2. TRAINING FOR THE WEIGHTS AND MEASURES OFFICIAL COURSE CURRICULUM MODULE 1Introduction MODULE 2Laws & Regulations MODULE 3 Enforcement Procedures MODULE 4Legal Action MODULE 5Legal Metrology MODULE 6Field Standards & Test Equipment MODULE 7Basic Weighing / Measuring Principles

3. TRAINING FOR THE WEIGHTS AND MEASURES OFFICIAL COURSE CURRICULUM MODULE 8Device Type Evaluation MODULE 9Weighing Devices MODULE 10Measuring Devices MODULE 11Weighmaster Enforcement MODULE 12Petroleum Products MODULE 13Quantity Control MODULE 14Service Agencies and Agents

4. TRAINING FOR THE WEIGHTS AND MEASURES OFFICIAL Third in a series of 14 Module Three ENFORCEMENT PROCEDURES

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

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

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

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

10. Enforcement Philosophy n Be sure you can prove your allegations n 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 No person shall….be deprived of life, liberty or property, without due process of law. U.S. Constitution, Amendment V (1791)

12. 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 Due Process Requires:

13. 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 Due Process – The Field Official

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

15. Rath 1978, Supreme Court: Californias off sale procedures met the test for due process, but only for products that are not highly perishable Due Process - Court Decisions

16. For highly perishable products the 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 charge prior to any off-sale action Due Process - Court Decisions

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

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

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

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

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

22. Removal from Commercial Service Incorrect Device two n You have two options: 1.If not repairable, device must be seized 2.If repairable, use a out of order tag to remove it from service n 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. Removal from Sale 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 automotive products, may be removed from sale (B&P Code Sections 13595 and 13731)

25. Removal from Sale yellow red Packaged products are removed from sale using yellow or red Hold-Off Sale tags

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

27. SeizureSeizure 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 Module 4 Legal Action covers this subject in greater detail

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

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: Immediate correction Written warning (NOV) Out of order tags Off-sale order tags Civil administrative procedure Citation (Notice to Appear) Criminal or civil action by A. G., D.A., or city attorney

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

34. ConclusionConclusion The information in this module has provided you with a better understanding and a deeper appreciation of the enforcement procedures available to the weights & measures official.

35. TRAINING FOR THE WEIGHTS AND MEASURES OFFICIAL This Concludes Module 3 ENFORCEMENT PROCEDURES