For purposes of this chapter:

(1) “Agent” means any person that performs services for another person under an express or implied agreement. A person may be an agent without receiving compensation for services.

(2) “Agriculture” means the production of plants and animals useful to humans, including all forms of farm products and farm production.

(3) “Broker” means any person that 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.

(4) “Certificate” means a document authorized or prepared by an authorized federal or state regulatory official that affirms, declares, or verifies 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 and include: phytosanitary certificate (for the purpose of verifying compliance with phytosanitary (quarantine) requirements); nursery inspection certificate (for the purpose of verifying compliance with nursery inspection and pest freedom standards); registration or certification tags, or seals (for the purpose of verifying compliance with registration or certification requirements).

(5) “Certification” means 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.

(6) “Chain store” means any business with 1 or more retail outlets that sells plants, plant material, or nursery stock and which is owned by a common parent business entity.

(7) “Commission merchant” means any person that receives on consignment or solicits any material from a licensee, producer, or producer’s agent or accepts material in trust for purposes of sale and sells or resells any material on commission or for a fee.

(8) “Consignee” means any person to whom any plant, nursery stock, horticultural product, or similar item is shipped for handling, sale, resale, or other purpose.

(9) “Consignor” mieans any person that ships or delivers to a consignee any plant, nursery stock, horticultural product, or similar item for handling, planting, sale, resale, or any other purpose.

(10) “Dangerously injurious plant pest” means 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.

(11) “Dealer” means any person that obtains title to, or possession, control, or delivery of, any plant, plant material, or nursery stock, from a producer for the purpose of resale.

(12) “Department” means the Department of Agriculture of this State and includes its officers, inspectors, employees, agents, or representatives.

(13) “Florist” includes a person or business 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.

(14) “Garden center” includes a business establishment engaged in the year round, retail sale of plants, plant material, or nursery stock from a specific, permanent sales location.

(15) “Greenhouse” includes 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.

(16) “Grower” includes any person that raises, grows, or propagates, for profit or other reasons, outdoors or indoors, any horticultural product, nursery stock, or plant.

(17) “Hold order” means an order or notice written by the Department to the owner or person in charge or in possession of a premises, plant, conveyance, or article infested or infected with or exposed to infestation or infection of a dangerously injurious plant pest, making it unlawful to move the aforementioned article unless treated in accordance with the Department’s prescribed procedures.

(18) “Horticultural product” means those products stated in Group 18 of the United States Department of Labor Standard Industrial Classification Manual which are 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.

(19) “Infected” means 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 of 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.

(20) “Infested” means 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.

(21) “Landscaper” means any person that keeps at a premises, or procures for transplantation, nursery stock for installation on the property of another person.

(22) “Mail-order merchant” includes any person, dealer, or producer that sells or markets, wholesale or retail, any of its orders or business by drop shipment, catalog, telemarketing, telephone, mail-order, online sales, or other indirect means.

(23) “Mark” means a conspicuous official indicator affixed by the Department, for purposes of identification or separation, to, on, around, or near, plants or plant material, known or suspected to be, infected or infested with a dangerously injurious plant pest or determined to be a public nuisance. This includes paint, markers, tags, seals, stickers, tape, signs, or placards.

(24) “Move” means 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 1 place to another.

(25) “Nursery” means 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.”)

(26) “Nursery license” means a document issued by the Department authorizing a person to engage in a nursery or nursery related business at a particular location under a specified business name.

(27) “Nursery stock” means any plant for planting, propagation, or ornamentation, including:

a. All plants, trees, shrubs, vines, perennials grafts, cuttings, buds, clones, and seedlings that may be sold for propagation, whether cultivated or wild, and all viable parts of these plants.

b. Any other plant or plant part, including cut Christmas trees or any nonhardy plant or plant part, including annuals, bedding plants, and vegetable plants.

(28) “Owner” includes 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 be found, or person that is in possession of, in proprietorship of, or has responsibility for the regulated articles.

(29) “Person” includes any individual, family, firm, association, group, business, company, incorporated entity, or organization.

(30) “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.

(31) “Plant” includes 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:

a. Agricultural commodities: plant materials including any horticultural product.

b. Nursery stock.

c. Noncultivated or feral plants, gathered from the environment.

d. Plants produced by tissue culture, cloning, or from stem cell cultures or other prepared media culture.

(32) “Plant pest” includes any pest of plants, agricultural commodities, horticultural products, nursery stock, or noncultivated plants. This includes insects, snails, nematodes, fungi, viruses, bacterium, microorganisms, mycoplasma like organisms, weeds, plants, or parasitic higher plants.

(33) “Preclearance” means an agreement between quarantine officials of exporting and importing states to pass items that include plants or plant material through quarantine by allowing the exporting state to inspect the plants preshipment, rather than the importing state inspecting the shipment on arrival.

(34) “Producer” includes any person that raises, grows or propagates, for profit or other reasons, outdoors or indoors, any horticultural product, nursery stock, or plant.

(35) “Quarantine” means a legal instrument duly imposed or enacted by the Department as a means for mitigating pest risk. These actions include 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.

(36) “Registration” means 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.

(37) “Roadside market” includes 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.

(38) “Sales location” means every location from which nursery stock is delivered directly to a customer.

(39) “Secretary” means the Secretary of the Department or the Secretary’s designee.

(40) “Sell” includes offer for sale, expose for sale, possess for sale, exchange, barter, or trade.

(41) “Shipment” means any article or thing which is, may be, or has been transported or conveyed from 1 place to another.

65 Del. Laws, c. 491, §  1;  68 Del. Laws, c. 329, §§  1, 2;  70 Del. Laws, c. 332, §  1;  83 Del. Laws, c. 33, § 1;  84 Del. Laws, c. 42, § 1;  84 Del. Laws, c. 244, § 1;  85 Del. Laws, c. 68, § 2; 

(a) Any person, grower, agent, broker, dealer, mail-order merchant, commission merchant, consignor, landscaper, florist, greenhouse operator, chain store operator, garden center operator, roadside market operator, producer, or owner 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 license before initiating business operations.

(b) A person required to comply with subsection (a) of this section shall obtain a nursery license for each of the person’s business, sales, or retail locations where multiple business, sales, or retail locations exist.

(c) The aforementioned person or persons are required to renew their nursery license prior to January 1 each year that they remain in operation. Nursery licenses issued by the Department shall be valid for a period of 1 year, beginning January 1 and ending December 31 of the same year.

(d) A person required to comply with subsection (a) of this section must complete the nursery license application (NLA) online. The Department shall make accommodations if internet access is not available. The NLA must include, as applicable, the following:

(1) Name of the owner or agent 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 that includes the names, addresses, and plants or plant material received from all suppliers, producers, or growers providing plants or nursery stock to the business. On request of the Department an updated list or invoices must be provided for the current year.

(6) Addresses of all sales locations.

(e) Licenses issued by the Department must be prominently displayed at the business location.

21 Del. Laws, c. 216, §  9;  Code 1915, §  658;  Code 1935, §  576;  3 Del. C. 1953, §  1301;  57 Del. Laws, c. 764, §  5;  65 Del. Laws, c. 491, §  1;  68 Del. Laws, c. 329, §§  3-5;  70 Del. Laws, c. 332, §  1;  77 Del. Laws, c. 358, §§  1, 2;  84 Del. Laws, c. 244, § 2;  85 Del. Laws, c. 68, § 3; 

(a) After receiving the nursery 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 ensure compliance with all sections of this chapter.

(c) Upon the successful completion of an annual inspection, the Department shall issue a nursery inspection certificate to any business licensed under § 1302 of this title. The nursery inspection certificate shall state:

The nursery stock of this location has been examined and is apparently free from dangerously injurious plant pests.

(d) The nursery inspection certificate issued by the Department shall be valid for a period of 1 year, beginning January 1 and ending December 31 of the same year.

70 Del. Laws, c. 332, §  1;  77 Del. Laws, c. 358, §§  3, 4;  84 Del. Laws, c. 244, § 3; 

(a) Any person that has in the person’s 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, the Secretary shall order and direct that the nuisance be abated by whatever means necessary (including destruction, confiscation, treatment, or return shipment). The abatement of this public nuisance is at the expense of all of the aforementioned persons and shall be without any form of compensation.

70 Del. Laws, c. 332, §  1;  85 Del. Laws, c. 68, § 4; 

(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 inspection certificate as prescribed in § 1303 of this title. 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 a current nursery inspection 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 affix a copy of the phytosanitary certificate to the exterior of each carload, box, container, package, etc. It 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 precleared by the Department, under the terms of a preclearance or interstate origin of inspection program (phytosanitary preclearance). It is the responsibility of both the consignee and consignor to obtain all required preclearances and to examine all shipments for the presence of all required certifications.

21 Del. Laws, c. 216, §  10;  Code 1915, §  659;  Code 1935, §  577;  3 Del. C. 1953, §  1302;  65 Del. Laws, c. 491, §  1;  68 Del. Laws, c. 329, §§  6, 7;  70 Del. Laws, c. 332, §  1;  84 Del. Laws, c. 244, § 4;  85 Del. Laws, c. 68, § 5; 

(a) When any plants, plant materials, or nursery stock are shipped, sent, or mailed into this State, to any person in this State, every item including a carload, container, box, or package must be conspicuously labeled on the exterior with the name of the consignor, the state of origin, and the name of the consignee.

(b) The shipment under subsection (a) of this section must have conspicuously affixed to the shipment’s exterior a nursery inspection 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.

(c) It is the responsibility of both the consignee and consignor to examine all shipments for the presence of current and applicable nursery stock certifications.

21 Del. Laws, c. 216, §  13;  Code 1915, §  662;  Code 1935, §  580;  3 Del. C. 1953, §  1305;  65 Del. Laws, c. 491, §  1;  70 Del. Laws, c. 332, §  1;  84 Del. Laws, c. 244, § 5;  85 Del. Laws, c. 68, § 6; 

Any person that 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 an item, including a carload, box, container, or package of plants, plant materials, or nursery stock, that does not have a nursery inspection certificate or proper phytosanitary certificate attached as provided for in § 1303 or § 1305 of this title, and fails to immediately notify the Department is be subject to §§ 1310 through 1313 of this title.

21 Del. Laws, c. 216, §  15;  Code 1915, §  664;  Code 1935, §  582;  3 Del. C. 1953, §  1307;  57 Del. Laws, c. 764, §  5;  65 Del. Laws, c. 491, §  1;  70 Del. Laws, c. 332, §  1;  84 Del. Laws, c. 244, § 6;  85 Del. Laws, c. 68, § 7; 

(a) Plants, plant materials, or nursery stock must not be labeled or advertised with false or misleading information. This includes common name, scientific name, variety, place of origin, and growth habit.

(b) A person 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 “free from” or “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.

(c) Before any person advertises plants, plant materials, or nursery stock for sale, a copy of the person’s 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 radio, television, outdoor sign boards, telephone business directories (such as the Yellow Pages), newspaper advertisements, magazine advertisements, or vehicular identification or advertisements.

21 Del. Laws, c. 216, §  10;  Code 1915, §  659;  Code 1935, §  577;  3 Del. C. 1953, §  1302;  65 Del. Laws, c. 491, §  1;  70 Del. Laws, c. 332, §  1;  85 Del. Laws, c. 68, § 8; 

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 this State 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 businesses must be accepted from other states in lieu of individual nursery licenses or certificates.

65 Del. Laws, c. 491, §  1;  68 Del. Laws, c. 329, §  11;  70 Del. Laws, c. 332, §  1;  84 Del. Laws, c. 244, § 7;  85 Del. Laws, c. 68, § 9; 

(a) Any person that has in their possession plants, plant materials, or nursery stock that is uncertified, uninspected, or falsely or misleadingly labeled or advertised possesses an illegal regulated commodity.

(1) Plants, plant materials, or nursery stock that is an illegal regulated commodity is considered infested or infected with dangerously injurious plant pests and therefore deemed a public nuisance.

(2) Public nuisances are to be abated as prescribed in § 1304 of this title.

(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.

(b) If the Secretary determines that the provisions of this section have been violated, the Secretary shall order and direct that the nuisance be abated by the destruction of all of the plants in question, unless the aforementioned person in possession of an illegal regulated commodity does 1 or more of the following as directed by the Secretary:

(1) Submits to the nursery certification process.

(2) Provides proper phytosanitary preclearance, phytosanitary certification, or nursery 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.

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

(d) Under this chapter, any person that wilfully or knowingly does any of the following is 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 the suspension or revocation of the person’s current nursery license or any future operation privileges granted under this chapter:

(1) Misrepresents or falsifies information on a nursery license application.

(2) Fails to obtain a nursery license.

(3) Fails to renew a nursery license, but continues business operations.

(4) Fails to display their nursery license.

(5) Falsely displays a nursery license.

(6) Misrepresents or falsifies their nursery license status.

(7) Misrepresents or falsifies information on a nursery inspection 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.

(11) Possesses uncertified plants, plant materials, or nursery stock.

(12) Possesses an illegal regulated commodity.

(13) Defies a Department hold order.

(14) Violates a quarantine imposed by the Department.

(15) Fails to obtain nursery inspection certification.

(16) Fails to obtain phytosanitary certification.

(17) Fails to obtain phytosanitary preclearance.

(18) Creates or possesses a public nuisance.

(19) Misrepresents or falsifies information to obtain nursery inspection certification, phytosanitary certification, or phytosanitary preclearance.

(20) Defaces, mutilates, or destroys a nursery inspection certificate, phytosanitary certificate, or phytosanitary preclearance 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 license advertising requirements.

(25) Commits any violation of this chapter as determined by the Secretary or the Secretary’s designee.

70 Del. Laws, c. 332, §  1;  84 Del. Laws, c. 42, § 1;  84 Del. Laws, c. 244, § 8;  85 Del. Laws, c. 68, § 10; 

(a) No civil penalty shall be imposed until an administrative hearing is held before the Secretary of Agriculture and the Secretary’s designee. 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. The Secretary or the Secretary’s designee shall issue a written decision to the alleged violator within 30 days of the conclusion of the administrative hearing.

(b) The Department shall notify in writing the person charged with a violation of this chapter of the date and time of the administrative hearing. The person charged with a violation of this chapter has the right to appear in person, to be represented by counsel, and to provide witnesses in the person’s 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 filing 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 on payment to the Department of the cost of preparing such transcript.

70 Del. Laws, c. 332, §  1;  70 Del. Laws, c. 186, §  1;  77 Del. Laws, c. 358, §  5;  84 Del. Laws, c. 244, § 9;  85 Del. Laws, c. 68, § 11; 

A person who feels aggrieved by an action of the Department resulting from the administrative hearing held under the authority of this chapter may take appeal, within 30 days of the written decision or other action of the Department, 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.

65 Del. Laws, c. 491, §  1;  66 Del. Laws, c. 152, §  1;  70 Del. Laws, c. 332, §  1;  84 Del. Laws, c. 244, § 10; 

(a) The civil penalty for violation of any section of this chapter not already stated will be 1 or more of the following:

(1) The assessment of a civil penalty of no less than $100 nor more than $1000 on each count.

(2) 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.

(3) The suspension or revocation of their current nursery 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 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.

(c) The proceeds of any fines or penalties imposed under this chapter shall be deposited into an appropriated special fund account in the Department of Agriculture. These funds shall be used to support the nursery inspection programs of the Department of Agriculture.

70 Del. Laws, c. 332, §  1;  84 Del. Laws, c. 244, § 11;  85 Del. Laws, c. 68, § 12;