TRAINING FOR THE WEIGHTS AND MEASURES OFFICIAL

2. TRAINING FOR THEWEIGHTS AND MEASURES OFFICIAL COURSE CURRICULUM

3. TRAINING FOR THEWEIGHTS AND MEASURES OFFICIAL COURSE CURRICULUM

4. TRAINING FOR THEWEIGHTS AND MEASURES OFFICIAL Module Three“ENFORCEMENT PROCEDURES” Third in a series of 14

5. General Overview • This module will introduce you to the enforcement philosophy of the Division of Measurement Standards • It will also explain the actions available to you to obtain compliance with the regulations you enforce

6. Module Objectives Appreciate the need for and ability to provide due process Understand your authority to remove items from sale or commercial service Determine and use the appropriate criminal or civil proceedings

7. Our Role • Protect consumers in purchasing decisions • Provide fair competition to businesses • Evaluate conditions by applying the principles of our mission statement

8. “To Preserve and Maintain the Standards of Measurement Essential in Providing a Basis of Value Comparison and Fair Competition in the Marketplace.” The Mission of Weights and Measures

9. Enforcement Philosophy The Division’s philosophy is to: • Achieve compliance at the lowest level of enforcement • Inform businesses of applicable laws • Provide a written warning of a violation • Initiate appropriate legal action

10. Enforcement Philosophy • Be sure you can prove your allegations • Follow “due process of law”

11. Due Process Due process of law is the right of every person and is guaranteed by the U.S. Constitution U.S. Constitution, Amendment V(1791) No person shall….be deprived of life, liberty or property, without due process of law.

12. Due Process Requires: Due Process – Our Obligations • Notification of action and options • Provide an opportunity to be heard • Ensure the right to review procedures and authority • Fundamental fairness and reasonableness of enforcement action

13. Due Process – The Field Official All persons subject to the laws you enforce, are entitled to the due process of law Your actions may result in the deprivation of their personal property

14. Due Process – The Field Official Due Process – The Field Official During an open inspection you need to: • Announce yourself • Explain the reason for your visit • Be prepared to explain: 1. Your authority for being there 2. The possible consequences if you are prevented from conducting the inspection • If obstructed, you may need an “inspection” or “search” warrant

15. Due Process - Court Decisions Rath 1978, Supreme Court: California’s off sale procedures met the test for due process, but only forproducts that arenot highly perishable

16. Due Process - Court Decisions Forhighly perishable productsthe court held: The packer must be: • Notified in writing of the short measure finding • Provided with a copy of the inspection report • Given an opportunity to dispute the chargeprior to any off-sale action

17. Due Process - Court Decisions The California Appellate Court held: • Minimum due process requires notice and an opportunity for a hearing • Must precede even a temporary deprivation of property interest Menafee and Son vs.The California Dept of Food and Agriculture

18. Documenting Violations • Verbal warnings may obtain compliance • But do not memorialize notification • A Notice of Violation documents notification • Documentation can demonstrate intent or patternof violation

19. Notice of Violation • Is issued to the violator and or their employer or suitable representative • Is acceptable to mail to the company by certified mail • May be a specifically designed form or incorporated in other documents

20. Removal from Sale or Commercial Service You have a powerful authority • You can remove products from sale and devices from commercial service for violations of the Business and Professions Code • In some instances you can seize product or devices

21. Removal from Commercial Service Unapproved Device • You havetwooptions: 1. Device may be seized or 2. Marked “unapproved” • An “unapproved” device is marked with a“yellow tag” to remove it from service • Notify California Type Evaluation personnel

22. Removal from Commercial Service Incorrect Device • You havetwooptions: 1. If not repairable, device must be seized 2. If repairable, use a “out of order” tag to remove it from service • With few exceptions, almost all devices are repairable

23. Removal from Commercial Service • Communicate to the owner or user the reason for removal or seizure • Demonstrate the problem if necessary • Be prepared to show the authorizing sections from the B&P Code or CCR

24. Packaged products that have no quantity statement or are less than the stated quantity must be removed from sale(B&P Code Sections 12211 and 12607) Non-conforming petroleum products, adulterated or mislabeled automotiveproducts, may be removed from sale(B&P Code Sections 13595 and 13731) Removal from Sale

25. Removal from Sale Packaged products are removed from sale usingyellow or red “Hold-Off Sale” tags

26. Removal from Sale Bulk petroleum and automotive products are removed from sale with red “Condemned” tags Do not confuse the “Condemned” tags with the red “Out of Order” tags

27. Seizure Seizure is necessary when: Previous official actions have not resulted in corrections Further legal action is anticipated Remember to issue a receipt Module 4 “Legal Action”covers this subject in greater detail

28. Types of Enforcement Civil Administrative Procedure • Allows sealer to impose a penalty without court procedure • Criminal filing for more serious violations Citation (Notice to Appear) Civil Filing • Filed with the District Attorney or California Attorney General

29. Appropriate Enforcement Civil Administrative Procedure Authorized by Section 12015.3 B&P Code Generally used for technical violations Requires written Notice of Proposed Action (NOPA) Penalties $50 - $1000 Burden of Proof – Preponderance of Evidence Right of appeal to Secretary of Food and Agriculture/to the criminal justice system

30. Appropriate Enforcement Citation (Notice to Appear) Authorized by Section 12013 of B&P Code Used for more serious violations Issued to an individual Notification to appear in court Signing is a promise to appear, not an admission of guilt NOTICE TO APPEAR

31. Appropriate Enforcement Civil Filing The decision to file is made by the District Attorney or Attorney General for: Unfair business practices or competition False or misleading advertising Potential of large penalties and restitution

32. Levels and Types of Enforcement Use appropriate level of enforcement: Criminal or civil action by A. G., D.A., or city attorney Citation (Notice to Appear) Civil administrative procedure Off-sale order tags Out of order tags Written warning (NOV) Immediate correction

33. Enforcement Philosophy Importance of Due Process Notices of Violations NOTICE OF VIOLATION Removal From Sale or Service OUT OF SERVICE Enforcement Types Summary

34. Conclusion The information in this module has providedyou witha better understanding and a deeper appreciation of the enforcement procedures available to the weights & measures official.

35. TRAINING FOR THEWEIGHTS AND MEASURES OFFICIAL This Concludes Module 3“ENFORCEMENT PROCEDURES”