Bookstore Contends California Law Criminalizes Human Error

What should have been a simple transaction almost got Vroman's Bookstore Vice President/General Manager Karen Watkins arrested.

As Watkins tells it, on July 31, a group of three customers brought a box of 4" x 6" writing journals up to the register at Vroman's Bookstore in Pasadena, California. The cashier began scanning the journals -- 11 journals priced at $4.95 each -- and gave the customers the total price.

There were two problems, however.

First, the cashier overcharged the customers by about $5.

Secondly, the customers weren't actually customers -- they were plainclothes inspectors sent by the L.A. County Department of Weights and Measures (DWM), and, under the longstanding California Business and Professions Code, the cashier has just committed a misdemeanor.

When Watkins was called over by the inspectors and told the story, she was not happy, she said. Undeterred, the inspectors informed her that she was being cited for a misdemeanor -- the second citation for a Vroman's Bookstore, which has three locations in Pasadena, in less than a week.

The inspectors asked for Watkins' home address details. She refused, whereupon one inspector threatened to arrest her for obstruction of justice. A quick call to the police verified that the inspector had the proper authority. She handed over her driver's license. "In my case, I had to fill out a LAPD warrant notice/suspect description," Watkins explained. "Then, it gets sent to the district attorney's office. The whole thing is amazing."

California's Business and Professions Code has been in place for decades, but, until recently, L.A. County lacked the manpower to enforce it. That all changed in February, 2002, when the county passed an ordinance allowing DWM to bill each retail outlet a compulsory "registration fee" for each scanner it owned. All three Vroman's stores complied with the measure, paying in excess of $500 in registration fees to DWM.

Subsequently, the registration fees collected from retail outlets went directly to the hiring of plainclothes inspectors meant to help DWM enforce the California Business and Professions Code. In other words, the same inspectors who slapped Vroman's Bookstore with a citation on July 31.

Robert Atkins, chief deputy for L.A. County Agricultural Commissioner/DWM told BTW that the ordinance was necessary if DWM was to enforce the law. "[Before February] we had one inspector for every 10,000 scanners in use," he explained. "That's hardly adequate oversight."

Due to the lack of staffing, DWM previously focused primarily on the grocery area, as well as discount chains, like K-Mart and Target, Atkins said. With increased staffing, DWM is now able to monitor pricing accuracy throughout the entire retail industry. "Before, we thought [pricing overcharges were] a significant problem," he said. "Now, we realize we underestimated the severity. One-third of locations in L.A. County have [been cited with] one or more overcharges."

The penalties for infractions can be steep -- up to $1,000 or six months in jail. However, for small overcharges or first-time infractions, Atkins said, fines will generally range from $25 to $100. He noted that inspectors tend to focus on sale items, because that's where the most overcharges occur.

Since July 25, each of Vroman's three stores has been cited once for an overcharging infraction. And while Watkins does not dispute that errors were made, each infraction was due to human error -- not deliberate consumer fraud, she explained. More importantly, in a normal transaction situation, these are mistakes that are easily resolved between customer and cashier. "We've been in business for 108 years. We haven't been successful because we [cheat] our customers," she said.

Furthermore, she said that only one of Vroman's three infractions involved a sale item.

Vroman's first infraction occurred in its East Foothill Boulevard store on July 25. An undercover agent chose a hardcover fiction book, Lydia Cassatt Reading the Morning Paper, by Harriet Schott Chessman, from a shelf in the store and purchased it. The title had a Book Sense 76 sticker on the cover. Pointing to the sign "Book Sense 20% Off," which was located above a display of the current 76 titles, the inspector then introduced herself to the manager and said she was not given the discount on the book. The manager asked if she took the book from the Book Sense display, because the discount was only for current 76 titles. The inspector admitted that she had not. Nonetheless, because the title had the sticker, the inspector continued, it should have been discounted because of the emphasis of the display sign.

"I am very curious about anyone discounting lists such as the New York Times, if a publisher prints on the jacket or on the paperback edition, 'New York Times Bestseller,' even if it is not on the current list, will the stores be required to discount it?" Watkins wondered. She added that Vroman's would now pull the 76 sticker off a book once it is no longer on the current Book Sense 76 list. (Atkins said he wouldn't fault a consumer for thinking a book with "New York Times Bestseller" printed on the jacket should be discounted, but, ultimately, it was something for the courts to decide.)

In the main Vroman's bookstore, on East Colorado Boulevard, where Watkins had her encounter with the three inspectors, the journals in question were not on sale -- in fact, they were located on the second floor of the 33,000-square-foot store, "basically back in the corner," near a sign that said a "Journals: $4.95 Each, or a Box for $49.50 plus tax," Watkins said. "They weren't located in one of the higher trafficked locations. They were on the bottom shelf." Moreover, each box was supposed to hold 10 journals, not 11.

The third infraction occurred at Vroman's South Lake Avenue store on August 14. That day, a cashier inadvertently rang up at full price a sale item that should have been discounted 50 percent. In a fax from the South Lake Avenue store manager to Watkins, the manager wrote that the confrontation with the inspectors brought the cashier to tears, and she walked off the floor.

Commented Watkins, "It all boils down to the fact that if somebody makes a human error, they want to blame someone for it. If a cashier asks for the wrong amount, the cashier can be charged with a misdemeanor…. I guess there are no errors in an inspector's world."

"Everything is human error," Atkins said. "It is a strict liability law -- we don't have to prove intent." Errors occur because management doesn't hire enough staff to maintain the accuracy of items posted in the store, he contended. "The vast majority [of these pricing errors] are the result of the store management not keeping enough people on the floor," he said. "If they fail to correct the problem over time, if we can convince the DA that the problem is pervasive, you can make a case for unfair business practices, and we will sue them."

And that's just what DWM has done to chains like Lucky's, Ralph's, and K-Mart, Atkins said, and won. Each case resulted in an out-of-court settlement. Most recently, K-Mart settled a case for $985,000.

Watkins, however, said the ordinance puts a lot of unnecessary stress on her staff. If an inspector were to catch an error when a manager is not available, the infraction will be written in the cashier's name. "I don't want to put people in that situation," she said. "I almost got arrested for obstruction of justice because I refused to give an I.D."

DWM's Atkins stressed that the purpose of the law is not to intimidate cashiers: the inspectors will always initially seek out a store manager. However, if the store manager is not available, they would have to put the citation in the cashier's name. "We need someone to sign a criminal complaint," he explained, because, without a signature, no one would be required to show up in court, and the court would automatically drop the complaint.

Atkins likened the citation to a traffic ticket, and said that, because the enforcement is new, some retail staff are "unduly stressed" over the infractions. Still, "I can't tell you I'm entirely thrilled with [agents dealing directly with cashiers], and that's why we try to get a manager" to deal with the inspector.

Furthermore, Atkins told BTW, "We would like to see these issues dealt [with] locally" between the customer and the store. Stores should display sale and price stickers prominently so that the consumer's "not figuring it out [that he or she was overcharged] at home," he explained. "You know, it's stressful to them, too."

Watkins said that she filed a complaint with the L.A. County Board of Supervisors and has complained to DWM several times. She said she plans to protest the citation for the overcharging of the journals. --David Grogan