TITLE 6

Commerce and Trade

SUBTITLE III

Weights, Measures and Standards

CHAPTER 51. STANDARD WEIGHTS AND MEASURES


When used in this chapter:

(1) 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 device or devices conform with the requirements of National Institute of Standards and Technology Handbook 44 and supplements thereto, or in any publication superseding these publications.

(2) The term "commodity in package form'' means 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 commodity in package form.

(3) A "consumer package'' or "package of consumer commodity'' shall be construed to mean a commodity in package form that is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals or use by individuals for the purposes of personal care or in the performance of services ordinarily rendered in or about the household or in connection with personal possessions.

(4) The term "inspector'' means a state inspector of weights and measures.

(5) The term "intrastate commerce'' means any and all commerce or trade that is begun, carried on, and completed wholly within the limits of this State, and the phrase "introduced into intrastate commerce'' defines 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.

(6) A "nonconsumer package'' or "package of nonconsumer commodity'' shall be construed to mean any commodity in package form other than a consumer package, and particularly a package designed solely for industrial or institutional use or for wholesale distribution only.

(7) The word "person'' means both the plural and singular, as the case demands, and shall include individuals, partnerships, corporations, companies, societies, and associations.

(8) "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.

(9) The words "sell'' and "sale'' mean barter and exchange.

(10) 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.

6 Del. C. 1953, § 5101; 53 Del. Laws, c. 187, § 3; 58 Del. Laws, c. 281, § 1; 70 Del. Laws, c. 370, §§ 1-3.;

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 1 or both of these systems shall be used for all commercial purposes in this State. 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 Institute of Standards and Technology, are recognized and shall govern weighing and measuring equipment and transactions in this State.

6 Del. C. 1953, § 5102; 53 Del. Laws, c. 187, § 3; 58 Del. Laws, c. 281, § 2; 70 Del. Laws, c. 370, § 4.;

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.

6 Del. C. 1953, § 5103; 53 Del. Laws, c. 187, § 3.;

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 approved as being satisfactory for use as such by the National Institute of Standards and Technology, 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 Department of Agriculture, they shall not be removed from the said office or laboratory except for repairs or for calibration and approval. The state standards shall be used only in verifying the office standards and for scientific purposes.

6 Del. C. 1953, § 5104; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31A; 58 Del. Laws, c. 281, § 3; 70 Del. Laws, c. 370, § 5.;

In addition to the state standards provided for in § 5104 of this title, 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 thereafter as often as deemed necessary by the Secretary by comparison with state standards. The specifications and tolerances for reference standard and field standard weights and measures shall be those as specified in Handbooks 105-1, 105-2 and 105-3 of the National Institute of Standards and Technology and supplements thereto, or in any publication superseding these publications.

6 Del. C. 1953, § 5105; 53 Del. Laws, c. 187, § 3; 58 Del. Laws, c. 281, § 4; 70 Del. Laws, c. 370, § 6.;

The Secretary of Agriculture 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 Secretary of Agriculture shall enforce the provisions of this chapter. The Secretary of Agriculture shall have and keep a general supervision over the weights and measures offered for sale, sold, or in use in the State.

6 Del. C. 1953, § 5108; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, §§ 31C, D; 70 Del. Laws, c. 186, § 1.;

The Secretary shall issue from time to time 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, (3) exemptions from the sealing or marking requirements of § 5113 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, and (4) rules governing the voluntary registration of service people and service agencies. These regulations shall include specifications, tolerances and other technical requirements for weights and measures of the character of those specified in § 5109 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 other technical requirements for commercial weighing and measuring devices, together with amendments thereto, as recommended by the National Bureau of Standards and published in the National Bureau of Standards Handbook 44 and supplements thereto, or in any publication revising or superseding Handbook 44, shall be the specifications, tolerances and other technical requirements for commercial weighing and measuring devices of the State, except insofar as specifically modified, amended or rejected by a regulation issued by the Secretary. 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.

6 Del. C. 1953, § 5109; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, §§ 31C, E, F; 58 Del. Laws, c. 281, § 5; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 370, § 7.;

The Secretary of Agriculture 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 General Assembly, reporting those findings in writing to the supervisory board and to the executive officer of the institution concerned.

6 Del. C. 1953, § 5110; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 70 Del. Laws, c. 186, § 1.;

When not otherwise provided by law, the Secretary of Agriculture 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 Secretary of Agriculture, within a 12-month period or less frequently if in accordance with a schedule issued by the Secretary of Agriculture, and as much more often as deemed 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.

6 Del. C. 1953, § 5111; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 70 Del. Laws, c. 186, § 1.;

The Secretary of Agriculture shall investigate complaints concerning violations of the provisions of this chapter, and shall, upon the Secretary of Agriculture's own initiative, conduct such investigations as deemed 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.

6 Del. C. 1953, § 5112; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 70 Del. Laws, c. 186, § 1.;

The Secretary of Agriculture shall, as often as necessary to provide adequate protection, 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 Secretary of Agriculture 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 Secretary of Agriculture 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 Secretary of Agriculture.

6 Del. C. 1953, § 5113; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 58 Del. Laws, c. 281, § 6.;

The Secretary of Agriculture 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 enforcement of the provisions of this chapter the Secretary of Agriculture 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.

6 Del. C. 1953, § 5114; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 70 Del. Laws, c. 186, § 1.;

The Secretary of Agriculture shall approve for use and seal or mark with appropriate devices such weights and measures found upon inspection and test to be "correct'' as defined in § 5107 of this title, and shall reject and mark or tag as "rejected'' such weights and measures found, upon inspection or test, to be "incorrect'' as defined in § 5107 of this title, but which in the Secretary of Agriculture's 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 Secretary of Agriculture issued under the authority of § 5107 of this title. The Secretary of Agriculture shall condemn, and may seize and may destroy, weights and measures found to be incorrect that, in the Secretary of Agriculture's best judgment, are not susceptible of satisfactory repair. Weights and measures that have been rejected may be confiscated and may be destroyed by the Secretary of Agriculture if not corrected as required by § 5116 of this title, or if used or disposed of contrary to the requirements of § 5116 of this title.

6 Del. C. 1953, § 5115; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 70 Del. Laws, c. 186, § 1.;

With respect to the enforcement of this chapter and any other chapters dealing with weights and measures that the Secretary of Agriculture is, or may be, empowered to enforce, the Secretary of Agriculture is hereby vested with police powers, and shall have police powers similar to those of constables and other police officers and may arrest any violator of the said chapters, and 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 official duties, the Secretary of Agriculture may enter and go into or upon, any structure or premises, and stop any person whatsoever and require that person to proceed, with or without any vehicle of which he or she may be in charge, to some place which the Secretary of Agriculture may specify.

6 Del. C. 1953, § 5116; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 266, § 11.;

The powers and duties given to and imposed upon the Secretary of Agriculture by §§ 5108, 5109, 5110, 5111, 5112, 5113, 5114 and 5137 of this title are given to and imposed upon the inspectors also, when acting under the instructions and at the direction of the Secretary of Agriculture.

6 Del. C. 1953, § 5117; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C.;

Weights and measures that have been rejected under the authority of the Secretary of Agriculture 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 reexamined and found to be correct or until specific written permission for such use is issued by the rejecting authority or until the rejection tag has been removed and the rejected device repaired and placed in service by a person duly registered to perform such acts under a regulation issued by the Secretary for the registration of weights and measures, servicemen and service agencies.

6 Del. C. 1953, § 5118; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 58 Del. Laws, c. 281, § 7; 70 Del. Laws, c. 186, § 1.;

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 Secretary of Agriculture, subject to the approval of the Department 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.

6 Del. C. 1953, § 5119; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, §§ 31C, 31F.;

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 as may be prescribed by regulation issued by the Secretary; 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 exaggerate the amount of commodity in a package, shall be used; and provided further, that under clause (2) the Secretary of Agriculture 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.

6 Del. C. 1953, § 5120; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 58 Del. Laws, c. 281, §§ 8, 9.;

In addition to the declarations required by § 5118 of this title, 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.

6 Del. C. 1953, § 5121; 53 Del. Laws, c. 187, § 3.;

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.

6 Del. C. 1953, § 5122; 53 Del. Laws, c. 187, § 3; 58 Del. Laws, c. 281, § 10; 70 Del. Laws, c. 370, § 8.;

Whenever a commodity in package form is advertised in any manner and the retail price of the package is stated in the advertisement, there shall be closely and conspicuously associated with such statement of price a declaration of the basic quantity of contents of the package as is required by law or regulation to appear on the package; provided, that, where the law or regulation requires a dual declaration of net quantity to appear on the package, only the declaration that sets forth the quantity in terms of the smaller unit of weight or measure (the declaration that is required to appear first and without parentheses on the package) need appear in the advertisement; and provided further, that there shall not be included as part of the declaration required under this section such qualifying terms as "when packed,'' "minimum,'' "not less than,'' or any other terms 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 exaggerate the amount of commodity in the package.

6 Del. C. 1953, § 5123; 53 Del. Laws, c. 187, § 3; 58 Del. Laws, c. 281, § 11.;

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.

6 Del. C. 1953, § 5124; 53 Del. Laws, c. 187, § 3.;

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 1/2 the height and width of the numerals representing the whole cents. 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.

6 Del. C. 1953, § 5125; 53 Del. Laws, c. 187, § 3; 70 Del. Laws, c. 370, § 9.;

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.

6 Del. C. 1953, § 5126; 53 Del. Laws, c. 187, § 3; 58 Del. Laws, c. 281, § 12; 66 Del. Laws, c. 164, § 1; 70 Del. Laws, c. 370, § 10.;

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.

6 Del. c. 1953, § 5128; 53 Del. Laws, c. 187, § 3; 70 Del. Laws, c. 370, § 11.;

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.

70 Del. Laws, c. 370, § 13.;

Whenever a vehicle delivers to an individual purchaser a commodity in bulk and the commodity is sold in terms of weight units, the delivery 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 commodity or shall be left at a safe place at the place of delivery or shall be surrendered, on demand, to the Secretary of Agriculture, or an inspector, who, if the inspector 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 the 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 commodity delivered.

6 Del. C. 1953, § 5131; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, §§ 31C, 31G; 58 Del. Laws, c. 281, § 15; 70 Del. Laws, c. 370, § 12.;

(a) Whoever sells or delivers fuel oil or propane in quantities of 20 gallons or more for heating or cooking purposes shall issue a delivery ticket which shall consist of an original and at least 1 carbon copy. Said ticket shall be serially numbered for the purpose of identification and shall have the date of delivery as well as the names and addresses of the vendor and the purchaser legibly recorded on the ticket prior to delivery of the fuel oil or propane. A statement of the quantity of fuel oil or propane delivered, in terms of gallons and fractions thereof, if any, the price per gallon, the grade of fuel and the identity of the person making such delivery shall also appear on the ticket. One copy of said ticket shall be delivered to the purchaser or the purchaser's agent at the time of delivery of such fuel oil or propane, unless the purchaser initiates a request in writing that the vendor deliver such ticket to another person, to another location or at another time. Another copy of said ticket shall be retained by the vendor for a period of 1 year. 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.

(b) The Administrator or Inspector of the weights and measures section of the Department of Agriculture shall have the authority, at any time after the delivery of any fuel oil or propane, to enter and go into or upon, without warrant, any delivery vehicle in order to inspect or examine the metering system, vehicle tank compartment or delivery tickets then in the actual possession of or under the control of the person making the delivery, and said Administrator or Inspector shall also have the authority to seize, without warrant, any delivery tickets or devices suspected of constituting or contributing to a deceptive or fraudulent delivery practice. No retained delivery ticket or copy thereof which is so seized shall be destroyed, but may be voided by said Administrator or Inspector and kept on file with the Department of Agriculture.

(c) On deliveries of fuel oil or propane made through a meter, the quantity determinations of the fuel oil or propane delivered shall be mechanically printed on a meter ticket at the time of delivery. A sales sequence number shall also be mechanically printed on the ticket by the ticket printing mechanism of the metering system, unless the printing mechanism is of the cumulative type. The sales sequence number shall not be returnable to 0 until it has reached its highest attainable number.

(d) Only 1 delivery ticket shall be inserted into the printing mechanism at any given time, and in the case of vehicle tank meters, said ticket shall not be inserted until immediately before a delivery is begun, and in no case shall a ticket be left in the printing mechanism while the vehicle is in motion on a public street, highway or thoroughfare.

(e) The possession of a preprinted ticket imprinted with a gallonage amount in advance of delivery shall be prima facia evidence of intent to use such ticket in violation of this section.

(f) Any person who, by himself or herself, or by his or her employee or agent or as the employee or agent of another person, alters or substitutes a delivery ticket in violation of this section, or for otherwise fraudulent or deceptive purposes, shall be punished by a fine of not more than $1,000 or by imprisonment of not more than 1 year, or both.

6 Del. C. 1953, § 5132; 53 Del. Laws, c. 187, § 3; 58 Del. Laws, c. 281, § 17; 69 Del. Laws, c. 100, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 370, §§ 12, 14.;

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 § 5118 of this title shall not apply to such containers.

6 Del. C. 1953, § 5134; 53 Del. Laws, c. 187, § 3; 70 Del. Laws, c. 370, § 12.;

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

6 Del. C. 1953, § 5135; 53 Del. Laws, c. 187, § 3; 70 Del. Laws, c. 370, § 12.;

(a) The Secretary shall appoint as a licensed weighmaster any person who possesses the qualifications provided for in this section 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 and capable of operating a stationary scale. 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 for a term of 3 years. The appointment period will run concurrent with the calendar years. Any weighmaster may have the license revoked by the Secretary of Agriculture by whom the weighmaster was appointed, or by a successor, for misconduct in office, dishonesty, incompetency, violation of a provision of this chapter or if the weighmaster ceases to possess the qualifications specified for the original appointment.

(c) For each appointment or reappointment made, the Department of Agriculture shall receive from the licensee a fee of $25. 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 or herself at personal expense, with a seal or stamp containing on the outer margin, the weighmaster's name, followed by the word "Delaware,'' and also containing the word "weighmaster'' and the weighmaster's official number.

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

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

(g) A licensed weighmaster shall keep a permanent record of all vehicles weighed by the weighmaster 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 Secretary of Agriculture in the county wherein the scale is located.

(h) All solid fuels, live poultry, grain, livestock and commodities requiring a certificate of weight by the purchaser shall be weighed by a duly licensed weighmaster.

(i) The license shall be displayed in a conspicuous place where the weighmaster is engaged in weighing.

(j) The Secretary may, upon request and without charge, issue a limited license as a licensed weighmaster to any qualified officer or employee of a city or county of this State or of a state commission, board, institution or agency, authorizing such officer or employee to act as a licensed weighmaster only within the scope of official employment in the case of an officer or employee of a city or county or only for and on behalf of the state commission, board, institution or agency in the case of an officer or employee thereof.

(k) When making a weight determination as provided for by this section, a licensed weighmaster shall use a weighing device that is of a type suitable for the weighing of the amount and kind of material to be weighed and that has been tested and approved for use by a weights and measures officer of this State.

(l) A licensed weighmaster shall not use any scale to weigh a load the value of which exceeds the nominal or rated capacity of the scale. When the gross or tare weight of any vehicle or combination of vehicles is to be determined, the weighing shall be performed upon a scale having a platform of sufficient size to accommodate such vehicle or combination of vehicles fully, completely and as one entire unit. If a combination of vehicles must be broken up into separate units in order to be weighed as prescribed herein, each such separate unit shall be entirely disconnected before weighing and a separate weight certificate shall be issued for such separate unit.

6 Del. C. 1953, § 5136; 53 Del. Laws, c. 187, § 3; 54 Del. Laws, c. 101; 57 Del. Laws, c. 764, §§ 31C, 31F; 58 Del. Laws, c. 281, § 18; 66 Del. Laws, c. 80, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 370, § 12.;

Any person who shall hinder or obstruct in any way the Secretary of Agriculture, or any 1 of the inspectors, in the performance of official duties, shall, upon conviction thereof, be punished by a fine of not less than $100 or more than $500, or by imprisonment for not more than 3 months, or by both such fine and imprisonment.

6 Del. C. 1953, § 5137; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 370, §§ 12, 15.;

Any person who shall impersonate in any way the Secretary of Agriculture or any one of the inspectors by the use of the Secretary's seal or a counterfeit of the Secretary's seal, or in any other manner, upon conviction thereof, shall be punished by a fine of not less than $100 or more than $500, or by imprisonment for not more than 6 months, or by both such fine and imprisonment.

6 Del. C. 1953, § 5138; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 370, § 12.;

(a) No person shall:

(1) Use or have in possession for the purpose of using for any commercial purpose specified in § 5109 of this title, 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;

(2) Use, or have in possession for the purpose of current use for any commercial purpose specified in § 5109 of this title, a weight or measure that does not bear a seal or mark such as is specified in § 5113 of this title, unless such weight or measure has been exempted from testing by the provisions of § 5109 of this title, or by a regulation of the Secretary of Agriculture issued under the authority of § 5107 of this title unless the device has been placed in service as provided by a regulation of the Secretary issued under the authority of § 5107 of this title;

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

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

(5) Sell, or offer or expose for sale, less than the quantity the person represents of any commodity, thing or service;

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

(7) 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;

(8) 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;

(9) Violate any provision of this chapter or of the regulations promulgated under this chapter for which a specific penalty has not been prescribed.

(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 (a)(1) through (9) 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.

6 Del. C. 1953, § 5139; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 58 Del. Laws, c. 281, §§ 19, 20; 69 Del. Laws, c. 102, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 370, §§ 12, 16.;

The Secretary of Agriculture may 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 this chapter.

6 Del. C. 1953, § 5140; 53 Del. Laws, c. 187, § 3; 57 Del. Laws, c. 764, § 31C; 70 Del. Laws, c. 370, § 12.;

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.

6 Del. C. 1953, § 5141; 53 Del. Laws, c. 187, § 3; 70 Del. Laws, c. 370, § 12.;

Prosecutions for violation of this chapter shall be valid and proper notwithstanding the existence of any other valid general or specific chapter of the Delaware Laws dealing with matters that may be the same as or similar to those covered by this chapter.

6 Del. C. 1953, § 5142; 53 Del. Laws, c. 187, § 3; 70 Del. Laws, c. 370, § 12.;

Justices of the peace and the Court of Common Pleas shall have concurrent jurisdiction over violations of this chapter.

6 Del. C. 1953, § 5143; 53 Del. Laws, c. 187, § 3; 58 Del. Laws, c. 281, § 21; 70 Del. Laws, c. 370, § 12.;

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

6 Del. C. 1953, § 5144; 53 Del. Laws, c. 187, § 3; 70 Del. Laws, c. 370, § 12.;

The following fees shall be charged for the services listed below to those firms which do not possess a current Delaware business license:

(1) Cast iron and steel weights — Class F tolerances. — The Department shall charge the following fees to test cast iron and steel weights (class F tolerances):

a. If the weight is less than or equal to 30 kilograms (66 pounds), the fee is $8.00 a unit;

b. If the weight is greater than 30 kilograms (66 pounds) but less than or equal to 1,200 kilograms (2,646 pounds), the fee is $25 a unit;

c. If the weight is greater than 1,200 kilograms (2,646 pounds) but less than or equal to 2,268 kilograms (5,000 pounds), the fee is $45 a unit; and

d. If the weight is greater than 2,268 kilograms (5,000 pounds) but less than or equal to 9,072 kilograms (20,000 pounds), the fee is $90 a unit.

(2) Class F tolerances — Test weight sets. — The Department shall charge the following fees to test a class F tolerances test weight set; provided however, that the set does not have a total capacity that is greater than 16 kilograms (35 pounds):

a. If the number of weights in the set is less than or equal to 18, the fee is $40 a set;

b. If the number of weights in the set is greater than 18 but less than or equal to 36, the fee is $60 a set; and

c. If the number of weights in the set is greater than 36 but less than or equal to 50, the fee is $80 a set.

(3) Other weighing services. — The Department may provide other weighing services not otherwise noted in this chapter at a rate of $49 an hour.

(4) Equipment refurbishing. — If equipment needs refurbishing before it can be tested and if the Department agrees to refurbish the equipment, the Department shall do this work at the rate of $49 an hour plus materials cost.

(5) Weight-moving equipment for vehicle scales. — The Department shall charge $115 a unit plus an additional $10 for shop supplies and material to test weight-moving equipment for vehicle scales.

(6) Mass laboratory standards. — The Department shall charge the following fees to test mass laboratory standards:

a. If the standard is less than or equal to 3 kilograms (7 pounds), the fee is $20 a unit;

b. If the standard is greater than 3 kilograms (7 pounds) but less than or equal to 30 kilograms (66 pounds), the fee is $60 a unit; and

c. If the standard is greater than 30 kilograms but less than or equal to 1,200 kilograms (2,646 pounds), the fee is $70 a unit.

(7) Laboratory standards — Test weight sets. — The Department shall charge the following fees to test a laboratory standards test weight set; provided, however, the set does not have a total capacity that is greater than 16 kilograms (35 pounds):

a. If the number of weights in the set is 18 or less, the fee is $160 a set;

b. If the number of weights in the set is greater than 18 but less than or equal to 36, the fee is $180 a set; and

c. If the number of weights in the set is greater than 36 but less than or equal to 50, the fee is $200 a set.

(8) Other services related to laboratory standards of mass. — The Department shall provide other services related to laboratory standards of mass at a rate of $49 an hour.

(9) Volumetric field standards. — The Department shall charge the following fees to test volumetric field standards:

a. If the standard is less than or equal to 20 liters (5 gallons), the fee is $20 a unit;

b. If the standard is greater than 20 liters (5 gallons) but less than or equal to 100 liters (26 gallons), the fee is $40 a unit;

c. If the standard is greater than 100 liters (26 gallons) but less than or equal to 1,000 liters (264 gallons), the fee is $90 a unit;

d. If the standard is greater than 1,000 liters (264 gallons) but less than or equal to 5,000 liters (1,321 gallons), the fee is $160 a unit; and

e. If the standard is greater than 5,000 liters (1,321 gallons), the fee is $200 a unit.

(10) Other volumetric calibrations. — The Department shall perform other volumetric calibrations not otherwise noted in this chapter at a rate of $49 an hour.

(11) Volumetric laboratory standards. — The Department shall charge the following fees to test volumetric laboratory standards:

a. If the standard is less than or equal to 4 liters (1 gallon), the fee is $30 each; and

b. If the standard is greater than 4 liters (1 gallon) but less than or equal to 40 liters (11 gallons), the fee is $90 each.

(12) Other volumetric laboratory services. — The Department shall perform other volumetric laboratory services at a rate of $49 an hour.

(13) Thermometry and calibration services. — The Department shall perform thermometry and calibration services at a rate of $49 an hour.

(14) Environmental chamber services. — For performing environmental chamber services, the Department shall charge as follows:

a. $250 per device for use of the chamber; and

b. $45 per hour for each technician required for testing the device.

(15) Linear measures and surveyor tapes testing. — The Department shall test linear measures at the following rates:

a. The fee for testing rules shall be $15 a unit.

b. Tapes:

1. If the tape is less than or equal to 25 feet, the fee shall be $25.

2. If the tape is greater than 25 feet but less than or equal to 100 feet, the fee shall be $45.

3. If the tape is greater than 100 feet, the fee shall be $75.

c. The fee for testing other linear devices shall be $49 an hour.

70 Del. Laws, c. 284, § 1; 70 Del. Laws, c. 370, § 12.;

(a) Applicability. — Any weights and measures 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 this chapter, 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 the violator 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. 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 the violator's 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 the violator wishes to withdraw the violator's 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, the violator 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 1 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 fine 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.

(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 measures inspector shall follow the procedures outlined in § 5134 of this title.

(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 (i)(2) of this section.

(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. — 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.

70 Del. Laws, c. 370, § 17; 70 Del. Laws, c. 186, § 1.;

(a) In addition to proceeding under any other remedy available at law or in equity for a violation of this chapter or a rule or regulation adopted thereunder, or any order issued pursuant to this chapter, the Secretary, in the Secretary's discretion, may assess an administrative penalty not less than $500 nor more than $10,000 for each offense.

(b) Prior to assessment of an administrative penalty, written notice of the Secretary's proposal to impose such penalty shall be given to the violator, and the violator shall have 30 days from receipt of said notice to request a hearing. Any hearing, if requested, right of appeal and judicial appeal shall be conducted in accordance with Chapter 101 of Title 29. The Secretary shall render an opinion within 30 days of said hearing.

(c) In determining the amount of the penalty, the Secretary shall consider the appropriateness of such penalty to the size of the person's ability to continue in business and the gravity of the violation. Whenever the Secretary finds the violation occurred despite the exercise of due care, the Secretary may issue a warning in lieu of assessing a penalty.

72 Del. Laws, c. 377, § 1; 70 Del. Laws, c. 186, § 1.;