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Your money's worth

State lacks enough inspectors to ensure vendors' accuracy

Dale Kunze, inspector with the Department of Agriculture, inspects accuracy of gas pumps at a 7-Eleven.
Dale Kunze, inspector with the Department of Agriculture, inspects accuracy of gas pumps at a 7-Eleven.
Johanna Kirk, Deseret News

Officials at Dugway Proving Ground were suspicious when they found dirt settling to the bottom of their 5-gallon jugs of purified water.

When Utah Department of Agriculture inspectors finally tracked the vendor to a West Valley storage unit, they observed not only filthy bottles being refilled with little regard for public health, but they found the "pure" water being sold to Dugway and other customers came from a supply line to a toilet.

"He had tapped into the only source of water in the storage unit, and that happened to be the toilet," said Becky Shreeve, one of roughly 20 inspectors whose job it is to make sure Utah consumers are getting what they pay for.

In this case, the inspectors made the difference, shutting down the operation.

In reality, consumers can't and shouldn't rely on state inspectors to ensure all products are what they purport to be, or that all devices used to weigh, measure and price all of the products sold in Utah's free-wheeling marketplace are accurate.

There simply aren't enough inspectors. In fact, there are fewer inspectors today than in 1984, even though the businesses and devices needing inspection have increased by 75 percent to 300 percent over the past decade.

Statewide, 10 inspectors share responsibility for "weights and measures" inspections, and another 10 for products like eggs, milk and meat labeling.

Inspectors do the best they can with their limited resources to "protect the consumer so that equity prevails in the marketplace," insists Dr. Chris Crnich, the new director of Regulatory Services. "We look at weight and fluid measuring devices, we make sure (commerce) is fair and equitable to all consumers, and we make sure the products are being sold at the prices advertised." The inspectors inspect the accuracy of electronic price scanners used by thousands of stores from Albertsons to ZCMI.

They look to see if that pound of hamburger is really a full 16 ounces of ground round, whether gasoline octane measures up, and whether the ton of rocks the truck brings for your landscaping project has exactly 2,000 pounds.

And yes, there really is someone in Regulatory Services who inspects mattresses to make sure the "do not remove under penalty of law" tags are in place. Government regulators aren't peering through your windows; the inspection only applies to manufacturers of overstuffed furniture, mattresses and quilted clothing.

"If it says it is stuffed with goose down, then it had better be stuffed with goose down," said Larry Lewis, spokesman for the Department of Agriculture. "And she (the state inspector) takes her job very, very seriously."

Can't keep up

The inspections most invisible to the consumer are those conducted under the auspices of the state's Weights and Measures Program, which ensures a gallon of gas is really a gallon, a pound of produce is really a pound, and the prices charged are the prices listed on the store shelves or advertising inserts.

In all, there are more than 45,000 pumps, tanks, scales and other devices requiring inspection. No one has a clue how many price scanners there are, but it numbers in the thousands.

Add to the mix the inspections of propane dispensers, inspections of food packages for weight and labeling, and inspections of water meters.

The Weights and Measures Program has a goal of inspecting each business once a year. It doesn't even come close in most cases. Only 20 to 35 percent of gas pumps are inspected in any given year; less than half of the fuel tanks and scales are checked.

Given how many stores use price scanners, the number of scanner inspections is estimated at less than 10 percent of the total, though no one knows for sure.

A good percentage of the pumps, scales and price scanners haven't been tested in more than three years, according to a Deseret News analysis of inspection records.

The Department of Agriculture is mandated to do the inspections by Utah law, which mirrors federal laws and regulations that ensure "weights and measures" standards are applied the same in all 50 states. There are similar laws regarding product packaging and food safety.

State law specifies only civil penalties if a business is overcharging or not delivering the quantity of product advertised. The civil penalties arise through a cumbersome process that typically involves a year or more of violations and, in the end, can result in a "citation" up to $500.

In 2001, the entire Department of Agriculture issued 23 citations and recovered $4,000 in fines. That amounts to roughly 50 cents per inspection.

Business vs. consumer

Department officials insist consumer protection is their mandate, and indeed they respond almost immediately whenever a customer complains. But in practice the system is weighted toward business.

"The philosophy of the department is that we give every (business) the opportunity to voluntarily comply with the law," said Deputy Commissioner of Agriculture Kyle Stephens, the former director of Regulatory Services.

And that means a failed first inspection — even those where the inspector writes up a formal "notice of violation" — carries no penalty whatsoever. Neither does the second one, which is supposed to be done within 30 days of the first failure.

A third trip and the inspectors start charging $20 per hour for time, $15 per hour for equipment and 75 cents per mile. That tends to penalize distant rural businesses which can end up paying several hundred dollars for re-inspections, whereas a Wasatch Front re-inspection might cost $50 or less, according to actual reinspection fees levied against businesses.

But there is no civil penalty beyond the reimbursement charges, which don't even apply until the third visit.

In fact, things often have to get really bad — seven, eight, nine failed inspections — before the department takes the next step and issues a citation that may or may not result in a $500 fine. Continued failures can lead to administrative hearings that could result in fines up to $5,000, although that almost never happens.

In 2001, there were only two administrative hearings wherein $1,500 was recovered.

Last year, the department took on Kmart for repeated price scanner violations. The store declared bankruptcy before any money was collected, department officials said.

The law does allow for criminal violations, should a businesses' practices rise to an egregious level, but that requires a much higher degree of proof and involves pulling the Attorney General's Office into the case. Utah's inspectors are not law enforcement officers, and officials say they do not need to be.

There has never been a Utah case involving fraudulent measures that resulted in a criminal prosecution.

DNews graphicRequires Adobe Acrobat.

Utah law is also specific, limiting how and when inspectors can do their work. Inspections can be done only during normal business hours and only after inspectors have identified themselves to the business. That's in a sharp contrast to other states like California, where undercover sting operations are a common tool to identify violators.

Other states have public education programs, but it is hard, if not nearly impossible, for Utahns to find out how businesses fared in the state inspections.

Utah Weights and Measures inspections are a well-kept secret, although not deliberately so. There are no press releases or department Web site announcements that businesses failed inspections, nor is there mention of those rare times the department takes civil action for repeated violations.

There is no formal system in place to let the public review inspections, even though inspection records are public information — if you know what to ask for and if you can understand the convoluted reporting system meant to communicate with the business, not the consumer.

And there is no toll-free number whereby consumers can report problems, though the division does investigate complaints when it gets them.

"We don't have enough inspectors to free up resources to make a system for the public," Crnich said. "Would we like to in the future? Yes. But we do not have the manpower or the resources now."

Any increase in resources, at least for the foreseeable future, will be devoted to increased inspections, Crnich said, calling the shortage of inspectors a "crisis."

The program is also hampered by a filing system that is antiquated and inefficient. Only recently have inspectors begun using computers, yet none of the reports are online so Utahns can check on their local grocery store or gas station.

The bottom line is the public is kept in the dark.

Yet the public is paying for the inspections. The annual budget for Regulatory Services is $2.2 million, the vast majority of it general fund money. Of that, about $700,000 goes to Weights and Measures for their inspections and operating expenses.

When it comes to the thousands of scales, gas pumps and price scanners, businesses don't pay a penny for the inspections, even though the stores benefit directly. For example, the state's inspections of price scanners over the past three years found that roughly two out of three times the pricing errors were in favor of the consumer and the store was losing money.

Will business pay?

So why are Joe and Jane Taxpayer paying for that? Administrators say that a fair and equitable marketplace benefits all consumers. But they also say the time is nigh when businesses will be asked to shoulder some of the cost of leveling the playing field.

Department administrators had approached the 2003 Legislature about shifting to a system whereby businesses requiring state inspection would pay fees to offset the costs of those inspections. It would also boost revenues so Regulatory Services could hire more inspectors, maybe even enough to get closer to the goal of one inspection per year.

Other states have already moved to that kind of fee system, but lawmakers warned Utah regulators the time was not right. Instead, legislators — faced with millions in budget cuts to other state programs — found an extra $266,000 in general fund taxes to hire four additional inspectors. Of those, three will be assigned to food inspections and one to Weights and Measures to check the scales, the scanners, the gas pumps and their content.

That removes some of the immediate pressure on the beleaguered inspectors. But it does little to address the future.

Utah's population has increased 31 percent since 1991. The number of gas pumps during that same time period has increased 300 percent, the number of small scales 150 percent, according to Weights and Measures Program counts.

There is every reason to believe those kinds of increases will continue unabated into the future, burying inspectors under an ever-increasing workload, Agriculture officials said.

And that boils down to "buyer beware."