Section 7.10 - Inspections; Violations; Penalties; Appeals(1) The Deputy Director or the Deputy Director's inspectors and sealers of weights and measures and those deputies, as defined in M.G.L. c. 98, § 1, shall inspect each food store or food department for compliance with M.G.L. c. 94, §§ 184B through 184E.(2) The inspections shall be conducted pursuant to the national industry standards adopted by the National Conference on Weights and Measures of the National Institute of Standards and Technology, or any other rules or guidelines promulgated by the Division pertaining to the implementation and enforcement of M.G.L. c. 94, §§ 184B through 184E.(3) Nothing shall inhibit the oversampling of sale items during inspections.(4) A food store or food department shall provide the inspector with access necessary to conduct an inspection.(5) The Deputy Director shall notify the food store or food department in writing of violations of 202 CMR 7.10 and of any fines imposed pursuant to M.G.L. c. 94, §§ 184B through 184E.(6) Violations of M.G.L. c. 94, §§ 184B through 184E for which fines shall be levied include, but shall not be limited to:(a) Having no price marked on a unit that is required to be price and is not exempted;(b) Having an incorrect price on a unit;(c) Having an incorrect or missing sign;(d)Overcharging on a Unit. A unit shall be deemed to be overcharged once it is rung up at a price higher than any represented price. As in "checkout price," the price shall be the price displayed on an automated checkout system or an itemized sales receipt, regardless of whether the item is purchased or not.(7) Notwithstanding the method for determining the amount of civil fines under M.G.L. c. 98, § 29A, a civil citation may be issued for $200 for each violation, up to a maximum of $5,000 per inspection, for a food store or a food department utilizing a consumer price scanner system. Notwithstanding the method for determining the amount of civil fines under M.G.L. c. 98, § 29A, a civil citation may be issued for $100 per violation, up to a maximum of $2,500 per inspection, for a food store or food department utilizing an individual pricing system.(8) For purposes of 202 CMR 7.10, each occasion that an item scans erroneously during an inspector's attempt to verify its correct price shall constitute a separate civil violation. Inspectors shall not scan any identical individual item more than once per inspection. The seller shall immediately correct all violations.(9) For a food store or a food department utilizing a consumer price scanner system, if an item is advertised either in a food store, food department or in a circular as on sale or discounted because of a loyalty card price and the item registers at a higher price at the checkout counter than indicated by a sale or loyalty card price, a civil citation shall be issued for $300 for each violation, up to a maximum of $5,000 per inspection. Said loyalty card violations shall be calculated separately from other pricing violations for purposes of the $5,000 caps.(10) The Deputy Director shall not issue a fine under M.G.L. c. 94, §§ 184B through 184E and M.G.L. c. 98, § 56D for the same violation.(11) A fine imposed by the Deputy Director shall be paid within 21 days of issuance of the notice, unless the seller appeals pursuant to the civil citation process found in M.G.L. c. 98, § 29A.(12) The food store or food department shall immediately correct any noncompliance with M.G.L. c. 94, §§ 184B through 184E when notified by the inspector.(13) No food store or food department shall be inspected more than once a month, unless such inspection is intended to verify the correction of violations found during a recent inspection or to verify the validity of a specific consumer complaint.(14) All food stores or food departments subject to M.G.L. c. 94, §§ 184B through 184E shall provide, upon request, a complaint form for a consumer to complete and submit. A consumer may submit a complaint to the Deputy Director and/or the Attorney General regarding noncompliance with M.G.L. c. 94, §§ 184B through 184E. Consumer complaints submitted to the Deputy Director shall be investigated. In the case of any verified consumer complaint, fines for overcharging shall be limited to one violation per item. A fine shall be issued upon verification of any consumer complaint alleging overcharging or improper price marking.(15) If the Deputy Director determines that a food store or food department is either intentionally or through gross negligence violating any provisions of M.G.L. c. 94, §§ 184B through 184E, the Deputy Director shall provide written notice of such determination to the food store or food department and the food store or food department shall have 30 days to cure these violations. Provided, however, that pricing violations shall be corrected immediately upon notice. If upon re-inspection the Deputy Director determines that the food store or food department is still not in substantial compliance with 202 CMR 7.00 and M.G.L. c. 194, §§ 184B through 184E, all of the food store's or food department's exemptions shall be rescinded for a period of 12 months, and the matter shall be referred to the Attorney General for action against that food store or food department.(16) M.G.L. c. 94, §§ 184B through 184E shall only apply to food stores and to grocery items in food departments. M.G.L. c. 94, §§ 184B through 184E shall not diminish any obligations under other laws or regulations regarding item pricing for sellers other than food stores or for items other than grocery items in food departments. If a seller is also subject to the item pricing regulations or guidelines of another agency, in cases where a specified number of items is allowed to be exempted under two similar exceptions to the requirement of item pricing, such similar provisions shall not be additive. Compliance with another agency's regulations or guidelines shall not be a defense to a violation of M.G.L. c. 94, §§ 184B through 184E or 202 CMR 7.00.(17) Special additional provisions applicable to food stores or food departments using a consumer price scanner system:(a) A food store or food department using a consumer price scanner system shall be subject to inspection by the Deputy Director;(b) The Deputy Director shall not cause any food store or food department using a consumer price scanner system to be inspected more than once per calendar month, unless within the previous 30 days there is a verified pattern of consumer complaints, or, upon regular inspection, the food store or food department is not in compliance with 202 CMR 7.00 or M.G.L. c. 94, §§ 184B through 184E, the division may inspect a food store or food department using a consumer pricing scanner system once every week until the food store or food department is found to be in compliance;(c) Upon inspection, the Deputy Director shall notify the store manager, who shall provide the inspector with a map of the food store or food department outlining the consumer price scanner locations and the food store or food department's square footage of grocery item retail sales space;(d) The food store or food department's number and type of scanners shall be sufficient for the food store or food department's size as defined by 202 CMR 7.00. Any violation of 202 CMR 7.10(17)(d), lacking the requisite number and type of consumer pricing scanners shall result in a fine of $1,000, which shall not count toward the maximum fine established under section 202 CMR 7.10(17)(g), provided, however, that the Deputy Director may reduce this fine consistent with M.G.L. c. 98, § 29A;(e) An inspector may choose to test a consumer price scanner system for accuracy. The inspector may choose the sample size for accuracy tests provided that the size of sample is not less than 50 items and not more than 200 items;(f) Any scanning that yields an incorrect price that causes a food store or food department's consumer price scanner accuracy rating to fall below 98% shall constitute a separate violation. 202 CMR 7.10(17)(d) shall not be used to impact a scanner's pass or fail grade, but the cumulative violations of 202 CMR 7.10(17)(f) in any particular store or department shall be used in contributing toward the maximum fine imposed;(g) Each consumer price scanner shall be graded on a pass or fail basis by inspectors. A failing consumer price scanner shall include, but not be limited to: 1. Missing consumer price scanners;2. Inadequate signage at eye level or above eye level;3. Failing to clearly and conspicuously identify and display a scanned item by name or other distinguishing characteristics;4. Failing to disclose both the loyalty card price and the non-card price if they differ if applicable;5. Failing to comply with 28 CFR Part 36, Appendix A: Americans with Disabilities Act Accessibility Guidelines, or 521 CMR 7.00: Retail Establishments; or6. Failing to post a sign containing the contact information for the Division by the scanner;7. For each scanner capable of producing an individual item pricing tag, failing to provide the consumer with a means to print a pricing tag; or8. Failing to provide a means to affix or append the pricing tag to an item or its packaging.9. Each scanner found to have failed the test shall constitute a separate violation. Notwithstanding the method for determining the amount of civil fines under M.G.L. c. 98, § 29A, a civil fine may be issued for $200 for each violation, up to a maximum of $2,500 per inspection; provided, however, that the Deputy Director may reduce any fine imposed under 202 CMR 7.10(17)(g)9. consistent with M.G.L. c. 98, § 29A.