BILL NUMBER: AB 889 CHAPTERED 10/05/05 CHAPTER 529 FILED WITH SECRETARY OF STATE OCTOBER 5, 2005 APPROVED BY GOVERNOR OCTOBER 5, 2005 PASSED THE ASSEMBLY SEPTEMBER 7, 2005 PASSED THE SENATE SEPTEMBER 6, 2005 AMENDED IN SENATE AUGUST 29, 2005 AMENDED IN SENATE AUGUST 18, 2005 AMENDED IN SENATE JULY 6, 2005 AMENDED IN SENATE JUNE 20, 2005 AMENDED IN ASSEMBLY MAY 2, 2005 INTRODUCED BY Assembly Member Ruskin (Coauthors: Assembly Members Koretz and Negrete McLeod) FEBRUARY 18, 2005 An act to amend Sections 12015.3, 12015.5, 12240, and 12246 of, to repeal Section 12028 of, and to add and repeal Chapter 13.5 (commencing with Section 13350) of Division 5 of, the Business and Professions Code, relating to weights and measures. LEGISLATIVE COUNSEL'S DIGEST AB 889, Ruskin Weights and measures. Existing law, until January 1, 2006, provides that the State Sealer, county sealers, and their deputies and inspectors may level a civil penalty against a person for violating provisions of law relating to weights and measures, as specified. Existing law also provides that any person convicted or determined to be civilly liable for violating these provisions shall be liable for costs incurred in investigating the action, as specified. This bill would provide that provisions that allow sealers to impose civil penalties would remain in effect. This bill would also specify that no investigative costs shall be imposed for violations of these provisions for which civil penalties are imposed. Existing law permits the board of supervisors of a county to charge an annual device registration fee to recover the costs of inspecting or testing weighing and measuring devices by the county sealer not to exceed those fees specified in a table of maximum annual charges. Existing law provides that these provisions shall remain in effect only until January 1, 2006. This bill would provide that these provisions would remain in effect until January 1, 2011, however, it would also revise and recast the annual registration fees that may be charged. This bill would provide that the annual registration fee would consist of a business location fee and a device fee, as defined. This bill would set forth various device fees, a maximum fee, and would also provide that fees shall graduate from $60 for the location fee and 60% of the maximum applicable device fee specified, until January 1, 2008, at which time the location fee shall be $100, and the device fee shall be 100% of the fees specified in these provisions. This bill would provide the criteria and methodology, as specified, by which local officials are to measure and verify the accuracy of a point-of-sale system. This requirement would remain in effect only until January 1, 2009. By directing local officials to follow a specified standard of inspection this bill would impose a state-mandated local program. Existing law directs the Secretary of the Department of Food and Agriculture to adopt regulations that specify the type of violations for which civil penalties may be imposed, as specified, for persons who violate laws governing weights and measures. This bill would repeal that provision. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 12015.3 of the Business and Professions Code is amended to read: 12015.3. (a) The sealer may levy a civil penalty against a person violating any provision of this division or a regulation adopted pursuant to any of these provisions, of not more than one thousand dollars ($1,000) for each violation. It is a complete defense to a criminal prosecution for a violation of any provision of this division or a regulation adopted pursuant to any provision of this division that the defendant has been assessed and has paid a civil penalty under this section for the same act or acts constituting the violation. Any civil penalty under this section shall be cumulative to civil remedies or penalties imposed under any other law. (b) Before a civil penalty is levied, the person charged with the violation shall be given a written notice of the proposed action including the nature of the violation and the amount of the proposed penalty, and shall have the right to request a hearing. The request shall be made within 20 days after receiving notice of the proposed action. A notice of the proposed action that is sent by certified mail to the last known address of the person charged shall be considered received even if delivery is refused or the notice is not accepted at that address. If a hearing is requested, notice of the time and place of the hearing shall be given at least 10 days before the date set for the hearing. At the hearing, the person shall be given an opportunity to review the sealer's evidence and to present evidence on his or her own behalf. If a hearing is not timely requested, the sealer may take the action proposed without a hearing. (c) If the person upon whom the sealer levied a civil penalty requested and appeared at a hearing, the person may appeal the sealer' s decision to the secretary within 30 days of the date of receiving a copy of the sealer's decision. The following procedures apply to the appeal: (1) The appeal shall be in writing and signed by the appellant or his or her authorized agent, state the grounds for the appeal, and include a copy of the sealer's decision. The appellant shall file a copy of the appeal with the sealer at the same time it is filed with the secretary. (2) The appellant and the sealer may, at the time of filing the appeal or within 10 days thereafter or at a later time prescribed by the secretary, present the record of the hearing including written evidence that was submitted at the hearing and a written argument to the secretary stating grounds for affirming, modifying, or reversing the sealer's decision. (3) The secretary may grant oral arguments upon application made at the time written arguments are filed. (4) If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days before the date set therefor. The times may be altered by mutual agreement of the appellant, the sealer, and the secretary. (5) The secretary shall decide the appeal on the record of the hearing, including the written evidence and the written argument described in paragraph (2), that he or she has received. If the secretary finds substantial evidence in the record to support the sealer's decision, the secretary shall affirm the decision. (6) The secretary shall render a written decision within 45 days of the date of appeal or within 15 days of the date of oral arguments or as soon thereafter as practicable. (7) On an appeal pursuant to this section, the secretary may affirm the sealer's decision, modify the sealer's decision by reducing or increasing the amount of the penalty levied so that it is within the secretary's guidelines for imposing civil penalties, or reverse the sealer's decision. Any civil penalty increased by the secretary shall not be higher than that proposed in the sealer's notice of proposed action given pursuant to subdivision (b). A copy of the secretary's decision shall be delivered or mailed to the appellant and the sealer. (8) Any person who does not request a hearing pursuant to subdivision (b) may not file an appeal pursuant to this subdivision. (9) Review of a decision of the secretary may be sought by the appellant within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure. (d) After the exhaustion of the appeal and review procedures provided in this section, the sealer, or his or her representative, may file a certified copy of a final decision of the sealer that directs the payment of a civil penalty and, if applicable, a copy of any decision of the secretary or his or her authorized representative rendered on an appeal from the sealer's decision and a copy of any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. No fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section. (e) If the civil penalty is levied by the State Sealer, the revenues derived therefrom shall be deposited in the Department of Food and Agriculture Fund and, upon appropriation, shall be used by the State Sealer to carry out his or her responsibilities under this division. If the civil penalty is levied by the county sealer, the revenues shall be deposited in the general fund of the county and, upon appropriation by the board of supervisors, shall be used by the county sealer to carry out his or her responsibilities under this division. (f) This section does not apply to violations involving utility meters, or to violations involving the testing and inspection of utility meters, in mobilehome parks, recreational vehicle parks, or apartment complexes, where the owner of the park or complex owns and is responsible for the utility meters. (g) Upon the written request of the Attorney General of California, any district attorney, or any city prosecutor or city attorney described in subdivision (a) of Section 17206, the State Sealer or the county sealer within their respective jurisdictions, shall provide all reports and records regarding any actions that occurred within the four months prior to the date of the written request in which civil penalties were levied pursuant to this section or liability for costs incurred are determined pursuant to Section 12015.5. (h) No investigative costs shall be imposed pursuant to Section 12015.5 for violations for which civil penalties are imposed pursuant to this section. SEC. 2. Section 12015.5 of the Business and Professions Code is amended to read: 12015.5. Any person convicted of violating any of the provisions of this division, or, except as provided in Section 12015.3, any person who is determined to be civilly liable for violating any of the provisions of this division, shall be liable for reasonable costs incurred in investigating the action. SEC. 3. Section 12028 of the Business and Professions Code is repealed. SEC. 4. Section 12240 of the Business and Professions Code is amended to read: 12240. (a) Except as otherwise provided in this section, the board of supervisors, by ordinance, may charge an annual registration fee, not to exceed the county's total cost of actually inspecting or testing the devices as required by law, to recover the costs of inspecting or testing weighing and measuring devices required of the county sealer pursuant to Section 12210, and to recover the cost of carrying out Section 12211. (b) Except as otherwise provided in this section, the annual registration fee shall not exceed the amount set forth in subdivisions (f) to (n), inclusive. (c) The county may collect the fees biennially, in which case they shall not exceed twice the amount of an annual registration fee. The ordinance shall be adopted pursuant to Article 7 (commencing with Section 25120) of Chapter 1 of Part 2 of Division 2 of Title 2 of the Government Code. (d) Retail gasoline pump meters, for which the above-fees are assessed, shall be inspected as frequently as required by regulation, but not less than once every two years. (e) Livestock scales, animal scales and scales used primarily for weighing feed and seed, for which the above fees are assessed, shall be inspected as frequently as required by regulation. (f) For purposes of this section, the annual registration fee for a business that uses a commercial weighing or measuring device or devices shall consist of a business location fee, and a device fee, as specified in subdivisions (g) to (n), inclusive. The business location fee and device fee shall not exceed the following: (1) Beginning January 1, 2006, sixty dollars ($60) per business location, plus 60 percent of the maximum applicable device fee listed in subdivisions (h) to (n), inclusive. (2) Beginning January 1, 2007, eighty dollars ($80) per business location, plus 80 percent of the maximum applicable device fee listed in subdivisions (h) to (n), inclusive. (3) Beginning January 1, 2008, and thereafter, one hundred dollars ($100) per business location, plus 100 percent of the maximum applicable device fee listed in subdivisions (h) to (n), inclusive. (g) For marinas, mobilehome parks, recreational vehicle parks, and apartment complexes, where the owner of the marina, park, or complex owns and is responsible for the utility meters, the device fee shall not exceed two dollars ($2) per device per space or apartment. Marinas, mobilehome parks, recreational vehicle parks, and apartment complexes for which the above fees are assessed shall be inspected and tested as frequently as required by regulation. (h) For weighing devices, other than livestock, with capacities of 10,000 pounds or greater, the device fee shall not exceed two hundred fifty dollars ($250) per device; for weighing devices, other than livestock scales, with capacities of at least 2,000 pounds but less than 10,000 pounds, the device fee shall not exceed one hundred fifty dollars ($150) per device. (i) This section does not apply to farm milk tanks. (j) A scale or device used in a certified farmers' market, as defined by Section 113745 of the Health and Safety Code, is not required to be registered in the county where the market is conducted, if the scale or device has an unexpired seal for the current year, issued by a licensed California county sealer. (k) For livestock scales with capacities of 10,000 pounds or greater, the device fee shall not exceed one hundred fifty dollars ($150) per device; for livestock scales with capacities of at least 2,000 pounds but less than 10,000 pounds, the device fee shall not exceed one hundred dollars ($100) per device. (l) For liquified petroleum gas (LPG) meters, truck mounted or stationary, the device fee shall not exceed one hundred seventy-five dollars ($175) per device. (m) For wholesale and vehicle meters, the device fee shall not exceed twenty-five dollars ($25) per device. (n) For all other commercial weighing or measuring devices not listed in subdivisions (g) to (m), inclusive, the device fee shall not exceed twenty dollars ($20) per device. For the purposes of this subdivision, the total annual registration fee shall not exceed the sum of one thousand dollars ($1,000), for each business location. (o) For the purposes of this section, a single business location is defined as: (1) Each vehicle containing one or more commercial devices. (2) Each business location that uses different categories or types of commercial devices that require the use of specialized testing equipment and that necessitates not more than one inspection trip by a weights and measures official. SEC. 5. Section 12246 of the Business and Professions Code is amended to read: 12246. This article shall remain in effect only until January 1, 2011, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2011, deletes or extends that date. SEC. 6. Chapter 13.5 (commencing with Section 13350) is added to Division 5 of the Business and Professions Code, to read: CHAPTER 13.5. POINT-OF-SALE SYSTEM PRICE ACCURACY VERIFICATION METHODOLOGIES 13350. (a) The board of supervisors of any county or city and county that has adopted or that adopts an ordinance for the purposes of determining the pricing accuracy of a retail establishment using a point-of-sale (POS) system, shall base the initial standard inspection of the POS system on the following criteria: (1) The initial standard inspection shall be performed by collecting a random sample of items that shall include a maximum of 50 percent sale items from either: (i) One department of a retail store. (ii) Multiple areas of a retail store. (iii) The entire store. (2) The initial standard inspection shall be performed by testing a minimum random sample of 25 items for a retail establishment with three or fewer POS checkout registers. (3) The initial standard inspection shall be performed by testing a minimum random sample of 50 items for all other retail establishments. (4) The sealer shall verify that the lowest advertised, posted, marked, displayed, or quoted price is the same as the price displayed or computed by the point-of-sale equipment or printed receipt. Only items computed at a higher price than the lowest advertised, posted, marked, displayed, or quoted price shall be considered not in compliance. (5) The compliance rate percentage of a retail establishment shall be determined by dividing the number of items in compliance by the sample size multiplied by 100. (b) Enforcement action may be taken for any item not in compliance. (c) The sealer may reinspect any retail facility that has a compliance rate of less than 98 percent. (d) The board of supervisors, by ordinance, may charge a point-of-sale system inspection fee or an annual registration fee, not to exceed the county's total cost of inspecting or testing the accuracy of prices accessed or generated by the system pursuant to this section. (e) The board of supervisors, by ordinance, may charge a reinspection fee for reinspections of a retail establishment that fails a standard inspection, not to exceed the county's total cost of reinspecting or testing the accuracy of prices accessed or generated by the system pursuant to this section. 13351. For purposes of this chapter, "random sample" of items means that the selection process shall be modeled after the National Institute of Standards and Technology Handbook 130, 2005 Edition (HB 130) - Examination Procedures for Price Verification, randomized sample collection; stratified sample collection. 13352. For purposes of this chapter, "point-of-sale" system means any system used by a retail establishment such as, but not limited to, Universal Product Code (UPC) scanners, price-look-up codes, or an electronic price look-up system as a means for determining the price of the item being purchased by a consumer. 13353. For the purposes of this chapter, "sale items" include any item that is represented or advertised to be lower in price from that which the item is normally offered for sale. A "sale item" includes but is not limited to, an item that is represented as "promotional," "limited time offer," a "manager special," "discount taken at register," or displayed with any other advertisements that offers or suggests a reduced price. 13354. For purposes of this chapter, "area" means an "entire store," a "department," "grouping of shelves or displays," or other "section" of a store as defined by the sealer from which samples are selected for verification. "Nonpublic" areas of a store, such as the area in a pharmacy in which controlled drugs are kept or product storage rooms, shall not be included. 13355. For the purposes of this chapter, "initial standard inspection" means an inspection made at the customary time interval used by an enforcement agency. 13356. All other inspections of the point-of-sale system are considered "special inspections," including, but not limited to, inspections pertaining to investigations, consumer complaints, complaints from competing businesses or a reinspection of a retail establishment at which one or more price accuracy violations have occurred within the previous three months. 13357. This chapter shall remain in effect only until January 1, 2009, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2009, deletes or extends that date. SEC. 7. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.