CHAPTER 491

FORMERLY

SENATE BILL NO. 513

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 13, TITLE 3 OF THE DELAWARE CODE RELATING TO NURSERIES AND NURSERY STOCK.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chaptcr 13, Titlc 3 of the Delaware Codc by striking said Chapter in its entirety and substituting in licu thcrcof a new Chaptcr 13 to read as follows:

"CHAPTER 13. Nurscrics and Nurscry Stock

§1301. Definitions

(a) 'Nurscry' Any place whcrc nurscry stock is produced for sale or distribution.

'Nurseryman' Any person cngagcd In thc production of nurscry stock for salc or

distribution.

(c) 'Nurscry Dcaler' Any person, cxccpt a nurscryman, who buys. collects or acquires nurscry stock for thc purpose of selling, planting or distributing it. This docs not includc a person Who acquires plants for personal usc.

(d) 'Nurscry Stock':

(1) Any trccs, shrubs, vincs, plants, grafts, cuttings and buds whcthcr cultivatcd or wild. and all viable parts of thcsc plants;

(2) Any othcr plant or plant part, including cut Christmas trccs, whosc movcmcnt the Dcpartmcnt may regulate in ordcr to control any dangerously injurious plant pest.

(c) 'Plant Pcst' Any insect, snail, nematode, fungus, virus, bacterium, wccd. parasitic plant, or any othcr microorganism or plant which is considered by the Dcpartmcnt to bc dangerously injurious to the agricultural. forest or horticultural interests of thc State.

§1302. Application for Certification

(a) A nurscry producing nurscry stock for salc, distribution or cxchangc must hold a valid nurscry certificatc of inspection for cach of its sales locations. An application for ccrtification must bc filed with thc Dcpartmcnt of Agriculturc on forms providcd by thc Dcpartmcnt. Thc application for ccrtification must include the following: Namc and address of owncr and nurscry, location of all nursery stock, number of acres in production and fist of all suppliers of nurscry stock. Aftcr rcceiving thc application for ccrtification, thc Dcpartmcnt of Agriculture will cxaminc, inspect or cause to be examined or inspected, at least once a ycar, at such time as it deems best, ail nursery stock grown in the nursery The nurscry producing nurscry stock must maintain adequatc wccd control so that a thorough inspection of the nurscry stock can be made.

(b) If any dangerously injurious plant pcsts arc found In any nurscry or on any premiscs within thc State whcrc said nurscry stock is grown, thc Dcpartmcnt, its officers, agents or servants shall cause to be dcstroycd or treated as providcd in Chaptcr II of this Talc, such portion of the nurscry stock as. in thc opinion of thc Dcpartmcnt, may bc necessary to adequately control thc infestation or infcction Thc salc. shipment, distribution or cxchangc of such nurscry stock will not bc permitted until it is released by thc Dcpartmcnt. Such nurscry stock will bc promptly relcascd whcn. in thc opinion of thc Dcpartmcnt. thc plant pcst infestation or infcction has bccn satisfactorily controlled If such infested or infected nurscry stock be dcstroycd as herein providcd, then thc owncr or owncrs shall pay thc cost thcrcof; and if he or thcy rcfusc or ncglcct to pay thc samc. it shall be collectcd as provided in Chaptcr II of this Titic

§1303 Shipmcnt or Salc of Nursery Stock Labeling and Certification

No person shall sell or of fcr for sale. or ship, send out, or givc away, by mall, cxprcss, frcight or otherwise, any nurscry stock from any nurscry or orchard nicntioncd in this Chaptcr or any premises within thc State where nurscry stock is grown without accompanying the same with a copy of the certificate prescribed M Scction 1301 or Section 1309 of this Titic, printed upon a tag or label not easily dcstroyed, which shall bc firmly attachcd or fastcncd in a conspicuous position upon each carload. box, bale or package so sold or offcrcd for salc, or shippcd, sent out or delivered.

§1304. Illegal Shipments of Nursery Stock; Penalty

Whoever sells or offers for sale or delivers, within the State or ships or transports or sends out of the State to any other State or territory of the United States, or foreign possession thereof, or to the District of Columbia, any nursery stock without attaching a certificate, or defaces, mutilates or destroys the certificate or wrongfully attaches a certificate, shall be fined not less than $100.00 nor more than $500.00 or be imprisoned not less than I month nor more than I year or both.

§1305. Shipment of Nursery Stock Into State; Labeling and Certification

When any nursery stock is shipped, scnt or mailed into this State to any nurseryman, dealer, agent or other person in this State, every carload, bale, box or package thereof, shall be plainly labeled on the outside with the name of the consignor, the state of origin and the name of the consignee, and shall have attached or fastened thereto a certificate showing that the contents thereof have been examined by a duly qualified state or government officer and found apparently free from all dangerously injurious plant pests.

§1306. Uncertified Shipment of Nursery Stock into this State; Public Nuisance; Nondeliveredi

Abatement, Loss Liability

Whenever any nursery stock is shipped or sent Into this State, without the certificate required by Section 1305 of this Title, plainly attached or fastened on the outside of each carload, box, bale or package, the same shall be deemed and considered a public nuisance, to be abated in the manner hereinafter provided, and the agent of the transportation company or person or firm receiving the same, shall not deliver said nursery stock to anyone, but shall at once notify the Department of Agriculture of such nuisance. The Department shall thereupon institute proceedings before any Justice of the Peace to abate the nuisance. The Justice of the Peace shall summon all parties and interests before him, if they are known and can be summoned, and if not, then such of them as can be summoned, to show cause why such nuisance shall not be abated. At the trial or hearing of the cause, if the Justice of the Peace shall determine that the provisions of this Chapter have been violated, he shall order and direct that the nuisance be abated by the destruction of all such nursery stock, unless the shipper, consignor or its agent, or consignee or his agent, agrees to have the nursery stock returned to the consignor at his or their own expense; or provides proper certification; or authorizes to have the nursery stock inspected and certified by a duly authorized officer or employee of the Department of Agriculture at his or their own expense.

§1307. Tranmrtation Companies Receiving Uncertified Nursery Stock; Failure to Notify Department; Penalty

Whoever, being an agent of a transportation company, firm or person, knowingly receives a carload, box, bale or package of nursery stock without a certificate attached as provided for in Section 1303 of this Title, and fails to immediately notify the Department of Agriculture, shall be fined $500.00 for cach offense.

§1308. Nurserymen, etc.; Selling, Shipping or Delivering Infected Nursery Stock; Forfeiture; Public

Nuisance, Abatement

If any nurseryman, dealer or agent sells, ships or delivers any nursery stock into or in this State which is Infested or infected with any plant pest and which upon inspection by the Department of Agriculture, its officers or agents, is found to be so infested or Infected, the nurseryman, dealer or agent shall forfeit the value of such nursery stock and shall not collect or receive the same from the purchaser or consignee; and if the purchaser or consignee has paid for the stock, either in whole or in part, he shall have a right of action against the nurseryman, dealer or agent to recover the sum or sums so paid in any action on the case. AR nursery stock so shipped, sold or delivered, and which, upon inspection, is found to be infested or infected, shall be deemed a public nuisance, and shall be abated in the same way and manner as provided in Section 1306 of this Title.

§I309. Certification of Nursery Dealers

(a) A nursery dealer engaged in the sale, distribution or exchange of nursery stock must hold a valid nursery dealer certificate for each of its sales locations. An application for certification must be filed with the Department on forms provided by the Department. The application for certification must include the name and address of the owner and sales outlet(s), and a listing of all suppliers of nursery stock, Including the name of the consignor and the state or origin. The Department will issue and give to the owner(s) or persons In charge of the nursery stock a nursery dealer certificate when the above requirements have been met.

(b) The Department of Agriculture will examine and inspect the nursery stock as it deems necessary. Any nursery stock found to be infested or infected with dangerously injurious plant pests will be subject to the provisions stated in Section 1302.

§1310. Labeling and Advertising of Nursery Stock

Nursery stock may not be labeled or advertised with false or misleading information. A nurseryman. nursery dealer or other person may not offer for sale, sell or distribute any nursery stock represented to be 'virus- free,"essentially virus- free,' or any other similar notation, unless such nursery stock is produced under a program accepted by the Department. All plants offered for sale as 'virus- free,' essentially virus- free,' or any other similar notation must have the name or state certificate number of the producer and the state of origin on the label.

§1311. Reciprocal Agreements

Nursery stock from other states will be received into the State on the same basis as nursery stock from the State is received in other States. An official directory of certified nurseries and nurse), dealers will be accepted from other States in lieu of individual nursery certificates.

§1312. Violations and Penalties

(a) The penalty for violation of any Section of this Chapter not already stated will be suspension or revocation of the nursery or dealer certificate.

(b) All hearings which are held for suspension or revocation of the nursery or nursery dealer certificate shall be conducted by the Secretary of Agriculture or his designee. The holder of the nursery or nursery dealer certificate shall have the right to appear personally. and to be represented by counsel, and to produce evidence and witnesses in his own behalf. The Department shall preserve a full record of the proceeding. A transcript of the record may be purchased by any person interested in such hearing upon payment to the Department of the cost of preparation of such transcript. The Department shall notify the holder of the nursery or nursery dealer certificate of its decision in writing within 30 days after the conclusion of the hearing.

§I313. Appeals

Any holder of a nursery or nursery dealer certificate who feels aggrieved by an action of the Department in denying, suspending, modifying or revoking his nursery or nursery dealer certificate, may take an appeal, within 30 days of such action, to the Superior Court, and after full hearing on the rccord the court shall make such decree as seems Just and proper. Written notice of such appeal, together with the grounds therefore, shall be served upon the Secretary of the Department.

Approved July 9, 1986.