sale a delivery ticket stating
the number of pounds of fuel delivered to him/her.
A.
Delivery tickets. As set forth in § 476-9C above, firewood, fireplace wood, slab wood or stove wood shall be sold only by units of a cord or fractions of a cord, by volumetric measure, or by weight. A delivery ticket or invoice shall be presented by the seller to the purchaser whenever any nonpackaged fireplace or stove wood is sold. The delivery ticket or sales invoice shall clearly and legibly state in ink or other indelible substance at least the following information:
(1)
Name and address of seller;
(2)
Name and address of purchaser;
(3)
Date of delivery;
(4)
Quantity delivered and the quantity upon which the price is based,
if this differed from the delivered quantity;
(5)
The price of the amount delivered; and
(6)
The identity of the wood in the most descriptive terms commercially
practicable, including any quality representation made in connection
with the sale.
B.
Bundle sales. Units of firewood of less than four cubic feet, whether
sold as single logs or in packages consisting of two or more logs
commonly referred to as bundles, shall be sold by net weight. No delivery
ticket or invoice is required; however, each package of two or more
logs shall be clearly and legibly labeled, tagged or marked with the
name, address and zip code of the packager or distributor, the net
weight contained and the species of wood provided (for example "birch
firewood" or "mixed hardwood").
C.
Sales license. No person shall advertise to residents of the Village nor sell and deliver within the Village any firewood, fireplace wood, slab wood or stove wood without first having obtained an annual license as required in this chapter. The license fee shall be as set forth in § 476-18. Firewood sellers shall ensure that their current weights and measures license number is placed in any advertisements, including those publications or broadcasts that originate outside of the Village but that are directed all or in part to Village residents.
All heating oils and motor fuels shall be sold by liquid measure
or by net weight. In the case of each delivery of liquid fuel not
in package form and in an amount greater than 10 gallons in the case
of sale by liquid measure or 100 pounds in the case of sale by weight,
there shall be rendered to the purchaser, either at the time of delivery
or within a period mutually agreed upon in writing or otherwise between
the vendor and the purchaser, a delivery ticket or a written statement
on which, in ink or other indelible substance, there shall be clearly
and legibly stated:
A.
The name and address of the vendor;
B.
The name and address of the purchaser;
C.
The identity of the type of fuel comprising the delivery;
D.
The unit price, that is the price per gallon or per pound, as the
case may be, of the fuel delivered;
E.
In the case of sale by liquid measure, the liquid volume of the delivery,
together with the print meter readings from which such liquid volume
has been computed, expressed in terms of the gallon and its binary
or decimal subdivisions; and
F.
In the case of sale by weight, the net weight of the delivery, together
with any weighing scale readings, from which such net weight had been
computed, expressed in terms of tons or pounds avoirdupois.
Every wholesaler, retailer and every other person selling or
distributing motor fuel, heating oil or solvents in the Village shall
keep posted in a conspicuous place, accessible to the public, at his/her
place of business and on every pump from which delivery is made directly
into the fuel tank attached to a motor vehicle or into any other vessel
brought into the same premises by the user, a placard, sign or the
like clearly stating the identity of each product dispensed, i.e.,
the grade, blend or mixture of the product, and the net selling price
per gallon, along with the amount of all taxes per gallon thereon,
except that no such placard shall be required on a computer pump whereupon
the information described is legibly shown on the face.
A.
Definition. For purposes of this chapter, "commercial weighing or
measuring devices" means those devices used or employed in establishing
the size, quantity, extent, area or measurement of quantities, things,
produce or articles for sale, hire or award, or in computing any basic
charge or payment for services rendered on the basis of weight or
measure.
B.
Persons requiring licenses. No person shall operate weights and measures,
weighing or measuring devices and systems and accessories relating
thereto, which are used commercially within the Village in determining
the weight, measure or count of commodities or things sold or purchased
or offered or exposed for sale on the basis of weight, measure or
count, unless licensed pursuant to the provisions of this section.
Transients operating as part of a licensed Village farm market are
exempted from this license. Those who may legally sell from bulk or
who prepackage for on-premises sale by weight or measure without weighing
and measuring devices shall also be licensed.
C.
Term; refund of fee; processing fee.
(1)
Licenses shall be required under this section commencing January
1. All licenses shall expire or terminate on December 31 of each year,
except firewood dealer licenses shall expire on June 30. No license
fee shall be refunded if a license is denied or revoked for cause.
(2)
An annual processing fee shall be paid in addition to any license
fee due. The amount of the annual processing fee shall be on file
at the Village Administrator's office.
D.
Application. The application for a weighing or measuring license
shall be made in writing on a form provided for such purpose by the
Village Sealer. Such application shall state the type and number of
weighing and measuring devices to be licensed, the business address
where the devices are located, the applicant's full name, signature
and post office address, and whether such person is an individual,
firm, corporation or partnership. The names and addresses of all officers
or partners shall be included.
E.
Issuance; license fees. The Village Sealer shall issue a license
under this section to the applicant based on the total number of weighing
and measuring devices operated by the applicant if the requirements
of this chapter have been complied with and upon payment to the Village
of the applicable fee. The fee for licensing of weighing and measuring
devices shall be on file with the Village Administrator's office.
F.
Special fees. Notwithstanding the provision for the requirement of
an annual license for weighing and measuring devices, whenever a special
request is made for consultation or the inspection or testing of a
noncategorized weighing or measuring device, the actual expenses may
be charged to the person or firm receiving the service. Such payment
or charge shall be based on the current hourly rate.
G.
Display. All persons licensed under the provisions of this section
shall immediately post their license upon some conspicuous part of
the premises on which the business is conducted, and the license shall
remain posted for the period the license is in force.
H.
Transfer; issuance to agent or employee. No license issued under
this section may be transferred unless otherwise provided for by the
ordinances of the Village. No license shall be issued to or used by
any person acting for or in the employ of another.
I.
Suspension. Notwithstanding any other provisions of this chapter,
whenever the Village Sealer finds that business on any premises licensed
under this section is conducted or managed in such a manner that there
are serious or repeated violations of this chapter or violation of
any ordinances or regulations of the Village, the laws of the state,
or regulations of the National Institute of Standards and Technology
relating to weights and measures, he/she may, without warning, notice
or hearing, issue a written notice to the license holder, operator
or employee in charge of the licensed premises in the Village citing
such condition and specifying the corrective action to be taken. If
deemed necessary, such order shall state that the license is immediately
suspended and that all weighing and measuring operations are to be
discontinued. Any person to whom such an order is issued shall comply
immediately but, upon written petition to the Village Board, shall
be afforded a hearing before the Village Board within 20 days of such
petition. Failure to allow an inspector immediate access to the premises
to determine whether such grounds exist shall be grounds for suspension.
J.
Revocation. For serious or repeated violations of any of the requirements
of this chapter or for interference with the Village Sealer in the
performance of his/her duties, the Village Sealer may permanently
revoke the license issued under this section. Prior to such action,
the Village Sealer shall notify the license holder in writing, stating
the reasons for which the license is subject to revocation and advising
that the license shall be permanently revoked at the end of five days
following service of such notice unless a request for a hearing is
filed with the Village Board by the license holder within such five-day
period.
K.
Hearings. The hearings provided for in this section shall be conducted
by the Village Board at a time and place designated by the Village
Administrator. Based upon the record of such hearing, the Village
Sealer shall be charged with enforcing the decisions of the Board.
A written report of a hearing decision shall be furnished to the license
holder by the Village Administrator.
L.
Fee for late payment. An application for renewal shall be filed with
the Village Sealer on or before December 31 of each year, together
with the payment of the required license fee. If the annual renewal
fee is not paid prior to December 31, an additional late payment fee
of $50 per establishment shall be required. Establishments operating
on January 15 without proper license shall be ordered closed by the
County Health Officer. Failure to comply will result in the issuance
of a uniform citation with current bond as set forth in the Kimberly
Municipal Code. Each violation and each day a violation continues
or occurs shall constitute a separate offense. Firewood dealers are
exempted from this provision.[1]
M.
Penalty for use of unregistered device. Upon failure to make notification
to the Village Sealer within 72 hours of the addition or replacement
of any new or used weights and measures equipment, including any scale,
pump, meter, etc., a penalty of triple the device fee herein prescribed
shall be assessed. Payment of any fee mentioned in this section, however,
shall in no way relieve any person or firm of the penalties that may
be imposed for violation of this chapter.
