CHAPTER 370

FORMERLY

HOUSE BILL NO. 445

AN ACT TO AMEND CHAPTER 51, TITLE 6 OF THE DELAWARE CODE RELATING TO WEIGHTS AND MEASURES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 5101(2), Chapter 51, Title 6 of the Delaware Code by deleting it in its entirety and substituting in lieu thereof the following:

"(2) The words 'weight(s) and (or) measure(s)' mean any weight or measure or weighing or measuring device commercially used or employed in establishing size, quantity, extent, area, or measurement of quantities, things, produce, or articles for distribution or consumption which are purchased, offered, or submitted for sale, hire, or award, or in computing any basic charge or payment for services rendered and shall also include any accessory attached to or used in connection with a commercial weighing device when such accessory is so designed or installed that its operation affects, or may affect, the accuracy of the device. This 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 specifically excluded from the purview of this chapter, and none of the provisions of this chapter shall apply to such meters or to any appliances or accessories associated therewith."

Section 2. Further amend § 5101, Chapter 51, Title 6 of the Delaware Code by adding thereto a new subsection, designated as subsection (9), that shall read as follows:

"(9) A 'Certificate of Conformance' means a document issued by the National Institute of Standards and Technology based on testing in participating laboratories that indicates that the weights and measures or weighing and measuring devices(s) conform with the requirements of National Institute of Standards and Technology Handbook 44 and supplements thereto, or in any publication superseding these publications."

Section 3. Further amend § 5101, Chapter 51, Title 6 of the Delaware Code by adding thereto a new subsection, designated as subsection (10), that shall read as follows:

"(10) Ready-to-Eat Food is restaurant-style food offered or exposed for sale, whether in restaurants, supermarkets, or similar food service establishments, that is ready for consumption, though not necessarily on the premises where sold. Ready-to-Eat Food does not include sliced luncheon products, such as meat, poultry, or cheese when sold separately."

Section 4. Amend § 5102, Chapter 51, Title 6 of the Delaware Code by deleting the words "National Bureau of Standards" as they appear in the second sentence of the subsection and replacing them with the words "National Institute of Standards and Technology".

Section 5. Amend § 5104, Chapter 51, Title 6 of the Delaware Code by deleting the words "National Bureau of Standards" as they appear in the first sentence of the subsection and replace them with the words "National Institute of Standards and Technology".

Section 6. Amend § 5105, Chapter 51, Title 6 of the Delaware Code by adding the following final sentence to the section:

of the National Institute of Standards and Technology and supplements thereto, or in any publication superseding these publications."

Section 7. Amend § 5107, Chapter 51, Title 6 of the Delaware Code by deleting the final sentence in the section and substituting in lieu thereof the following:

"For the purposes of this Chapter, apparatus shall be deemed to be 'correct,' when it conforms to the requirements of the National Type Evaluation Program of the National Institute of Standards and Technology. A Certificate of Conformance must be issued prior to the use of such weight(s) and measure(s) or weighing and measuring device for commercial or law enforcement purposes. except insofar as specifically modified, amended, or rejected by a regulation issued by the Secretary of Agriculture. Pending the issuance of a Certificate of Conformance, the Department may permit such weight(s) and measure(s) or weighing and measuring device to be used provided it meets the specifications and tolerances for that particular weight and measure or weighing device as set forth in the National Institute of Standards and Technology Handbook 44,"

Section 8. Amend § 5120, Chapter 51, Title 6 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof the following:

"§ 5120. Uniform packaging and labeling.

The standards and requirements for Uniform Packaging and Labeling will be those contained in Handbook 130 of the National Institute of Standards and Technology and supplements thereto, or in any publication revising or superseding Handbook 130, except insofar as specifically modified, amended, or rejected by a regulation issued by the Secretary."

Section 9. Amend § 5123, Chapter 51, Title 6 of the Delaware Code by adding thereto a new final sentence to read as follows:

"The procedures used for price verification shall be those recommended by the National Institute of Standards and Technology in the Examination Procedure for Price Verification in Handbook 130 and supplements thereto, or in any publication superseding these publications."

Section 10. Amend § 5124, Chapter 51, Title 6 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof the following:

"§ 5124. Meat, poultry and seafood.

Meat, poultry and seafood shall be sold by weight, except that whole shellfish in the shell and ready to eat food may be sold by weight, measure, and/or count."

Section 11. Amend § 5125, Chapter 51, Title 6 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof the following:

"§ 5125. Clams. Mussels. Oysters, and other Mollusks.

Whole clams, oysters, mussels, or other mollusks in the shell, whether fresh or frozen, shall be sold by weight including the weight of the shell, but not including the liquid of ice packed with them, dry measure, and/or count. In addition, size designations may be provided. Fresh oysters removed from the shell shall be sold by weight or by fluid volume. For oysters sold by weight or by volume, a maximum of 15 percent free liquid by weight is permitted."

Section 12. Amend § 5126, Chapter 51, Title 6 of the Delaware Code by deleting said section in its entirety and renumbering the remaining sections accordingly.

Section 13. Amend § 5127, Chapter 51, Title 6 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof the following:

"§ 5127. Non-Food Products.

The specifications and requirements for non-food products shall be those specified by the National Institute of Standards and Technology, Handbook 130 and supplements thereto, or in any publication revising or superseding Handbook 130, except insofar as specifically modified, amended, or rejected by a regulation issued by the Secretary of Agriculture."

Section 14. Amend § 5129(a), Chapter 51, Title 6 of the Delaware Code by adding a new sentence to the end of the subsection to read as follows:

"The number printed on the delivery ticket that is presented to the purchaser of the fuel oil or propane shall be listed on the records kept by the individual or company that sells or delivers the fuel oil or propane."

Section 15. Amend § 5133, Chapter 51, Title 6 of the Delaware Code by striking "$20" as it appears in that section and replacing it with "$100" and by striking "$200" as it appears in that section and replacing it with "$500".

Section 16. Further amend § 5135(b), Chapter 51, Title 6 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof the following:

"(b) Any person who, by himself or herself or by his or her employee or agent or as the employee or agent of another person, performs any one of the acts enumerated in paragraphs (1)-(9) of subsection (a) of this section, upon a first conviction thereof, shall be punished by a fine of not less than $50 nor more than $500 and upon any subsequent conviction thereof occurring within 2 years from the first conviction, shall be punished by a fine of not less than $250 nor more than $1000."

Section 17. Amend Chapter 51, Title 6 of the Delaware Code by adding thereto a new section to read as follows:

"§ 5141. Fines payable by mail.

(a) Applicability. Any weights and measurers inspector in this State, who issues a citation for any of the offenses which are violations of laws or regulations established or promulgated under the authority of Chapter 51 of Title 6 of this Code, may, in addition to issuing a summons for any such offenses, provide the violator with a voluntary assessment form which, when properly executed by the weights and measures inspector and the offender, allows the offender to dispose of the charges without the necessity of personally appearing in the court to which the summons is returnable.

(b) Definitions.

(1) 'Payment' as used in this Section shall mean the total amount of the fine and of the costs as herein provided and of the penalty assessment added to the fine pursuant to the Delaware Victim Compensation Law, Chapter 90 of Title 11.

(2) ' Voluntary assessment form' as used in this Section means the written agreement or document signed by the violator wherein he or she agrees to pay by mail the fine for the offense described therein together with costs and penalty assessment.

(c) Places and time of payment.

Payments made pursuant to this Section shall be remitted to the court to which the summons is returnable and shall be disbursed to the General Fund of the State of Delaware. The payment must be received by the court within 10 days from the date the citation was issued (excluding Saturday and Sunday), and shall be paid only by check or money order.

(d) Offenses designated as 'offenses subject to voluntary assessment'; exceptions. All offenses, as now or hereafter set forth in this Title or regulations promulgated under the authority of this Title, are hereby designated as offenses subject to voluntary assessment except the following offenses: Violation of § 5133 and § 5134 of this Title.

(e) Offer and acceptance of voluntary assessment; effect; withdrawal of acceptance; request for hearing.

(1) At the time of issuing a citation for any offense subject to this Section, the weights and measures inspector may offer the alleged violator the option of accepting a voluntary assessment. The alleged violator's signature on the voluntary assessment form constitutes an acknowledgment of guilt of the offense stated in the form, and on agreement to pay the fine as herein provided, together with the costs and penalty assessment, within 10 days from the date of the issuance of the citation (excluding Saturday and Sunday), during which time payment must be received by the court.

(2) The alleged violator, after signing and receiving the voluntary assessment form, may withdraw his or her acceptance of the voluntary assessment and request a hearing on the charge stated in such form, provided that the alleged violator, within 10 days from the date of the issuance of the citation (excluding Saturday and Sunday), personally or in writing notifies the court to which payment of the penalty assessment was to be made that he or she wishes to withdraw his or her acceptance of the voluntary assessment and requests a hearing on the charge stated in the voluntary assessment form. If the alleged violator notifies the court of such withdrawal and request for hearing as aforesaid, he or she shall be prosecuted for the charge stated in the voluntary assessment form as if such form had not been issued.

(f) Penalty. If an alleged violator elects the option of accepting a voluntary assessment in accordance with subsection (e) of this Section, the penalty for offenses designated as offenses subject to voluntary assessment shall be the minimum fine for each specific offense charged, and fines shall be cumulative if more than one (I) offense is charged.

(g) Court costs and applicability of Delaware Victim Compensation Law. In lieu of any court costs, and provided the offense is not subject to other proceedings under this Section, each tine for an offense under this Section shall be subject to court costs of $8.50. Each fine for an offense under this Section shall be subject also to the penalty assessment which is or may be provided for in the Delaware Victim Compensation Law, Chapter 90 of Title 11 of this Code.

(h) Agreement to accept voluntary assessment; procedure. Whenever a person is issued a citation for an offense subject to voluntary assessment and has elected to make payment as herein provided, the weights and measures inspector, using the weights and measures citation, shall complete the information section and prepare the voluntary assessment form indicating the amount of the fine, have the alleged violator sign the voluntary assessment form, and give a copy of the citation and form to the individual cited for violating the requirements of this Chapter or the rules and regulations promulgated thereunder. The weights and measures inspector issuing the citation shall also inform the individual cited of the court to which payment shall be submitted. No weights and measures inspector shall receive or accept custody of a payment. If the person declines to accept the voluntary assessment, the weights and measurers inspector shall follow the procedures outlined in § 5139 of this Chapter.

(i) Payment of fine as complete satisfaction; repeat offenders. (1) Payment of the prescribed fine, costs, and penalty assessment is a complete satisfaction of the violation, except as provided in paragraph (2) of this subsection.

(2) In the event that following compliance with the payment provisions of this Section, it is determined that within the 2-year period immediately preceding the violation, the violator was convicted of or made a payment pursuant to this Section in satisfaction of a violation of the same Section of this Title, personal appearance before the court to which summons is returnable shall be required. Notice of the time and place for the required court appearance shall be given to the violator to which the summons for the offense would be returnable.

(j) Removal from applicability of Section. (I) If a payment due pursuant to this Section is not received by the court to which the summons is returnable within 10 days from the date of the issuance of the citation, the violator shall be prosecuted for the offense charged on the voluntary assessment form in a manner as if a voluntary assessment form had not been used. Upon conviction in such prosecution, the court shall impose penalties as provided for by this Title or other law relating to the particular violation charged, and this Section, as to payment of fines under voluntary assessments, shall not apply.

(k) Nonexclusive procedure. The procedure prescribed is not exclusive of any other method prescribed by law for the prosecution of persons violating this Title."

Section 18. This Act shall take effect 180 days from its enactment into law.

Approved June 17, 1996