2006 Code of Virginia § 3.1-249.63 - Violations generally

3.1-249.63. Violations generally.

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

1. Any pesticide which is not registered pursuant to the provisions ofArticle 2 ( 3.1-249.35 et seq.) of this chapter, or any pesticide if any ofthe claims made for it or any of the directions for its use differ insubstance from the representations made in connection with its registration,or if the composition of a pesticide differs from its composition asrepresented in connection with its registration. In the discretion of theCommissioner, a change in the labeling or formula of a pesticide may be made,within a registration period, without requiring reregistration of theproduct; however, changes at no time are permissible if they lower theefficacy of the product.

2. Any pesticide sold, offered for sale, or offered for use which is not inthe registrant's or the manufacturer's unbroken container, and to which thereis not affixed a label visible to the public bearing the followinginformation:

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

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

c. The net weight or measure of the content, subject to such reasonablevariations as the Commissioner may permit.

3. Any pesticide which contains any substance or substances in quantitieshighly toxic to man, unless the label shall bear, in addition to any othermatter required by this chapter:

a. A skull and crossbones;

b. The word "poison" prominently, in red, on a background of distinctlycontrasting 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, sodiumfluoride, sodium fluosilicate, and barium fluosilicate unless they have beendistinctly colored or discolored as provided by regulations issued inaccordance with this chapter, or any other white powder pesticide which theCommissioner, after investigation of and after public hearing on thenecessity for such action for the protection of the public health and thefeasibility of such coloration or discoloration, shall, by regulation,require to be distinctly colored or discolored, unless it has been so coloredor discolored. The Commissioner may exempt any pesticide to the extent thatit is intended for a particular use or uses from the coloring or discoloringrequired or authorized by this subsection if he determines that such coloringor discoloring for such use or uses is not necessary for the protection ofthe public health.

5. Any pesticide which is adulterated or misbranded, or any device which ismisbranded.

6. Any pesticide that is the subject of a stop sale, use, or removal order asprovided for in 3.1-249.77 until such time as the provisions of thatsection have been met.

B. In addition to imposing civil penalties or referring certain violationsfor criminal prosecution the Board may, after providing an opportunity for ahearing, deny, suspend, modify, or revoke a license issued under this chapterif it finds that the applicant or licensee or his employee has committed anyof the following acts, each of which is declared to be a violation:

1. Made false or fraudulent claims through any media, misrepresenting theeffect of materials or methods to be utilized or sold;

2. Made a pesticide recommendation inconsistent with the label registeredpursuant to this chapter, provided that such deviation may include provisionsset forth in Section 2 (ee) of the Federal Insecticide, Fungicide, andRodenticide Act (7 U.S.C. 136 et seq.);

3. Was guilty of negligence, incompetence or misconduct in acting as apesticide business;

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

5. Failed or refused to submit records required by the Board;

6. Used fraud or misrepresentation, or presented false information in makingapplication for a license or renewal of a license, or in selling or offeringto sell pesticides;

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

8. Provided or made available any restricted use pesticide to any person notcertified, under the provisions of Article 3 ( 3.1-249.51 et seq.) of thischapter, to apply such product;

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

10. Acted in any way as a pesticide business in Virginia without firstobtaining the pesticide business license required in 3.1-249.46;

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

C. The Board may, after opportunity for a hearing, deny, suspend, revoke ormodify the provision of any certificate issued under Article 3 of thischapter, if it finds that the applicant or the holder of a certificate:

1. Has committed any of the following acts, each of which is declared to be aviolation of the provisions of Article 3 of this chapter:

a. Made claims through any media intentionally misrepresenting the effects onthe environment likely to result from the application of a pesticide;

b. Used or caused to be used any pesticide inconsistent with the labelregistered by the United States Environmental Protection Agency, a Virginiastate registered use or other uses restricted by the Board;

c. Made application of any pesticide in a negligent manner;

d. Neglected or, after notice, refused to comply with the provisions of thisarticle, the regulations adopted hereunder or of any lawful order of theCommissioner or the Board;

e. Refused or neglected (i) to keep and maintain records or reports requiredpursuant to the provisions of Article 3 of this chapter or regulations or(ii) to furnish or permit access for copying by the Commissioner any suchrecords or reports;

f. Made false or fraudulent records, invoices or reports relative to the useor application of any pesticide;

g. Used or caused to be used any pesticide classified for restricted use onany property unless by or under the direct supervision of a certifiedapplicator;

h. Used fraud or misrepresentation in making an application for a certificateor renewal of a certificate;

i. Refused or neglected to comply with any limitations or restrictions on orin a duly issued certification;

j. Aided, abetted, or conspired with any person to violate the provisions ofArticle 3 of this chapter, or permitted one's certification or registrationto be used by another person;

k. Impersonated any federal, state, county or city inspector or official; or

l . Made any statement, declaration or representation through any mediaimplying that any person certified or registered under the provisions ofArticle 3 of this chapter is recommended or endorsed by any agency of thisCommonwealth.

2. Has been convicted or is subject to a final order assessing a penaltypursuant to 14 (a) or (b) of the Federal Insecticide, Fungicide andRodenticide Act (7 U.S.C. 136 et seq.), as amended.

D. The Board shall suspend the license or certificate of a business or personif a civil penalty issued to the business or person is not paid within sixtydays of issuance unless the business or person challenges such civil penaltypursuant to subsection F of 3.1-249.70.

The Board, when deciding whether to deny, suspend, revoke, or modify anycertificate or license, shall give due consideration to (i) the history ofprevious violations of the licensee or person, (ii) the seriousness of theviolation including any irreparable harm to the environment and any hazardsto the health and safety of the public, and (iii) the demonstrated good faithof the licensee or person charged in attempting to achieve compliance withthe chapter after notification of the violation.

(Code 1950, 3-208.31; 1960, c. 535; 1966, c. 702; 1976, c. 627; 1981, c.260, 3.1-233; 1989, c. 575; 1993, c. 773.)