CHAPTER 476

An Act to amend the Code of Virginia by adding in Chapter 11 of Title 8
thereof, an article numbered 1.1 consisting of sections numbered
8-178.1 through 3-178.23, inclusive, relating to the control of tree and
crop pests, and to repeal §§ 8-151 through 8-178, inclusive, as severally
amended, of the Code of Virginia, relating to the same matters.

[H 460]
Approved March 31, 1964

Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia be amended by adding in Chapter 11 of
Title 3 thereof an article numbered 1.1 consisting of sections numbered
3-178.1 through 3-178.28, inclusive, as follows:

Article 1.1
In General.

§ 3-178.1. The following definitions shall apply in the interpretation
and the enforcement of this article:

(1) “Agent” means any person soliciting orders for nursery stock
as distinguished from a nurseryman or dealer.

(2) “Board” means the Board of Agriculture and Immigration of the
State of Virginia.

(3) “Commissioner” means the Commissioner of Agriculture and
Immigration of the State of Virginia.

(4) “Dealer” means any person, firm or corporation, not a grower
of nursery stock, who buys, collects wild plants, or otherwise acquires
nursery stock for the purpose of reselling or distributing same. Each
separate location shall constitute a dealership.

(5) “Nursery” means any grounds or premises on or in which nursery
stock is being propagated or grown for sale or distribution, including
any grounds or premises on or in which nursery stock is being fumigated,
treated, packed or stored, or otherwise prepared or offered for sale or
movement to other localities.

(6) “Nursery Stock” means all trees, shrubs, and woody vines, in-
cluding ornamentals, bush fruits, grapevines, fruit trees and nut trees,
whether cultivated, native or wild, and all buds, grafts, scions and cuttings
from such plants. It also shall mean such herbaceous plants, including
strawberry plants, narcissus plants, and narcissus bulbs as the Board
declares by regulation to be so included whenever it considers control of
the movement of such plants or bulbs necessary to the control of any
destructive plant pest. Florists’ or greenhouse plants for inside culture or
use, unless so declared by the Board as herein authorized, shall not be
considered nursery stock, except that all woody plants, whether green-
house or field grown, if for outside planting, are hereby defined as nursery

ck.

(7). “Nurseryman” means any person engaged in the production of
nursery stock for sale or distribution.

(8) “Person” means any individual, partnership, corporation, com-
pany, society or association.

(9) “Plant Pest’? means any living stage of: Any insects, mites,
nematodes, slugs, snails, protozoa, or other invertebrate animals, bacteria,
fungi, other parasitic plants or reproductive parts thereof, viruses, or any
organisms similar to or allied with any of the foregoing, or any infectious
substances, which can directly or indirectly injure or cause disease or
damage in any plants or parts thereof, or any processed, manufactured or
other products of plants.

(10) “Plants and Plant Products” means trees, shrubs, vines, forage,
fiber and cereal, and all other plants; cuttings, grafts, scions, buds, and
all other parts of plants; and fruit, vegetables, roots, bulbs, seeds, wood,
lumber, and all other parts of plants and plant products.

§ 3-178.2. It shall be the duty of the Commissioner to exercise or
perform the powers and duties imposed upon him by this article.

§ 3-178.3. It shall be the duty of the Commissioner to appoint a
competent person as State Entomologist and Plant Pathologist, to be
known as the State Entomologist, and such assistants as may be necessary,
who shall advise and assist the Commissioner in carrying out the provisions
of this article.

§ 3-178.4. It shall be the duty of the Commissioner to protect the
agricultural, horticultural, and other interests of the State from plant
pests and, either in person or by his assistants, supervise and direct the
eecubon of this article and rules and regulations adopted pursuant

ereto.

§ 3-178.5. The Commissioner through his assistants shall direct
abundance surveys for plant pests of a highly injurious nature that are
known to be present in the State to determine the necessity for establish-
ing control practices. When the Commissioner determines that a new and
dangerous plant pest exists within the State or that an established pest
requires control and the nature of the pest dictates immediate action, he
shall proceed with a plan of eradication or suppression.

In the event the Commissioner determines a plant pest does not
require immediate action, he shall report his findings, including the nature
of the pest and method of proposed treatment, to the Board in writing
and to the property owners or persons in charge of the property concerned
by printing of a copy thereof, at least once, in at least one newspaper of
general circulation in the locality concerned.

In case of objection to the findings of the Commissioner or his
assistants an appeal shall lie to the Board. Such appeal must be taken
within seven days from the published notice of such finding and shall act
as a stay of proceedings insofar as the property of the person noting the
appeal is concerned until it is heard and decided.

§ 3-178.6. The Board may provide rules and regulations under which
the Commissioner shall proceed to eradicate or suppress and prevent the
dissemination of plant pests as far as may be practical, and such rules
and regulations as are necessary to carry out the purposes of this article,
and these rules and regulations shall have the full force and effect of law
so far as they conform to this article and the general laws of this State
and of the United States. Any person who fails or refuses to comply with
the orders or directions contained in the regulations provided by the
Board, shall, upon conviction thereof, be guilty of a misdemeanor and shall
be fined not less than $10.00 nor more than $100.00. In addition to the
penalties provided, such person may be enjoined from continuing such
violation.

§ 3-178.7. The Board shall have power to prescribe and, after public
hearing following due public notice, adopt quarantine rules and regula-
tions concerning the planting, exposing, sale and transportation of all
plants or plant products liable to carry plant pests of a highly injurious
nature in any living stage within this State. The Board shall also have
power to prescribe, in a similar manner, like rules and regulations per-
taining to all plants or plant products entering this State from without.
The Board also shall have the power to rescind quarantine rules and
regulations, by public notice, when it determines the need or practicability
no longer exists. These rules and regulations shall be enforced by the
Commissioner or his duly authorized assistants, and the Commissioner
shall direct the execution of any regulations made under this article. The
Board may further provide rules and regulations governing the movement
of nursery stock, including soil, packing material or any other substance
or article, to and from nurseries as it may deem necessary in the eradi-
cation, control, or prevention of the dissemination of plant pests of a
highly injurious nature.

§ 3-178.8. Judicial review of any action, decision, directive or other
order made by the Commissioner or his assistants may be had within ten
days after a notice thereof is mailed, or, in the absence of mailing within
ten days after the delivery thereof to the person affected by such action,
decision, directive or order, in any court not of record in the county or
city where the person to whom such action, decision, directive or other
order resides, or if he be a non-resident of this State, in the county or city
where the land, or any part thereof, is located.

The filing of such notice by the recipient thereof in such court shall
be deemed to be an appeal from the ruling of the Commissioner or his
assistant, and shall be placed on the docket of such court without the
requirement of any court costs or fees of any nature whatsoever. Upon
the filing of such notice it shall be the duty of the clerk of such court to
notify the Commissioner of the filing of such notice.

Any party to such proceedings shall have the right to appeal from
the pension of such court without being required to furnish costs or
surety.

§ 3-178.9. It shall be unlawful for any nurseryman, dealer, or
agent, either for himself or as agent for another, to offer for sale, sell,
deliver, or give away, within the bounds of this State, any plants or parts
of plants commonly known as nursery stock unless such person shall have
first procured from the Commissioner a certificate of registration. Pro-
vided, however, that any duly licensed Virginia merchant buying plants
or nursery stock from only Virginia certified nurserymen, dealers or
agents as defined in this article shall not be required to procure a certifi-
cate of registration. The Commissioner shall have full power, and is here-
by authorized, to refuse, suspend or cancel any certificate upon satisfac-
tory evidence that any of the provisions of this article or rules and regu-
lations governing the sale of nursery stock within this State have been
violated by the holder of the same. The Commissioner shall not issue any
certificate of registration except upon the payment of ten dollars for each
nurseryman, two dollars for each dealer and one dollar for each agent of
such nurseryman or dealer. There shall be no abatement in the annual
fee of ten dollars to be paid for the certificate of registration for nursery-
men or the two dollars for dealers nor shall there be any abatement in the
sum of one dollar for each agent. All certificates of registration or licenses
shall expire on the thirty-first day of December of the year for which

ued.

§ 3-178.10. It shall be the duty of the Commissioner through his
assistants to provide for the annual inspection, or oftener if necessary, of
all plant nurseries within the State. The Commissioner shall certify the
relative freedom of injurious plant pests when issuing a certificate of
registration or license to the owners of all such nurseries found entitled
to receive it. All stock in custody of any dealer or person shall be subject
to inspection at any time.

The Commissioner may order the owner or person in charge of any
infested nursery stock, or other material, article, or host plants, including
soil, to take such measures to eradicate or control the said infestation or
infection as he may deem necessary or proper. Such owner or person in
charge shall promptly carry out the order of the Commissioner or his
assistants within the period of time designated in the order. If such owner
or person in charge shall refuse or neglect to carry out any such order, the
Commissioner may apply such eradication or control measures as are
required by the order.

§ 3-178.11. It shall be unlawful to deliver, knowingly transport or
ship within this State plants or parts of plants commonly known as nurs-
ery stock which have not been duly inspected in accordance with the pro-
visions of this article and which do not carry plainly attached to each car-
load, truckload, box, bale, or package, an inspection certificate, or to
deliver, ship, send or knowingly bring any such nursery stock into this
State from any place outside thereof unless there is attached to each car-
load, truckload, box, bale or package, in a conspicuous place, a valid cer-
tificate of inspection issued by the proper official of the State, territory,
district or country from which it was shipped, sent or brought showing
that such nursery stock, including soil, was found to be free from plant
pests.

Nursery stock brought into the State under an inspection certificate,
as above required, may be sold and moved under the certificate of a regis-
tered Virginia nurseryman or dealer or agent, but this shall not preclude
inspection at any time within the State

§ 3-178.12. The Commissioner, in order to prevent the introduction
or dissemination of dangerous plant pests, is hereby authorized, either by
himself or by his duly appointed agents, to stop-delivery, destroy, stop-
sale, to seize, to treat or to order returned to point of origin, at the owner’s
expense, any nursery stock or any article or material whatsoever trans-
ported or moved within this State or brought into this State from any
place outside thereof, if such nursery stock, article or material is found
by him or his duly authorized agents to be infested or infected with any
dangerous plant pest whether or not there is attached a valid certificate
of inspection.

§ 3-178.13. Any person growing or possessing any plants or plant
products or other substance or thing may have such inspected by applying
to the Commissioner for a special inspection with reference to the pres-
ence of plant pests liable to prevent the movement or use of same, agree-
ing in the application to pay the expenses incurred in making the inspec-
tion, and upon receipt of such application and agreement, or as soon there-
after as may be conveniently practicable, the Commissioner may comply
with such request, and upon receipt of the expenses of the inspection shall
issue to the applicant a certificate showing the conditions found.

§ 3-178.14. No person shall sell, barter, offer for sale, or move,
transport, deliver, ship or offer for shipment into or within this State any
plant pests in any living stage without first obtaining a permit from the
Commissioner. Such permit shall be issued only after it has been deter-
mined that the plant pests are not injurious, are generally present already,
or are for scientific purposes subject to specified safeguards.

8 3-178.15. The Commissioner shall promptly pay all moneys col-
lected by him into the State treasury to the credit of the general fund.

§ 3-178.16. The Commissioner or his assistants may demand of any
person who has plants or plant products or articles or substances sus-
pected of being infested with dangerous pests in his possession to present
same for inspection and to give full information as to the origin, number
and destination of same, and it shall be a misdemeanor for such person
to refuse to give the information demanded or allow inspection.

§ 3-178.17. All authority vested in the Commissioner by virtue of
the provisions of this article may with like force and effect be executed
by such employees of the Department of Agriculture and Immigration as
the Commissioner may, from time to time, designate for such purpose.

§ 3-178.18. The Commissioner and his assistants are hereby invested
with authority to enter upon any premises other than a building occupied
as a residence, at reasonable times and under reasonable circumstances
in company with the owner or agent of said owner, to examine all plants
and trees, soil, articles, substances which are suspected of being infested
or infected with dangerous pests in discharge of the duties prescribed
by this article. Provided further that whenever the Commissioner or his
agents intend to go upon any such premises for the purpose of eradicat-
ing or suppressing pests, or for the purposes of treating or destroying
plants or nursery stock because of disease or pest infestation, said Com-
missioner or his agents shall before entering upon any such premises,
give a written notice to the owner or occupant thereof at least twenty-four
hours prior to such entry, setting forth in detail the purpose or purposes
for which such entry shall be made. Any person who shall obstruct or
hinder them in the discharge of their duty shall be guilty of a misde-
meanor and shall be fined not less than $10.00 nor more than $100.00.

§ 3-178.19. Any person violating any of the provisions of this
article, or the rules and regulations adopted thereunder, shall be deemed
guilty of a misdemeanor and shall be fined not less than $10.00 nor more
than $100.00.

When the Commissioner shall find that any person has violated any
of the provisions of this article, he or his duly authorized agent or agents
may institute proceedings in a court of competent jurisdiction in the
county or city in which the violation occurred to have such person con-
victed therefor; or the Commissioner may file with the Commonwealth’s
attorney of such county or city with the view of prosecution such evidence
as may be deemed necessary; provided, however, that the defendant may
be given an opportunity to appear before the Commissioner or his duly
authorized agent to introduce evidence, either in person or by agent or
attorney, at a private hearing. If after such hearing, or without such hear-
ing, the Commissioner is of the opinion that the evidence warrants prose-
cution, he shall proceed as herein provided.

It shall be the duty of the Commonwealth’s attorney of the county
or city in which the violation occurred to institute proceedings at once
against the person charged with such violation.

§ 3-178.20. The Commissioner may enter into reciprocal agreements
with the responsible officers of other states under which nursery stock
owned by nurserymen or dealers of such states may be sold or delivered
in this State without the payment of a Virginia registration fee, provided
like privileges are accorded to Virginia nurserymen or dealers by such
other states.

_ § 3-178.21. If it should be determined that any conflict or ambiguity
exists as between any provision of this article and any provision of
Chapter 1.1 of Title 9 of this Code, effect shall be given to the provision
of Chapter 1.1 of Title 9.

§ 3-178.22. If any provision of this article is declared unconstitu-
tional, or the applicability thereof to any person or circumstance is held
invalid, the constitutionality of the remainder of the article and the
applicability thereof to other persons and circumstances shall not be
affected thereby.

§ 3-178.23. This article shall be known as the Plant Pest Act.

2. §§ 3-151 through 3-178, inclusive, as severally amended, of the Code of
Virginia, are repealed.

Nothing contained in this act shall be construed as applying to any
insect infestation and diseases of forest trees or to in any manner inter-
fere with or diminish the powers and duties placed in the Department of
Conservation and Economic Development under the provisions of Chapter
4, Title 10 of the Code of Virginia, 1950, as amended.