TITLE 3

Agriculture

Regulatory Provisions

CHAPTER 12. PESTICIDES

Subchapter IV. Unlawful Acts; Penalties; Jurisdiction


(a) The following acts shall constitute a class A misdemeanor:

(1) Making a pesticide recommendation or use or application inconsistent with the labeling, the E.P.A., or state registration for the pesticide, or in violation of the E.P.A., or state restrictions of the use of that pesticide; except that the first offense shall constitute a class B misdemeanor;

(2) Making false or fraudulent records, invoices or reports;

(3) Engaging in the business of applying a pesticide on the lands of another without having a license granted by the Department;

(4) Applying a restricted use pesticide without a certified applicator in direct supervision;

(5) Using fraud or misrepresentation in making an application for, or renewal of, a license, permit or certification;

(6) Aiding or abetting a licensed or an unlicensed person to evade this chapter, conspiring with such a licensed or an unlicensed person to evade this chapter or allowing one's license, permit or certification to be used by another person;

(7) Distributing, selling or offering for sale within this State any of the following:

a. Any pesticide unless it is in the registrant's or the manufacturer's unbroken immediate container, and there is visibly affixed to such container a label approved by the E.P.A. or by the Department, in the case of State registration; or

b. Any pesticide which is adulterated, not branded or misbranded, or any container which is misbranded or not branded;

(8) Detaching, altering, defacing or destroying, in whole or in part, any label or labeling prior to purchase by the ultimate consumer, provided for in this chapter or regulations promulgated hereunder or to add any substance to, or take any substance from, a pesticide in a manner that may defeat the purpose of this chapter;

(9) Using for one's own advantage or to reveal any information relative to formulas of products acquired by authority of § 1203 or 1204 of this title; or

(10) Neglecting or, after notice, refusing to comply with this chapter, the rules adopted hereunder or any lawful order of the Department.

(b) The following acts shall constitute a class B misdemeanor:

(1) The first offense of paragraph (1) of subsection (a) of this section;

(2) Refusing or neglecting to comply with any limitations or restrictions on or in a duly issued license, permit or certification;

(3) Distributing, selling or offering for sale within this State any pesticide required to be colored or discolored by the E.P.A. under § 25(c)(5) of FIFRA [7 U.S.C. § 136w(c)(5)] unless such pesticide is so colored or discolored; or

(4) The use of fraud or misrepresentation in connection with the application of pesticides.

(c) The following acts shall constitute an unclassified misdemeanor:

(1) Operating in a faulty, careless or negligent manner;

(2) Refusing or neglecting to keep and maintain the records required by this chapter, or to make reports when and as required;

(3) Purchasing or using a restricted use pesticide except in accordance with a duly issued certification from the Department;

(4) Selling or offering to sell a restricted use pesticide unless the purchaser is a certified applicator and is certified to use that restricted use pesticide, and that certification is valid;

(5) Purchasing or using a pesticide designated for "state restricted pesticide use" except in accordance with a permit granted by the Department;

(6) Selling or offering to sell a pesticide designated for "state restricted pesticide use" unless the purchaser has a permit for its purchase and use and that permit is valid;

(7) Engaging in the business of applying pesticides to the lands of another without financial security which is currently in compliance with the requirements of § 1208 of this title;

(8) Distributing, selling or offering for sale within this State any pesticide which has not been registered pursuant to § 1203 or § 1204 of this title, or any pesticide if any of the claims made for it or any of the directions for its use differ in substance from the representations made in this connection with its registration, or if the composition of a pesticide differs from its composition as represented in connection with its registration; provided, that in the discretion of the Department, a change in the labeling or formula of a pesticide may be made within a registration period without requiring reregistration of the product; or

(9) Selling or offering to sell a "restricted use pesticide" or a "state restricted use pesticide" without a duly issued dealer permit.

(d) Justices of the Peace Courts and the Court of Common Pleas shall have concurrent jurisdiction over offenses under this chapter.

58 Del. Laws, c. 166; 60 Del. Laws, c. 671, § 1; 64 Del. Laws, c. 189, §§ 7, 8; 65 Del. Laws, c. 187, §§ 2, 3; 67 Del. Laws, c. 51, §§ 3-5; 75 Del. Laws, c. 426, § 1.;

(a)(1) In addition to proceeding under any other remedy available at law or in equity for a violation of this chapter or a rule or regulation adopted thereunder, or any order issued pursuant to, the Secretary may assess a civil penalty not to exceed $2,500 upon a person other than a private applicator for each offense. In the case of a private applicator, the Secretary may assess a civil penalty not to exceed $500 for each offense involving a violation of this chapter or a rule or regulation adopted thereunder, or any order issued pursuant thereto.

(2) No civil penalty shall be assessed unless the person charged shall have been given notice and opportunity for a hearing on such charge in accordance with Chapter 101 of Title 29.

(3) In determining the amount of the penalty, the Secretary shall consider the appropriateness of such penalty to the size of the person's ability to continue in business and the gravity of the violation. Whenever the Secretary finds the violation occurred despite the exercise of due care or did not cause significant harm to health or the environment, the Secretary may issue a warning in lieu of assessing a penalty.

(4) In cases of inability to collect such civil penalty or failure of any person to pay all, or such portion of such penalty as the Secretary may determine, the Secretary shall refer the matter to the Attorney General's Office of the State who shall recover such amount by action in the appropriate court.

(b) The penalties provided by this chapter shall not apply to:

(1) Any carrier while lawfully engaged in transporting a pesticide or device within this State, if such carrier shall, upon request, permit the Department to copy all records showing the transactions in and movement of the pesticide or device;

(2) Any person who prepares or packs any pesticide or device intended solely for export to a foreign country according to the specifications or directions of the purchasers;

(3) The manufacturer or shipper of a pesticide for experimental use only:

a. By or under the supervision of an agency of this State or of the federal government authorized by law to conduct research in the field of pesticides; or

b. By others if the pesticide is not sold and if the container thereof is plainly and conspicuously marked "for experimental use only, not to be sold," together with the manufacturer's name and address; provided, however, that if an experimental use permit has been obtained from the Department, pesticides may be sold for experiment purposes subject to such restrictions and conditions as may be set forth in the permit.

58 Del. Laws, c. 166; 60 Del. Laws, c. 671, § 1; 65 Del. Laws, c. 187, § 4; 67 Del. Laws, c. 333, §§ 1, 2.;