[HISTORY: Adopted by the Common Council of the City of St. Francis 4-20-2004 by Ord. No. 1161 (Ch. 21 of the 1981 Code). Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
- The City of St. Francis.
- CITY SEALER
- The Sealer of Weights and Measures in the City.
- The Environmental Health Consortium consisting of the Cudahy, St. Francis and South Milwaukee Health Departments.
- DUPLICATE PERMIT FEE
- A fee for the replacement of the original permit.
- GOVERNING BODY
- The local health department in that city in which the business is located or its successor organization, if any, or in its absence the Medical Advisor.
- LATE FEE
- 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.
- REINSPECTION FEE
- A fee for the third and subsequent inspections needed to address compliance issues with the statutes, administrative codes and City ordinance.
- Net weight when used in reference to a commodity.
- WEIGHTS AND MEASURES
- 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:
Wisconsin Statutes Chapter 98, Weights and Measures.
Wisconsin Administrative Code, Chapter ATCP 90, Fair Packaging and Labeling.
Wisconsin Administrative Code, Chapter ATCP 91, Selling Commodities by Weight, Measure or Count.
Wisconsin Administrative Code, Chapter ATCP 109, Freezer Meat and Food Service Plans.
Wisconsin Administrative Code, Chapter ATCP 92, Weights and Measures.
Wisconsin Statutes Chapter 97, Food Regulation.
Wisconsin Statutes Chapter 100, Marketing; Trade Practices.
National Institute of Standards and Technology (NIST) Handbook 44, United States Department of Commerce, Specifications, Tolerances and Other Technical Requirements and Commercial Weighing and Measuring Devices.
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.
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.
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 his work and annually shall file a report thereof with the State Department of Agriculture, Trade and Consumer Protection and the Common Council.
Editor's Note: See Ch. 98, Wis. Stats.
Specific powers and duties.
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 moneys are appropriated by the Council, reporting his findings in writing to the executive officer of the institution concerned.
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:
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.
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.
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 subsection, 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.
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.
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 chapter, 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 or 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 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 chapter. Transients operating at 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, and 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 chapter 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 chapter and has paid to the City the fee required in the City fee schedule. A licensee must get approval from the city 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 chapter 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.
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.
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 chapter may be transferred unless otherwise 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.
If funds are to be found insufficient, upon lack of payment or if for 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 detainment until the time of reissuance. A license will not be issued until all applicable fees, late fees and processing charges are paid.
Any individual or corporation that owes the City for unpaid property taxes, late fees, or license fees relating to a current or previous weights and measures license shall pay all such outstanding fees before a license is issued.
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.
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.
Whenever an order or directive is issued by the City Sealer which requires a reinspection to determine compliance, two reinspections shall be made without charge and documented by the Department following the time period given in the order or directive.
If, upon the second 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.
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 chapter. 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 reexamined 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:
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.
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 includes 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.
Enforcement agent. The Department or its designee shall enforce any provision of this chapter.
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 serve 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.
Noncompliance with order. If a person does not comply with a written order from the Department or designee, the person may be subject to one or more of the following actions and/or penalties:
The issuance of a citation.
A reinspection fee.
Suspension of license.
Revocation of license.
Commencement of legal action against the person seeking a court-imposed forfeiture and/or imprisonment.
Commencement of legal action against the person seeking an injunction to stop, abate the violations and/or correct the damage created by the violation.
Any other action authorized by this chapter or by other applicable laws as deemed necessary by the Department or designee.
Additional remedies. 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 chapter is conducted or managed in such a manner that there are serious or repeated violations of this chapter or violations 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 chapter. 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.
The following offenses are subject to penalty:
The use or possession for the purpose of using for any commercial purpose specified in § 446-4C(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.
The disposal of any rejected or condemned weight or measure in a manner contrary to law or regulation.
The removal from any weight or measure, contrary to law or regulation, of any tag, seal or mark placed thereon by the appropriate authority.
Selling or offering or exposing for sale less than the quantity he represents of any commodity, thing or service.
Taking more than the quantity he 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.
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.
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 may reasonably be assumed by a customer.
Violating any provision of this chapter or the regulations promulgated under the provisions 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.
Determination. The fees for services and activities performed by the Department in carrying out its responsibilities under this chapter shall be determined by resolution of the Common Council and published in the administrative fee schedule.
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.
No proration. There will be no proration of license fees.
Refunds. No license fee paid shall be refunded, unless a refund is requested prior to an inspection.
Late fees. A late fee, as enumerated in the administrative fee schedule, shall be charged for all licenses issued under provision of this chapter.
This shall apply when an application is not renewed before the expiration date, unless waived by the Department.
A late fee shall also apply to a new establishment or any establishment with a new operator who does business before obtaining the required license, as provided for in this chapter.
Duplicate license fee. A duplicate license fee as enumerated in the administrative fee schedule shall be charged to duplicate any license provided for in this chapter.
License fees. License fees shall be charged as enumerated in the administrative fee schedule.
Accounting and application. All fees shall be accounted for separately and applied to the expenses under this chapter.
Reinspection. A reinspection fee shall be charged 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.
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.
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.
Except as otherwise provided in this chapter, any person who shall violate any provision of this chapter, or any regulation, rule or order made herein, or who shall fail to obtain a license or permit as required by this chapter, shall be subject to a penalty as provided in § 1-4 of this Code.