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Code of Virginia
Title 3.2. Agriculture, Animal Care, and Food
Chapter 39. Pesticide Control
12/3/2020

Article 5. Violations, Penalties, and Proceedings in Case of Violations.

§ 3.2-3938. Misbranded pesticides.

Any pesticide or device is misbranded if:

1. Its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients that is false or misleading in any particular;

2. It is an imitation of or is offered for sale under the name of another pesticide;

3. Its labeling bears any reference to registration under this chapter;

4. The accompanying labeling does not contain directions for use that are adequate for the protection of the public;

5. The label does not contain a warning or caution statement that may be necessary and, if complied with, adequate to prevent injury to man, other vertebrate animals, vegetation, and useful invertebrate animals;

6. The label does not bear an ingredient statement or guaranteed analysis statement on the immediate container of the retail package (and on the outside container or wrapper if such statement on the immediate container cannot be clearly read) that is presented or displayed under customary conditions of purchase. The Commissioner may permit the ingredient statement to appear prominently on some other part of the container if the size or form of the container makes it impracticable to place it on the part of the retail package that is presented or displayed under customary conditions of purchase;

7. Any words, statement, or other information required under this chapter to appear on the labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or graphic matter in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;

8. In the case of an insecticide, fungicide, or herbicide, when used as directed or in accordance with commonly recognized safe practice, it shall be injurious to living man or other vertebrate animals or vegetation to which it is applied, or to the person applying such pesticide, excepting pests and weeds; or

9. In the case of a plant regulator, defoliant, or desiccant, when used as directed it shall be injurious to living man or other vertebrate animals, or vegetation to which it is applied, or to the person applying such pesticide; provided that physical or physiological effects on plants or parts thereof shall not be deemed to be injury, when this is the purpose for which the plant regulator, defoliant, or desiccant was applied, in accordance with the label claims and recommendations.

1989, c. 575, § 3.1-249.27; 1993, c. 773; 1995, c. 103; 2008, c. 860.

§ 3.2-3939. Violations generally.

A. It is unlawful for any person to manufacture, distribute, sell, offer for sale, use or offer for use:

1. Any pesticide not registered pursuant to the provisions of this chapter; 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 connection with its registration; or any pesticide if the composition of a pesticide differs from its composition as represented in connection with its registration.

2. Any pesticide sold, offered for sale, or offered for use that is not in the registrant's or the manufacturer's unbroken container, and does not have an affixed and visible label bearing the following information:

a. The name and address of the manufacturer, registrant, or person for whom manufactured;

b. The name, brand, or trademark under which said pesticide is sold; and

c. The net weight or measure of the content, subject to reasonable variations as permitted by the Commissioner.

3. Any pesticide containing any substance in quantities highly toxic to man, unless the label bears:

a. A skull and crossbones;

b. The word "poison" shown prominently in red on a background of distinctly contrasting color; and

c. A statement of an antidote for the pesticide.

4. The pesticides commonly known as lead arsenate, basic lead arsenate, calcium arsenate, magnesium arsenate, zinc arsenate, zinc arsenite, sodium fluoride, sodium fluosilicate, and barium fluosilicate, unless they have been distinctly colored as provided by regulations issued hereunder. Any other white powder pesticide that the Commissioner requires to be distinctly colored after an investigation of and after a public hearing on the necessity for such action. The Commissioner may exempt any pesticide to the extent that it is intended for a particular use if he determines that distinctive coloring is unnecessary for the protection of the public health.

5. Any pesticide that is adulterated or misbranded, or any device that is misbranded.

6. Any pesticide that is the subject of a stop sale, use, or removal order as provided for in § 3.2-3944 until such time as the provisions of that section have been met.

B. It is unlawful for any person to use or cause to be used any pesticide in a manner inconsistent with its labeling or regulations of the Board, provided that such deviation may include provisions set forth in Section 2 (ee) of the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.).

C. It is unlawful to dispose of containers or unused portions of pesticide in a manner inconsistent with label directions or the regulations of the Board in the absence of label directions, or if those regulations further restrict such disposal.

D. It is unlawful for any person to knowingly use any pesticide against any organism that is otherwise protected under fish, game, or migratory bird laws, without first obtaining authorization as necessary from the federal or state agency responsible for the protection of the organism.

E. It is unlawful for any person to detach, alter, deface or destroy, in whole or in part, any label or labeling provided for in this chapter or the regulations adopted hereunder.

F. It is unlawful for any manufacturer, distributor, dealer, carrier, or other person to refuse, upon a request in writing specifying the nature or kind of pesticide or device to which such request relates, to furnish to or permit any person designated by the Commissioner to have access to and to copy such records of business transactions as may be essential in carrying out the purposes of this chapter.

G. It is unlawful for any person to give a guaranty or undertaking provided for in § 3.2-3941 that is false in any particular, except that a person who receives and relies upon a guaranty authorized under such section may give a guaranty to the same effect, which guaranty shall contain in addition to his own name and address the name and address of the person residing in the U.S. from whom he received the guaranty or undertaking.

H. It is unlawful for any person to oppose or interfere in any way with the Commissioner in carrying out the duties imposed by this chapter.

Code 1950, §§ 3-208.31, 3-208.32, 3-208.34, 3-208.35, 3-208.37; 1960, c. 535; 1966, c. 702, §§ 3.1-233, 3.1-234, 3.1-236, 3.1-237, 3.1-239; 1970, c. 376, § 3.1-233.1; 1975, c. 102; 1976, c. 627; 1981, c. 260; 1989, c. 575, §§ 3.1-249.63 to 3.1-249.67, 3.1-249.69; 1993, c. 773; 2008, c. 860.

§ 3.2-3940. Administrative violations.

A. In addition to imposing civil penalties and referring violations for criminal prosecution, the Board may deny, suspend, modify, or revoke a license after providing an opportunity for a hearing if it finds that the applicant, licensee, or his employee has committed any of the following violations:

1. Made false or fraudulent claims through any media misrepresenting the effect of materials or methods;

2. Made a pesticide recommendation inconsistent with the label registered pursuant to this chapter, provided that such deviation may include provisions set forth in Section 2 (ee) of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.);

3. Acted as a pesticide business with negligence, incompetence, or misconduct;

4. Made false or fraudulent records, invoices, or reports;

5. Failed to submit records required by the Board;

6. Used fraud, misrepresentation, or false information in an application for a license or a renewal of a license; or in selling or offering to sell pesticides;

7. Stored or disposed of containers or pesticides by means other than those prescribed on the label or by regulation;

8. Provided or made available any restricted use pesticide to any person not certified to apply such product;

9. Failed to notify the Department of a reportable pesticide spill, accident, or incident;

10. Acted as a pesticide business without first obtaining the pesticide business license required in § 3.2-3924; or

11. Failed to pay any civil penalty assessed by the Board.

B. After opportunity for a hearing, the Board may deny, suspend, revoke, or modify the provision of any certificate if it finds that the applicant or the holder of a certificate has:

1. Made claims through any media that intentionally misrepresent the effects on the environment likely to result from the application of a pesticide;

2. Used or caused to be used any pesticide inconsistent with: (i) the label registered by the U.S. Environmental Protection Agency; (ii) a Virginia state registered use; or (iii) other permissible uses;

3. Applied any pesticide in a negligent manner;

4. Failed to comply with the provisions of Article 3, regulations adopted hereunder, or of any lawful order of the Commissioner or the Board;

5. Failed to: (i) keep and maintain required records or reports; or (ii) furnish or permit access to any such records or reports for copying by the Commissioner;

6. Made false or fraudulent records, invoices, or reports concerning the use or application of any pesticide;

7. Used or caused to be used any pesticide classified for restricted use unless under the direct supervision of a certified applicator;

8. Used fraud or misrepresentation in applying for a certificate or renewal of a certificate;

9. Failed to comply with any limitations or restrictions on a certification;

10. Aided, abetted, or conspired with any person to violate the provisions of Article 3;

11. Impersonated any federal, state, or local official;

12. Made any statement, declaration, or representation implying that any person certified or registered under the provisions of Article 3 is recommended or endorsed by any agency of the Commonwealth; or

13. Been convicted or is subject to a final order assessing a penalty pursuant to § 14 (a) or (b) of the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.).

C. The Commissioner may, without a hearing, suspend the license of any person licensed or certified simultaneously with the institution of proceedings for a hearing, if he finds there is a substantial danger to the public health, safety, or the environment. The hearing shall be scheduled within a reasonable time of the date of the summary suspension.

D. Any licensee or certificate holder whose license or certificate has been suspended shall not engage in the activity for which he has been certified or licensed pending the hearing.

E. The Board shall suspend a license or certificate if a civil penalty is not paid within 60 days or a challenge is not made pursuant to subsection D of § 3.2-3943. When deciding whether to deny, suspend, revoke, or modify any certificate or license, the Board shall give due consideration to: (i) the history of previous violations; (ii) the seriousness of the violation including any irreparable harm to the environment and any hazards to the health and safety of the public; and (iii) the demonstrated good faith in attempting to achieve compliance with the chapter after notification of the violation.

Code 1950, § 3-208.31; 1960, c. 535; 1966, c. 702, § 3.1-233; 1976, c. 627; 1981, c. 260; 1989, c. 575, §§ 3.1-249.63, 3.1-249.76; 1993, c. 773; 2008, c. 860.

§ 3.2-3941. Exemptions from penalties.

The penalties provided for violations of subsection A of § 3.2-3939 and § 3.2-3940 shall not apply to:

1. Any carrier transporting pesticides if such carrier permits the Commissioner to copy all records showing the transactions in and movements of the pesticides upon request;

2. Public officials of the Commonwealth and the federal government engaged in the performance of their official duties;

3. Individuals or agencies authorized by law to conduct research in the field of pesticides when such research is conducted in accordance with regulations established by the Board; and

4. Any person who establishes a guaranty signed by, and containing the name and address of, the registrant or person residing in the United States from whom he purchased and received in good faith the pesticide in the same unbroken package, to the effect that the pesticide was lawfully registered at the time of sale and delivery to him, and that it complies with the other requirements of this chapter, designating this chapter. In such case the guarantor shall be subject to the penalties that would otherwise attach to the person holding the guaranty under the provisions of this chapter.

Code 1950, § 3-208.44; 1966, c. 702, § 3.1-246; 1981, c. 260; 1989, c. 575, § 3.1-249.74; 2008, c. 860.

§ 3.2-3942. Right of entry; warrant requirements; procedure.

A. The Commissioner may enter any public or private premises operating as a pesticide business at reasonable times, with the consent of the owner or tenant thereof, and upon presentation of appropriate credentials for carrying out the purposes of this chapter.

B. If the Commissioner is denied access, he may apply for an administrative search warrant from a judge with authority to issue criminal warrants or a magistrate whose jurisdiction encompasses the premises.

1. No warrant shall be issued except upon probable cause and supported by an affidavit particularly describing (i) the place, things, or persons to be inspected or tested; and (ii) the purpose for which the inspection, testing, or collection of samples is to be made.

2. Probable cause shall exist if either (i) reasonable legislative or administrative standards for conducting inspection, testing, or collection of samples are satisfied with respect to the particular place, thing, or person, or (ii) there is cause to believe that a condition, object, activity, or circumstance legally justifies the inspection, testing, or collection of samples.

3. The supporting affidavit shall contain either (i) a statement that consent to inspect, test, or collect samples has been sought and refused, or (ii) facts or circumstances reasonably justifying the failure to seek consent. If probable cause is based upon legislative or administrative standards for selecting places of business for inspection, the affidavit shall contain factual allegations sufficient to justify an independent determination by the court that the inspection program is based on reasonable standards and that the standards are being applied to a particular place of business in a neutral and fair manner. After issuing a warrant under this section, the magistrate or judge shall file the affidavit in the manner prescribed by § 19.2-54.

C. Any administrative search warrant shall be effective for a period of not more than 15 days unless extended or renewed by the judicial officer who issued the original warrant. The warrant shall be executed and returned to the clerk of the circuit court of the city or county wherein the search was made within the time specified or within the extended or renewed time. The return shall list any records removed or samples taken pursuant to the warrant. The warrant shall be void after the expiration of time unless executed or renewed.

D. No warrant shall be executed in the absence of the owner, tenant, operator, or custodian of the premises unless the issuing judicial officer specifically authorizes that such authority is reasonably necessary to affect the purposes of the law or regulation. Entry pursuant to such a warrant shall not be made forcibly. The issuing officer may authorize a forcible entry where the facts (i) create a reasonable suspicion of an immediate threat to the health and safety of persons or to the environment, or (ii) establish that reasonable attempts to serve a previous warrant have been unsuccessful. If forcible entry is authorized, the warrant shall be issued jointly to the Commissioner and to a law-enforcement officer who shall accompany the Commissioner during the execution of the warrant.

E. No court of the Commonwealth shall have jurisdiction to hear a challenge to the warrant prior to its return, except as a defense in a contempt proceeding or if the owner or custodian of the place to be inspected submits a substantial preliminary showing by affidavit and accompanied by proof that (i) a statement included by the affiant in his affidavit for the administrative search warrant was false and made knowingly and intentionally or with reckless disregard for the truth, and (ii) the false statement was necessary to the finding of probable cause. The court may conduct in camera review as appropriate.

F. After the warrant has been executed and returned, the validity of the warrant may be reviewed either as a defense to any Notice of Violation or by declaratory judgment action brought in a circuit court. The review shall be confined to the face of the warrant, affidavits, and supporting materials presented to the issuing judicial officer. If the owner or custodian of the place inspected submits a substantial showing by affidavit and accompanied by proof that (i) a statement included in the warrant was false and made knowingly and intentionally or with reckless disregard for the truth, and (ii) the false statement was necessary to the finding of probable cause, the reviewing court shall limit its inquiry to whether there is substantial evidence in the record supporting the issuance of the warrant and shall not conduct a de novo determination of probable cause.

1975, c. 377, § 3.1-249.18; 1989, c. 575, § 3.1-249.58; 1993, c. 773; 2008, c. 860; 2014, c. 354.

§ 3.2-3943. Civil penalties; procedure.

A. The Board may assess against any person violating this chapter or regulations adopted hereunder a civil penalty after providing written notice of the alleged violation. Such notice shall not constitute a case decision as defined in § 2.2-4001. The person so notified shall have 30 days to provide any additional, relevant facts to the Board, including facts that demonstrate a good-faith attempt to achieve compliance. In determining the amount of any civil penalty, the Board shall give due consideration to (i) the history of previous violations; (ii) the seriousness of the violation, including any irreparable harm to the environment and any hazards to the health and safety of the public; and (iii) the demonstrated good faith in attempting to achieve compliance.

B. No sooner than 30 days after providing written notice of the alleged violation pursuant to subsection A, the Board may assess a penalty of not more than $1,000 for a violation that is less than serious; not more than $5,000 for a serious violation; and not more than $20,000 for a repeat or knowing violation. The Board may assess an additional penalty of up to $100,000 for any violation that causes serious damage to the environment, serious injury to property, or serious injury to or death of any person.

C. Civil penalties assessed under this section shall be paid into Pesticide Control Fund established in § 3.2-3912. The Commissioner shall prescribe procedures for payment of penalties that are not contested by licensees or persons, including provisions for a person to consent to abatement of the alleged violation and payment of a penalty or negotiated sum in lieu of such penalty without admission of civil liability.

D. The person to whom a civil penalty is issued shall have 15 days to request an informal fact-finding conference, held pursuant to § 2.2-4019, to challenge the fact or amount of the civil penalty. If the civil penalty is upheld, such person shall have 15 days to (i) pay the proposed penalty in full or contest either the amount of the penalty or the fact of the violation and (ii) forward the proposed amount to the Commissioner's office for placement in an interest-bearing trust account in the State Treasurer's office. If administrative or judicial review shows no violation or that the amount of penalty should be reduced, the Commissioner shall have 30 days from that showing to remit the appropriate amount to the person, with interest accrued thereon. If the violation is upheld, the amount collected shall be paid into the Pesticide Control Fund.

E. Final orders of the Board may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification by the secretary of the Board. Such orders may be appealed in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

Code 1950, §§ 3-208.39, 3-208.42; 1966, c. 702, §§ 3.1-241, 3.1-244; 1970, c. 376; 1989, c. 575, § 3.1-249.70; 1993, c. 773; 2008, c. 860; 2016, c. 320.

§ 3.2-3944. "Stop-sale or removal" orders; "stop-use" orders; judicial review.

A. When the Commissioner has reason to believe that a pesticide is being offered for sale or use or is being used in violation of any of the provisions of this chapter, he shall issue and enforce a written or printed "stop sale or removal" order. The order shall be directed to the owner or custodian of the lot of pesticide and shall require him to hold the pesticide at a designated place until this chapter has been complied with and the pesticide is released in writing by the Commissioner or the violation is otherwise legally disposed of by written authority. The owner or custodian of such pesticide shall have the right to administrative and judicial review of such order in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). The provisions of this section shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other provisions of this chapter. The Commissioner shall release the pesticide when the requirements of the provisions of this chapter have been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.

B. When the Commissioner has reason to believe that any pesticide is being offered for sale or use or is being used in violation of any of the provisions of this chapter by a person, he shall issue and enforce a written or printed "stop-use" order until the Pesticide Control Act has been complied with or the violation has been otherwise legally disposed of by written authority. The person shall have the right to administrative and judicial review of such order in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). The provisions of this section shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other provisions of this chapter.

Code 1950, § 3-208.46; 1966, c. 702, § 3.1-248; 1981, c. 260; 1986, c. 615; 1989, c. 575, § 3.1-249.77; 1993, c. 773; 2008, c. 860.

§ 3.2-3945. Seizure, condemnation, and sale.

Any lot of pesticide in violation of this chapter shall be subject to seizure on complaint of the Commissioner to the circuit court in the area where the pesticide is located. If the court finds the pesticide to be in violation of this chapter and orders its condemnation, it shall be disposed of after the claimant is provided an opportunity to apply for the release of the pesticide or for permission to process, relabel, or otherwise bring it into compliance with this chapter.

Code 1950, § 3-208.47; 1966, c. 702, § 3.1-249; 1981, c. 260; 1989, c. 575, § 3.1-249.78; 2008, c. 860.

§ 3.2-3946. Proceedings in case of violations.

A. If the examination of laboratory results or other evidence collected during an investigation appears to show a violation of this chapter or any of the regulations issued hereunder, the Commissioner may provide notice of the alleged violation to the registrant, distributor, possessor, licensee, applicator, or other person from whom such evidence was taken. This notice shall not constitute a case decision as defined in § 2.2-4001.

B. It shall be the duty of every attorney for the Commonwealth to whom the Commissioner shall report any violation of this chapter to cause proceedings to be prosecuted without delay.

C. Nothing in this chapter shall be construed as requiring the Commissioner to report for the institution of proceedings under this chapter, minor violations of this chapter, whenever the Commissioner believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning. Copies of such warnings shall be reported to the Board.

Code 1950, §§ 3-208.40, 3-208.41, 3-208.43; 1966, c. 702, §§ 3.1-242, 3.1-243, 3.1-245; 1981, c. 260; 1989, c. 575, §§ 3.1-249.71 to 3.1-249.73; 2008, c. 860; 2016, c. 320.

§ 3.2-3947. Penalties.

A. Except as otherwise provided, any person who knowingly violates any provisions of this chapter or regulations adopted hereunder is guilty of a Class 1 misdemeanor and shall be subject to an additional fine of up to $500,000 if death or serious physical harm to any person is caused by the violation.

B. The Commissioner may bring an action to enjoin the violation or threatened violation of this chapter or any regulation adopted hereunder in the circuit court of the county or city where the violation occurs or is about to occur, or in the Circuit Court of the City of Richmond if the violation may affect more than one county or city. The Commissioner may request either the attorney for the Commonwealth or the Attorney General to bring action under this section, when appropriate.

Code 1950, §§ 3-208.39, 3-208.42; 1966, c. 702, §§ 3.1-241, 3.1-244; 1970, c. 376; 1989, c. 575, § 3.1-249.70; 1993, c. 773; 2008, c. 860.