§ 3.1-249.63. (Repealed effective October 1, 2008) Violations generally
A. It shall be unlawful for any person to manufacture, distribute, sell or offer for sale, use or offer for use:
1. Any pesticide which is not registered pursuant to the provisions of Article 2 (§ 3.1-249.35 et seq.) of this chapter, 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 connection with its registration, or if the composition of a pesticide differs from its composition as represented in connection with its registration. In the discretion of the Commissioner, a change in the labeling or formula of a pesticide may be made, within a registration period, without requiring reregistration of the product; however, changes at no time are permissible if they lower the efficacy of the product.
2. Any pesticide sold, offered for sale, or offered for use which is not in the registrant's or the manufacturer's unbroken container, and to which there is not affixed a label visible to the public 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 such reasonable variations as the Commissioner may permit.
3. Any pesticide which contains any substance or substances in quantities highly toxic to man, unless the label shall bear, in addition to any other matter required by this chapter:
a. A skull and crossbones;
b. The word "poison" 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 or discolored as provided by regulations issued in accordance with this chapter, or any other white powder pesticide which the Commissioner, after investigation of and after public hearing on the necessity for such action for the protection of the public health and the feasibility of such coloration or discoloration, shall, by regulation, require to be distinctly colored or discolored, unless it has been so colored or discolored. The Commissioner may exempt any pesticide to the extent that it is intended for a particular use or uses from the coloring or discoloring required or authorized by this subsection if he determines that such coloring or discoloring for such use or uses is not necessary for the protection of the public health.
5. Any pesticide which is adulterated or misbranded, or any device which is misbranded.
6. Any pesticide that is the subject of a stop sale, use, or removal order as provided for in § 3.1-249.77 until such time as the provisions of that section have been met.
B. In addition to imposing civil penalties or referring certain violations for criminal prosecution the Board may, after providing an opportunity for a hearing, deny, suspend, modify, or revoke a license issued under this chapter if it finds that the applicant or licensee or his employee has committed any of the following acts, each of which is declared to be a violation:
1. Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized or sold;
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. Was guilty of negligence, incompetence or misconduct in acting as a pesticide 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 making application for a license or 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 adopted regulation;
8. Provided or made available any restricted use pesticide to any person not certified, under the provisions of Article 3 (§ 3.1-249.51 et seq.) of this chapter, to apply such product;
9. Failed to notify the Department of a reportable pesticide spill, accident or incident;
10. Acted in any way as a pesticide business in Virginia without first obtaining 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 or modify the provision of any certificate issued under Article 3 of this chapter, 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 a violation of the provisions of Article 3 of this chapter:
a. Made claims through any media intentionally misrepresenting the effects on the environment likely to result from the application of a pesticide;
b. Used or caused to be used any pesticide inconsistent with the label registered by the United States Environmental Protection Agency, a Virginia state 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 this article, the regulations adopted hereunder or of any lawful order of the Commissioner or the Board;
e. Refused or neglected (i) to keep and maintain records or reports required pursuant to the provisions of Article 3 of this chapter or regulations or (ii) to furnish or permit access for copying by the Commissioner any such records or reports;
f. Made false or fraudulent records, invoices or reports relative to the use or application of any pesticide;
g. Used or caused to be used any pesticide classified for restricted use on any property unless by or under the direct supervision of a certified applicator;
h. Used fraud or misrepresentation in making an application for a certificate or renewal of a certificate;
i. Refused or neglected to comply with any limitations or restrictions on or in a duly issued certification;
j. Aided, abetted, or conspired with any person to violate the provisions of Article 3 of this chapter, or permitted one's certification or registration to 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 media implying that any person certified or registered under the provisions of Article 3 of this chapter is recommended or endorsed by any agency of this Commonwealth.
2. Has 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.), as amended.
D. The Board shall suspend the license or certificate of a business or person if a civil penalty issued to the business or person is not paid within sixty days of issuance unless the business or person challenges such civil penalty pursuant to subsection F of § 3.1-249.70.
The Board, when deciding whether to deny, suspend, revoke, or modify any certificate or license, shall give due consideration to (i) the history of previous violations of the licensee or person, (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 of the licensee or person charged in attempting to achieve compliance with the 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.)
Sections: Previous 3.1-249.56 3.1-249.57 3.1-249.58 3.1-249.59 3.1-249.60 3.1-249.61 3.1-249.62 3.1-249.63 3.1-249.64 3.1-249.65 3.1-249.66 3.1-249.67 3.1-249.68 3.1-249.69 3.1-249.70 NextLast modified: April 16, 2009