[HISTORY: Adopted by the City Council of the City of South
Milwaukee. Amendments noted where applicable.]
The City of South Milwaukee.
The Sealer of Weights and Measures in the City.
The City of South Milwaukee/St. Francis Health Department.
[Amended 4-5-2023 by Ord. No. 2243]
A fee for the replacement of the original permit.
The local health department in that City in which the business
is located or its successor organization if any, or in its absence,
the Public Health Administrator.
A fee for failure to pay established fees by June 30 or the
due date.
The document issued by the regulatory authority that authorizes
a person to operate a weighing and measuring device. The words "permit"
and "license" as used throughout this chapter shall be interchangeable.
A fee for the second and subsequent inspections needed to
address compliance issues with the statutes, administrative codes
and City ordinance.
[Amended 4-5-2023 by Ord. No. 2243]
Net weight when used in reference to a commodity.
Any device 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.
The following federal standards, Wisconsin Statutes and state
rules are adopted by reference and shall be enforced under this chapter:
A.
Wisconsin Statutes Chapter 98, Weights and Measures.
B.
Wisconsin Administrative Code, Chapter ATCP 90, Package and Labeling.
C.
Wisconsin Administrative Code, Chapter ATCP 91, Methods of Sale and
Commodities.
D.
Wisconsin Administrative Code, Chapter ATCP 109, Freezer Meat and
Food Service Plan Trade Practices.
E.
Wisconsin Administrative Code, Chapter ATCP 92, Scales and Scale
Pits.
F.
Wisconsin Statutes Chapter 97, Food Regulation.
G.
Wisconsin Statutes Chapter 100, Marketing; Trade Practices.
H.
NIST handbook 44, U.S. Department of Commerce, Specifications, Tolerances
and Other Technical Requirements and Commercial Weighing and Measuring
Devices.
I.
Wisconsin Administrative Code, Chapter ATCP 124, Price Comparison
Advertising.
There shall be supplied by the Department such field standards
and such equipment as may be found necessary to carry out the provisions
of this chapter. The field standards shall be certified by the State
Weights and Measures office as provided by § 98.04(1), Wis.
Stats.
A.
Appointment; compensation. The City Sealer shall be appointed by
the Mayor, subject to confirmation by the Council. The Sealer shall
be allowed a salary as determined by the Council.
B.
General powers and duties. The Sealer shall have the custody of the
City standards of weight and measure and of the other standards and
equipment provided for by this chapter and shall keep accurate records
of the same. The Sealer shall enforce the provisions of this chapter
and of the State Weights and Measures Act. He shall have and keep
a general supervision over the weights and measures offered for sale,
sold or in use in the City. The sealer 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 Common
Council.
C.
Specific powers and duties.
(1)
Testing at City-supported institutions. The Sealer shall from time
to time test all weights and measures used in checking the receipt
or disbursement of supplies in every institution for the maintenance
of which monies are appropriated by the Council, reporting his findings
in writing to the executive officer of the institution concerned.
(2)
General testing.
(a)
When not otherwise provided by law, the Sealer may inspect and
test, to ascertain if they are correct, all weights and measures kept,
offered or exposed for sale. The Sealer shall at least once within
a twelve-month period, and as more frequently as he may deem necessary,
inspect and test, to ascertain if they are correct, all weights and
measures commercially used:
(b)
With respect to single-service devices, that is, devices to
be used commercially only once and to be then discarded, and with
respect to devices uniformly mass-produced, as by means of a mold
or die, and not susceptible of individual adjustment, tests may be
made on representative samples of such devices; and the lots of which
such samples are representative shall be held to be correct or incorrect
upon the basis of the results of the inspections and tests on such
samples.
(3)
Investigations. The Sealer shall investigate complaints made to him
concerning violations of the provisions of this chapter and shall,
upon his own initiative, conduct such investigations as he 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
(4)
Inspection of packages. The Sealer shall, from time to time, weigh
or measure and inspect packages or amounts of commodities kept, offered
or exposed for sale, sold or in the process of delivery to determine
whether the same contain the amounts represented and are kept, offered
or exposed for sale or sold in accordance with law; and when such
packages or amounts of commodities are found not to contain the amounts
represented or are found to be kept, offered or exposed for sale in
violation of law, the Sealer may order them off sale and may so mark
or tag them as to show them to be illegal. In carrying out the provisions
of this paragraph, the Sealer may employ recognized sampling procedures
under which the compliance of a given lot of packages will be determined
on the basis of the result obtained on a sample selected from the
representative of such lot.
(5)
Disposition of correct and incorrect apparatus. The Sealer shall
approve for use and seal or mark with appropriate devices such weights
and measures as he finds upon inspection and test to be correct and
shall reject and mark or tag as "rejected" such weights and measures
as he finds, upon inspection or test, to be incorrect, but which in
his best judgment can be satisfactorily repaired. The Sealer shall
condemn, and may seize and destroy, weights and measures found to
be incorrect that in his best judgment cannot be satisfactorily repaired.
Weights and measures that have been rejected may be confiscated and
destroyed by the Sealer if not correct, or if used or disposed of
contrary to this chapter.
(6)
Police powers; right of entry and stoppage. With respect to the enforcement
of this chapter and any ordinance or State statute dealing with weights
and measures that he is or may be empowered to enforce, the Sealer
is vested with special police powers and may arrest, without formal
warrant, any violator of this chapter, ordinance or statute, and seize
for use as evidence, without formal warrant, incorrect or unsealed
weights and measures or amounts or packages of commodity found to
be used, retained, offered or exposed for sale or sold in violation
of law. In the performance of his official duties, the Sealer may
enter or go into or upon, without formal warrant, any structure or
premises and stop any person and require him to proceed, with or without
any vehicle of which he may be in charge, to some place which the
Sealer may specify.
No person may assault, restrain, threaten, intimidate, impede,
interfere with or otherwise obstruct the City Sealer or authorized
agent in the performance of his or her duties under this section,
nor shall the operator give false information with the intent to mislead
the City Sealer or authorized agent.
No person shall operate weights and measures, weighing or measuring
devices and systems and accessories relating thereto, which are used
commercially within the City in determining the weight, measure or
count of commodities or thing 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 ordinance. Transients operating
as a City farm market are exempted from this license.
All applicants must apply on forms furnished by the Department.
All applications for permits shall be made in writing to the local
governing body where the business is located. All applications shall
list the true, legal names of the owners or operators of the business,
whether person, firm, partnership or corporation, address. All corporations
applying for licensure shall be registered with the State and the
name of the registered agents shall be placed on the application.
The agent's name and address shall be kept current. The applicant
shall provide documents, which reflect the aforementioned registration
to the Department. The Department shall either approve the application
or deny the permit with 30 days after receipt of a complete application.
Any person refused or denied a license may appeal the denial
through the appeal procedure provided under the provisions of §§ 68.07
through 68.16, Wis. Stats.
The City Sealer shall issue a license under this article 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 City of the applicable
fee. The fee for licensing of weighing and measuring devices shall
be on file with the City Clerk.
The Department or authorized agent shall issue a license to
each applicant for a new or renewal license that meets all the requirements
of this section and has paid to the City the fee required in the City
Fee Schedule. A licensee must get approval from the City Common Council
in which the business is located if its license has been suspended
or revoked within the last three years.
All persons licensed under the provisions of this ordinance
shall immediately post their license upon some conspicuously part
of the premises on which the business is conducted and the license
shall remain posted for the period the license is in force.
A.
A licensee shall notify the Department whenever there is a change
in any information that is reported in the application form. The licensee
shall make this notification in writing within five days after the
change occurs.
B.
The owner of any premises for which a license has been granted shall
promptly notify the Department in writing of his or her intention
to cease operations.
No license issued under this articles may be transferred unless
other wise provided for by the ordinances of the City. No license
shall be issued to or used by any person acting for or in the employ
of another.
A.
If funds are to be found insufficient, lack of payment or any other
reason the funds are not honored, the license will be null and void.
Upon notification, the permit must be submitted to the Department
for retainment until the time of re-issuance. A license will not be
issued until all applicable fees, late fees and processing charges
are paid.
B.
Any individual or corporation that owes the City for unpaid property
taxes, late fees, or license fees relating to a current or previous
weight and measures license shall pay all such outstanding fees, before
a license is issued.
A.
One copy of the inspection report shall be given to the owner, operator
or employee of the establishment and another copy shall remain on
file at the Department.
B.
As a condition of license renewal, all establishments licensed under
this Chapter shall consent to an annual inspection and reinspection.
License renewal may be withheld pending inspection, reinspections
and compliance with these regulations.
C.
Whenever an order or directive is issued by the City Sealer which
requires a reinspection to determine compliance, one reinspection
shall be made without charge and documented by the Department following
the time period given in the order or directive.
[Amended 4-5-2023 by Ord. No. 2243]
D.
If, upon the first reinspection, the order or directive is found
not to have been complied with and additional reinspections are required,
a fee shall be assessed the responsible party for each additional
reinspection to compensate for the costs of such reinspections. Payment
is due on written demand from the Department.
[Amended 4-5-2023 by Ord. No. 2243]
Weights and measures that have been rejected under the authority
of the Sealer shall remain subject to his control until such time
as suitable repair or disposition thereof has been made as required
by this section. The owners of such rejected weight and measure shall
cause the same to be made correct within 30 days or such longer period
as may be authorized by the Sealer or, in lieu of this, may dispose
of the same in such manner as is authorized by the Sealer. Weights
and measures that have been rejected shall not again be used commercially
until they have been officially re-examined and found to be correct
or until specific written permission for such use is issued by the
Sealer.
Fractional parts of any unit of weight or measure shall mean
like fractional parts of the value of such unit as prescribed or defined
in § 98.02, Wis. Stats. and all contracts concerning the
sale of commodities and services shall be construed in accordance
with this requirement.
No person shall, except with the specific approval of the Sealer,
in any manner:
A.
Sell, keep, offer or expose for sale in intrastate commerce any package
or amount of commodity that has been ordered off sale or marked or
tagged as provided in this chapter until such package or amount of
commodity has been brought into full compliance with all legal requirements.
B.
Dispose of any package or amount of commodity that has been ordered
off sale or marked or tagged as provided in this chapter and that
has not been brought into compliance with legal requirements.
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 include a fraction of a cent, all elements
of the fractions shall be prominently displayed, and the numeral or
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.
No person shall violate any provisions of this chapter.
A.
Enforcement. The Department or its designee shall enforce any provision
of this chapter.
B.
Enforcement procedure.
(1)
Inspection. If, upon inspection, the Department or designee finds
that any licensed or unlicensed place is conducted or managed in violation
of the ordinances or regulations of the City, laws of the State or
regulations of any agency of the State prescribing standards of weights
and measures, the department or designee shall service a written order
upon the licensee, his agent or employee in charge, of the premises,
or the person responsible for the violation, notifying him of such
violations.
(2)
Noncompliance with order. If a person does not comply with a written
order form the department or designee, the person may be subject to
one or more of the following actions, and/or penalties.
(a)
The issuance of a citation.
(b)
A reinspection fee.
(c)
Suspension of license.
(d)
Revocation of license.
(e)
Commencement of legal action against the person seeking a court
imposed forfeiture and/or imprisonment.
(f)
Commencement of legal action against the person seeking an injunction
to stop, abate the violations and/or correct the damage created by
the violation.
(g)
Any other action authorized by this chapter or by other applicable
laws as deemed necessary by the Department or designees.
(h)
The initiation of one action or penalty under this section does
not exempt the apparent violator from any additional actions and/or
penalties listed in this section.
Notwithstanding any other provisions of this chapter, whenever
the City Sealer finds that business on any premises licensed under
this article 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 City, the laws of the state or regulations
of the National Institute of Standards and Technology relating to
weights and measures, he may, issue a written notice to the license
holder, operator or employee in charge of the licensed premises, 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 weight and measuring operations are to be discontinued.
Any person to whom such an order is issued shall comply immediately.
The license holder whose license has been suspended may at any
time, make application for reinstatement of the license. Within one
week after the receipt of satisfactory application, accompanied by
a signed statement by the applicant that the violations have been
corrected, the City Sealer shall make a reinspection and thereafter
as many additional reinspections as he deems necessary to assure himself
that the applicant has complied with the requirements. If the finding
indicates compliance the Department may reinstate the license.
For serious or repeated violations of any of the requirements
of this chapter or for interference with the City Sealer in the performance
of his duties, the City Sealer may permanently revoke the license
issued under this article. Prior to such action, the City Sealer shall
notify the license holder in writing, stating the reasons for which
the license is revoked. The license holder shall comply immediately.
Any person whose license has been revoked may appeal the denial
through the appeal procedure provided under the provisions of §§ 68.07
through 68.16, Wis. Stats.
A.
The use or possession for the purpose of using for any commercial purpose specified in § 32.04C(2)(a), or the sale or offering or exposing for sale or hire, or having in possession for the purpose of selling or hiring, an incorrect weight or measure or any device or instrument used to or calculated to falsify any weight or measure.
B.
The use or possession for the purpose of current use for any commercial purpose specified in § 32.04C(2)(a) of a weight or measure that does not bear a seal or mark such as is specified in § 32.04C(5), unless such weight or measure has been exempted from testing by the provisions of § 32.04C(2)(b).
C.
The disposal of any rejected or condemned weight or measure in a
manner contrary to law or regulation.
D.
The removal from any weight or measure, contrary to law or regulation,
of any tag, seal or mark placed thereon by the appropriate authority.
E.
Selling or offering or exposing for sale less than the quantity he
represents of any commodity, thing or service.
F.
Taking more than the quantity her represents of any commodity, thing
or service when, as a buyer, he furnishes the weight or measure by
means of which the amount of the commodity, thing or service is determined.
G.
Keeping for the purpose of sale or advertising or offering or exposing
for sale or selling any commodity, thing or service in a condition
or manner contrary to law or regulation.
H.
The use in retail trade, except in the preparation of packages put
up in advance of sale and of medical prescriptions, of a weight or
measure that is not so positioned that its indications may be accurately
read and the weighting or measuring operation observed from some position
which reasonably be assumed by a customer.
I.
Violating any provision of this chapter or the regulation promulgated
under the provision of this chapter for which a specific penalty has
not been prescribed.
For the purpose of this chapter, proof of the existence of a
weight or measure or a weighing or measure 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 weighting or measuring
device for commercial purposes and of such use by the person in charge
of such building, enclosure, stand or vehicle.
A.
The fees for services and activities performed by the Department
in carrying out its responsibilities under this code shall be determined
by resolution of the Common Council and published in the Administrative
Fee Schedule.
B.
Fees to accompany application. License fees imposed under this chapter
shall accompany the license application. If a license is granted,
the Department shall issue the applicant a receipt for his license
fee.
C.
No proration. There will be no proration for license fees.
D.
Refunds. No license fee paid shall be refunded, unless a refund is
requested prior to an inspection.
E.
Late fees. A late fee, as enumerated in the Administrative Fee Schedule,
shall be charged for all licenses issued under provision of this chapter.
(1)
This shall apply when an application is not renewed before the expiration
date, unless waived by the Department.
(2)
A late fee shall also apply to a new establishment or any establishment
with a new operator who does business before obtaining the required
licenses, as provided for in this chapter.
F.
Duplicate license fee. A duplicate licensed fee as enumerated in
the Administrative Fee Schedule shall be charged to duplicate any
licensed provided for in this chapter.
G.
License fees. License fees, as enumerated in the Administrative Fee
Schedule.
The license issued under provisions of this chapter shall expire,
unless otherwise ordered by the Department or authorized agent on
June 30.
A.
Renewal notices shall be furnished by the department prior to the
expiration date. It is the responsibility of the owner/operator to
complete the application form and pay the appropriate fee before the
expiration date of such license.
B.
Uncooperative, habitual violators may be refused license renewal.
Whenever conflicts between theses rules and regulations and
other City ordinances or State and Federal regulations occur, the
most stringent rule shall apply.
Any person, partnership, firm or corporation who fails to comply
with the order of the Health Officer or its designee shall be subject
to a forfeiture of not less than $50 and not more than $500 per day
for each day the condition ordered corrected continues uncorrected
after the expiration of the time period stated in the order, together
with the costs of the action.
