CHAPTER 332

FORMERLY

SENATE BILL NO. 307

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND 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 Chapter 13, Title 3 of the Delaware Code by deleting it in its entirety and substituting in lieu thereof the following:

"Chapter 13. Nurseries and Nursery Stock

§ 1301. Definitions

The following words shall, for purposes of this Chapter, be defined as follows:

(a) 'Agent' - any person who performs services for another person under an express or implied agreement. A person may he an agent without receiving compensation for services.

(b) 'Agriculture' - the production of plants and animals useful to man, including all forms of farm products and farm production.

(c) 'Broker' - any person who negotiates the purchase or sale of any material. A broker may or may not handle either the material which is involved or the proceeds of a sale.

(d) 'Certificate' - a document authorized or prepared by an authorized federal or state regulatory official that affirms, declares, or verities that a plant or other regulated article meets phytosanitary (quarantine), nursery inspection, pest freedom, plant registration or certification, or other legal requirements. Such documents are known by their purpose of issuance: Phytosanitary Certificate [for the purpose of verifying compliance with phytosanitary (quarantine)
requirements]; Nursery Stock Certificate (for the purpose of verifying compliance with nursery inspection and pest freedom standards); registration or certification tags, seals (for the purpose of verifying compliance with registration or certification requirements); etc.

(e) 'Certification' - the act by the Department of affirming, declaring, or verifying compliance with phytosanitary (quarantine), nursery inspection, pest freedom, plant registration or certification, or any other set of legal requirements.

(I) 'Chain Store' - any business with one, two or more retail outlets that sells plants, plant material or nursery stock, and that are owned by a common parent business entity.

(g) 'Commission Merchant' - any person, who receives on consignment or solicits any material from a licensee, producer or his or her agent or accepts material in trust for purposes of sale and sells or resells any material on commission or for a fee.

(h) 'Consignee' - any person to whom any plant, nursery stock, horticultural product, etc. is shipped for handling, sale, resale, or other purpose.

(i) 'Consignor' - any person who ships or delivers to a consignee any plant, nursery stock, horticultural product, etc. for handling, planting, sale, resale, or any other purpose.

W 'Dangerously Injurious Plant Pest' - a plant pest that constitutes a significant threat to the agricultural, forest or horticultural interests of this State, or the State's general environmental quality.

(k) 'Dealer' - any person who obtains title to, or possession, control, or delivery of, any plant, plant material or nursery stock, from a producer for the purpose of resale.

(I) 'Department' - the State of Delaware Department of Agriculture and includes, but is not limited to, its officers, inspectors, employees, agents or representatives.

(m) 'Florist(s)' - includes, but is not limited to, a person(s) or business(es) engaged in the production or sale, wholesale or retail of plants, plant materials or nursery stock for temporary, semi-permanent. seasonal or permanent, indoor or outdoor use.

(n) 'Garden Center' - includes, but is not limited to, a business establishment engaged in the year round, retail sale of plants, plant material or nursery stock from a specific, permanent sales location.

(o) 'Greenhouse' - includes, but is not limited to, an establishment or business engaged in the production of plants, plant material or nursery stock within a climate controlled structure, for distribution beyond on-site or personal use.

(p) 'Grower' - includes but is not limited to, any person ho raises, grows or propagates, for profit or other reasons, outdoors or indoors, any horticultural product, nursery stock, or plant.

(q) •I lorticultural Product' - those products stated in Group 18 of the United States Department of Labor Standard Industrial Classification Manual which arc grown under cover or outdoors, including bulbs, flowers, shrubbery, florist greens, fruit stock, floral products, nursery stock, ornamental plants, potted plants, roses, seed, Christmas trees, fruits, food crops grown in greenhouses, vegetables, and horticultural specialties not otherwise specified.

(r) 'Mold Order' - an order or notice written by the Department to the owner(s) or person(s) in charge or in possession of a premises, plant, conveyance or article infested or infected with or exposed to infestation or infection of dangerously injurious plant pest(s), making it unlawful to move the afbrementioned article(s) unless treated in accordance with the Department's prescribed procedures.

(s) 'Infected' - a plant that has been determined by the Department to be contaminated with an infectious, transmissible or contagious pest or so exposed to the aforementioned that contamination can reasonably be expected to exist. This includes disease conditions, regardless or their mode of transmission or any disorder of plants which manifest symptoms which, after investigation are determined by a federal or state pest prevention agency, to be characteristic of an infectious. transmissible, or contagious disease.

(m) 'Infested' - a plant that has been determined by the Department to be contaminated by a dangerously injurious plant pest, or so exposed to the aforementioned that contamination can reasonably be expected to exist.

(t) 'Landscaper(s)' - includes but is not limited to, any person(s) who keeps at a premises, or procures for transplantation, nursery stock for installation on the property of another person.

( v) 'Mail-Order Merchant(s)' - includes but is not limited to, any person, dealer, or producer who sells or markets, wholesale or retail, any of its orders or business by drop shipment, catalog, telemarketing, telephone, mail-order or other indirect means.

(w) 'Mark' - the Department shall affix, for purposes of identification or separation, a conspicuous official indicator to, on, around, or near, plants or plant material, known or suspected to be, infected or infested with a dangerously injurious plant pest. This includes, but is not limited to: paint, markers, tags, seals, stickers, tape, signs or placards.

(x) 'Move' - to ship, offer for shipment, receive for transport, carry or, in any manner whatsoever, convey or relocate a regulated plant, plant material or nursery stock, from one place to another.

(y) 'Nursery' - any location where nursery stock is grown, propagated, stored, or sold; or any location from which nursery stock is distributed direct to a customer. (See "Sales location")

(y) 'Nursery Industry License' - a document issued by the Department authorizing a person(s) to engage in a nursery or nursery related business at a particular location under a specified business name.

(aa) 'Nursery Stock' - any plant for planting, propagation, or ornamentation, including, but not limited to;

(I) All plants, trees, shrubs, vines, perennials grafts, cuttings and buds that may he sold fbr propagation, whether cultivated or wild, and all viable parts of these plants.

(2) Any other plant or plant part, including cut Christmas trees or any non-hardy plant or plant part, including but not limited to: annuals, bedding plants and vegetable plants.

(hi') • Ownertsl - includes, but is not limited to: the person, persons, family, group, firm. association, business. company. incorporated entity or organization with the legal right of possession, proprietorship of, or responsibility for the property or place where any of the regulated articles as defined in this Chapter are to he timnd, or person(s) who is in possession of. in proprietorship of, or has responsibility for the regulated articles.

(ye) 'Person( s)' - includes, but is not limited to: individual, family, firm, association, group, business, company, incorporated entity or organization.

(dd) 'Pre-cleanmee' - an agreement between quarantine officials of exporting and importing states to pass plants, plant material, etc.. through quarantine by allowing the exporting state to inspect the plants pre-shipment. rather than the importing state inspecting the shipment upon arrival.

(ce) 'Pest' - includes any biotic agent (any living agent capable of reproducing itself) that is known to cause damage or harm to agriculture or the environment.

110 'Plant' - includes. but is not limited to. any part of a plant, tree, aquatic plant, plant material, shrub, vine, fruit, rhizome, vegetable, seed, bulb, stolon, tuber, corm, pip, cutting, scion, bud, graft. or fruit pit. including:

( I) Agricultural commodities: plant materials including any horticultural product.

(2) Nursery stock

(3) Non-cultivated or fend plants, gathered from the environment.

(4) Plants produced by tissue culture. cloning or from stem cell cultures or other prepared media culture.

(gg) 'Plant Pest' - includes. but is not limited to: any pest of plants, agricultural commodities, horticultural products, nursery stock, or non-cultivated plants. This includes but is not limited to: insects, snails. nematodes, fungi, viruses, bacterium, microorganisms, mycoplasma like organisms. weeds, plants or parasitic higher plants.

(hh) 'Producer' - includes but is not limited to: any person who raises, grows or propagates, for profit or other reasons, outdoors or indoors, any horticultural product, nursery stock, or plant.

( ii) 'Quarantine' - a legal instrument duly imposed or enacted by the Department as a means for mitigating pest risk. These actions include, but are not limited to: confinement or restriction of entry. movement, shipment or transportation of plants known or suspected to be infected or infested with some dangerously injurious plant pests.

(jj) 'Roadside Market' - includes, but is not limited to a business engaged in the retail sale of plants, plant material or nursery stock on a seasonal basis and which may operate from a specific sales location or multiple mobile locations.

(kk) 'Registration' - the official recording of a growing location, person, plant, sales location or any other thing or place as one that has met specified requirements and therefore eligible for a particular activity, operation or purpose.

(11) 'Sales location' - every location from which nursery stock is delivered directly to a customer.

(mm) 'Secretary' - the Secretary of the State of Delaware Department of Agriculture or his or her designee.

(nn) 'Sell' - includes offer for sale, expose for sale, possess for sale, exchange. barter, or

trade.

(oo) 'Shipment' - any article or thing which is. may he. or has been transported or conveyed from one place to another.

§ 1302. Nursery Industry Licensing Requirements

(a) Any person(s), grower(s), agent(s), broker(s), dealer(s), mail-order merchant(s).

commission merchant(s), consignor(s), landscaper(s), florist(s), greenhouse operator(s), chain store operator(s). garden center operator(s), roadside market operator(s), producer(s), or owner(s) engaged directly with the distribution of plants, plant products, plant material, nursery stock or horticultural products, is required to inform the Department of the existence of their operation and to obtain a Nursery Industry License prior to initiating business operations.

(b) The aforementioned person(s) are required to obtain a Nursery Industry License

for each of their businesses or sale/retail locations where multiple businesses or sales/retail locations exist.

(c) The aforementioned person(s) are required to renew their Nursery Industry

Licenses each year that they remain in operation. Nursery Industry Licenses issued by the Department shall be valid for one year from November I to October 31 of the following year.

(d) A Nursery Industry License Application must be filed with the Department on

forms provided by the Department. The application for license shall include, as applicable. the following:

(I) Name and address of the owner(s) of the business to be licensed.

(2) Name and address of the business to be licensed.

(3) Location of all plant, plant material or nursery stock fields or storage areas.

(4) The number of acres in plant or nursery stock production or the square footage of the sales area devoted to plants. plant material or nursery stock.

(5) A list of the names, addresses, and plants, plant material, etc. received from all suppliers, producers, growers, etc. providing plants or nursery stock to the business.

(e) Licenses issued by the Department shall be prominently displayed at the business

location.

§ 1303. Inspection of Nurseries and Businesses Nursery Stock Certification

(a) After receiving the Nursery Industry License Application, the Department or its

representatives shall examine or inspect all plants, plant material, or nursery stock located or grown on the business location or any other applicable location. Nurseries must maintain adequate weed control so a thorough inspection of the nursery stock can be made.

(b) The Department shall conduct the aforementioned inspection or examination
yearly or as directed by the Secretary, at such time as it deems best, with or without notice. The Department reserves the right to conduct unannounced inspections as frequently as it deems necessary to insure compliance with all sections of this Chapter.

(c) Upon the successful completion of an inspection, the Department shall issue a
Nursery Stock Certificate to any business licensed under § 1302. The Nursery Stock Certificate shall state:

The nursery (or business premises) from which this shipment was made has been visually inspected and found to be in compliance with National Plant Board Standards of pest freedom.

(b) The Nursery Stock Certificate shall be valid from November I to October 31 of the following year.

§ 1304. Plant Pest Infestations

(a) Any person(s) who has in their possession plants, plant materials or nursery stock infested or infected with dangerously injurious plant pests possesses a public nuisance.

(b) Upon discovery or notification of such nuisance the Department shall place a hold order on the aforementioned material. While under such a hold order it is an illegal action to sell, ship, transport, give away, destroy, or otherwise move, alter or tamper with the aforementioned plants.

(c) If the Secretary determines that the provisions of this Chapter have been violated, he or she shall order and direct that the nuisance be abated by whatever means necessary (including, but not limited to: destruction, confiscation, treatment or return shipment). The abatement of this public nuisance shall be at the expense of all of the aforementioned person(s) and shall be without any Ibrm of compensation.

§ 1305. Shipping. Labeling and Certification Requirements

(a) No person(s) shall sell, ship, or give away, by private carrier, commercial carrier
or any other means, any plants, plant materials or nursery stock from any nursery, business, or premises within the State, without an accompanying Nursery Stock Certificate as prescribed in §1303. The aforementioned information shall be plainly printed upon a tag„ label, etc.. that is not easily destroyed, which shall be firmly affixed on the exterior and in a conspicuous position upon each carload, box, container, package, etc. It is the responsibility of both the consignee and consignor to contact the Department to obtain it current Nursery Stock Certificate and to examine all shipments for the presence of all certification requirements.

(b) Any person(s) or consignor who ships Or moves plants, plant material or nursery
stock out of state or internationally by private carrier, commercial shipper, or any other means, is required to contact the Department to obtain the phytosanitary certifications required by the consignee's location. When the Department finds the aforementioned shipment in compliance with the consignee's location phytosanitary requirements, it will issue the required Phytosanitary Certificate to the consignor. The consignor shall conspicuously Aix a copy of the
Phytosanitary Certificate to the exterior of each carload, box. container, package, etc. 11 is the responsibility of both the consignee and consignor to contact the Department to obtain the necessary Phytosanitary Certificates and to examine all shipments for the presence of all required certifications.

(c) When applicable, all shipping containers must be conspicuously and appropriately
marked on the exterior as to whether contents must be held for agricultural inspection or whether the contents have been pre-cleared by the Department, under the terms of a pre-clearance or interstate origin of inspection program (phytosanitary pre-clearance). It is the responsibility of both the consignee and consignor to obtain all required pre-clearances and to examine all shipments for the presence of all required certifications.

When any plants, plant materials, or nursery stock are shipped, sent or mailed into this State, to any person in this State, every carload, container, box, package, etc., shall be conspicuously labeled on the exterior with the name of the consignor, the state of origin and the name of the consignee. The aforementioned shipment shall have conspicuously affixed to its exterior, a Nursery Stock Certificate from the state of origin showing that the contents have been examined by a qualified state or federal officer and found apparently free from all dangerously injurious plant pests. It is the responsibility of both the consignee and consignor to examine all shipments for the presence of current and applicable nursery stock certifications.

§ 1307. Transportation Companies: Receiving Uncertified Nursery Stock. Failure _to

Notify Department

Any person(s) who acts as the representative of a transportation company, private carrier, commercial shipper, common carrier, express parcel carrier or other transportation entity, and receives, ships or moves a carload, box, container, package, etc., of plants, plant materials or nursery stock, that does not have a nursery stock certificate or proper phytosanitary certificates attached as provided for in Section §1303 or §1305 of this Chapter, and fails to immediately notify the Department shall be subject to the provisions of Sections 1310 through 1313 of this Chapter.

§ 1308. Lahelinu_ancLAdycEtisinuszfliuraraSismk

(a) Plants, plant materials or Nursery stock shall not be labeled or advertised with false or misleading information. This includes but is not limited to: common name, scientific name, variety, place of origin and growth habit.

(b) A person(s) may not offer for sale, sell, give away, or in any way distribute plants, plant materials or nursery stock, represented by some specific or special form of notation, including, but not limited to: 'free from', 'grown free of, unless such plants are produced under a specific program accepted by the Department to address the specific plant properties addressed in the special notation claim.

(a) Before any person(s) advertises plants, plant materials or nursery stock for sale, a
copy of their Nursery Business License must be provided to the publisher or producer of the advertisement. The Nursery Business License number must be included in the advertisement and if appropriate, be legible or audible. This requirement shall extend to all forms of advertising media, including but not limited to, radio, television, outdoor sign boards, telephone business directories (i.e. Yellow Pages), newspaper and magazine advertisements or vehicular identification/advertisement.

§ 1309. Reciprocal Agreements

The Department shall have the authority to make reciprocal agreements with the responsible officials of other states. Nursery stock or plants from any other state may be sold or delivered in Delaware under the same conditions required for sale, delivery, or distribution of Delaware nursery stock or plant materials. An official directory of certified nurseries and related nursery, industry businesses will be accepted from other states in lieu of individual nursery licenses/certificates.

§ 1310. Violation:

(a) Any person(s) who has in their possession plants, plant materials or nursery stock

that is uncertified, uninspected, and/or falsely or misleadingly labeled or advertised possesses an illegal regulated commodity. The aforementioned plants shall be considered infested or infected with dangerously injurious plant pests and therefore deemed a public nuisance. Public nuisances shall be abated as prescribed in §1304 of this Chapter. If the Secretary determines that the provisions of this Section have been violated, he or she shall order and direct that the nuisance be abated by the destruction of all of the plants in question, unless the aforementioned person(s) (as applicable):

(I) Submits to the Nursery Stock Certification process.

(2) Provides proper phytosanitary pre-clearance, phytosanitary certification or nursery stock certification.

(3) Agrees to have the plants, plant materials or nursery stock returned to the consignor.

(4) Provides proper documentation, certification or compliance to support advertising claims,

The abatement of this public nuisance shall be at the expense of the aforementioned person(s) and shall be without any form of compensation.

(b) Under the provisions of the Sections of this Chapter any person(s) who willfully

or knowingly:

( 1 ) Misrepresents or falsifies information on a Nursery Industry License

Application;

(2) Fails to obtain a Nursery Industry License;

(3) Fails to renew a Nursery Industry License, but continues business operations:

(4) Fails to display their Nursery Industry License;

(5) Falsely displays a Nursery Industry License;

(6) Misrepresents or falsifies their Nursery Industry License status;

(7) Misrepresents or falsifies information on a Nursery Stock Certificate;

(8) Fails to submit to a nursery inspection;

(9) Fails to provide the cooperation necessary to conduct a successful nursery
inspection;

(10) Fails to satisfactorily pass the nursery inspection, but continues business
operations:

(II ) Possesses uncertified plants, plant materials or nursery stock;

(12) Possesses an illegal regulated commodity;

(13) Defies a DepaAment hold order;

(14) Violates a quarantine imposed by the Department;

(15) Fails to obtain nursery stock certification;

(16) Fails to obtain phytosanitary certification;

(17) Fails to obtain phytosanitary pre-clearance;

(18) Creates or possesses a public nuisance;

(19) Misrepresents or falsifies information to obtain nursery stock certification, phytosanitary certification or phytosanitary pre-clearance;

(20) Defaces, mutilates or destroys a nursery stock certificate, phytosanitary certificate or phytosanitary pre-clearance certificate or other Department mark;

(21) Fails to notify the Department of an uncertified shipment of plant, plant materials or nursery stock;

(22) Transports uncertified plants, plant materials or nursery stock;

(23) Misrepresents or falsifies plant advertisement or label information;

(24) Fails to comply with the Nursery Industry License advertising requirements; shall be subject to the assessment of a civil penalty, the confiscation or destruction of any and all plants, plant materials or nursery stock found on the premises or contained in the shipment in question, and/or the suspension or revocation of their current Nursery Industry License or any future operation privileges granted under this Chapter.

§ 1311. Hearing Procedures

(a) No civil penalty shall be imposed until an administrative hearing is held before the Secretary of Agriculture. Administrative hearings for the provisions of this Chapter shall be conducted within 30 days of the violation of the provisions of this Chapter. The Department shall issue a decision in writing to the person(s) charged with a violation of a provision of this Chapter within 30 days of the conclusion of the administrative hearing.

(b) The person(s) charged with a violation of a provision of this Chapter will be notified in writing of the date and time of the aforementioned administrative hearing. The aforementioned person(s) shall have the right to appear in person, to be represented by counsel, and to provide witnesses in his or her own behalf.

(c) The Secretary, for the purposes of investigation of a possible violation of this Chapter and for its hearings, may issue subpoenas, compel the attendance of witnesses, administer oaths, take testimony and compel the production of documents. In case any person summoned to testify or to produce any relevant or material evidence refuses to do so without reasonable cause, the Department of Agriculture may compel compliance with the subpoena by tiling a motion to compel in Superior Court which shall have jurisdiction over this matter.

(d) The Department shall preserve a full record of the proceedings and a transcript may be purchased by any interested person.

§1312. Appeals

A person who feels aggrieved by the Department as a result of the administrative hearing held under the authority of this Chapter may take appeal, within 30 days, to the Superior Court. After full hearing, 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 of Agriculture.

§ 1313 Civil Penalties

(a) The civil penalty for violation of any Section of this Chapter not already stated will be the assessment of a civil penalty, the confiscation or destruction of any and all plants, plant materials or nursery stock found on the premises or contained in the shipment in question and/or suspension or revocation of the current Nursery Industry License or any future operation privileges granted under this Chapter.

(b) Any person who violates any Section of this Chapter or interferes with the Department or its representatives in the enforcement of the provisions of this Chapter, as determined in an administrative hearing, shall be assessed a civil penalty of no less than $100 nor more than $1000 on each count."

Approved May 9, 1996