[HISTORY: Adopted by the Council of the City of Mount Vernon 9-23-1992, approved 9-24-1992. Amendments noted where applicable.]
The City Council finds that the failure of the State Legislature to extend the state item pricing law has left consumers without assurance that they will be able to easily ascertain prices of basic consumer necessities such as groceries, paper goods, detergents and health and beauty aids. Item pricing is uniquely useful in comparison shopping within a store, in keeping track of the total cost of items being purchased, and in discovering erroneous charges at the cash register. The City Council finds, therefore, that the City's Code must be amended to add a new chapter on item pricing.
The following terms shall have the following meanings for the purpose of this chapter:
- ADVERTISED PRICE
- The price of a stockkeeping unit which a retail store has caused to be disseminated by means of promotional methods such as an in-store sign or newspaper, circular, television or radio advertising.
- COMPUTER-ASSISTED CHECKOUT SYSTEM
- Any electronic device, computer system or machine which indicates the selling price of a stockkeeping item by interpreting its universal product code, or an in-house product code, or by use of its price lookup function.
- A purchaser of consumer goods.
- CONSUMER GOODS
- Goods which are primarily for personal, household or family purposes.
- DECEPTIVE TRADE PRACTICE
- Any false, falsely disparaging or misleading oral or written statement, visual description or other representation of any kind made in connection with the sale or in connection with the offering for sale of consumer goods which has the capacity, tendency or effect of deceiving or misleading consumers. "Deceptive trade practices" include, but are not limited to:
- A. Representations that consumer goods have sponsorship, accessories, characteristics, ingredients, uses, benefits or quantities that they do not have; the supplier has a sponsorship, approval, status, affiliation or connection that he or she does not have; consumer goods are original or new if they are deteriorated, altered, reconditioned, reclaimed or secondhand; or consumer goods are of a particular standard, quality, grade, style or model, if they are of another.
- B. The use, in any oral or written representation, of exaggeration, innuendo or ambiguity as to a material fact or failure to state a material fact if such use deceives or tends to deceive.
- C. Disparaging the consumer goods or business of another by false or misleading representations of material facts.
- D. Offering consumer goods with intent not to sell them as offered.
- E. Offering consumer goods with intent not to supply reasonable expectable public demand, unless the offer discloses a limitation of quantity.
- F. Making false or misleading representations of fact concerning the reasons for, existence of or amounts of price reductions, or price in comparison to prices of competitors or one's own price at a past or future time.
- G. Falsely stating the reasons for offering or supplying consumer goods at scale discount prices.
- The Director of the Office of Consumer Protection of the City of Mount Vernon.
- The Director of the Office of Consumer Protection of the City of Mount Vernon or his or her designee.
- ITEM PRICE
- The tag, stamp or mark affixed to a stockkeeping item which sets forth, in Arabic numerals, the retail price thereof.
- PRICE LOOKUP FUNCTION
- The capability of any checkout system to determine the retail price of a stockkeeping item by way of the manual entry into the system of a code number assigned to that particular stockkeeping unit by the retail store or by way of the checkout operator's consultation of a file maintained at the point of sale.
- RETAIL STORE
- A store engaged in selling stockkeeping units at retail. A store which is not open to the general public but is reserved for use by its members shall come within the provisions of this definition unless the members must pay a direct fee to the store to qualify for membership and the store is not required to collect sales tax on transactions with members. A "retail store" shall not include any store which:
- A. Has as its only full-time employee the owner thereof or the parent, spouse or child of the owner and, in addition thereto, not more than two full-time employees;
- B. Had annual gross sales of stockkeeping items in the previous calendar year of less than $1,000,000, 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 of stockkeeping items in the previous calendar year of $1,000,000 or more; or
- C. Engages primarily in the sale of food for consumption on the premises or in a specialty trade which the Director determines, by rule, would be inappropriate for item pricing.
- SHELF PRICE
- The tag or sign placed at each point of display of a stockkeeping unit which clearly sets forth the retail price of the stockkeeping items within that stockkeeping unit.
- STOCKKEEPING ITEM
- Each individual item of a stockkeeping unit offered for sale. This shall include two or more pieces packaged for sale together.
- STOCKKEEPING UNIT (KNOWN IN THE INDUSTRY AS "SKU")
- Each group of items offered for sale of the same brand name, quantity of contents, retail price and variety within the following categories:
- 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 tissues, toilet tissues, paper toweling and any disposable wrapping or container for the storage, handling, serving or disposal of food.
- C. Detergents, soaps and other cleansing agents.
- D. Nonprescription drugs, feminine hygiene products and health and beauty aids.
Except as may be otherwise prescribed by state or federal law or as provided in § 156-4 of this chapter, every person, firm, partnership, corporation or association which sells, offers for sale or exposes for sale in a retail store a stockkeeping unit shall disclose to the consumer the item price of each stockkeeping item by causing the item price to be conspicuously, clearly and plainly marked, stamped, tagged or affixed thereto.
All stockkeeping items sold by a retail store, upon which stockkeeping units the retail store is required to collect a sales tax from any taxing authority, shall be clearly marked immediately after the item price indicating the stockkeeping item as being taxable.
The following stockkeeping items need not be item priced as provided in § 156-3 of this chapter, provided that a shelf price and a price lookup function are maintained for such stockkeeping items:
Stockkeeping items which are under three cubic inches in size and weigh less than three ounces and are priced under $1.
Fresh produce not packaged for final retail sale.
Products sold through a vending machine.
Food sold for consumption on the premises.
Snack foods such as cakes, gum, candies, chips and nuts offered for sale in single packages and weighing five ounces or less.
Cigarettes, cigars, tobacco and tobacco products.
Food offered for sale in bulk.
Frozen foods packaged for final retail sale in plastic bags.
Stockkeeping items on sale for one week or less, where such stockkeeping items are not otherwise item priced, are located in a segregated display at the end of an aisle and the sale period, the name of the product and the advertised price are clearly and conspicuously posted on a sign at the point of display. Failure to display this information shall be deemed a deceptive trade practice under this chapter.
Baby food packaged in jars.
In a retail store with a laser scanning or other computer-assisted checkout system, an inspector shall be permitted to compare the disclosed retail price of any one stockkeeping item within any stockkeeping unit sold in the retail store, whether or not exempt under § 156-4 of this chapter, not to exceed 500 stockkeeping items at any one inspection, with the programmed computer price. The retail store shall provide such access to the computer as is necessary for the inspector to make the determination. The inspector shall also make note of undercharges on the inspection report. In the event that the programmed computer price exceeds the lowest price a retail store is permitted to charge for a stockkeeping item under § 156-6 of this chapter, this shall be deemed a deceptive trade practice under this chapter.
No retail store shall charge a retail price for any stockkeeping item, whether or not exempt under § 156-4 of this chapter, which exceeds the lower of any item, shelf, sale or advertised price of such stockkeeping item.
Any retail store which utilizes a computer-assisted checkout system or cash register to compute the total sales price of stockkeeping items shall deliver to the consumer a legible tape accurately displaying the item price of all stockkeeping items sold to the consumer, any sales tax thereon and the total sales price of said items.
Upon the request of an inspector, the retail store representative shall afford the inspector access to the test mode of the checkout system in use at that retail store or to a comparable function of such system and to the retail price information contained in a price lookup function. No more than one inspection shall be conducted in any twenty-four-hour period.
The Director may, upon due notice, hold hearings to determine whether violations of the provisions of this chapter have occurred. Such notice shall contain a concise statement of the facts constituting the alleged violation and shall set forth the date, time and place of the hearing. Upon a finding of a violation of the provisions of this chapter, the Director shall be authorized to impose a civil penalty as follows:
[Amended 3-11-2009, approved 3-12-2009]
Each failure to comply with § 156-3 of this chapter with respect to any one stockkeeping unit shall constitute a separate violation; provided, however, that no violation shall be found where less than five stockkeeping items of a particular stockkeeping unit lack clearly readable item prices. Following an initial inspection, each inspection that finds a continuing violation with respect to a particular stockkeeping unit cited within the previous 14 days shall constitute a separate continued violation.
Upon a finding by the Director of repeated, multiple or persistent violation of any provision of this chapter or of any rule promulgated thereunder, the City may, except as hereinafter provided, bring an action to compel the defendant or defendants in such action to pay in court all moneys, property or other things, or proceeds thereof, received as a result of such violations; to direct that the amount of money or the property or other things recovered be paid into an account established pursuant to § 2601 of the Civil Practice Law and Rules from which shall be paid over to any and all persons who purchased the consumer goods during the period of violation such sum as was paid by them in a transaction involving the prohibited acts or practices, plus any costs incurred by such claimants in making and pursuing their complaints, provided that, if such claims exceed the sum recovered into the account, the awards to consumers shall be prorated according to the value of each claim proved; to direct the defendant or defendants, upon conviction, to pay to the City the costs and disbursements of the action and pay to the City for the use of the Director the costs of his or her investigation leading to the judgment; or if not recovered from defendants, such costs are to be deducted by the City from the grand recovery before distribution to the consumers; and to direct that any money, property or other things in the account and unclaimed by any persons with such claims within one year from creation of the account be paid to the City, to be used by the Director for further consumer law enforcement activities. Consumers making claims against an account established pursuant to this subsection shall prove their claims to the Director in a manner and subject to procedures established by the Director for that purpose. The procedures established in each case for proving claims shall not be employed until approved by the court, which shall also establish by order the minimum means by which the Director shall notify potential claimants of the creation of the account. Restitution pursuant to a judgment in an action under this subsection shall bar that portion of the recovery of any damages in any other action against the same defendant or defendants on account of the same acts or practices which were the basis for such judgment, up to the time of the judgment, by any person to whom such restitution is made. Restitution under this subsection shall not apply to transactions entered into more than five years prior to commencement of an action by the Director. Before instituting an action under this subsection, the Director shall give the prospective defendant written notice of the possible action and an opportunity to demonstrate, in writing, within five days, that no repeated, multiple or persistent violations have occurred.
Whenever any retail store has engaged in any acts or practice which constitute violations of any provision of this chapter or of any rule promulgated thereunder, the City may make application to the Supreme Court for an order enjoining such acts or practices and for an order granting a temporary or permanent injunction, restraining order or other order enjoining such acts or practices.
To establish a cause of action under this section it need not be shown that consumers are being or were actually injured.
In lieu of instituting or continuing an action pursuant to this chapter, the Director may accept written assurance of discontinuance of any act or practice in violation of this chapter from the retail store which has engaged in such acts or practices. Such assurance may include a stipulation for voluntary payment by the violator of the costs of investigation by the Director and may also include a stipulation for the restitution by the violator to consumers, of money, property or other things received from them in connection with a violation of this chapter, including money necessarily expended in the course of making and pursuing a complaint to the Director. All settlements shall be made a matter of public record. If such stipulation applies to consumers who have been affected by the violator's practices but have not yet complained to the Director, the assurance must be approved by the court, which shall direct the minimum means by which potential claimants shall be notified of the stipulation. A consumer need not accept restitution pursuant to such a stipulation; his or her acceptance shall bar recovery of any other damages in any action by him or her against the defendant or defendants on account of the same acts or practices.
Violation of an assurance entered into pursuant to this section shall be treated as a violation of this chapter and shall be subject to all the penalties provided therefor.
[Amended 5-11-2011, approved 5-12-2011]
Every retail store which uses a computer-assisted checkout system and which would otherwise be required to price mark each item as provided in § 156-3 above may make an application, in writing, to the Office of Consumer Protection for a waiver of the item pricing requirement. A separate application shall be required for each qualified retail store. Each application shall be subject to a nonrefundable waiver fee based upon the square footage of the retail area of each store as set according to the following schedule:
Upon receipt of an application and fee as provided in Subsection A above, the Office of Consumer Protection shall cause to be conducted a scanner count, location and accuracy inspection of the store for which the application has been submitted. At stores with a retail area in excess of 10,000 square feet, a minimum of 100 stockkeeping units shall be checked at inspection. At stores with a retail area of 10,000 square feet or less, a minimum of 50 stockkeeping units shall be checked. If the number of stockkeeping units found to be in violation does not exceed 2% of those stockkeeping units inspected, the Department shall grant to the applicant a one-year revocable waiver from the item pricing requirement set forth in § 156-3 above.
In the event that total violations in excess of 2% are discovered in the inspection process, the Department shall not grant a waiver to the applicant. Such a store may, within 10 business days of being notified of the failure, request a second inspection. If the number of stockkeeping units found to be in violation during this second inspection does not exceed 2% of those stockkeeping units inspected, the Department shall grant to the applicant a one-year revocable waiver for the item pricing requirement.
Stores whose waivers are revoked pursuant to Subsection G or stores which, upon renewal for a waiver, fail the scanner accuracy inspection(s) twice must comply with item pricing as set forth in § 156-3 within 30 days from the final date of failure. Such a store will be prohibited from applying for a new waiver for one year from the date of revocation or second inspection failure.
Waivers shall be valid for a period of one year from the date of issuance, at which time the waiver shall expire. Stores must reapply annually for renewal. The waiver fee and inspection shall be required for each annual renewal application as required for an original waiver application.
As a condition of the waiver from item pricing, each store must agree to meet all of the following requirements, and no regular or temporary waiver shall be granted to a store which has not agreed to these requirements in writing:
In addition to scanners at the point of sale, the store shall make available price check scanners to enable consumers to confirm the price of stockkeeping items. These price check scanners shall be in locations convenient to consumers with signs of sufficient sized lettering to identify the units to the consumers. Stores will submit their proposed sign and device locations to the Sealer for approval. The number of conveniently located price check scanners shall also be dependent on the store's retail area:
Stores must also have a shelf price for each stockkeeping item which is visible to the consumer and which is located directly under the item on the shelf on which the item is displayed; or if the item is not conspicuously visible to the consumer, by a sign or list conspicuously placed near the point of procurement. Failure to display the shelf price for a stockkeeping item shall constitute a violation.
[Amended 5-11-2011, approved 5-12-2011]
The Director may promulgate such rules as he or she may deem necessary or appropriate to effectuate the purposes of this chapter.
[Amended 5-11-2011, approved 5-12-2011]
If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter.
[Added 5-11-2011, approved 5-12-2011]
This chapter shall take effect immediately.