CHAPTER 187

AN ACT TO AMEND PART III, TITLE 6, DELAWARE CODE, ENTITLED "WEIGHTS, MEASURES, AND STANDARDS" BY REPEALING MOST OF THE PRESENT PROVISIONS AND SUBSTITUTING NEW ADMINISTRATIVE AND SUBSTANTIVE PROVISIONS, DEFINING CERTAIN CRIMES AND APPROPRIATING FUNDS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Chapter 51 and Subchapters I, II, and IV of Chapter 53, Title 6, Delaware Code, are repealed.

Section 2. Subchapter III, Chapter 53, Title 6, Delaware Code, is retained and is re-designated as follows:

CHAPTER 53. STANDARDS FOR MASON WORK

Section 3. Title 6, Delaware Code, is amended by adding a new Chapter as follows:

CHAPTER 51. STANDARD WEIGHTS AND MEASURES

§ 5101. Definitions; meaning of terms

(a) When used in this chapter—

The word "person" shall be construed to mean both the plural and singular, as the case demands, and shall include individuals, partnerships, corporations, companies, societies, and associations.

The words "weight (s) and (or) measure(s)" shall be construed to mean all weights and measures of every kind, instruments and devices for weighing and measuring, and any appliances and accessories associated with any or all such instruments and devices, except that the term shall not be construed to include meters for the measurement of electricity, gas (natural or manufactured), telephone service, or water when the same are operated in a public utility system. Such electricity, gas, telephone, and water meters are hereby specifically excluded from the purview of this chapter, and none of the provisions of this Chapter shall be construed to apply to such meters or to any appliances or accessories associated therewith.

The words "sell" and "sale" shall be construed to mean barter and exchange.

The term "inspector" shall be construed to mean a State inspector of weights and measures.

The term "intrastate commerce" shall be construed to mean any and all commerce or trade that is begun, carried on, and completed wholly within the limits of the State of Delaware, and the phrase "introduced into intrastate commerce" shall be construed to define the time and place at which the first sale and delivery of a commodity is made within the State, the delivery being made either directly to the purchaser or to a common carrier for shipment to the purchaser.

The term "commodity in package form" shall be construed to mean commodity put up or packaged in any manner in advance of sale in units suitable for either wholesale or retail sale, exclusive, however of an auxiliary shipping container enclosing packages that individually conform to the requirements of this Chapter. An individual item or lot of any commodity not in package form as defined in this Section, but on which there is marked a selling price based on an established price per unit of weight or of measure, shall be construed to be commodity in package form.

§ 5102. Systems of weights and measures

The system of weights and measures in customary use in the United States and the metric system of weights and measures are jointly recognized, and one or the other of these systems shall be used for all commercial purposes in the State of Delaware. The definitions of basic units of weight and measure, the tables of weight and measure, and weights and measures equivalents, as published by the National Bureau of Standards, are recognized and shall govern weighing and measuring equipment and transactions in the State.

§ 5103. Definitions of special units of measure

The term "barrel", when used in connection with fermented liquor, shall mean a unit of 31 gallons. The term "ton" shall mean a unit of 2,000 pounds avoirdupois weight. The term "cord", when used in connection with wood intended for fuel purposes, shall mean the amount of wood that is contained in a space of 128 cubic feet when the wood is ranked and well stowed.

§ 5104. State standards of weights and measures

Such weights and measures in conformity with the standards of the United States as have been supplied to the State by the Federal Government or otherwise obtained by the State for use as State standards shall, when the same shall have been certified as being satisfactory for use as such by the National Bureau of Standards, be the State standards of weight and measure. The State standards shall be kept in a safe and suitable place in the office or laboratory of the State Division of Weights and Measures, they shall not be removed from the said office or laboratory except for repairs or for certification, and they shall be submitted at least once in ten years to the National Bureau of Standards for certification. The State standards shall be used only in verifying the office standards and for scientific purposes.

§ 5105. Office and working standards and equipment

In addition to the State standards provided for in Section 5104 of this Chapter, there shall be supplied by the State 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 upon their initial receipt and at least once each year thereafter by comparison with the State standards.

§ 5106. State Director and Inspectors of Weights and Measures; appointment; dismissal; compensation

(a) There shall be a State Director of Weights and Measures and State inspectors of weights and measures; hereinafter referred to as the Director and inspectors, respectively, who shall be appointed by the State Board of Agriculture after having qualified for appointment through competitive examinations conducted by the State Board of Agriculture. Each such appointment shall be probationary for a period of six months, during which it may be terminated at any time, for cause, at the discretion of the State Board of Agriculture, and without recourse. At the expiration of the probationary period, an appointment may, at the discretion of the State Board of Agriculture be made permanent. Thereafter the permanent appointee shall hold office during good behavior; he shall not be removed, discharged, or reduced in pay or position except for inefficiency, incapacity, conduct unbecoming an employee of the State of Delaware, and until he shall have been furnished with a written statement of the reasons for any such contemplated removal, discharge, or reduction, and shall have been given a reasonable time to make written answer thereto; nor shall such removal, discharge, or reduction be made until the charge or charges shall have been examined into and found true in fact by the State Board of Agriculture at a hearing, upon reasonable notice to the person charged, at which time he may be represented by counsel, offer testimony of witnesses, and any other evidence in his own behalf. In the event that a director whose appointment has been made permanent has been dismissed by the State Board of Agriculture, said director shall, within 15 days after dismissal, have the right of appeal to the Governor who shall have the power to uphold the dismissal, reinstate the director, or return the case to the Board for rehearing.

(b) Salaries of the director, inspectors, and clerical employees shall be fixed by the State Board of Agriculture.

§ 5107. Bonds

A bond, with sureties, to be approved by the Secretary of State, and conditioned upon the faithful performance of his duties and the safekeeping of any standards or equipment entrusted to his care, shall forthwith, upon his appointment, be given by the director in the penal sum of $5,000, and by each inspector in the penal sum of $1,000; the premium on such bonds shall be paid by the State.

§ 5108. General powers and duties of director

The director shall have the custody of the State 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 director shall enforce the provisions of this Chapter. He shall have and keep a general supervision over the weights and measures offered for sale, sold, or in use in the State. He shall annually, in the month of July, make to the Governor a report on all of the activities of his office.

§ 5109. Specific powers and duties of director; regulations

The director shall issue from time to time, subject to the approval of the State Board of Agriculture, reasonable regulations for the enforcement of this Chapter, which regulations shall have the force and effect of law. These regulations may include (1) standards of net weight, measure, or count, and reasonable standards of fill, for any commodity in package form, (2) rules governing the technical and reporting procedures to be followed and the report and record forms and marks of approval and rejection to be used by inspectors of weights and measures in the discharge of their official duties, and (3) exemptions from the sealing or marking requirements of Section 5115 of this chapter with respect to weights and measures of such character or size that such sealing or marking would be inappropriate, impracticable, or damaging to the apparatus in question. These regulations shall include specifications, tolerances, and regulations for weights and measures of the character of those specified in Section 5111 of this Chapter, designed to eliminate from use, without prejudice to apparatus that conforms as closely as practicable to the official standards, those (1) that are not accurate, (2) that are of such construction that they are faulty—that is, that are not reasonably permanent in their adjustment or will not repeat their indications correctly—or (3) that facilitate the perpetration of fraud. The specifications, tolerances, and regulations for commercial weighing and measuring devices, together with amendments thereto, as published and recommended by the National Bureau of Standards shall be the specifications, tolerances, and regulations for commercial weighing and measuring devices of the State of Delaware, except insofar as specifically modified, amended, or rejected by a regulation issued by the director. For the purposes of this Chapter, apparatus shall be deemed to be "correct" when it conforms to all applicable requirements promulgated as specified in this Section; other apparatus shall be deemed to be "incorrect". Any person aggrieved by a regulation issued by the director shall have the right to be heard by the State Board of Agriculture, which Board shall have the right to modify or rescind such regulation.

§ 5110. Testing at State-supported institutions

The director 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 Legislature, reporting his findings, in writing to the supervisory board and to the executive officer of the institution concerned.

§ 5111. General testing

When not otherwise provided by law, the director shall have the power to inspect and test, to ascertain if they are correct, all weights and measures kept, offered, or exposed for sale. It shall be the duty of the director, within a 12-month period or less frequently if in accordance with a schedule issued by him, and as much oftener as he may deem necessary to inspect and test, to ascertain if they are correct, all weights and measures commercially used (1) in determining the weight, measurement, or count of commodities or things sold, or offered or exposed for sale, on the basis of weight, measure, or of count, or (2) in computing the basic charge or payment for services rendered on the basis of weight, measure, or of count: Provided, That with respect to single-service devices—that is, devices designed 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.

§ 5112. Investigations

The director 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.

§ 5113. Inspection of packages

The director 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 whether they be 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 director 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 Section, the director 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 and representative of such lot. No person shall (1) sell, or 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 Section unless and until such package or amount of commodity has been brought into full compliance with all legal requirements, or (2) dispose of any package or amount of commodity that has been ordered off sale or marked or tagged as provided in this Section and that has not been brought into compliance with legal requirements, in any manner except with the specific approval of the director.

§ 5114. Stop-use, stop-removal, and removal orders

The director shall have the power to issue stop-use orders, stop-removal orders, and removal orders with respect to weights and measures being, or susceptible of being, commercially used, and to issue stop-removal orders and removal 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 his enforcement of the provisions of this Chapter he deems it necessary or expedient to issue such orders, and 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-removal order, or removal order issued under the authority of this Section.

§ 5115. Disposition or correct and incorrect apparatus

The director 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" as defined in Section 5109 of this Chapter, and shall reject and mark or tag as "rejected" such weights and measures as he finds, upon inspection or test, to be "incorrect" as defined in Section 5109 of this Chapter, but which in his best judgment are susceptible of satisfactory repair: Provided, That such sealing or marking shall not be required with respect to such weights and measures as may be exempted therefrom by a regulation of the director issued under the authority of Section 5109 of this Chapter. The director shall condemn, and may seize and may destroy, weights and measures found to be incorrect that, in his best judgment, are not susceptible of satisfactory repair. Weights and measures that have been rejected may be confiscated and may be destroyed by the director if not corrected as required by Section 5118 of this Chapter, or if used or disposed of contrary to the requirements of Section 5118 of this Chapter.

§ 5116. Police powers; right of entry and stoppage

With respect to the enforcement of this Chapter and any other Chapters dealing with weights and measures that he is, or may be, empowered to enforce, the director is hereby vested with police powers, and shall have police powers similar to those of Sheriffs, Constables and other Police Officers and is authorized to arrest any violator of the said Chapters, and to seize for use as evidence, 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 director is authorized to enter and go into or upon, any structure or premises, and to stop any person whatsoever and to require him to proceed, with or without any vehicle of which he may be in charge, to some place which the director may specify.

§ 5117. Powers and duties of inspectors

The powers and duties given to and imposed upon the director by Sections 5110, 5111, 5112, 5113, 5114, 5115, 5116, and 5141 of this Chapter are hereby given to and imposed upon the inspectors also, when acting under the instructions and at the direction of the director.

§ 5118. Duty of owners of incorrect apparatus

Weights and measures that have been rejected under the authority of the director shall remain subject to the control of the rejecting authority until such time as suitable repair or disposition thereof has been made as required by this Section. The owners of such rejected weights and measures shall cause the same to be made correct within 30 days or such longer period as may be authorized by the rejecting authority; or, in lieu of this, may dispose of the same, but only in such manner as is specifically authorized by the rejecting authority. 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 rejecting authority.

§ 5119. Method of sale of commodities: general

Commodities in liquid form shall be sold only by liquid measure or by weight, and, except as otherwise provided in this Chapter, commodities not in liquid form shall be sold only by weight, by measure of length or area, or by count: Provided, That liquid commodities may be sold by weight and commodities not in liquid form may be sold by count only if such methods give accurate information as to the quantity of commodity sold: And provided further, That the provisions of this Section shall not apply (1) to commodities when sold for immediate consumption on the premises where sold, (2) to vegetables when sold by the head or bunch, (3) to commodities in containers standardized by a law of this State or by Federal law, (4) to commodities in package form when there exists a general consumer usage to express the quantity in some other manner, (5) to concrete aggregates, concrete mixtures, and loose solid materials such as earth, soil, gravel, crushed stone, and the like, when sold by cubic measure, or (6) to unprocessed vegetable and animal fertilizer when sold by cubic measure. The director, subject to the approval of the State Board of Agriculture, may issue such reasonable regulations as are necessary to assure that amounts of commodity sold are determined in accordance with good commercial practice and are so determined and represented as to be accurate and informative to all parties at interest.

§ 5120. Packages: declarations of quantity and origin; variations; exemptions

Except as otherwise provided in this Chapter, any commodity in package form introduced or delivered for introduction into or received in intrastate commerce, kept for the purpose of sale, or offered or exposed for sale in intrastate commerce shall bear on the outside of the package a definite, plain, and conspicuous declaration of (1) the identity of the commodity in the package unless the same can easily be identified through the wrapper or container, (2) the net quantity of the contents in terms of weight, measure, or count, and (3) in the case of any package kept, offered, or exposed for sale, or sold any place other than on the premises where packed, the name and place of business of the manufacturer, packer, or distributor: Provided, That in connection with the declaration required under clause (2), neither the qualifying term "when packed" or any words 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 mislead the purchaser as to the amount of commodity in a package, shall be used: And provided further, That under clause (2) the director shall, by regulation, establish (a) reasonable variations to be allowed, which may include variations below the declared weight or measure caused by ordinary and customary exposure, only after the commodity is introduced into intrastate commerce, to conditions that normally occur in good distribution practice and that unavoidably result in decreased weight or measure, (b) exemptions as to small packages, and (c) exemptions as to commodities put up in variable weights or sizes for sale intact and either customarily not sold as individual units or customarily weighed or measured at time of sale to the consumer.

§ 5121. Declarations of unit price on random packages

In addition to the declarations required by Section 5120 of 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.

§ 5122. Misleading packages

No commodity in package form shall be so wrapped, nor shall it be in a container so made, formed, or filled, as to intentionally mislead the purchaser as to the quantity of the contents of the package, and the contents of a container shall not fall below such reasonable standard of fill as may have been prescribed for the commodity in question by the director.

§ 5123. Advertising packages for sale

Whenever a commodity in package form is advertised in any manner and the retail price of such commodity is mentioned, there shall be declared conspicuously in such advertisement the actual weight, measure, or count of the contents of the package as is declared on the package.

§ 5124. Sale by net weight

The word "weight" as used in this Chapter in connection with any commodity shall mean net weight. Whenever any commodity is sold on the basis of weight, the net weight of the commodity shall be employed, and all contracts concerning commodities shall be so construed.

§ 5125. Misrepresentation of price

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 numeral or numerals expressing the fraction shall be immediately adjacent to, of the same general design and style as, and at least one-half the height and width of the numerals representing the whole cents.

§ 5126. Meat, poultry, and sea food

Except for immediate consumption on the premises where sold, or as one of several elements comprising a ready-to-eat meal sold, as a unit, for consumption elsewhere than on the premises where sold, all meat, meat products, poultry (whole or parts), and all sea food except shellfish, offered or exposed for sale or sold as food, shall be offered or exposed for sale and sold by weight. When meat, poultry, or sea food is combined with or associated with some other food element or elements to form either a distinctive food product or a food combination, such food product or combination shall be offered or exposed for sale and sold by weight, and the quantity representation may be the total weight of the product or combination, and a quantity representation need not be made for each of the several elements of the product or combination.

§ 5127. Bread

Each loaf of bread and each unit of a twin or multiple loaf of bread, made or procured for sale, kept, offered, exposed for sale, or sold, whether or not the bread is wrapped or sliced, shall weigh 1/2 pound, 1 pound, 1 1/2 pounds, or a multiple of 1 pound, avoirdupois weight, within reasonable variations or tolerances that shall be promulgated by regulation by the director: Provided, That the provisions of this Section shall not apply to biscuits, buns, or rolls, weighing 4 ounces or less, or to "stale bread" sold and expressly represented at the time of sale as such, and that the marking provisions of Section 5120 shall not apply to unwrapped loaves of bread.

§ 5128. Butter, oleomargarine, and margarine

Butter, oleomargarine, and margarine shall be offered and exposed for sale and sold by weight and only in units of 1/4 pound, 1/2 pound, 1 pound, or multiples of 1 pound, avoirdupois weight.

§ 5129. Fluid dairy products

All fluid dairy products, including but limited to whole milk, skimmed milk, cultured milk, sweet cream, sour cream, and buttermilk, shall be packaged for retail sale only in units of 1 gill, 1/2 liquid pint, 10 fluid ounces, 1 liquid pint, 1 liquid quart, 1/2 gallon, 1 gallon, or multiples of 1 gallon: Provided, That packages in units of less than 1 gill shall be permitted.

§ 5130. Flour, corn meal, and hominy grits

When in package form, and when packed, kept, offered, or exposed for sale or sold, wheat flour, whole wheat flour, graham flour, self-rising wheat flour, phosphated wheat flour, bromated flour, enriched flour, enriched self-rising flour, enriched bromated flour, corn flour, corn meal, and hominy grits shall be packaged only in units of 3, 5, 10, 25, 50, or 100 pounds, avoirdupois weight: Provided, That packages in units of less than 3 pounds or more than 100 pounds shall be permitted.

§ 5131. Coal, coke, and charcoal

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 delivery tickets on which, in ink or other indelible substance, there shall be clearly stated (1) the name and address of the vendor, (2) the name and address of the purchaser, and (3) the net weight of the delivery and the gross and tare weights from which the net weight is computed, each expressed in pounds. 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 left at a safe place at the place of delivery or shall be surrendered, on demand, to the director, or the deputy director or an inspector, or sealer or deputy sealer, who, if he desires to retain it as evidence, shall issue a weight slip in lieu thereof for delivery to the purchaser: Provided, That if the purchaser carries away his purchase, the vendor shall be required only to give to the purchaser at the time of sale a delivery ticket stating the number of pounds of fuel delivered to him.

§ 5132. Heating oil

All heating oil shall be sold by liquid measure or by net weight in accordance with the provisions of Section 5119 of this Chapter. 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 (a) at the time of delivery or (b) within a period mutually agreed upon in writing or otherwise between the vendor and the purchaser, or left at a safe place at the place of delivery, a delivery ticket or a written statement on which, in ink or other indelible substance, there shall be clearly and legibly stated (1) the name and address of the vendor, (2) the name and address of the purchaser, (3) the identity of the type of fuel comprising the delivery, (4) the unit price (that is, the price per gallon or per pound, as the case may be), of the fuel delivered, (5) in the case of sale by liquid measure, the liquid volume of the delivery, together with any meter readings from which such liquid volume has been computed, expressed in the terms of the gallon and its binary or decimal subdivisions, and (6) in the case of sale by weight, the net weight of the delivery, together with any weighing scale readings from which such net weight has been computed, expressed in terms of tons or pounds avoirdupois.

§ 5133. Textile products

It shall be unlawful to keep for the purpose of sale, offer or expose for sale, or sell any textile yard goods put up or packaged in advance of sale in a bolt or roll, or any other textile product put up or packaged in advance of sale in any other unit, for either wholesale or retail sale, unless such bolt or roll, or such other unit, be definitely, plainly, and conspicuously marked to show its net measure in terms of yards or its net weight in terms of avoirdupois pounds or ounces, subject, however, to the following limitations and requirements:

(1) Any unit of twine or cordage may be marked to show its net measure in terms of feet. Ready-wound bobbins that are not sold separately shall not be required to be individually marked, but the package containing such bobbins shall be marked to show the number of bobbins contained therein and the net weight or measure of the thread on each bobbin. Any unit of sewing, basting, mending, darning, crocheting, tatting, hand-knitting, or embroidery thread or yarn, except nylon hand-knitting yarn, that is not composed in whole or in part of wool, the net weight of which is less than two ounces avoirdupois, shall be marked to show its net measure in terms of yards as unwound from the ball or from the spool or other holder. Any retail unit of a textile product, sold only for household use, consisting of a package containing two or more similar individual units that are not sold separately, shall be marked to show the number of individual units in the package and the net weight or net measure of the product in each individual unit, but this proviso shall not apply where the individual units are separately marked. Any unit of yarn, composed in whole or in part of wool, sold to consumers for handiwork, shall be marked to show the net weight of such yarn, except that any such unit of tapestry, mending, or embroidery yarn, the net measure of which does not exceed fifty yards, may be marked to show its linear measure only.

(0) The marking required by this Section shall in all cases be in combination with the name and place of business of the manufacturer, packer, or distributor of the product, or a trade-mark symbol, brand, or other mark that positively identifies such manufacturer, packer, or distributor.

(1) Reasonable tolerances shall be permitted, and these shall be included in regulations for the enforcement of the provisions of this section that shall be issued by the director.

(4) The provisions of this Section shall not apply to the following textile products when sold at wholesale in bulk by net weight: Cordage, agricultural bag sewing threads, twines, yarns that are to be processed, and yarns that are to be industrially converted into end use products.

§ 5134. Berries and small fruits

Berries and small fruits shall be offered and exposed for sale and sold by weight, or by measure in open containers having capacities of 1/2 dry pint, 1 dry pint, or 1 dry quart: Provided, that the marking provisions of Section 5120 of this Chapter shall not apply to such containers.

§ 5135. Construction of contracts

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 Sections 5101 and 5102 of this Chapter, and all contracts concerning the sale of commodities and services shall be construed in accordance with this requirement.

§ 5136. Licensed weighmasters: appointment; tenure; license fee; seal; charges; records

(a) The director shall appoint as a licensed weighmaster in and for each county, any person who possesses the qualifications hereinafter provided and shall make application for the appointment, assigning to each licensee an official number. Any person may be appointed a weighmaster who is a person of good character, capable of and experienced in the operation of a stationary scale, and who has been a resident of this State for not less than six months prior to his appointment. Licenses shall be issued to individuals only and not to firms or corporations, but any firm or corporation may have as many members or employees licensed as it desires.

(b) The term of appointment of each weighmaster shall be three years, but any weighmaster may have his license revoked by the director by whom he was appointed or his successor, for misconduct in office, dishonesty, incompetency, violation of a provision of this subchapter, or if he ceases to possess the qualifications specified for his original appointment.

(c) For each appointment made, the State Board of Agriculture shall receive from the licensee a fee of $5 annually for the use of the State. All fees so received shall be promptly transferred to the State Treasurer and paid into the General Fund of the State.

(d) Each weighmaster shall provide himself at his own expense, with a seal or stamp containing on the outer margin, his name, the name of the county in which he is licensed, followed by the word "Delaware," and also containing the word "Weighmaster" and his official number, together with a date indicator to show the date the seal or stamp was used by the weighmaster on each weight or delivery ticket.

(e) No weighmaster shall delegate his authority to another person.

(f) No weighmaster shall receive any salary or other compensation from the State for the performance of his duties.

(g) A licensed weighmaster shall keep a permanent record of all vehicles weighed by him other than the vehicles owned and operated by the owner of the scale, showing the date, the name and address of the seller, the State registration number of the vehicle, and the tare and gross weight of the delivery, such records to be available at all times during business hours for the inspection of the director in the county wherein the scale is located.

§ 5137. Hindering or obstructing officer; penalties

Any person who shall hinder or obstruct in any way the director, or any one of the inspectors, in the performance of his official duties, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $20.00 or more than $200.00, or by imprisonment for not more than 3 months, or by both such fine and imprisonment.

§ 5138. Impersonation of officer; penalties

Any person who shall impersonate in any way the director, or any one of the inspectors, by the use of his seal or a counterfeit of his seal, or in any other manner, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $100.00 or more than $500.00, or by imprisonment for not more than 6 months, or by both such fine and imprisonment.

§ 5139. Offenses and penalties

Any person who, by himself or by his servant or agent, or as the servant or agent of another person, performs any one of the acts enumerated in subparagraphs (a) through (i) of this Section shall be guilty of a misdemeanor and, upon a first conviction thereof, shall be punished by a fine of not less than $10 or more than $200, or by imprisonment for not more than 1 month, or by both such fine and imprisonment; and upon a second or subsequent conviction thereof, he shall be punished by a fine of not less than $25 or more than $500, or by imprisonment for not more than 6 months, or by both such fine and imprisonment.

(a) Use or have in possession for the purpose of using for any commercial purpose specified in Section 5111, sell, offer, or expose for sale or hire, or have 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) Use, or have in possession for the purpose of current use for any commercial purpose specified in Section 5111, a weight or measure that does not bear a seal or mark such as is specified in Section 5115, unless such weight or measure has been exempted from testing by the provisions of Section 5111, or by a regulation of the director issued under the authority of Section 5109 of this Chapter.

(c) Dispose of any rejected or condemned weight or measure in a manner contrary to law or regulation.

(d) Remove from any weight or measure, contrary to law or regulation, any tag, seal, or mark placed thereon by the appropriate authority.

(e) Sell, or offer or expose for sale, less than the quantity he represents of any commodity, thing, or service.

(f) Take more than the quantity he represents of any commodity, thing, or service when, as buyer, he furnishes the weight or measure by means of which the amount of the commodity, thing, or service is determined.

(g) Keep for the purpose of sale, advertise, or offer or expose for sale, or sell any commodity, thing, or service in a condition or manner contrary to law or regulation.

(h) Use in retail trade, except in the preparation of packages put up in advance of sale and of medical prescriptions, a weight or measure that is not so positioned that its indications may be accurately read and the weighing or measuring operation observed from some position which may reasonably be assumed by a customer.

() Violate any provision of this Chapter or of the regulations promulgate, under the provisions of this Chapter for which a specific penalty has not been prescribed.

§ 5140. Injunction

The director is authorized to apply to any court of competent jurisdiction for, and such court upon hearing and for cause shown may grant, a temporary or permanent injunction restraining any person from violating any provision of this Chapter.

§ 5141. Presumptive evidence

For the purposes 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.

§ 5142. Validity of prosecutions

Prosecutions for violation of any provision of this Chapter are declared to be valid and proper notwithstanding the existence of any other valid general or specific Chapter of this State dealing with matters that may be the same as or similar to those covered by this Chapter.

§ 5143. Justices of the Peace; concurrent jurisdiction

Justices of the Peace shall have concurrent jurisdiction over violations of this Chapter.

§ 5144. Citation

This Act may be cited as the "Weights and Measures Act of Delaware."

§ 5145. Effective date

This Act shall take effect three months after this Act becomes law. All laws and parts of laws, general or special, contrary to or inconsistent with the provisions of this Act are repealed insofar as they might operate in the future; but, as to offenses committed, liabilities already incurred, and claims now existing thereunder, the existing law shall remain in full force and effect.

Section 4. All funds heretofore appropriated to the Regulators of Weights and Measures and unspent is hereby transferred to the State Board of Agriculture for the purpose of carrying out the provisions of this Act.

Section 5. In addition to the funds appropriated in Section 4 of this Act, there is hereby further appropriated to the State Board of Agriculture the sum of $22,100 for the fiscal year ending June 30, 1962, for the purpose of carrying out the provisions of this Act.

Section 6. This Act is a supplementary appropriation and the money appropriated shall be paid by the State Treasurer out of the General Fund of the State of Delaware.

Approved September 6, 1961.