A.564c by Member of Assembly Magee

AN ACT to amend the agriculture and markets law, in relation to retail pricing accuracy;

and to repeal section 214-I of the agriculture and markets law, relating to item pricing

The New York Association of Convenience Stores is a private, not-for-profit trade association representing the interests of nearly 6,000 neighborhood mini-marts and convenience stores across the state that are subject to Agriculture & Markets and/or Weights & Measures regulations.

While we share the sponsor's desire to ensure that consumers pay the correct prices in our stores, we have serious concerns about this legislation as presented, to wit:

Unequal Enforcement. This bill is discriminatory in that, by making the law applicable only to retail stores that charge sales tax, it excludes Native American stores in the counties of Madison, Oneida, Onondaga, Cayuga, Seneca, Erie, Niagara, Cattaraugus, St. Lawrence, Franklin and Suffolk. These stores, which don't bother to collect state or local sales tax, sell many of the same products offered by non-Indian convenience stores and cater to non-Indian New Yorkers. If a pricing accuracy law is truly needed, as stated in the Sponsor's Memorandum, to "provide basic protection to all retail customers," then to be fair and effective it must be equally applied to all retail establishments. As the sponsor is keenly aware, New York State already has more than enough double standards when it comes to regulating Indian versus non-Indian stores.

The 98% Standard. Enactment of A.564c would hold convenience stores to a standard of near perfection in an imperfect environment. Supermarkets where a customer using self-checkout scanners never comes in contact with an employee are one thing. But mom-and-pop stores still use living, breathing cashiers. They are trained, they strive to do their best, but they are human. Honest pricing mistakes do occasionally occur, especially in smaller stores that have not yet transitioned from manual checkout to scanning. When such a mistake is discovered, the vast majority of stores take immediate steps to remedy the error to the customer's satisfaction, and to prevent a recurrence. To statutorily treat such errors as willful, punishable breaches of the consumer's trust is unwarranted.

Why No Pre-emption? If the goal of the legislation is to enact uniform pricing accuracy standards, inspections and penalties across the state, then it should supersede all existing municipal laws. Letting each county do it a little differently is needlessly confusing and burdensome for retail chains that operate in multiple counties.

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Inspection Fee. We should acknowledge that the sponsor has graciously amended the bill to address one of our objections – that the original bill would have required the retailer to pay the State for the privilege of being inspected, which would amount to a fine before the fact. That has been removed from the C-print.

The 50-Item Sample. The Sponsor's Memorandum alludes to a 50-item sample for smaller stores. So the inspector is going to show up at a convenience store, gather 50 items, bring them to the counter and order them to be scanned or rung up manually? How should we deal with the 10 customers who will form a line behind the inspector waiting to pay for gas, a cup of coffee, or a newspaper while this is going on? Getting the customer in and out of the store quickly is the essence of the convenience store business. A transaction of that size is going to clog the front counter and impede the normal flow of trade, costing us business. Perhaps the State should pay the store an inspection fee.

Under the bill as written, this is what could happen at a convenience store like the Express Mart on Route 13 just off the Thruway exit in Canastota. An inspector would drop by and collect 50 items from the shelves, bring them to a front counter that's designed to hold no more than five or six items, order the cashier to scan them or ring them up manually while a line of customers stretching out the door grows irritated, determine whether at least 49 of the items rang up accurately, levy a fine of up to $300 if they didn't, get back in his car and, instead of going to the Oneida Indian Nation's Sav-On store directly across the street to perform the same inspection, treat that location as "exempt" and just drive away.

Until the above issues are addressed, the New York Association of Convenience Stores respectfully opposes passage of A.564c.

A.564c by Member of Assembly Magee

James S. Calvin

President, NYACS

June 9, 2005