SECTIONS 12001-12027 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 12001-12027

12001. The definitions in this chapter apply to this division only
and do not affect the provisions of any other division.

12002. "Department" means the Department of Food and Agriculture.

12003. "Director" or "Secretary" means the Secretary of Food and
Agriculture.

12004. "State Sealer" means the chief of the division of the
department charged with the enforcement of the provisions of this
division.

12005. Whenever any provision of this division makes reference to
the National Bureau of Standards, that reference shall be construed
to include the National Institute of Standards and Technology.

12006. "County Sealer" means any sealer appointed by a county. A
county may in its discretion refer to its sealer as the county
director of weights and measures.

12008. "Sealer," when used without qualification, includes the
State Sealer, county sealers and their deputies and inspectors.

12009. "Sell," in any of its variant forms, includes barter,
exchange, trade, rent, lease, keep for sale, offer for sale, or
expose for sale, in any of their variant forms.

12009.5. "Distribute," in any of its variant forms, includes keep
for distribution, offer for distribution, or expose for distribution,
in any of their variant forms.

12010. "Use," in any of its variant forms includes keep for use in
any of its variant forms.

12011. "Person" includes person, firm, corporation or association.

12011.5. Wherever in this division the terms "copies" or "standards"
or "copies of the standard weights and measures" are used, such
terms shall refer to the original standards in the possession of the
department or to true and accurate copies derived therefrom.

12011.6. "Container" means any receptacle or carton, whether lidded
or unlidded, into which a commodity is packed or placed, or any
wrappings with or into which any commodity is wrapped or put for
sale.

12011.7. "Pallet" means any portable platform upon which containers
or material is placed to facilitate handling.

12012. The director may exercise any power conferred upon the
department or upon the State Sealer by this division through the
State Sealer or otherwise.

12012.1. The director may bring an action to enjoin the violation,
or the threatened violation, of any provision of this division, or of
any regulation adopted pursuant thereto, in the superior court in
the county in which such violation occurs or is about to occur. There
may be joined in one proceeding any number of defendants alleged to
be violating the same provisions or regulations, although their
properties, interests, residence, or place of business, may be in
several counties and the violations separate and distinct. Any
proceeding which is brought pursuant to this section shall be
governed in all other respects by the provisions of Chapter 3
(commencing with Section 525), Title 7, Part 2 of the Code of Civil
Procedure. The county sealer of any county acting through the
district attorney or county counsel of that county may bring an
action to enjoin the violation in such county or the threatened
violation in such county of any provision of this division or of any
regulation adopted pursuant thereto in the same manner as may the
director, and if the director joins as a party plaintiff, such
actions shall not be limited to violations occurring within the
county.

12013. (a) Any sealer shall have the authority, as a public
officer, to arrest, without a warrant, any person whenever such
officer has reasonable cause to believe that the person to be
arrested has, in his presence, violated any provision of this
division, the violation of which is declared to be a public offense.
In any case in which an arrest is made pursuant to this authority
for an offense declared to be a misdemeanor or an infraction, the
arresting officer may, instead of taking the person arrested before a
magistrate, follow the procedure prescribed by Chapter 5C
(commencing with Section 853.5) of Title 3 of Part 2 of the Penal
Code, unless the arrested person demands to be taken before a
magistrate. The provisions of such chapter shall thereafter apply
with respect to any proceeding based upon the issuance of a citation
pursuant to this authority.
This subdivision shall not be interpreted to prevent further
restriction by the board of supervisors of a county of the authority
of a county sealer or his deputies to make arrests.
(b) There shall be no civil liability on the part of, and no cause
of action shall arise against, any person, acting pursuant to
subdivision (a) and within the scope of his authority, for false
arrest or false imprisonment arising out of any arrest which is
lawful or which the arresting officer, at the time of such arrest,
had reasonable cause to believe was lawful. No such officer shall be
deemed an aggressor or lose his right to self-defense by the use of
reasonable force to effect the arrest or to prevent escape or to
overcome resistance.
(c) Any sealer may serve all processes and notices throughout the
state; provided, that county sealers and their deputies are
authorized to serve processes and notices only within the boundaries
of the county which employs them.

12014. (a) Except as provided in subdivision (b), any sealer who
seals any weight, measure, balance or weighing or measuring
instrument or apparatus before first testing and making it conform
with the standards of the state, or who condemns any weight, measure,
balance or weighing or measuring instrument or apparatus without
first testing it is guilty of a misdemeanor.
(b) A sealer may engage in a planned program of probability
sampling of devices, using methods approved by the director. The
sealing of a device by a sealer pursuant to such sampling and testing
program is exempt from the provisions of subdivision (a).

12015. Any sealer having knowledge of a violation of any of the
provisions of any law relating to weights and measures shall cause
the violator to be prosecuted.

12015.3. (a) The sealer may levy a civil penalty against a person
violating any provision of this division or a regulation adopted
pursuant to any of these provisions, of not more than one thousand
dollars ($1,000) for each violation. It is a complete defense to a
criminal prosecution for a violation of any provision of this
division or a regulation adopted pursuant to any provision of this
division that the defendant has been assessed and has paid a civil
penalty under this section for the same act or acts constituting the
violation. Any civil penalty under this section shall be cumulative
to civil remedies or penalties imposed under any other law.
(b) Before a civil penalty is levied, the person charged with the
violation shall be given a written notice of the proposed action
including the nature of the violation and the amount of the proposed
penalty, and shall have the right to request a hearing. The request
shall be made within 20 days after receiving notice of the proposed
action. A notice of the proposed action that is sent by certified
mail to the last known address of the person charged shall be
considered received even if delivery is refused or the notice is not
accepted at that address. If a hearing is requested, notice of the
time and place of the hearing shall be given at least 10 days before
the date set for the hearing. At the hearing, the person shall be
given an opportunity to review the sealer's evidence and to present
evidence on his or her own behalf. If a hearing is not timely
requested, the sealer may take the action proposed without a hearing.
(c) If the person upon whom the sealer levied a civil penalty
requested and appeared at a hearing, the person may appeal the sealer'
s decision to the secretary within 30 days of the date of receiving a
copy of the sealer's decision. The following procedures apply to the
appeal:
(1) The appeal shall be in writing and signed by the appellant or
his or her authorized agent, state the grounds for the appeal, and
include a copy of the sealer's decision. The appellant shall file a
copy of the appeal with the sealer at the same time it is filed with
the secretary.
(2) The appellant and the sealer may, at the time of filing the
appeal or within 10 days thereafter or at a later time prescribed by
the secretary, present the record of the hearing including written
evidence that was submitted at the hearing and a written argument to
the secretary stating grounds for affirming, modifying, or reversing
the sealer's decision.
(3) The secretary may grant oral arguments upon application made
at the time written arguments are filed.
(4) If an application to present an oral argument is granted,
written notice of the time and place for the oral argument shall be
given at least 10 days before the date set therefor. The times may be
altered by mutual agreement of the appellant, the sealer, and the
secretary.
(5) The secretary shall decide the appeal on the record of the
hearing, including the written evidence and the written argument
described in paragraph (2), that he or she has received. If the
secretary finds substantial evidence in the record to support the
sealer's decision, the secretary shall affirm the decision.
(6) The secretary shall render a written decision within 45 days
of the date of appeal or within 15 days of the date of oral arguments
or as soon thereafter as practicable.
(7) On an appeal pursuant to this section, the secretary may
affirm the sealer's decision, modify the sealer's decision by
reducing or increasing the amount of the penalty levied so that it is
within the secretary's guidelines for imposing civil penalties, or
reverse the sealer's decision. Any civil penalty increased by the
secretary shall not be higher than that proposed in the sealer's
notice of proposed action given pursuant to subdivision (b). A copy
of the secretary's decision shall be delivered or mailed to the
appellant and the sealer.
(8) Any person who does not request a hearing pursuant to
subdivision (b) may not file an appeal pursuant to this subdivision.
(9) Review of a decision of the secretary may be sought by the
appellant within 30 days of the date of the decision pursuant to
Section 1094.5 of the Code of Civil Procedure.
(d) After the exhaustion of the appeal and review procedures
provided in this section, the sealer, or his or her representative,
may file a certified copy of a final decision of the sealer that
directs the payment of a civil penalty and, if applicable, a copy of
any decision of the secretary or his or her authorized representative
rendered on an appeal from the sealer's decision and a copy of any
order that denies a petition for a writ of administrative mandamus,
with the clerk of the superior court of any county. Judgment shall be
entered immediately by the clerk in conformity with the decision or
order. No fees shall be charged by the clerk of the superior court
for the performance of any official service required in connection
with the entry of judgment pursuant to this section.
(e) If the civil penalty is levied by the State Sealer, the
revenues derived therefrom shall be deposited in the Department of
Food and Agriculture Fund and, upon appropriation, shall be used by
the State Sealer to carry out his or her responsibilities under this
division. If the civil penalty is levied by the county sealer, the
revenues shall be deposited in the general fund of the county and,
upon appropriation by the board of supervisors, shall be used by the
county sealer to carry out his or her responsibilities under this
division.
(f) This section does not apply to violations involving utility
meters, or to violations involving the testing and inspection of
utility meters, in mobilehome parks, recreational vehicle parks, or
apartment complexes, where the owner of the park or complex owns and
is responsible for the utility meters.
(g) Upon the written request of the Attorney General of
California, any district attorney, or any city prosecutor or city
attorney described in subdivision (a) of Section 17206, the State
Sealer or the county sealer within their respective jurisdictions,
shall provide all reports and records regarding any actions that
occurred within the four months prior to the date of the written
request in which civil penalties were levied pursuant to this section
or liability for costs incurred are determined pursuant to Section
12015.5.
(h) No investigative costs shall be imposed pursuant to Section
12015.5 for violations for which civil penalties are imposed pursuant
to this section.

12015.5. Any person convicted of violating any of the provisions of
this division, or, except as provided in Section 12015.3, any person
who is determined to be civilly liable for violating any of the
provisions of this division, shall be liable for reasonable costs
incurred in investigating the action.

12016. Any person who hinders or obstructs in any way any sealer,
in the performance of his official duties, is guilty of a
misdemeanor.

12017. All officers, directors and managers of corporations, whose
respective corporations use or sell any weights, measures, or
weighing or measuring instruments which are subject to inspection
shall comply with the provisions of this division on behalf of their
respective corporations; and all officers, directors and managers of
corporations, whose respective corporations sell any commodity which
is subject to inspection shall comply with the provisions of this
division on behalf of their respective corporations.
In case any corporation violates any of the provisions of this
division, the corporation and the officers thereof directly concerned
with the act or acts constituting such violation shall be severally
guilty of a misdemeanor.

12018. Any person neglecting or refusing to exhibit any weight,
measure, weighing or measuring instrument, or appliances and
accessories connected therewith in his possession or under his
control, to any sealer for inspection and examnation is guilty of a
misdemeanor.

12019. A false weight or measure is one which does not conform to
the standard established or recognized by this division.

12020. It shall be unlawful for any person, by himself or through
or for another, to use for commercial purposes any weight or measure
or weighing, measuring or counting instrument, knowing it to be
"incorrect" as this term is defined in subdivision (d) of Section
12500. Every person who violates this section is guilty of a
misdemeanor.

12021. Every person who knowingly marks or stamps false or short
weight or measure, or knowingly takes false tare, on any container,
or knowingly sells any container so marked, is guilty of a
misdemeanor.

12022. Every person who, in putting up in any container, goods
usually sold by weight, puts in or conceals therein any other
substance including moisture, except such moisture as may be included
or absorbed by the goods or commodity contained therein during
preparation for market or processing in accordance with ordinary
commercial practice, for the purpose of increasing the weight of such
container with intent thereby to sell the goods therein or to enable
another to sell the same, for an increased weight, is punishable by
fine of not less than twenty-five dollars ($25) for each offense. The
amount of added moisture contained in poultry meat as defined in
Section 380.20 of the Agricultural Code shall not exceed 4 percent by
weight or any greater amount established by regulation of the
director.

12022.5. Fresh meat or roasts of any kind or cut shall be exposed,
advertised, offered for sale or sold on the basis of net weight of
the fresh meat or roast only, and any added fat of any kind
whatsoever either wrapped within or injected with a larding needle or
otherwise inserted in such fresh meat or roast shall be considered
as tare weight only.
Notwithstanding the above provision, added fat shall not be
considered tare weight if the meat package containing such added fat
is clearly and prominently labeled in eight-point type or larger with
the term "fat added."

12023. Except as provided elsewhere in this code any person who by
himself or his employee or agent, or as the employee or agent of
another, sells any commodity according to gross weight or measure is
guilty of a misdemeanor.

12023.5. Notwithstanding any other provision of this code or any
other law, jute cordage, hard fiber cordage, and hard fiber twine
(whether covered or uncovered) may be marked and sold on a gross
weight basis. The provisions of the fore-going sentence shall not
apply to sales in retail stores for consumer use of any such product
which has been removed from the wrapper or container in which it was
received by the retailer.

12024. Every person, who by himself or herself, or through or for
another, sells any commodity in less quantity than he or she
represents it to be is guilty of a misdemeanor, except as provided in
Section 12024.3.

12024.1. Every person, by himself, or through or for another, who
willfully misrepresents a charge for service rendered on the basis of
weight, time, measure, or count is guilty of a misdemeanor.

12024.2. (a) It is unlawful for any person, at the time of sale of
a commodity, to do any of the following:
(1) Charge an amount greater than the price, or to compute an
amount greater than a true extension of a price per unit, that is
then advertised, posted, marked, displayed, or quoted for that
commodity.
(2) Charge an amount greater than the lowest price posted on the
commodity itself or on a shelf tag that corresponds to the commodity,
notwithstanding any limitation of the time period for which the
posted price is in effect.
(b) A violation of this section is a misdemeanor punishable by a
fine of not less than twenty-five dollars ($25) nor more than one
thousand dollars ($1,000), by imprisonment in the county jail for a
period not exceeding one year, or by both, if the violation is
willful or grossly negligent, or when the overcharge is more than one
dollar ($1).
(c) A violation of this section is an infraction punishable by a
fine of not more than one hundred dollars ($100) when the overcharge
is one dollar ($1) or less.
(d) As used in subdivisions (b) and (c), "overcharge" means the
amount by which the charge for a commodity exceeds a price that is
advertised, posted, marked, displayed, or quoted to that consumer for
that commodity at the time of sale.
(e) Except as provided in subdivision (f), for purposes of this
section, when more than one price for the same commodity is
advertised, posted, marked, displayed, or quoted, the person offering
the commodity for sale shall charge the lowest of those prices.
(f) Pricing may be subject to a condition of sale, such as
membership in a retailer-sponsored club, the purchase of a minimum
quantity, or the purchase of multiples of the same item, provided
that the condition is conspicuously posted in the same location as
the price.

12024.3. (a) For commodities prepackaged and sold or offered for
sale on the same premises, a violation of Section 12024 is a
misdemeanor punishable by a fine of not less than fifty dollars ($50)
nor more than one thousand dollars ($1,000), by imprisonment in the
county jail for a period not exceeding one year, or by both, if any
of the following occurs:
(1) The violation is willful.
(2) The total monetary value of the shortage, calculated on the
basis of the average error of an individual lot, exceeds two dollars
($2), as determined pursuant to regulations adopted pursuant to
Section 12211.
(3) The total monetary value of shortages, calculated on the basis
of the average error of each individual lot, as determined from a
sample of packages selected pursuant to regulations adopted pursuant
to Section 12211, within all lots found to be in violation of Section
12024 at a single location, exceeds ten dollars ($10).
(b) For commodities prepackaged and sold or offered for sale on
the same premises, a violation of Section 12024 is an infraction,
punishable by a fine of not more than one hundred dollars ($100), if
the violation is of less monetary value than that specified in
subdivision (a) and it is not willful.

12024.5. It is unlawful for any person to sell or advertise for
sale any dressed poultry or any other fowl or rabbit in dressed form,
either cooked or uncooked, or smoked, fresh, frozen, cooked, dried,
or pickled meats or fish other than by weight determined at the time
of sale on a scale properly sealed in accordance with this division.
Any commodity specified in this section, however, need not be weighed
at the time of sale if at that time it is packed in a package or
container upon which appears the net weight of the commodity therein.
Except as provided below, any person, including, but not limited to,
a manufacturer, processor, packer, wholesaler, or jobber that packs
any commodity specified in this section in any package which is
intended for retail sale, shall mark the net weight of the commodity
therein upon the package. Packages of these products intended for
retail sale need not be marked by the packer with the net weight of
the commodity if they are to be marked with the net weight of the
commodity by the retailer who purchases or receives the packages from
the packer. This section does not apply to any of the following
ready-to-eat food items:
(a) Items sold for consumption on the premises.
(b) Items sold as one of three or more different elements,
excluding condiments, comprising a ready-to-eat meal sold as a unit,
for consumption elsewhere than on the premises where sold.
(c) Ready-to-eat meat, poultry, or seafood cooked or heated on the
premises but not packaged in advance of sale.
(d) Sandwiches when offered or exposed for sale on the premises
where packed or produced and not intended for resale.

12024.55. Packages of meat, fish, or poultry offered for sale by
door-to-door salespersons shall display the price per pound for each
type and cut in the package. The price per pound shall be separately
and accurately stated and shall be preceded by the words "price per
pound" on each principal display panel of the package, as the term
"principal display panel" is defined by regulations of the director
adopted pursuant to Section 12610. All numbers and letters of the
price per pound shall be of uniform size, at least one-quarter inch
(6.35 millimeters) in height, and shall be generally parallel to the
net quantity statement. There shall in addition be an area
surrounding the statement of price at least equal in width to the
height of the letters and numbers in the statement of price which
shall be free of any printed material.

12024.6. No person, firm, corporation, or association shall
advertise, solicit, or represent by any means, a product for sale or
purchase if it is intended to entice a consumer into a transaction
different from that originally represented.

12024.7. Any person who sells meat directly to the consumer on the
basis of primal cuts or carcass weight shall supply the buyer with an
accurate statement of weight at time of sale of the carcass or
primal cut purchased, and shall supply a complete and accurate
statement which shall contain the weight of the meat delivered to the
buyer and the number and type of cuts. When any fruits, vegetables,
or other food products are sold as part of a combination sale with
meat sold directly to the consumer on the basis of primal cuts or
carcass weight, the seller shall supply an itemized statement showing
the net quantity of any fruits, vegetables, and other food products
delivered to the buyer. This section shall also apply to any person
who custom cuts any meat animal carcass or part of such carcass for
the owner, except the carcass of any game mammal taken as authorized
by the Fish and Game Code.

12024.8. The provisions of Section 12024.5 shall not apply to fish
not used for human consumption.

12024.9. (a) All terms contained in this section which are defined
by the United States Department of Agriculture shall have the same
meaning as defined by such department.
(b) "Retail cuts" as used in this section shall mean a cut of meat
from a primal cut for direct sale to the consumer.
(c) "Freezer meat" as used in this section means any uncooked meat
which is sold directly to the consumer on the basis of primal cuts,
carcass weight or any specified portion of a carcass, other than
retail cuts.
(d) "Variety pack" as used in this section means freezer meat cut
or packaged, or both, into retail cuts or other frozen food products,
or both, sold for a stipulated total price.
(e) "Consumer" as used in this section means any purchaser of
freezer meat or variety pack meat.
(f) Whenever any retail cuts of meat are sold in a variety pack
the retailer shall furnish, at the time of sale, an itemization of
the total net weight of each of the various retail cuts sold and the
total net weight of the entire meat purchase, and a separate
itemization shall be furnished for frozen food products other than
meat indicating price and weight of each product.
(g) Whenever freezer meat is sold directly to the consumer, the
consumer shall be supplied at the time of sale with the weight of the
carcass or primal cuts before cutting and a complete and accurate
inventory which shall contain the net weight of meat delivered. The
consumer shall also be supplied with complete cutting instructions
for each cut of meat processed and an exact inventory of each such
cut. The consumer shall also be furnished with the total weight of
ground meat from carcass or primal cuts.
(h) A half of beef shall consist of a forequarter and a
hindquarter from the same animal. When beef is sold as a half of
beef, the consumer shall be furnished an invoice listing the weight
of each such quarter. Not more than 8 percent tolerance differential
shall be allowed.
(i) Whenever the consumer buys freezer meats or variety packs, the
entire order shall be delivered to the consumer or held and
maintained in storage and available for such consumer.

12024.10. A true and legible copy of each document issued pursuant
to Section 12024.7 or 12024.9 shall be retained by the person,
company, or corporation issuing the document for a period of one year
and shall be made available for inspection by a sealer upon request.
This section shall not apply to primal cuts of meat which are
smaller than one quarter of a carcass.

12024.11. The director shall adopt necessary rules and regulations
pertaining to the sale or advertisement of wood for fuel purposes in
order to standardize quantities of measurement and to protect against
deceptive marketing practices.

12025. Any person, who by himself, or his employee or agent, or as
a proprietor or manager, refuses to exhibit any commodity being sold
at a given weight or quantity, or ordinarily so sold, to a sealer for
the purpose of allowing the same to be proved as to the quantity
thereof is guilty of a misdemeanor.

12025.5. Whenever any commodity or any container is ordered off
sale under the provisions of Section 12211 or Section 12607 of this
division, the sealer shall cause the commodity or container affected
by such off-sale order to be identified by a tag or other suitable
device with the words "off sale." It shall be unlawful to remove or
obliterate any such tag or device placed upon such commodity or
container or in any way dispose of or commingle such commodity or
container or prepare, pack, place, deliver for shipment, deliver for
sale, sell, or cause to be loaded, shipped, or transported, any such
commodity or container before it has been released by the sealer.

12026. (a) Except as otherwise specifically provided, any person
violating any of the provisions of this division is guilty of a
misdemeanor.
(b) It is unlawful for any person to violate any of the rules,
regulations, tolerances, specifications, or standards adopted under
the provisions of this division.

12026.5. Except as otherwise specifically provided, the remedies or
penalties provided by this division are cumulative to each other and
to the remedies or penalties available under all other laws of this
state.

12027. The director may make such rules and regulations as are
reasonably necessary for the purpose of carrying out the provisions
of this division.