Title
An Ordinance to Amend Subsections 8.01(3), 8.02(1), 8.03(1)-(3), 8.04(1), 8.05(3) and 8.05(5); Repeal Subsections 8.02(2), 8.05(6), 8.06, 8.07, 8.10 and 8.11; Repeal and Recreate Subsection 8.12; and Create Subsections 8.13, 8.14 and 8.15 of the City of West Allis Revised Municipal Code Relating to Weights and Measures.
Body
The Common Council of the City of West Allis do ordain as follows:
PART I. Subsection 8.01(3) of the City of West Allis Revised Municipal Code is hereby amended to read as follows:
8.01 Definitions.
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(3) “Weights and measures” means weights and measures of every kind, instruments and devices for weighing and measuring, and any appliances and accessories used with any or all such instruments and devices, except meters for the measurement of electricity, gas (natural or manufactured) or water, when the same are operated in a public utility system.
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PART II. Subsection 8.02(1) of the City of West Allis Revised Municipal Code is hereby amended to read as follows:
8.02 Systems of Weights and Measures.
(1) The system of weights and measures in customary use in the United States or the metric system of weights and measures shall be the only systems used for commercial purposes in this City. The definitions of basic units of weights and measure, the tables of weights and measures and weights and measures equivalents, published by the National Institute of Standards and Technology, shall govern weighing and measuring equipment and transactions in this City.
PART III. Subsections 8.03(1)-(3) of the City of West Allis Revised Municipal Code are hereby amended to read as follows:
8.03 Field Standards and Equipment; Specifications and Tolerances; Adoption of Code.
(1) There shall be supplied by the City such “field standards” and such equipment as may be found necessary to carry out the provisions of this ordinance. The field standards shall be verified by the Wisconsin Weights and Measures Laboratory upon their initial receipt and thereafter as the Wisconsin Department of Agriculture, Trade and Consumer Protection may require.
(2) The specifications, tolerances, and regulations for commercial weighing and measuring devices issued by the National Institute of Standards and Technology shall apply in this City, except as modified by rules issued by the Wisconsin Department of Agriculture, Trade and Consumer Protection.
(3) The provisions of Chapter 98 of the Wisconsin Statutes, entitled “Weights and Measures,” ATCP Chapters 90, 91, and 92 of the Wisconsin Administrative Code, and the National Institute of Standards and Technology Handbook, as applicable to weights and measures, are adopted by reference and incorporated as though fully set forth herein. Violation of any applicable provisions thereof shall constitute a violation of this ordinance.
PART IV. Subsection 8.04(1) of the City of West Allis Revised Municipal Code is hereby amended to read as follows:
8.04 City Sealers and Assistant Sealers.
(1) Pursuant to Section 2.17(1) of this Code, the City Health Commissioner is hereby designated as the Sealer of Weights and Measures. The Health Commissioner may appoint public health sanitarians or environmentalists as Assistant Sealers.
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PART V. Subsections 8.05(3) and (5) of the City of West Allis Revised Municipal Code are hereby amended to read as follows:
8.05 Enforcement Authority.
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(3) Weights and measures and commodities that have been rejected may be confiscated and destroyed by the Sealer or an Assistant Sealer if not corrected within thirty (30) days or such longer period as the Health Commissioner may authorize, or if used or disposed of without his or her written authorization.
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(5) The Sealer or Assistant Sealers shall investigate complaints made concerning violations of the provisions of this ordinance and shall, upon their own initiative, conduct such investigations as they deem appropriate and advisable to develop information on possible prevailing practices in commercial quantity determination and on possible violations of the provisions of this ordinance and to promote the general objective of accuracy in the determination and representation of quantity in commercial transactions.
a. If the Sealer or Assistant Sealer reinspects a weight and measure because he or she has found a violation of this chapter, the permittee shall pay a reinspection fee for each reinspection. The reinspection fee shall be the same as the annual permit fee of the weight or measure being reinspected. Such fee shall be due immediately after the reinspection upon written demand from the Health Department. No permittee may renew a permit issued under this chapter unless the permittee has paid all reinspection fees in full.
PART VI. Subsections 8.02(2), 8.05(6), 8.06, 8.07, 8.10 and 8.11 of the City of West Allis Revised Municipal Code are hereby repealed.
PART VII. Subsection 8.12 of the City of West Allis Revised Municipal Code is hereby repealed and recreated to read as follows:
8.12 Prohibited Acts.
(1) No person shall commit any of the following acts:
a. Hinder, obstruct, or impersonate a Sealer or Assistant Sealer.
b. Use or has in possession an incorrect weight or measure for use in buying or selling any commodity or service, sells any incorrect weight or measure, or causes a weight or measure to be incorrect.
c. Represents in any manner a false quantity or price in connection with the purchase or sale, or any advertising thereof, of any commodity, thing, or service.
d. Uses or disposes of any rejected weight or measure or commodity or removes therefrom any official tag, seal, stamp, or mark without written authority from a Sealer or Assistant Sealer.
e. Violates any other provision of this ordinance for which no specific penalty is prescribed.
PART VIII. Subsection 8.13 of the City of West Allis Revised Municipal Code is hereby created to read as follows:
8.13 Permits.
(1) Permit Required. No person shall operate or utilize a weight and measuring device or system, including a pricing system and timing device, or any accessories relating thereto, which are used commercially within the City in determining the weight, measure, or count of commodities or items sold or purchased or offered or exposed for sale on the basis of weight, measure, or count without first obtaining a Weighing/Measuring Equipment Operation Permit from the West Allis Health Commissioner. Each device requires its own permit. Only a person who complies with the requirements of this section shall be entitled to receive and retain a permit. Permits shall be issued only in the name of the operator of the weight and measuring devices and shall not be transferable.
(2) Permit Application. A written application for the permit(s) required by this section shall be filed with the Health Commissioner upon forms provided by the Health Commissioner. Initial permit fees shall be paid at the time the application is filed. Renewal permit fees shall be paid prior to the expiration of a permit, and no person shall operate any weights and measuring device until all renewal fees have been paid. Any renewal permit fee paid on July 1 or later shall be subject to a late fee of ten dollars ($10.00). A permittee or applicant shall notify the Health Commissioner in writing if any information listed in the application form has changed within ten (10) days of such change.
a. All matters submitted in writing to the City by any applicant or permittee pertaining to any permit issued under this section shall be true.
(3) Permit Expiration. All permits shall expire on June 30.
(4) Permit Fees. The fee schedule for weights and measuring devices is as follows:
Device Annual Fee
Scales
0 - 100 lb capacity $10.00
100 lb + capacity $35.00
Vehicle Tank Meters $60.00
Linear Measures $7.00
Timing Devices $3.00
Liquid Measuring Devices $10.00
Pricing Systems $30.00
(5) Conditions of Permit.
a. Every applicant procuring a permit thereby consents to the entry of the Health Department, police or other duly authorized representatives of the City at all reasonable hours for the purpose of inspection and search, and consents to the removal from said premises of all things and articles there had in violation of City ordinances or state laws.
b. The permittee and/or employees and agents of the permittee shall cooperate with the Health Department and police investigations. “Cooperate,” as used in this subsection, shall mean calling the police when a disturbance of the peace or other violation occurs on the permitted premises and providing complete and truthful responses to police and Health Department inquires. A permittee shall also appear before the License and Health Committee when requested to do so and shall otherwise follow the lawful directives of the License and Health Committee.
c. The permittee shall comply with all other provisions of this section and all other ordinances of the City of West Allis and the laws of the State of Wisconsin.
PART IX. Subsection 8.14 of the City of West Allis Revised Municipal Code is hereby created to read as follows:
8.14 Suspension, Revocation, and Nonrenewal of Permit.
(1) Revocation of Permit.
a. Any permit issued under this section may be suspended, revoked, or nonrenewed for cause by the Common Council after notice to the permittee and a hearing. Permits may be suspended, revoked, or not renewed for the following causes:
1. The making of any material false statement in any application for a permit.
2. The violation of any of the applicable provisions of Chapter 8 of the West Allis Revised Municipal Code.
3. The violation of any of the applicable provisions of Wisconsin Statutes Chapter 98, ATCP Chapters 90, 91, and 92 of the Wisconsin Administrative Code, or the National Institute of Standards and Technology Handbook, as related to weights and measures.
4. The failure to pay any of the items listed in Section 1.08(9)(a)-(b) of this Code.
b. Commencement of Proceedings. Suspension, revocation, or nonrenewal proceedings may be instituted by the License and Health Committee of the Common Council upon its own motion or upon sworn written charges made and filed with the City Clerk by the Health Commissioner.
c. Procedure.
1. Upon receipt of a sworn complaint, either from the Health Commissioner or upon directive of the Committee, the License and Health Committee shall direct the City Attorney to prepare a summons and have the summons and complaint served upon the permittee pursuant to Section 801.11 of the Wisconsin Statutes.
2. The summons and complaint shall contain the date and time for appearance by the permittee; a statement of the Common Council’s intention to suspend, revoke, or not renew the permit in the event any of the allegations are found to be true; a statement of the reasons for suspension, revocation, or nonrenewal; notification to the permittee of an opportunity to be heard, respond to and challenge the reasons for suspension, revocation, or nonrenewal and to present and cross examine witnesses under oath; and notification to the permittee of the right to be represented by counsel of the permittee’s choice and at the permittee’s expense.
3. If the permittee fails to appear on the date and time designated in the summons, the License and Health Committee may enter a default judgment and take the allegations of the complaint to be true. The License and Health Committee shall then deliberate on what sanction, if any, to impose.
4. If the permittee appears before the License and Health Committee at the date and time designated in the summons and denies the material charges contained in the complaint, an evidentiary hearing shall be scheduled. If the permittee does not appear or appears but does not deny the material charges contained in the complaint, the complaint may be taken as true and the Committee shall hear the arguments of the complainant and, if applicable, the permittee in connection with whether to nonrenew, revoke, or suspend the permit and the length of the suspension.
5. If the matter proceeds to hearing before the Committee, the following procedures shall apply:
a. The complainant shall first present evidence in support of the complaint.
b. After the complainant rests, the permittee may present evidence in opposition to the charges.
c. The complainant and permittee may subpoena and present witnesses. All witnesses shall testify under oath or affirmation and shall be subject to cross examination.
d. The complainant and permittee shall each be limited to one (1) hour for testimony unless the Chair, subject to approval of the Committee, extends the time to assure a full and fair presentation.
e. Questions by Committee members or the advising City Attorney, and answers to such questions, shall not be counted against the time limitations.
f. At the close of testimony, the complainant and permittee shall be given a reasonable time to make arguments upon the evidence produced at hearing.
d. Miscellaneous Procedural Matters.
1. At all stages of the proceedings, the permittee shall be entitled to appear in person or by an attorney at his or her own expense.
2. If the complaint is in the name of the Committee or is brought by a City official in his/her official capacity, the complainant shall be represented by a prosecuting City Attorney.
3. The Committee shall be, when required, advised by an advisory City Attorney who shall not be the same individual as the prosecuting City Attorney.
4. The Chair of the License and Health Committee shall be the presiding officer. The Chair shall direct that oaths and affirmations be administered and subpoenas issued upon request of either side. The Chair shall ensure that an orderly hearing is conducted in accordance with the provisions of this section. The Chair shall rule on objections to the admissibility of evidence. Any ruling of the Chair shall be final unless appealed to the Committee and a majority vote of those members present and voting reverses such ruling.
5. An audio recording or stenographic record shall be made of all proceedings at the hearing. Any interested party may obtain a copy of the recording or transcript at his or her own expense.
e. Findings and Recommendations.
1. After the close of the hearing, the Committee shall deliberate and reach a decision. The Committee shall prepare findings on factual matters, conclusions of law, and a recommendation on what action, if any, should be taken with regard to the permit(s) at issue. The report shall be filed with the City Clerk, with a copy to the permittee and complainant. The findings and recommendations shall be distributed to each member of the Common Council.
2. The permittee and complainant may file a written statement or response to the findings and recommendations, including objections, exceptions, and arguments of fact and law. A written statement must be filed with the City Clerk before the close of business on a day that is at least three (3) working days prior to the date set for determination by the Common Council. Copies of written statements shall be provided to each member of the Common Council at least twenty-four (24) hours before any vote on the matter is scheduled before the Common Council.
f. Common Council Action.
1. Not less than five (5) working days prior to the matter being scheduled before the Common Council, the City Clerk shall notify the permittee and complainant by United States first-class mail, postage prepaid, sent to the last known address, that the Common Council will convene to determine the matter.
2. Unless an alderperson states that he/she has not read the findings and recommendations and written statements, if any, the matter shall proceed to debate amongst members of the Common Council. Neither the complainant nor the permittee shall be permitted to make oral arguments.
3. The Common Council shall determine by a majority vote of those in attendance and voting whether to adopt the recommendation of the Committee or make such modification as is deemed appropriate. Such vote shall be a roll call vote. Upon an affirmative vote suspending, revoking, or not renewing the permit(s), the Clerk shall give notice to the person whose permit is affected. If the Common Council finds the complaint to be untrue or unsupported by sufficient evidence, the proceedings shall be dismissed without cost to the accused.
g. Surrender of Permit.
1. A permittee may, at any time during the permit year, surrender a permit to the Health Department, along with a statement, in writing, that the permittee no longer wishes to conduct permitted activity at the permitted premises.
2. Except as set forth in subsection(g)(3) below, the surrender shall operate to extinguish any right the permittee had to the permit or to conduct permitted activity at the premises listed in the permit.
3. If a summons and complaint has been issued against the permittee seeking suspension, revocation, or nonrenewal of the permit, the surrender of the permit shall be deemed a request and the matter shall be referred to the License and Health Committee. The Committee may approve the request or deny the request and proceed to hearing.
4. Any request to have a surrendered permit returned shall be treated as a new permit application and the requestor must fill out the required applications and pay the required fees. The request shall thereafter be treated as all other new permit applications.
h. Prohibition on Future Issuance. If a permit is revoked or not renewed due to action by the License and Health Committee, at least two (2) years shall elapse before another permit may be given to the same permittee.
PART X. Subsection 8.15 of the City of West Allis Revised Municipal Code is hereby created to read as follows:
8.15 Penalties.
(1) Any person violating the provisions of this ordinance shall forfeit the sum of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) upon the first offense. For a second or subsequent offense, the person shall forfeit the sum of not less than two hundred dollars ($200) nor more than one thousand dollars ($1000). For all violations, the person shall be required to pay the costs of prosecution. In default of payment thereof, the person shall be imprisoned in the Milwaukee County House of Correction until such forfeiture and costs are paid, but not more than the number of days set forth in Section 800.095(1)(b)1 of the Wisconsin Statutes, or by suspension of the person’s operating privilege, pursuant to Section 800.095(1)(a) of the Wisconsin Statutes. Each and every day a violation continues constitutes a separate offense.
PART XI. All ordinances or parts of ordinances contravening the provisions of this ordinance are hereby repealed.
PART XII. This ordinance shall take effect and be in force from and after its passage and publication.
ATTO-Amend SS 8.01(3)8.02(1)8.03(1)-(3)8.04(1)8.05(3)&(5) Rpl 8.02(2)8.05(6)8.068.078.108.11 R&R 8.12 Crt 8.13 8.14 8.15