35-1-101. Short title

This article shall be known and may be cited as the “State Department of Agriculture Act of 1949”.

History. Source: L. 49: P. 185, § 1. CSA: C. 5, § 13(3). CRS 53: § 6-1-1. C.R.S. 1963: § 6-1-1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Cross references: For creation of the department of agriculture and the transfer to that department of the state agricultural commission, the office of commissioner of agriculture, and other divisions, authorities, boards, or bureaus, under the “Administrative Organization Act of 1968”, see § 24-1-123.

35-1-102. Definitions

As used in this article, unless the context otherwise requires:

1. “Agriculture” means the science and art of production of plants and animals useful to man, including, to a variable extent, the preparation of these products for man’s use and their disposal by marketing or otherwise, and includes horticulture, floriculture, viticulture, forestry, dairy, livestock, poultry, bee, and any and all forms of farm products and farm production.

   (1.5) Repealed.

2. “Commission” means the state agricultural commission.
3. “Commissioner” means the commissioner of agriculture.
4. “Department” means the department of agriculture.
5. “Division” means a primary subdivision of the department whose administrative head is directly responsible to the head of the department.
6. “Livestock” means cattle, sheep, goats, swine, mules, poultry, horses, alternative livestock, as defined in section 35-41.5-102 (1), and such domesticated animals as fox, mink, marten, chinchilla, beaver, and rabbits, and all other animals raised or kept for profit.
7. “Section” means a subdivision of a division whose administrative head is directly responsible to the head of the division.

History. Source: L. 49: P. 185, § 2. CSA: C. 5, § 13(4). CRS 53: § 6-1-2. C.R.S. 1963: § 6-1-2. L. 94: (1.5) added and (6) amended, p. 1697, § 3, effective July 1. L. 99: (1.5) amended, p. 533, § 2, effective May 3.

Editor’s note: Subsection (1.5)(b) provided for the repeal of subsection (1.5), effective July 1, 2009. (See L. 99, p. 533 .)

35-1-103. Department of agriculture

There is hereby created a department of agriculture, referred to in this article as the “department”. When any law of this state refers to the state department of agriculture, said law shall be construed as referring to the department of agriculture.

History. Source: L. 49: P. 186, § 3. CSA: C. 5, § 13(5). CRS 53: § 6-1-3. C.R.S. 1963: § 6-1-3. L. 68: P. 127, § 135.

35-1-104. Functions, powers, and duties - rules

1. The department has and shall exercise the following functions, powers, and duties:
   1. To inquire into the needs of agriculture of the state and make appropriate recommendations to the governor and the general assembly, except as to functions specifically assigned under state law to other state agencies;
   2. To perform all regulatory and inspection services relating to agriculture, except agricultural education and research and those regulatory functions relating primarily to the control of milk or milk products or assigned by law to other state agencies;
   3. To make investigations, conduct hearings, and make recommendations concerning all matters as related to the powers, duties, and functions as provided in this article;
   4. To cooperate with the United States department of agriculture in getting and disseminating production statistics, market and trade information concerning demand, supply, prevailing prices, and commercial movements of agricultural products and extent of products in storage, and cooperate with any other state or federal agency which in any manner may be helpful to agriculture;
   5. To annually fix such inspection and license fees and service charges within maximum limits provided by law as may be necessary to pay the cost of service performed and reasonable reserves for contingencies, including cost of depository, accounting, disbursement, auditing, and rental of quarters and facilities furnished by the state;
   6. To foster and encourage the standardizing, grading, inspection, labeling, handling, storage, and marketing of agricultural products and, after investigation and public hearings thereon, acting in cooperation with the United States department of agriculture, to establish and promulgate standard grades and other standard classifications of and for agricultural products, except milk or milk products;
   7. To extend in every practicable way the distribution and sale of Colorado agricultural products throughout the markets of the world;
   8. To promote, in the interest of the producer, the distributor, and the consumer, the economical and efficient distribution of agricultural products of this state and to that end cooperate with the department of commerce of the United States and any other department or agency of the federal government;
   9. To promote, within existing appropriations, farmers’ markets located within the state, including support or development of farmers’ market organizations and working groups and the provision of education, outreach, and other assistance;
   10. To obtain and furnish information relating to the selection of shipping routes, adoption of shipping methods, or avoidance of delays in the transportation of agricultural products or helpful in the solution of other transportation problems connected with the distribution of agricultural products;
   11. To act as adviser to producers and distributors, when requested, and to assist them in the economical and efficient distribution of their agricultural product;
   12. To foster and encourage cooperation between producers and distributors in the interest of the general public;
   13. To act as a mediator or arbitrator in any controversy or issue that may arise between producers and distributors of any agricultural products concerning the grade or classification of such products;
   14. To determine for the protection of owners, buyers, creditors, or other interested parties the validity of warehouse receipts for any such products by verifying quantities, grade, and classification thereof;
   15. To enforce the state laws or regulations relating to fruit and vegetable inspection and grading; spray residue inspection and removal; the registration, inspection, and analysis of commercial feeding stuffs; the licensing of commission merchants, produce dealers, brokers, and agents handling agricultural products; the inspection and grading of poultry and eggs; the inspection of warehouses and frozen food locker plants; the inspection of commercial fertilizers; the control of plant and insect pests and diseases; the control and eradication of noxious and poisonous weeds; the inspection and sale of seeds; the control of contagious and infectious livestock diseases; and all other regulatory laws relating to agriculture;
   16. To inspect any nursery, orchard, farm garden, park, cemetery, greenhouse, or any private or public place which may become infested or infected with harmful insects, plant diseases, noxious or poisonous weeds, or other agricultural pests; to establish and enforce quarantines; to issue and enforce orders and regulations for the control and eradication of said pests, wherever they may exist within the state; to perform such other duties relating to plants and plant products as may seem advisable and not contrary to law; and to inspect apiaries for diseases inimical to bees and beekeeping and enforce the laws relating thereto;
   17. Repealed.
   18. Repealed.
   19. Repealed.
   20. Repealed.
   21. Repealed.
   22. To license and inspect locker plants and enforce standards of construction and operation;
   23. To offer and award suitable premiums on livestock at the national western stock show;
   24. To take charge of the exhibition of Colorado agricultural products at international or national expositions;
   25. To cooperate with the United States department of agriculture or any other federal agency in control and eradication activities and programs involving predatory animals and rodent pests, plant diseases and insect pests, and noxious and poisonous weeds and to cooperate in the enforcement of the provisions of the federal seed act governing the movement of seeds in interstate commerce;
   26. To serve as the state agency to carry out the policies and purposes of the “Colorado Agricultural Conservation and Adjustment Act” and to promote and administer state plans for the same;
   27. Repealed.
   28. On approval of the governor, to coordinate the management and operation of farms of state institutions and the exchange of agricultural products and equipment between state institutions;

       (aa.1) To promulgate rules to specify the varieties of rapeseed, also known as canola, produced in the state and the geographical locations where each variety may be produced or stored, to establish districts and require registration of fields producing rapeseed with the appropriate district, and to enforce the provisions of this paragraph (aa.1) by requiring a producer to take appropriate action necessary to prevent cross-pollination, establishing reasonable penalties or costs or both, and determining and collecting the actual costs to be recovered from the producers to offset the cash funds expended for services performed by the department in the administration of this paragraph (aa.1);

       (aa.2) To promulgate rules specifying the class of strawberries allowed for production of nursery stock in the state and the geographical locations where each class may be produced, establishing districts and requiring registration of fields producing strawberries with the appropriate district, and enforcing the provisions of this paragraph (aa.2) by requiring a producer to take appropriate actions necessary to prevent the introduction of diseases and pests, establishing reasonable penalties or costs or both, and determining and collecting the actual costs to be recovered from the producers to offset the cash funds expended for services performed by the department in the administration of this paragraph (aa.2);

       (aa.3) To identify agricultural management areas in the state and to develop best management practices pursuant to section 25-8-205.5 (3), C.R.S., and to assist the commissioner in the promulgation of any rules and regulations authorized pursuant to said section;

   29. Such other and additional functions, powers, and duties as may be provided by law;
   30. To solicit grants, donations, and gifts for the purpose of funding noxious weed management projects, as described in section 35-5.5-116. Such moneys shall be transferred to the state treasurer, who shall credit the same to the noxious weed management fund.
   31. For each division, section, program, or established funding source of the department, to solicit, receive, and spend grants, donations, and gifts. Such moneys shall be transmitted to the state treasurer, who shall credit the same to the particular cash fund or established funding source deemed most appropriate by the department.
   32. Repealed.
2. Whenever any law provides for issuance or renewal by the department of any license, permit, certificate, registration, or other form of authorization and such law provides for specific dates for the issuance, renewal, or expiration of the same, notwithstanding the provisions of any such laws, and in order to promote efficiency and avoid duplication of effort, the department may, by rule and regulation, establish dates for such issuance, renewal, or expiration different from those established by law; but in no case shall the department change the duration or period of time during which any license, permit, certificate, registration, or other form of authorization may be valid or effective as established by law, unless otherwise provided.
3. Whenever a specific law provides for the renewal by the department of any license previously issued and provides a license renewal fee to be paid by the applicant therefor, upon the issuance of any such renewal license after the applicable renewal date, the applicant shall pay in addition to the renewal fee a penalty in an amount equal to the said renewal fee, but not to exceed twenty-five dollars. The provisions of this subsection (3) shall not apply to articles 14 and 21 of this title 35, nor to any other specific law that provides for a penalty for the issuance of a license, permit, or registration after the applicable renewal date.
4. To the extent its costs are repaid by gifts, grants, or donations received pursuant to section 35-1-107 (6), and only to that extent, the department may provide educational programs and materials regarding any activity regulated under articles 12, 13, 14, 21, 33, 36, and 60 of this title 35.

History. Source: L. 49: P. 186, § 4. CSA: C. 5, § 13(6). CRS 53: § 6-1-4. C.R.S. 1963: § 6-1-4. L. 69: Pp. 107, 108, § § 1, 3. L. 73: P. 193, § 1. L. 82: (1)(z) repealed, p. 537, § 15, effective January 1, 1983. L. 85: (1)(b), (1)(f), and (1)(n) amended and (1)(p) to (1)(t) repealed, pp. 901, 902, § § 3, 4, effective April 5. L. 87: (1)(aa.1) added, p. 1276, § 1, effective May 28. L. 90: (1)(aa.3) added, p. 1334, § 5, effective July 1. L. 96: (1)(cc) added, p. 763, § 2, effective May 23. L. 2003: (4) added, p. 1723, § 1, effective May 14. L. 2004: (1)(aa.2) added, p. 1049, § 1, effective August 4. L. 2006: (1)(dd) added, p. 17, § 1, effective March 6. L. 2007: (1)(ee) added, p. 1228, § 2, effective August 3. L. 2012: (1)(h.5) added, (SB 12-048), ch. 16, p. 44, § 6, effective March 15. L. 2017: (1)(ee) repealed, (SB 17-294), ch. 264, p. 1414, § 106, effective May 25; (4) amended, (SB 17-225), ch. 262, p. 1246, § 7, effective August 9. L. 2018: (3) amended, (HB 18-1375), ch. 274, p. 1717, § 71, effective May 29. L. 2019: (1)(b) amended, (HB 19-1114), ch. 74, p. 270, § 1, effective August 2. L. 2020: (4) amended, (HB 20-1213), ch. 160, p. 754, § 7, effective June 29.

Cross references: (1) For rule-making and licensing procedures, see article 4 of title 24; for the “Colorado Agricultural Conservation and Adjustment Act”, see article 3 of this title; for the noxious weed management fund, see § 35-5.5-116.

(2) For the legislative declaration in the 2012 act adding subsection (1)(h.5), see section 1 of chapter 16, Session Laws of Colorado 2012.

35-1-104.5. Agricultural workforce development program - legislative declaration - creation - rules - repeal

1. The general assembly finds and declares that:
   1. Finding qualified and trained agricultural employees is a significant challenge for agricultural businesses. It is especially difficult to provide training and experience to young and beginning farmers and ranchers.
   2. The barriers to entry for young and beginning farmers and ranchers are significant. Among these barriers are access to training programs that provide real-world work experience.
   3. Internships are a recognized way to build a talent pipeline and career pathway to align education, training, and work-based learning; and
   4. By offering incentives to agricultural businesses to create internships, there will be more opportunities for students to obtain work experience in agriculture.
2. The commissioner shall promulgate rules by January 1, 2019, creating the agricultural workforce development program to provide incentives to agricultural businesses to hire interns through partial reimbursement of internship costs. The rules must specify, at a minimum:
   1. The criteria for selecting an agricultural business for participation in the program, including the ability of the business to effectively supervise an intern and the opportunity for an intern to get meaningful work experience;
   2. The criteria for an internship to qualify under the program, including the following:
      1. The internship must provide an intern at least one hundred thirty hours of work experience; and
      2. The internship cannot exceed six months in duration per intern;
   3. The criteria for an agricultural business to use in selecting qualified interns, including the required educational experience for an intern and the ability of the intern to perform meaningful work for the business;
   4. The process and timetable for selecting qualified businesses and qualified interns;
   5. The accounting requirements for tracking internship costs; and
   6. The process for a business to seek reimbursement.
3. Subject to appropriation, the department may reimburse a qualified business an amount not to exceed fifty percent of the actual cost to the business to employ the intern. Actual cost includes the wages paid to the intern, a reasonable allocation of fixed overhead expenses, and all incidental costs directly related to the internship. Based on the annual appropriation for the program, the commissioner shall determine how many internships may be approved, the amount of reimbursement per internship, and whether a business may be reimbursed for more than one intern in the same fiscal year. However, no business may be reimbursed for more than three internships in the same fiscal year.
4. This section is repealed, effective July 1, 2024.

History. Source: L. 2018: Entire section added, (SB 18-042), ch. 231, p. 1446, § 1, effective August 8.

35-1-105. State agricultural commission - creation - composition

1. 1. There is hereby created the state agricultural commission, referred to in this article as the “commission”, which shall consist of nine members, each of whom shall be appointed by the governor, with the consent of the senate, for terms of four years each. Of such members, one member shall be appointed from each of the four agricultural districts, as defined in paragraph (c) of this subsection (1), and five members shall be appointed from the state at large; except that no more than three members shall be appointed from any one agricultural district. No more than five of the nine members shall be members of the same political party.
   2. The members of the commission shall be appointed from persons who are currently or were previously actively engaged in the business of agriculture and allied activities, but a majority of the commission shall be appointed from persons actively engaged in the business of agriculture in such a manner that representation of no agricultural commodity organization shall constitute a majority of the commission. A vacancy on the commission shall be filled by the governor by the appointment of a qualified person.
   3. For the purposes of representation on the state agricultural commission, this state is divided into four agricultural districts as follows:
      1. The city and county of Denver and the counties of Adams, Arapahoe, Douglas, and Jefferson shall constitute the first district.
      2. The counties of Boulder, Cheyenne, Clear Creek, Elbert, Gilpin, Kit Carson, Larimer, Lincoln, Logan, Morgan, Phillips, Sedgwick, Washington, Weld, and Yuma shall constitute the second district.
      3. The counties of Alamosa, Baca, Bent, Conejos, Costilla, Crowley, Custer, El Paso, Fremont, Huerfano, Kiowa, Las Animas, Mineral, Otero, Prowers, Pueblo, Rio Grande, Saguache, and Teller shall constitute the third district.
      4. The counties of Archuleta, Chaffee, Delta, Dolores, Eagle, Garfield, Grand, Gunnison, Hinsdale, Jackson, Lake, La Plata, Mesa, Moffat, Montezuma, Montrose, Ouray, Park, Pitkin, Rio Blanco, Routt, San Juan, San Miguel, and Summit shall constitute the fourth district.
2. The commission shall elect from its members a chairman, vice-chairman, and such other commission officers as it shall determine. The commissioner of agriculture, in the discretion of the commission, may serve as secretary of the commission but shall not be eligible to appointment as a member. All commission officers shall hold their offices at the pleasure of the commission. Regular meetings of the commission shall be held not less than once every three months at such times as may be fixed by resolution of the commission. Special meetings may be called by the chairman, by the commissioner, or by a majority of members of the commission at any time on at least three days’ prior notice by mail or, in cases of emergency, on twenty-four hours’ notice by telephone or other telecommunications device. The commission shall adopt, and at any time may amend, bylaws in relation to its meetings and the transaction of its business. A majority shall constitute a quorum of the commission. Members shall serve without compensation but shall be reimbursed for their actual and necessary traveling and subsistence expenses when absent from their places of residence in attendance at meetings.

History. Source: L. 49: P. 190, § 5. CSA: C. 5, § 13(7). CRS 53: § 6-1-5. C.R.S. 1963: § 6-1-5. L. 65: P. 175, § 1. L. 68: P. 127, § 136. L. 83: (1)(c)(I) and (1)(c)(II) amended, p. 1310, § 1, effective May 26. L. 2008: (1)(a) and (1)(b) amended, p. 631, § 1, effective August 5. L. 2013: (2) amended, (HB 13-1300), ch. 316, p. 1696, § 105, effective August 7.

35-1-106. Powers and duties of commission

1. In addition to all other powers and duties conferred upon the commission by this article 1, the commission has the following specific powers and duties:
   1. To formulate the general policy with respect to the management of the department of agriculture and the general policy with respect to the enforcement of regulatory and service laws, rules, and regulations pertaining to agriculture;
   2. To make or cause to be made, within the limits of appropriations, such studies as it deems necessary to guide the commissioner concerning the agricultural policy of this state;
   3. To advise and make recommendations to the governor and the general assembly on matters pertaining to agriculture within this state;
   4. To require the preparation and transmittal by the commissioner of an annual departmental report and to establish publication policies for the department in accordance with the provisions of section 24-1-136, C.R.S.;
   5. To furnish the commissioner with advice on any agricultural or livestock problem with which he may be confronted;
   6. To promulgate and adopt all department of agriculture budgets for submission to the controller of this state in accordance with law and to approve and pass upon all annual budgets for expenditures of money from the various funds of the department and to review such budgets at each meeting of the commission;
   7. To approve prior to their release all rules and regulations issued by the commissioner and considered necessary and proper to carry out the provisions of this article;
   8. To hold hearings, administer oaths, subpoena witnesses, and take testimony in all matters relating to the exercise and performance of the powers and duties of the commission. Upon the failure or refusal of any witness to obey any subpoena, the commission may petition the district court, and, upon proper showing, the court may order a witness to appear and testify or produce documentary evidence. Failure to obey the order of the court shall be punishable as contempt of court.
   9. To establish and appoint, as it may deem necessary or advisable, such advisory committees from the groups affected to advise and confer with the commission or the commissioner concerning aspects of agricultural or livestock products, marketing, disease, or any other pertinent matter;
   10. If not already required by law, to require and fix the bonds of such employees of the department as may be deemed necessary;
   11. To avoid duplication of effort within the department and to clarify responsibilities under this title 35 (except part 2 of article 7 and articles 14, 42, 51, 65, 70, and 72) and article 24 of title 30; to enter into cooperative agreements with the state board of health, the board of governors of the Colorado state university system, or any other state board or commission that is authorized by law to perform like or similar duties to those delegated by law to this commission, wherein it shall be prescribed whether this commission, the state board of health, the board of governors of the Colorado state university system, or such other state board or commission shall perform and be responsible for the performance of the duties mentioned in the agreements, so that there is no duplication of effort as between this commission and the state board of health, the board of governors of the Colorado state university system, or any other state board or commission; and to enter into agreements with the state board of health, the board of governors of the Colorado state university system, or any other state board or commission relative to the cooperative use by this commission of any laboratories, equipment, or facilities owned or used by this commission or any other state board or commission;
   12. To employ any person, partnership, or corporation for services in carrying out the provisions of this title 35 (except part 2 of article 7 and articles 14, 42, 51, 65, 70, and 72) and article 24 of title 30, and not inconsistent with section 13 of article XII of the state constitution or to provide information, statistics, or data deemed beneficial by the commission to livestock and agriculture in the state of Colorado;
   13. The commission shall act only by resolution adopted at a duly called meeting of the commission, and no individual member of the commission shall exercise individually any administrative authority with respect to the department;
   14. To comply with the requirements of section 24-1-136.5, C.R.S., concerning the preparation of operational master plans, facilities master plans, and facilities program plans, as if the commission were the executive director of the department;
   15. To promulgate rules requiring the owners of alternative livestock, as defined in section 35-41.5-102 (1) , to obtain certification showing that the alternative livestock herd meets the requirements of a tuberculosis surveillance plan approved by the state veterinarian and meets regulations pertaining to the control of infectious diseases and parasites as determined by the department. This paragraph (o) shall not apply if the owner of the alternative livestock is a zoological park that is accredited by the American zoo and aquarium association; except that any intrastate transfer of alternative livestock by a zoological park that is accredited by the American zoo and aquarium association to any person or entity that is not accredited by the American zoo and aquarium association is subject to the rules of the commission adopted under this paragraph (o).
   16. 1. In consultation with interested industry groups, to fix, assess, and collect fees in amounts sufficient to recover the department’s direct and indirect costs incurred in carrying out and enforcing the provisions of articles 12, 13, 14, 33, 36, and 60 of this title 35, part 1 of article 21 of this title 35, and part 2 of article 43 of this title 35.
       2. Fees established pursuant to this paragraph (p) that exceed the amount of any corresponding fees that were in effect as of April 1, 2003, and any new or additional fees established after April 1, 2003, shall be reported, on or before December 1 of each year, to the agriculture, natural resources and energy committee of the senate and the agriculture, livestock, and natural resources committee of the house of representatives.
       3. (Deleted by amendment, L. 2007, p. 1902 , § 1, effective July 1, 2007.)
2. The parks and wildlife commission shall review the rules concerning alternative livestock proposed by the commission pursuant to paragraph (o) of subsection (1) of this section and shall make recommendations to the commission concerning such rules. The commission shall not adopt or implement rules concerning alternative livestock that impact native big game wildlife without the prior approval of the parks and wildlife commission. In addition, the parks and wildlife commission may propose rules to the commission designed to protect native big game wildlife.

History. Source: L. 49: P. 191, § 6. CSA: C. 5, § 13(8). CRS 53: § 6-1-6. L. 55: P. 132, § 1. C.R.S. 1963: § 6-1-6. L. 64: P. 122, § 21. L. 68: P. 127, § 137. L. 69: P. 108, § 3. L. 83: (1)(d) amended, p. 841, § 67, effective July 1. L. 94: (1)(n) added, p. 566, § 16, effective April 6; (1)(o) and (2) added, p. 1697, § § 4, 5, effective July 1. L. 95: (1)(o) amended, p. 18, § 2, effective March 9. L. 2002: (1)(k) amended, p. 1247, § 23, effective August 7. L. 2003: (1)(p) added, p. 1723, § 2, effective May 14. L. 2005: (1)(p)(III) amended, p. 1267, § 1, effective July 1. L. 2007: IP(1) and (1)(p)(III) amended, p. 1902, § 1, effective July 1. L. 2012: (2) amended, (HB 12-1317), ch. 248, p. 1235, § 92, effective June 4. L. 2017: IP(1), (1)(k), and (1)(l) amended, (SB 17-225), ch. 262, p. 1246, § 8, effective August 9. L. 2018: (1)(p)(I) amended, (HB 18-1375), ch. 274, p. 1718, § 72, effective May 29. L. 2020: (1)(p)(I) amended, (HB 20-1213), ch. 160, p. 754, § 8, effective June 29; (1)(p)(I) amended, (HB 20-1343), ch. 217, p. 1076, § 2, effective September 14.

Editor’s note: Amendments to subsection (1)(p)(I) by HB 20-1213 and HB 20-1343 were harmonized.

Cross references: For the state personnel system, see § 13 of article XII of the state constitution.

35-1-106.3. Plant health, pest control, and environmental protection cash fund - creation

1. There is hereby created in the state treasury the plant health, pest control, and environmental protection cash fund.
2. All revenues collected in pursuit of the department’s efforts in relation to plant health, pest control, and environmental protection shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund. The commission may establish a fee schedule to cover the direct and indirect costs of the collection and distribution of beneficial insects.
3. The plant health, pest control, and environmental protection cash fund consists of any fees, fines, or penalties collected pursuant to articles 4, 9, 10, 11, 11.5, 25, 26, 27, and 27.5 of this title 35; any fees, fines, or penalties collected pursuant to article 8 of title 25; any fees collected under article 12 of this title 35 for the purpose of funding state waters protection activities; and all revenues collected in pursuit of the department’s efforts to conduct biological pest control. The money in the fund is subject to annual appropriation by the general assembly for the direct and indirect costs of implementing, administering, and enforcing articles 4, 9, 10, 11, 11.5, 25, 26, 27, and 27.5 of this title 35 and of article 8 of title 25; except that any appropriation for the indirect costs of issuing chemigation permits pursuant to section 35-11-106 must not exceed the amount specified in section 35-11-106 (3)(b). Any money from the fund that is allocated for biological pest control must supplement any general fund money appropriated for that purpose.
4. All interest derived from the deposit and investment of moneys in the plant health, pest control, and environmental protection cash fund shall be credited to the fund. At the end of each fiscal year, all unexpended and unencumbered moneys in the fund shall remain in the fund and shall not be credited or transferred to the general fund or any other fund.
5. In accordance with section 24-75-402 (3)(c), C.R.S., the alternative maximum reserve for the plant health, pest control, and environmental protection cash fund is fifty percent of the amount expended from the fund during each fiscal year.

History. Source: L. 2009: Entire section added, (HB 09-1249), ch. 87, p. 314, § 1, effective July 1. L. 2015: (5) amended, (HB 15-1261), ch. 322, p. 1314, § 8, effective June 5. L. 2019: (3) amended, (SB 19-186), ch. 422, p. 3689, § 3, effective August 2.

35-1-106.5. Inspection and consumer services cash fund - creation

1. All fees, fines, and penalties collected under articles 12, 13, 14, 21, 33, 36, and 60 of this title 35 and part 2 of article 43 of this title 35, other than civil penalties collected under section 35-21-107.5, shall be transmitted to the state treasurer, who shall credit the same to the inspection and consumer services cash fund, which fund is hereby created in the state treasury. All interest derived from the deposit and investment of money in the fund shall be credited to the fund. At the end of any fiscal year, all unexpended and unencumbered money in the fund remains in the fund and shall not be credited or transferred to the general fund or any other fund or used for any purpose other than to offset the costs of implementing, administering, and enforcing the provisions of articles 12, 13, 14, 21, 33, 36, and 60 of this title 35 and part 2 of article 43 of this title 35. Money in the fund is subject to annual appropriation to the department for such purposes.
2. In accordance with section 24-75-402 (3)(c), C.R.S., the alternative maximum reserve for the inspection and consumer services cash fund is fifty percent of the amount expended from the fund during the fiscal year.
3. (Deleted by amendment, L. 2007, p. 1902 , § 2, effective July 1, 2007.)

History. Source: L. 2003: Entire section added, p. 1724, § 3, effective May 14. L. 2005: (1) and (3) amended, p. 1267, § 2, effective July 1. L. 2007: (1) and (3) amended, p. 1902, § 2, effective July 1. L. 2015: (2) amended, (HB 15-1261), ch. 322, p. 1315, § 9, effective June 5. L. 2017: (1) amended, (SB 17-225), ch. 262, p. 1247, § 9, effective August 9. L. 2018: (1) amended, (HB 18-1375), ch. 274, p. 1718, § 73, effective May 29. L. 2020: (1) amended, (HB 20-1211), ch. 159, p. 714, § 8, effective June 29; (1) amended, (HB 20-1213), ch. 160, p. 754, § 9, effective June 29.

Editor’s note: (1) Amendments to subsection (1) by HB 20-1211 and HB 20-1213 were harmonized.

(2) Section 9 of chapter 159 (HB 20-1211), Session Laws of Colorado 2020, provides that the act changing this section applies to offenses committed on or after June 29, 2020.

35-1-106.7. Conservation district grant fund - repeal

1. There is hereby created in the state treasury the conservation district grant fund. The fund shall consist of moneys transferred pursuant to section 39-29-109.3 (2)(b), C.R.S. Moneys in the fund are specifically and continuously appropriated to the department. The department shall grant moneys in the fund to conservation districts for the purpose of implementing and maintaining soil and water conservation efforts. All moneys credited to the fund and all interest earned on the investment of moneys in the fund shall be a part of the fund and shall not be transferred or credited to the general fund or to any other fund.

   (1.5) Repealed.

2. This section is repealed, effective December 31, 2022.

History. Source: L. 2006: Entire section added, p. 1649, § 2, effective June 5. L. 2007: (1) amended, p. 2047, § 90, effective June 1. L. 2008: (1) amended, p. 1872, § 11, effective June 2. L. 2011: (2) amended, (HB 11-1156), ch. 134, p. 471, § 1, effective May 4. L. 2018: (1.5) added, (HB 18-1338), ch. 201, p. 1309, § 7, effective May 4.

Editor’s note: Subsection (1.5)(b) provided for the repeal of subsection (1.5), effective August 1, 2018. (See L. 2018, p. 1309 .)

35-1-106.8. Biological pest control cash fund - transfer of moneys to plant health, pest control, and environmental protection cash fund

1. All revenues collected in pursuit of the department’s efforts to conduct its program of biological pest control shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the biological pest control cash fund, as that fund existed prior to July 1, 2009, shall be transferred to the plant health, pest control, and environmental protection cash fund.
2. (Deleted by amendment, L. 2009, (HB 09-1249), ch. 87, p. 315, § 2, effective July 1, 2009.)

History. Source: L. 2007: Entire section added, p. 919, § 1, effective May 17. L. 2009: Entire section amended, (HB 09-1249), ch. 87, p. 315, § 2, effective July 1.

35-1-106.9. Agriculture management fund - creation

There is hereby created in the state treasury the agriculture management fund. The fund shall consist of money transferred pursuant to section 38-13-801.5 (3), any money realized from the sale of the inspection and consumer services division facility and other real property associated with that facility that are all located in the Highlands neighborhood of Denver, Colorado, and any money realized from the sale of the warehouse and storage facility located at 5000 Packing House Road, Denver, Colorado. The department shall use such money to fund agricultural efforts approved by the commissioner, including, but not limited to, funding additional department employees necessary to implement and manage approved programs. Money may be used for direct assistance or grant assistance for conservation districts created pursuant to article 70 of this title 35. Money in the fund may be used for expenses related to the department’s office consolidation as authorized by House Bill 13-1234, enacted in 2013, and as authorized by House Bill 16-1460, enacted in 2016. Money in the fund is subject to annual appropriation to the department. Any money not expended or encumbered from any appropriation at the end of any fiscal year shall remain available for expenditure in the next fiscal year without further appropriation. All interest derived from the deposit and investment of money in the fund shall be credited to the fund and shall not be transferred or credited to the general fund or any other fund.

History. Source: L. 2008: Entire section added, p. 865, § 3, effective January 22, 2009. L. 2013: Entire section amended, (HB 13-1234), ch. 170, p. 616, § 3, effective May 10. L. 2016: Entire section amended, (HB 16-1460), ch. 320, p. 1299, § 3, effective June 10. L. 2019: Entire section amended, (SB 19-088), ch. 110, p. 468, § 14, effective July 1, 2020.

Cross references: For the legislative declaration in the 2013 act amending this section, see section 1 of chapter 170, Session Laws of Colorado 2013. For the legislative declaration in HB 16-1460, see section 1 of chapter 320, Session Laws of Colorado 2016.

35-1-107. Commissioner of agriculture - report - publications - deputy commissioner - rules

1. The commissioner of agriculture shall be the chief administrative officer of the department of agriculture and shall have direct control and management of its functions, subject only to the powers and duties of the commission as prescribed in this article. The commissioner shall be appointed by the governor, with the consent of the senate, and shall serve at the pleasure of the governor. The commissioner shall be allowed traveling and subsistence expenses actually and necessarily incurred in the performance of official duties. The commissioner shall maintain an office at the state capitol buildings group and shall be custodian of all property and records of the department.
2. The commissioner shall require of the head of each agency assigned to the department an annual report containing such information and submitted at such time as the commissioner shall decide.
3. The commissioner shall exercise control over publications of the department and subordinate units thereof and shall cause such publications as are approved for circulation in quantity outside the executive branch to be issued in accordance with the provisions of section 24-1-136, C.R.S.
4. The commissioner may appoint the deputy commissioner of agriculture, pursuant to section 13 of article XII of the state constitution. Subject to the supervision of the commissioner, the deputy commissioner shall have all the powers, duties, and responsibilities of the commissioner, as provided by law, and shall exercise such powers, duties, and responsibilities in the absence of the commissioner and when so instructed by the commissioner.
5. The commissioner is authorized to adopt all reasonable rules for the implementation of articles 12, 13, 14, 21, 33, 36, and 60 of this title 35 and part 2 of article 43 of this title 35. Such rules may include, but are not limited to:
   1. The establishment of classifications and subclassifications for any license authorized under said articles; and
   2. The establishment of any penalty fees that may be assessed for violations of said articles or of rules adopted under said articles or under this section.
6. The commissioner is authorized to accept gifts, grants, and donations of any kind from any private or public source and, upon receipt, shall transmit all such gifts, grants, or donations to the state treasurer, who shall credit the same to the inspection and consumer services cash fund created in section 35-1-106.5.
7. The commissioner is authorized to enter into cooperative agreements with any agency or political subdivision of this state or any other state, or with any agency of the United States government, for the purpose of carrying out the provisions of this article, receiving gifts, grants, or donations, securing uniformity of rules, and entering into reciprocal licensing agreements.
8. Repealed.

History. Source: L. 49: P. 192, § 7. CSA: C. 5, § 13(9). CRS 53: § 6-1-7. L. 55: P. 134, § 2. C.R.S. 1963: § 6-1-7. L. 64: P. 122, § 22. L. 69: P. 107, § 2. L. 71: P. 105, § 15. L. 77: (4) added, p. 1576, § 1, effective May 16. L. 83: (2) and (3) amended, p. 841, § 68, effective July 1. L. 96: (2) amended, p. 1218, § 10, effective August 7. L. 2003: (1) and (3) amended and (5), (6), and (7) added, p. 1724, § 4, effective May 14. L. 2005: (6) amended, p. 1268, § 3, effective July 1. L. 2007: (6) amended, p. 1903, § 3, effective July 1. L. 2009: (8) added, (SB 09-158), ch. 387, p. 2094, § 2, effective August 5. L. 2018: IP(5) amended, (HB 18-1375), ch. 274, p. 1718, § 74, effective May 29. L. 2020: IP(5) amended, (HB 20-1213), ch. 160, p. 755, § 10, effective June 29.

Editor’s note: Subsection (8)(b) provided for the repeal of subsection (8), effective February 1, 2010. (See L. 2009, p. 2094 .)

Cross references: For the legislative declaration contained in the 1996 act amending subsection (2), see section 1 of chapter 237, Session Laws of Colorado 1996.

35-1-108. Divisions created

There is hereby created in the department an administrative services division, a division of plant industry, a division of animal industry, a division of markets, and a division of inspection and consumer services.

History. Source: L. 49: P. 192, § 8. CSA: C. 5, § 13(10). CRS 53: § 6-1-8. C.R.S. 1963: § 6-1-8. L. 67: P. 528, § 1.

35-1-109. Employees interchangeable

It is the duty of the commissioner of agriculture in the administration of his department to so organize the same that all employees of the department, so far as possible, shall be interchangeable in work assignment to the end that they may be shifted within the department so as to meet seasonal and emergency demands upon any division or section of the department and the number of such help kept to a minimum possible for efficient operation.

History. Source: L. 49: P. 196, § 12. CSA: C. 5, § 13(14). CRS 53: § 6-1-9. C.R.S. 1963: § 6-1-9.

35-1-110. Legal adviser - legal actions

The attorney general shall be the legal adviser for the department of agriculture and shall defend it in all actions and proceedings brought against it. The district attorney of the judicial district in which a cause of action may arise shall bring any action, civil or criminal, requested by the commissioner to abate a condition which exists in violation of, or to restrain or enjoin any action which is in violation of, or to prosecute for the violation of or for the enforcement of, the agricultural laws or the standards, orders, rules, and regulations of the department established by or issued under the provisions of this article. If the district attorney fails to act, the commissioner may bring any such action and shall be represented by the attorney general or, with the approval of the commission, by special counsel.

History. Source: L. 49: P. 196, § 14. CSA: C. 5, § 13(16). CRS 53: § 6-1-11. C.R.S. 1963: § 6-1-11.

35-1-111. Records of receipts and expenditures - appropriations

1. The department shall maintain records, in the manner prescribed by the controller, on all receipts and expenditures made with respect to each service for which moneys are credited to the general fund under the provisions of articles 1 to 13, 26, and 27 of this title and article 24 of title 30, C.R.S.
2. The general assembly shall appropriate moneys from the general fund for the administration of the services rendered by the department for which moneys are credited to the general fund under the provisions of articles 1 to 13, 26, and 27 of this title and article 24 of title 30, C.R.S.

History. Source: L. 65: Pp. 196, 201, § § 7, 18, 21. C.R.S. 1963: § § 6-16-1, 7-17-1, 8-19-1.

35-1-112. Licensing functions subject to periodic review. (Repealed)

History. Source: L. 79: Entire section added, p. 1611, § 7, effective June 7. L. 81: (4) amended, p. 1704, § 1, effective June 5. L. 85: (4) amended, p. 1139, § 1, effective May 31. L. 88: (1), (2), and (4) amended, p. 932, § 22, effective April 28. L. 90: Entire section repealed, p. 1597, § 13, effective April 3.

35-1-113. Applications for licenses - authority to suspend licenses - rules

1. Every application by an individual for a license issued by the department or any authorized agent of the department shall require the applicant’s name, address, and social security number.
2. The department or any authorized agent of the department shall deny, suspend, or revoke any license pursuant to the provisions of section 26-13-126, C.R.S., and any rules promulgated in furtherance thereof, if the department or agent thereof receives a notice to deny, suspend, or revoke from the state child support enforcement agency because the licensee or applicant is out of compliance with a court or administrative order for current child support, child support debt, retroactive child support, child support arrearages, or child support when combined with maintenance or because the licensee or applicant has failed to comply with a properly issued subpoena or warrant relating to a paternity or child support proceeding. Any such denial, suspension, or revocation shall be in accordance with the procedures specified by rule of the department, rules promulgated by the state board of human services, and any memorandum of understanding entered into between the department or an authorized agent thereof and the state child support enforcement agency for the implementation of this section and section 26-13-126, C.R.S.
3. 1. The department shall enter into a memorandum of understanding with the state child support enforcement agency, which memorandum shall identify the relative responsibilities of the department and the state child support enforcement agency in the department of human services with respect to the implementation of this section and section 26-13-126, C.R.S.
   2. The appropriate rule-making body of the department is authorized to promulgate rules to implement the provisions of this section.
4. For purposes of this section, “license” means any recognition, authority, or permission that the department or any authorized agent of the department is authorized by law to issue for an individual to practice a profession or occupation or for an individual to participate in any recreational activity. “License” may include, but is not necessarily limited to, any license, certificate, certification, letter of authorization, or registration issued for an individual to practice a profession or occupation or for an individual to participate in any recreational activity.

History. Source: L. 97: Entire section added, p. 1309, § 45, effective July 1.

Cross references: For the legislative declaration contained in the 1997 act enacting this section, see section 1 of chapter 236, Session Laws of Colorado 1997.

35-1.5-101. Scope of article

1. Nothing in this article shall be construed to limit the authority of a local government to:
   1. Zone for the sale or storage of any agricultural chemical, provide or designate sites for disposal of any agricultural chemical or container, regulate the discharge of any agricultural chemical into sanitary sewer systems, adopt regulations pursuant to a storm water management program that is consistent with federal or state regulation, adopt or enforce building and fire code requirements, or to protect surface or groundwater drinking water supplies in accordance with current state or federal applicable law;
   2. Comply with any federal or state law or regulation or take any action otherwise prohibited by this article in order to comply with any federal or state requirement or avoid a fine or other penalty under federal or state law;
   3. Implement a cooperative agreement with any federal or state agency;
   4. Regulate the use of agricultural chemicals on property in which the local government has a fee simple absolute ownership interest;
   5. Issue local occupational licenses.
2. The lack of a provision in this article explicitly preempting local government regulation of any particular agricultural chemical not listed in section 35-1.5-102 (2) shall not be construed as an implicit grant of authority to a local government pursuant to this article to regulate on that subject.

History. Source: L. 94: Entire article added, p. 923, § 1, effective April 28.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-1.5-102. Definitions

As used in this article, unless the context otherwise requires:

1. “Adjuvant” means a material added to an agrichemical solution to improve performance.
2. “Agricultural chemical” means any device, plant nutrient, animal nutrient, or adjuvant and any treated, altered, or engineered plant or animal material.
3. “Animal nutrient” means any feed subject to article 60 of this title and any material for the maintenance, growth, or production of animals.
4. “Device” means a device as defined in section 35-9-103 (5).
5. “Local government” means a county, home rule county, city and county, city, home rule city, special district, or other political subdivision of the state.
6. “Plant nutrient” means:
   1. (Deleted by amendment, L. 2008, p. 1625 , § 2, effective August 5, 2008.)
   2. A plant amendment as defined in section 35-12-103 (24);
   3. A plant nutrient as defined in section 35-12-103 (25);
   4. A soil conditioner as defined in section 35-12-103 (29);
   5. Anhydrous ammonia as defined in section 35-13-102 (1) ;
   6. A commercial fertilizer as defined in section 35-12-103 (3) ;
   7. Treated or untreated manure;
   8. Water runoff from a confined animal feeding operation that is captured and then applied to a field; and
   9. A plant growth regulator.
7. “Use” means all aspects of the handling of agricultural chemicals, including, without limitation, the mixing, loading, application or administration, spill control, and disposal of an agricultural chemical or its container.

History. Source: L. 94: Entire article added, p. 923, § 1, effective April 28. L. 2008: (6)(a) to (6)(d) and (6)(f) amended, p. 1625, § 2, effective August 5.

35-1.5-103. Preemption

1. No local government shall adopt or continue in effect any ordinance, rule, charter provision, or statute regarding the use of any agricultural chemical and pertaining to:
   1. The name of the product, name and address of the manufacturer, and applicable registration numbers;
   2. Directions for use, use classification (general or restricted), mixing and loading, site of application, target pest, dosage rate, method of application, application equipment, frequency and timing of applications, application rate, reentry intervals, worker protection standards, application and storage container specifications, storage and disposal of the agricultural chemical or container, or limitations to prevent unreasonable adverse effects such as required intervals between application and harvest of food or feed crops, rotational crop restrictions, warnings against use on certain crops, animals, objects, or in or adjacent to certain areas;
   3. Warnings and precautionary statements, hazards to humans, children, domestic animals, or the environment, physical or chemical hazards, or statements of practical treatment; or
   4. Record-keeping requirements.

History. Source: L. 94: Entire article added, p. 923, § 1, effective April 28.

35-2-101. Information furnished - by whom

The commissioner of agriculture, acting under the direction of the state agricultural commission in the collection of information necessary to the performance of his or her duties as such commissioner and subject to the provisions of section 24-1-136, C.R.S., in regard to publication of such information, is authorized to call upon the several state, county, city, town, and school district officers and officers of the several state institutions of education and penal and other state institutions, and it is the duty of all such officers to furnish, upon written or printed request of the commissioner, such information as may be required for properly setting forth the resources of the state and their development, upon blanks furnished by the commissioner. Each owner, operator, or manager of any manufacturing, mining, or other business establishment operating in this state, or other person having information necessary for carrying out the purposes of this article, upon the request of the commissioner, shall furnish the same upon blanks supplied by the commission. Except as otherwise provided by law, any agricultural statistics collected by any of the several state, county, city, town, school district, or institutional officers specified in this section shall be collected in accordance with the requirements of this article.

History. Source: L. 19: P. 632, § 1. C.L. § 436. CSA: C. 84, § 8. CRS 53: § 6-2-1. C.R.S. 1963: § 6-2-1. L. 64: P. 123, § 23. L. 83: Entire section amended, p. 842, § 69, effective July 1. L. 2002: Entire section amended, p. 1860, § 161, effective July 1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-2-102. Statistical reports

It is the duty of the assessor of each county in this state, at the time of making the annual assessment of property, to collect such statistics in relation to population, farm operations, the principal farm products, agricultural resources, and livestock of the county as may be required by the commissioner of agriculture, and it is the duty of all persons within this state having information relative to such matters to give such information to the assessor upon his request therefor. The original sheets on which such statistics are collected shall be forwarded to the commissioner of agriculture as soon as they are completed, but not later than June 1 of each year, immediately following their collection. From these original sheets there shall be compiled in the office of the state agricultural commission complete reports on all subjects covered for each county in the state. The blanks to be used by county assessors in the collection of statistics required by the state agricultural commission shall be supplied by the commission, and the form thereof shall be fixed by the commissioner of agriculture, after conference with a representative of Colorado state university and with the bureau of crop estimates of the United States department of agriculture through the official representative for Colorado. This report shall be issued subject to the provisions of section 24-1-136, C.R.S.

History. Source: L. 19: P. 633, § 2. C.L. § 437. CSA: C. 84, § 9. CRS 53: § 6-2-2. C.R.S. 1963: § 6-2-2. L. 64: P. 124, § 24. L. 83: Entire section amended, p. 842, § 70, effective July 1.

35-2-103. Cooperation with secretary of agriculture

To facilitate the work of collecting agricultural and livestock statistics required by this article, the commissioner of agriculture is empowered to enter into a cooperative agreement with the secretary of agriculture of the United States, or his accredited representatives, under which the facilities and information of the bureau of crop estimates of the United States department of agriculture relating to the state of Colorado are made available for the use of the state agricultural commission, and the facilities and information of said state agricultural commission are likewise made available for the use of said bureau of crop estimates.

History. Source: L. 19: P. 634, § 4. C.L. § 439. CSA: C. 84, § 11. CRS 53: § 6-2-3. C.R.S. 1963: § 6-2-3.

35-2-104. Failure to give information to commission - penalty

Any person having in his possession information necessary to carrying out the purposes of this article, who fails or refuses to furnish such information to the state agricultural commission upon proper request by the commissioner of agriculture, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than ten dollars nor more than five hundred dollars and costs of prosecution. Any county or state official who fails or refuses to collect or compile for the state agricultural commission such information as he is required by this article to collect and compile, when properly requested by the commissioner of agriculture so to do, and who is supplied with proper blanks for collecting and compiling the same, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than twenty dollars nor more than five hundred dollars and costs of prosecution.

History. Source: L. 19: P. 634, § 6. C.L. § 441. CSA: C. 84, § 13. CRS 53: § 6-2-4. C.R.S. 1963: § 6-2-4.

35-2-105. Failure to give information to assessor - penalty

Any person who is required by this article to give information to the county assessor concerning farm operations, crop production, agricultural resources, livestock, or other matters covered by this article, and who, upon proper request being made, fails, refuses, or neglects to do so, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than twenty-five dollars nor more than two hundred dollars and shall pay all costs of the prosecution. All fines and penalties collected under the provisions of this article shall be paid into the school funds of the county in which such conviction is had.

History. Source: L. 19: P. 634, § 7. C.L. § 442. CSA: C. 84, § 14. CRS 53: § 6-2-5. C.R.S. 1963: § 6-2-5.

35-2-106. Reports confidential

The reports made to the commissioner of agriculture by individuals, firms, or corporations, or to any of the several state, county, city, town, school district, or institutional officers specified in section 35-2-101, shall be regarded as confidential and not for the purpose of disclosing personal or corporate affairs. In the reports of the commissioner, no use shall be made of the names of individuals, firms, or corporations supplying the information called for in this article. Any officer or employee of the state agricultural commission disclosing such information is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars and costs of prosecution or by imprisonment in the county jail for a period of not more than one year.

History. Source: L. 19: P. 635, § 8. C.L. § 443. CSA: C. 84, § 15. CRS 53: § 6-2-6. C.R.S. 1963: § 6-2-6. L. 2002: Entire section amended, p. 1860, § 162, effective July 1.

35-2-107. Contracts to remain in force

All existing contracts and obligations of the state agricultural commission shall remain in full force and effect and shall be performed by the state agricultural commission, and particularly that certain contract entered into on April 30, 1919, by and between the state of Colorado, by its commissioner of agriculture, and the United States, by the acting secretary of agriculture of the United States, for the establishment and maintenance of a cooperative crop and livestock reporting service.

History. Source: L. 35: P. 1080, § 10. CSA: C. 157, § 10. CRS 53: § 6-2-7. C.R.S. 1963: § 6-2-7.

35-2-108. Study of potential applications for blockchain technology in agricultural operations - authority of commissioner - report to general assembly - notice to revisor of statutes - repeal. (Repealed)

History. Source: L. 2019: Entire section added, (HB 19-1247), ch. 375, p. 3399, § 1, effective August 2.

Editor’s note: (1) The notice referred to in subsection (4)(b) was received on January 13, 2020.

(2) Subsection (5) provided for the repeal of this section, effective July 1, 2020. (See L. 2019, p. 3399 .)

35-3-101. Short title

This article shall be known and may be cited as the “Colorado Agricultural Conservation and Adjustment Act”.

History. Source: L. 37: P. 257, § 1. CSA: C. 5, § 61. CRS 53: § 6-3-1. C.R.S. 1963: § 6-3-1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-3-102. Legislative declaration

1. It is recognized and declared:
   1. That the soil resources and fertility of the land of this state, and the economic use thereof, the prosperity of the farming population of this state, and the waters of the rivers of this state, and the prevention of floods are matters affected with a public interest;
   2. That the welfare of this state has been impaired and is in danger of being further impaired by destruction of its soil fertility, by uneconomic use and waste of its land, by exploitation and wasteful and unscientific use of its soil resources, by floods and impairment of its rivers as a result of soil erosion, and by the decrease in the purchasing power of the net income per person on farms in the state as compared with the net income per person in the state not on farms;
   3. That said evils have been augmented and are likely to be augmented by similar conditions in other states and are so interrelated with such conditions in other states that the remedying of such conditions in this state requires action by this state in cooperation with the governments and agencies of other states and of the United States and requires assistance therein by the government and agencies of the United States;
   4. That the formulation and effectuation by this state of state plans, in conformity with the provisions of section 7 of the “Soil Conservation and Domestic Allotment Act”, is calculated to remedy said conditions and will tend to advance the public welfare of this state.
2. In order to promote the welfare of the people of this state by aiding in the preservation and improvement of soil fertility, in the promotion of the economic use and conservation of land, in the diminution of exploitation and wasteful and unscientific use of soil resources, in the protection of rivers against the results of soil erosion, and in the reestablishment, at as rapid a rate as is practicable and in the general public interest, of the ratio between the purchasing power of the net income per person on farms and that of the net income per person not on farms that prevailed during the five-year period, August 1909 to July 1914, inclusive, as determined from statistics available in the United States department of agriculture, and the maintenance of such ratio, the state of Colorado assents to and accepts the provisions of the “Soil Conservation and Domestic Allotment Act” and adopts the policy and purpose of cooperating with the government and agencies of other states and of the United States in the accomplishment of the policy and purposes specified in section 7 of said act, subject to the following limitations:
   1. The powers conferred in this article shall be used to assist voluntary action calculated to effectuate such purposes.
   2. Such powers shall not be used to discourage the production of supplies of foods and fibers in this state sufficient when taken together with the production thereof in other states of the United States to maintain normal domestic human consumption as determined by the secretary of agriculture of the United States from the records of consumption in the years 1920 to 1929, inclusive, taking into consideration increased population, quantities of any commodities that were forced into domestic consumption by a decline in exports of particular commodities, and the quantities of substitutes available for domestic consumption within any general class of food commodities.
   3. In carrying out the purposes specified in this section due regard shall be given to the maintenance of a continuous and stable national supply of agricultural commodities adequate to meet consumer demand at prices fair to both producers and consumers.

History. Source: L. 37: P. 257, § 2. CSA: C. 5, § 62. CRS 53: § 6-3-2. C.R.S. 1963: § 6-3-2.

Cross references: For section 7 of the “Soil Conservation and Domestic Allotment Act”, see 16 U.S.C. § 590g.

35-3-103. Definitions

As used in this article, unless the context otherwise requires:

1. “Other states of the United States” includes Puerto Rico.
2. “Person” includes an individual, corporation, partnership, firm, business trust, joint stock company, association, syndicate, group, pool, joint venture, and any other unincorporated association or group.

History. Source: L. 37: P. 259, § 3. CSA: C. 5, § 63. CRS 53: § 6-3-3. C.R.S. 1963: § 6-3-3.

35-3-104. Designation of state agency

1. The department of agriculture, referred to in this article as the “department”, is designated and authorized as the state agency to carry out the policy and purposes of this article and to formulate and administer state plans pursuant to the terms of this article.
2. The department shall perform its duties and functions as such agency under this article separately and distinctly from the performance of its duties and functions under any other law or in any other capacity; except that the department may utilize the services and the assistance of its personnel and facilities normally used in the performance of such other functions if it finds that the utilization of such services and assistance is necessary to, or is calculated to assist substantially in, the effective administration of this article and that such facilities may be utilized without interference with the effective performance of such other duties and functions.

History. Source: L. 37: P. 259, § 4. CSA: C. 5, § 64. CRS 53: § 6-3-4. C.R.S. 1963: § 6-3-4.

35-3-105. Administration of state plans

1. The department is authorized to formulate for each calendar year and to submit to the secretary of agriculture of the United States, for and in the name of this state, a state plan for carrying out the purposes of this article during such calendar year.
2. The department is authorized to modify or revise any such plan in whatever manner, consistent with the terms of this article, it finds necessary to provide for more substantial furtherance of the accomplishment of the purposes of this article.
3. Each such plan shall provide for such participation in its administration, by voluntary county and community committees or associations of agricultural producers organized for such purposes, as the department determines to be necessary or proper for the effective administration of the plan.
4. Each such plan shall provide, through agreements with agricultural producers or through other voluntary methods, for such adjustments in the utilization of land, in farming practices, and in the acreage or in the production for market, or both, of agricultural commodities, as the department determines to be calculated to effectuate as substantial an accomplishment of the purposes of this article as may reasonably be achieved through action of this state, and for payments to agricultural producers in connection with such agreements or methods in such amounts as the department determines to be fair and reasonable and calculated to promote such accomplishment of the purposes of this article without depriving such producers of a voluntary and uncoerced choice of action.
5. Any such plan shall provide for such educational programs as the department determines to be necessary or proper to promote the more substantial accomplishment of the purposes of this article.
6. Each such plan shall contain an estimate of expenditures necessary to carry out such plan, together with a statement of such amount as the department determines to be necessary to be paid by the secretary of agriculture of the United States as a grant to aid of such plan under section 7 of the “Soil Conservation and Domestic Allotment Act”, in order to provide for the effective carrying out of such plan, and shall designate the amount and due date of each installment of such grant, the period to which such installment relates, and the amount determined by the department to be necessary for carrying out such plan during such period.
7. The department shall provide for such investigations as it finds to be necessary for the formulation and administration of such plans.

History. Source: L. 37: P. 260, § 5. CSA: C. 5, § 65. CRS 53: § 6-3-5. C.R.S. 1963: § 6-3-5.

Cross references: For section 7 of the “Soil Conservation and Domestic Allotment Act”, see 16 U.S.C. § 590g.

35-3-106. Administration of funds

1. The department is authorized to receive on behalf of this state all grants of money or other aid made available from any source to assist the state in carrying out the policy and purposes of this article. All such money or other aid, together with any moneys appropriated or other provision made by this state for such purpose, shall be forthwith available to said department as the agency of the state subject, in the case of any funds or other aid received upon conditions, to the conditions upon which such funds or other aid has been received, for the purpose of administering this article and may be expended by the department in carrying out such state plans or in otherwise effectuating the purposes and policies of this article, but shall not be expended or disposed of for any other purposes, nor shall any funds made available to the department for purposes other than the administration of this article be expended or otherwise disposed of in connection with the administration of this article except in providing services and assistance in the administration of this article pursuant to the provisions of section 35-3-104 and in such case only to the extent that such funds are properly available for such purpose and subject in such cases to reimbursement of the funds so expended pursuant to the provisions of section 35-3-107.
2. Subject to any conditions upon which any such money or other aid is made available to the state and to the terms of any applicable plan made effective pursuant to this article, such expenditures may include, but need not be limited to, expenditures for administrative expenses, equipment, cost of research and investigation, cost of educational activities, compensation and expenses of members of the state advisory committee, reimbursement to other state agencies or to voluntary committees or associations of agricultural producers for costs to such agencies, committees, or associations of assistance in the administration of this article, requested in writing by the department and rendered to the department, reimbursement of any other fund from which it has made expenditures in providing services in the administration of this article pursuant to the provisions of section 35-3-104, payments to agricultural producers provided for in any plan made effective pursuant to this article, salaries of employees, and all other expenditures requisite to carrying out the provisions and purposes of this article.
3. The department shall provide for the keeping of full and accurate accounts as such state agency, separate from its accounts kept in its other capacities, showing all receipts and expenditures of moneys, securities, or other property received, held, or expended under the provisions of this article and shall provide for the auditing of all such accounts and for the execution of surety bonds for all employees entrusted with moneys or securities under the provisions of this article.

History. Source: L. 37: P. 262, § 6. CSA: C. 5, § 66. CRS 53: § 6-3-6. C.R.S. 1963: § 6-3-6.

35-3-107. Powers and duties of state agency

1. The department shall utilize such available services and assistance of other state agencies and of voluntary county and community committees and associations of agricultural producers as it determines to be necessary or calculated to assist substantially in the effective administration of this article.
2. The department has authority to make such rules and regulations, consistent with the provisions of this article, and to do any and all other acts consistent with the provisions of this article, which it finds to be necessary or proper for the effective administration of this article.
3. The department has the authority to obtain, by lease or purchase, such equipment, office accommodations, facilities, services, and supplies, and to employ, pursuant to section 13 of article XII of the state constitution, such technical or legal experts or assistants and such other employees, including clerical and stenographic help, as it determines to be necessary or proper to carry out the provisions of this article, and to determine the qualifications, duties, and compensation of such experts, assistants, and other employees.
4. All other agencies of this state are authorized to assist said department in carrying out the provisions of this article, upon written request of the department, in any manner determined by the department to be necessary or appropriate for the effective administration of this article.

History. Source: L. 37: P. 263, § 7. CSA: C. 5, § 67. CRS 53: § 6-3-7. C.R.S. 1963: § 6-3-7.

Cross references: For rule-making procedures, see article 4 of title 24; for the state personnel system, see § 13 of article XII of the state constitution.

35-3-108. Districts and communities

1. The department shall designate within the state five agricultural districts. As far as practicable, such districts shall be so constituted as to contain approximately equal numbers of agricultural producers. Such districts shall include in the aggregate all of the land in the state.
2. The department shall also designate within each county of this state such geographic units, which shall be called communities, as it determines to be the most convenient for the administration of this article and of state plans adopted pursuant to this article, and it shall establish the boundaries of such communities.
3. The department may revise the boundaries of such agricultural districts and of such communities, in conformity with the respective standards prescribed in this article, at such times as it finds that such revision is necessary either to cause such districts or communities, or both, to conform to said standards or to provide for the more substantial or more efficient accomplishment of the purposes of this article.

History. Source: L. 37: P. 264, § 8. CSA: C. 5, § 68. CRS 53: § 6-3-8. C.R.S. 1963: § 6-3-8.

35-3-109. Community and county committees

1. The department by regulations shall provide:
   1. For the organization within each community of a voluntary association, in which all agricultural producers who are citizens of this state and residents in such community shall be entitled to equal participation; for the selection by each such association of a community committee, composed of three members of such association; and for the selection of a chairman of each such community committee;
   2. For the selection by the members of such community committees within each county of a county committee for such county, composed of three members of such community committees, and for the selection of a chairman of each such county committee.

History. Source: L. 37: P. 265, § 9. CSA: C. 5, § 69. CRS 53: § 6-3-9. C.R.S. 1963: § 6-3-9.

35-3-110. State advisory committee - sunset review. (Repealed)

History. Source: L. 37: P. 266, § 10. CSA: C. 5, § 70. CRS 53: § 6-3-10. C.R.S. 1963: § 6-3-10. L. 86: (4) added, p. 425, § 57, effective March 26. L. 91: Entire section repealed, p. 885, § 9, effective June 5.

35-3-111. Reports - publications

The administrative officer within the department charged with administration of this article shall report to the commissioner at such times and on such matters as the commissioner may require. Publications made pursuant to this article and circulated in quantity outside the department are subject to the approval and control of the commissioner.

History. Source: L. 37: P. 266, § 11. CSA: C. 5, § 71. CRS 53: § 6-3-11. C.R.S. 1963: § 6-3-11. L. 64: P. 124, § 25.

35-3.5-101. Legislative declaration

It is the declared policy of the state of Colorado to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The general assembly recognizes that, when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, a number of agricultural operations are forced to cease operations, and many others are discouraged from making investments in farm improvements. It is the purpose of this article to reduce the loss to the state of Colorado of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance. It is further recognized that units of local government may adopt ordinances or pass resolutions that provide additional protection for agricultural operations consistent with the interests of the affected agricultural community, without diminishing the rights of any real property interests.

History. Source: L. 81: Entire article added, p. 1694, § 1, effective July 1. L. 96: Entire section amended, p. 675, § 1, effective May 2.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-3.5-102. Agricultural operation deemed not nuisance - state agricultural commission - attorney fees - exceptions

1. 1. Except as provided in this section, an agricultural operation shall not be found to be a public or private nuisance if the agricultural operation alleged to be a nuisance employs methods or practices that are commonly or reasonably associated with agricultural production.
   2. An agricultural operation that employs methods or practices that are commonly or reasonably associated with agricultural production shall not be found to be a public or private nuisance as a result of any of the following activities or conditions:
      1. Change in ownership;
      2. Nonpermanent cessation or interruption of farming;
      3. Participation in any government sponsored agricultural program;
      4. Employment of new technology; or
      5. Change in the type of agricultural product produced.
2. 1. Notwithstanding any other provision of this section to the contrary, an agricultural operation shall not be found to be a public or private nuisance if such agricultural operation:
      1. Was established prior to the commencement of the use of the area surrounding such agricultural operation for nonagricultural activities;
      2. Employs methods or practices that are commonly or reasonably associated with agricultural production; and
      3. Is not operating negligently.
   2. Employment of methods or practices that are commonly or reasonably associated with agricultural production shall create a rebuttable presumption that an agricultural operation is not operating negligently.
3. The court may, pursuant to sections 13-16-122 and 13-17-102, C.R.S., award expert fees, reasonable court costs, and reasonable attorney fees to the prevailing party in any action brought to assert that an agricultural operation is a private or public nuisance. Nothing in this section shall be construed as restricting, superseding, abrogating, or contravening in any way the provisions of sections 25-7-138 (5), C.R.S., and 25-8-501.1 (8), C.R.S.
4. As used in this article, “agricultural operation” has the same meaning as “agriculture”, as defined in section 35-1-102 (1).
5. Any ordinance or resolution of any unit of local government that makes the operation of any agricultural operation a nuisance or provides for the abatement thereof as a nuisance under the circumstances set forth in this section is void; except that the provisions of this subsection (5) shall not apply when an agricultural operation is located within the corporate limits of any city or town on July 1, 1981, or is located on a property that the landowner voluntarily annexes to a municipality on or after July 1, 1981.
6. This section shall not invalidate any contracts made prior to September 1, 2000, but shall be applicable only to contracts and agreements made on or after September 1, 2000.
7. A local government may adopt an ordinance or pass a resolution that provides additional protection for agricultural operations; except that no such ordinance or resolution shall prevent an owner from selling his or her land or prevent or hinder the owner in seeking approval to put the land into alternative use.

History. Source: L. 81: Entire article added, p. 1694, § 1, effective July 1. L. 96: (5) added, p. 675, § 2, effective May 2. L. 99: (1) amended, p. 335, § 1, effective July 1. L. 2000: Entire section amended, p. 198, § 1, effective September 1.

35-3.5-103. Severability

If any provision of this article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.

History. Source: L. 81: Entire article added, p. 1695, § 1, effective July 1.

35-4-101. Short title

This article shall be known and may be cited as the “Pest Control Act”.

History. Source: L. 37: P. 643, § 2. CSA: C. 80, § 44. CRS 53: § 6-10-1. C.R.S. 1963: § 6-10-1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-4-101.5. Legislative declaration

The general assembly hereby finds and declares that there is a need to prevent the introduction into Colorado and the dissemination within this state of plant pests through the movement of plant products and other plant material. This act provides for the regulation of the movement of plant products, materials, and pests in Colorado and establishes provisions under which such plant products and materials may legally enter or leave the state. This act also provides for the establishment of interstate and intrastate quarantines to restrict the movement of plant products, materials, and pests. To this end, the commissioner of agriculture is hereby directed and authorized to control and prevent, by such means as shall be prescribed and provided by law, rule, or order of the commissioner, all contagious, infectious, and plant pests destructive to the state’s agricultural, forestry, or horticultural interests or to the state’s general environmental quality.

History. Source: L. 2007: Entire section added, p. 925, § 1, effective July 1.

35-4-102. Definitions

As used in this article, unless the context otherwise requires:

1. “Board of county commissioners” means the public officials duly elected to that public office or their designated agents.
2. “Commissioner” means the commissioner of agriculture or his designated agents.
3. “County pest inspector” means any qualified employee of a board of county commissioners employed under this article.

   (3.5) “Department” means the department of agriculture.

4. “Insect pests” means any of the small invertebrate animals in the phylum arthropoda which are injurious to plants and animals.
5. “Person” means any individual, partnership, association, corporation, or organized group of persons, whether incorporated or not.
6. “Pests” means insect pests and animal pests, except rodents, jackrabbits, and predatory animals, and includes plant diseases and weeds. For purposes of section 35-4-107, the definition of pests shall not include weeds.
7. “Plant diseases” means the pathological condition in plants caused by fungi, bacteria, viruses, nematodes, mycoplasmas, or parasitic seed plants.
8. Repealed.
9. “Weeds” means any noxious, destructive, or troublesome plant when found to be of sufficient economic importance to threaten the public welfare.

History. Source: L. 37: P. 643, § 1. CSA: C. 80, § 43. CRS 53: § 6-10-2. L. 56: P. 99, § 1. C.R.S. 1963: § 6-10-2. L. 78: Entire section amended, p. 455, § 1, effective April 27. L. 85: (3.5) and (9) added, (6) amended, and (8) repealed, pp. 1130, 1135, § § 1, 15, effective May 16.

Cross references: For control of rodents, jackrabbits, and predatory animals, see article 7 of this title.

35-4-103. Administration

1. The commissioner shall administer this article. A board of county commissioners shall concurrently administer this article and shall have full authority for the proper enforcement thereof by county pest inspectors employed by said board of county commissioners.
2. 1. Whenever the commissioner has reasonable cause to believe a violation of any provision of this article or any rule made, order issued, or quarantine declared pursuant to this article has occurred and immediate enforcement is deemed necessary, the commissioner may issue a cease-and-desist order, which may require any person to cease violating any provision of this article or any rule made, order issued, or quarantine declared pursuant to this article. Such cease-and-desist order shall set forth the provisions alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all actions cease immediately.
   2. At any time after service of the order to cease and desist, the person may request a prompt hearing to determine whether or not such violation has occurred. Such hearing shall be conducted promptly and shall be conducted pursuant to the provisions of article 4 of title 24, C.R.S.
3. Whenever the commissioner possesses sufficient evidence satisfactory to the commissioner indicating that a person has engaged in or is about to engage in any act or practice constituting a violation of any provision of this article or rule, order, or quarantine, the commissioner may apply to any court of competent jurisdiction for an order to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article or any rule, quarantine, or order under this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.
4. The commissioner shall have full authority to administer oaths and take statements, to issue subpoenas requiring the attendance of witnesses and the production of all books, memoranda, papers, and other documents, articles, or instruments, and to compel the disclosure by such witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of a witness to obey a subpoena, the commissioner may petition the district court, and upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey the court order shall be punishable as a contempt of court.

History. Source: L. 37: P. 644, § 5. CSA: C. 80, § 47. CRS 53: § 6-10-3. C.R.S. 1963: § 6-10-3. L. 78: Entire section amended, p. 456, § 2, effective April 27. L. 85: Entire section amended, p. 1130, § 2, effective May 16. L. 96: Entire section amended, p. 320, § 1, effective April 16. L. 97: (3) amended, p. 24, § 1, effective March 20. L. 2007: (2)(a) and (3) amended, p. 925, § 2, effective July 1.

35-4-104. County pest inspectors

The persons who may be employed under this article, aside from employees of the department of agriculture, shall be county pest inspectors and their deputies, who shall be appointed by the board of county commissioners of the county where they are to serve and receive their pay. The board of county commissioners of any county when petitioned by not less than fifty landowners of the county shall appoint a county pest inspector at its next regular board meeting.

History. Source: L. 37: P. 644, § 6. CSA: C. 80, § 48. CRS 53: § 6-10-4. C.R.S. 1963: § 6-10-4.

Cross references: For appointment of county pest inspectors in pest control districts, see § 35-5-106.

35-4-105. Compensation

A county pest inspector shall receive such compensation as may be fixed by the board of county commissioners hiring such county pest inspector. The board of county commissioners shall provide for reimbursement of the county pest inspector for actual expenses incurred in carrying out the provisions of this article.

History. Source: L. 37: P. 644, § 7. CSA: C. 80, § 49. CRS 53: § 6-10-5. C.R.S. 1963: § 6-10-5. L. 78: Entire section R&RE, p. 456, § 3, effective April 27.

35-4-106. County pest inspectors - examination of applicants

It is the duty of a board of county commissioners to examine all applicants for the positions of county pest inspectors, and, if an applicant is found competent and fully qualified to perform the duties of the office, the board shall issue a license as county pest inspector. A person shall not act as county pest inspector without a license. The license is valid for three years.

History. Source: L. 37: P. 645, § 8. CSA: C. 80, § 50. CRS 53: § 6-10-6. C.R.S. 1963: § 6-10-6. L. 78: Entire section amended, p. 456, § 4, effective April 27. L. 85: Entire section amended, p. 1131, § 3, effective May 16. L. 2013: Entire section amended, (HB 13-1250), ch. 240, p. 1166, § 1, effective August 7.

35-4-107. Inspections - notice - treatment - collection of costs

1. 1. The county pest inspector shall have the right to enter upon any public or private property during reasonable business hours to inspect for pest infestations or infection and ensure compliance with the requirements of this article and any local requirements when at least one of the following has occurred:
      1. The landowner or occupant has requested an inspection;
      2. A neighboring landowner or occupant has reported a suspected pest infestation or infection and requested an inspection; or
      3. An authorized agent of the county in which the property is situated has made a visual observation from a public right-of-way or area and has reason to believe that a pest infestation or infection exists.
   2. No entry upon any property shall be permitted until the landowner or occupant has been sent a notification by certified mail to the landowner’s or occupant’s last-known address that such entry is pending. When possible, inspections shall be scheduled and conducted with the concurrence of the landowner or occupant.
   3. If, after receiving notice that an inspection is pending, the landowner or occupant denies access to the county pest inspector, the board of county commissioners may seek an inspection warrant issued by a municipal, county, or district court having jurisdiction over the land. The court shall issue an inspection warrant upon presentation by the board of county commissioners, through its agent or employee, of an affidavit that provides a specific description of the location of the affected land and sets forth information that gives the county pest inspector probable cause to believe that a provision of this article is being or has been violated and the landowner or occupant has denied access to the county pest inspector. No landowner or occupant shall deny access to such land when presented with an inspection warrant.
   4. The county pest inspector shall have the authority to notify and advise the landowner or occupant in writing by certified mail of the findings of the inspection. If such findings indicate a pest infestation or infection, such notice shall name the pest, advise the landowner or occupant to manage the pest, and specify the available control methods of integrated pest management, including mechanical, chemical, and biological methods. Such notice shall inform the landowner or occupant that the state forester or county extension office may be consulted concerning integrated pest management. Where possible, the county pest inspector shall consult with such landowner or occupant in the development of a plan for the management of pest infestations and infections on the premises or lands.
   5. Within ten days after receipt of notification of a pest infestation or infection, the landowner or occupant:
      1. Shall comply with the terms of the notification;
      2. Shall acknowledge the terms of the notification and submit an acceptable plan and schedule for the completion of a plan for compliance; or
      3. May request a hearing before the board of county commissioners or a panel appointed by the board if the landowner or occupant disputes the finding of infestation or infection by the county pest inspector. Any owner requesting a hearing need not control the pests pending the outcome of the hearing. The board of county commissioners conducting the hearing shall order appropriate relief if it finds there is infestation or infection as alleged in the written notice. The owner shall pay for any relief, not to exceed ten thousand dollars annually, ordered under this article, including up to twenty percent of the cost of pest control measures for inspection and other incidental costs.
2. When necessary to enforce the provisions of this article, a county pest inspector, after notice of pest infestation or infection to the owner pursuant to subsection (1) of this section, shall treat to control the pests on plant host material, buildings, or other property. Such treatment shall not be commenced by a county pest inspector pending the outcome of any hearing requested pursuant to subsection (1) of this section. Upon the completion of such work, a statement of the cost and expense thereof along with a description of the property upon which such work was done shall be filed with the board of county commissioners, who shall pay same without unnecessary delay.
3. Upon payment by the board of county commissioners of any cost and expense of treating pest infestation or infection in accordance with subsection (2) of this section, the county shall demand in writing from the owner, in person or by mail addressed to the owner at his or her last-known place of residence, reimbursement to the county for the amount of the county’s direct costs and expenses only. The county shall not send a written demand for more than ten thousand dollars. In the written notice, the county shall inform the owner of the right to appear before the board of county commissioners at any meeting thereof, as fixed by law, to be held within the following four months, and be heard as to the amount of the claim for reimbursement. If the claim, as originally demanded by the board or as adjusted upon a hearing, is not paid at the end of the four-month period, the board shall certify the claim to the county treasurer of the county where the property is located. The county treasurer shall add the amount of the claim to any taxes due, or to become due, from the owner, and if the claim is not paid in due course, the county treasurer shall file a lien on the property. The lien’s priority is based upon the date of recording in accordance with article 35 of title 38, C.R.S. The board of county commissioners shall work with any landowner to develop a payment schedule for the cost of an assessment for pest treatment upon a demonstration by the landowner of an economic hardship. All accounts when collected must be deposited into the general fund of the county.
4. If the board of county commissioners finds that a pest infestation or infection is a result of or can be attributed to an infestation or infection on land owned by any federal, state, or local governmental unit that has not been treated or is not under control, the landowner shall not be charged for any relief ordered pursuant to this section.
5. A county shall not provide for or compel the management of pests on private property under this section without first applying the same or greater management measures to any land or rights-of-way owned or administered by the local governing body that are adjacent to the private property.
6. A county pest inspector or agent thereof does not have a cause of action against a landowner or occupant for personal injury or property damage incurred while on public or private land while working within the course and scope of the inspector’s duties except when such damages were willfully caused by the landowner.

History. Source: L. 37: P. 645, § 9. CSA: C. 80, § 51. CRS 53: § 6-10-7. C.R.S. 1963: § 6-10-7. L. 78: Entire section amended, p. 457, § 5, effective April 27. L. 85: (1) and (2) amended, p. 1131, § 4, effective May 16. L. 99: Entire section amended, p. 281, § 1, effective April 13. L. 2013: (1)(e)(III) and (3) amended and (5) and (6) added, (HB 13-1250), ch. 240, p. 1166, § 2, effective August 7.

Cross references: For spraying land adjacent to highways infested with insects or on which weed destruction is desired, see § 43-2-207; for the “Pesticide Applicators’ Act”, see article 10 of this title; for collection of taxes, see article 10 of title 39; for the effect of the “Colorado Agricultural Marketing Act of 1939” on this article, see § 35-28-123.

35-4-108. Unlawful to transport pests

1. It is unlawful for any person, by any means whatsoever, to knowingly transport, into or in Colorado, live pests or host material which may be injurious to agriculture or horticulture in this state, without permission from the commissioner.
2. The commissioner may issue and enforce a hold order against any person who owns or controls any nursery stock, agricultural crop, or other plant material that is suspected of harboring a plant pest or disease, for the purpose of isolating the material, restricting its movement, and specifying appropriate sanitary measures pending completion of testing to confirm the presence of such pest or disease.

History. Source: L. 37: P. 647, § 10. CSA: C. 80, § 52. CRS 53: § 6-10-8. C.R.S. 1963: § 6-10-8. L. 85: Entire section amended, p. 1132, § 5, effective May 16. L. 2007: Entire section amended, p. 926, § 3, effective July 1.

35-4-109. Emergency disposal of plant material

Any shipment of any plant material into Colorado when found to be in violation of a quarantine declared pursuant to section 35-4-110 or when found to carry exotic pests not previously found in the United States or pests known to cause high levels of economic damage under similar conditions of climate and natural habitat in other areas outside this state by the commissioner may be placed in isolation or quarantine by the commissioner and shall be completely under the commissioner’s control. The owner or bailee shall comply with all terms of the quarantine, abate such pests as directed by and to the satisfaction of the commissioner or remove such shipment from the state within such time as ordered by the commissioner. Articles not removed from the state as ordered shall be destroyed by the commissioner with no recompense therefor to the owner. Any owner or bailee claiming that his or her shipment of plant material was destroyed or ordered removed from the state without reasonable justification may request a hearing on that issue before the commissioner within ten days after such destruction or order of removal. If it is determined that a shipment of plant material was destroyed or ordered removed from the state by the commissioner without reasonable justification and that such action was done arbitrarily and capriciously, the department of agriculture shall reimburse such owner or bailee for any losses suffered.

History. Source: L. 37: P. 647, § 11. CSA: C. 80, § 53. CRS 53: § 6-10-9. C.R.S. 1963: § 6-10-9. L. 78: Entire section amended, p. 458, § 6, effective April 27. L. 85: Entire section amended, p. 1132, § 6, effective May 16. L. 96: Entire section amended, p. 321, § 2, effective April 16.

35-4-110. Quarantine and control of pests - rules

1. Whenever the commissioner finds any portion of the state to be affected with exotic pests not previously found in the United States, pests known to cause high levels of economic damage under similar conditions of climate and natural habitat in other areas outside this state, or pests which are known to have caused high levels of economic damage in the past within this state and in the commissioner’s judgment plants or plant parts, whether living or dead, domestic animals, or other objects from the district affected would be liable to spread the pests into other sections of the state to the injury of others, the commissioner, after a hearing conducted pursuant to section 24-4-103, C.R.S., may declare a quarantine against such section or portion of the state to prevent the transfer of carriers of such pests from the quarantined area.
2. Whenever it is ascertained that exotic pests not previously found in the United States, pests known to cause high levels of economic damage under similar conditions of climate and natural habitat in other areas outside this state, or pests which are known to have caused high levels of economic damage in the past within this state are likely to be introduced into Colorado by the importation of plants or plant parts, whether living or dead, domestic animals, or other objects, the commissioner, after a hearing conducted pursuant to section 24-4-103, C.R.S., may declare a quarantine against the importation into Colorado of such pest carriers.
3. The commissioner is authorized, pursuant to the provisions of this article, to apply such control or eradication measures as may be necessary to prevent the migration of exotic pests not previously found in the United States, pests known to cause high levels of economic damage under similar conditions of climate and natural habitat in other areas outside the state, or pests known to have caused high levels of economic damage in the past within this state that threaten to become established in this state and that endanger agricultural or horticultural industries in this state. The actual costs to offset the cash funds expended for services performed by the commissioner in imposing the quarantine and such control or eradication measures shall be recovered from the producers of any crop protected by such quarantine pursuant to rules promulgated by the commissioner. If the governor declares an emergency pursuant to section 35-4-110.5, the commissioner’s costs may be recovered from the disaster emergency fund, created in section 24-33.5-706, C.R.S. The commissioner is authorized to accept assistance, services, facilities, and grants tendered by federal or local governmental units or other persons.

History. Source: L. 37: P. 647, § 12. CSA: C. 80, § 54. CRS 53: § 6-10-10. C.R.S. 1963: § 6-10-10. L. 85: Entire section amended, p. 1132, § 7, effective May 16. L. 96: Entire section amended, p. 321, § 3, effective April 16. L. 2007: (3) amended, p. 926, § 4, effective July 1. L. 2013: (3) amended, (HB 13-1300), ch. 316, p. 1697, § 106, effective August 7.

35-4-110.5. Declaration of quarantine emergency

1. The commissioner shall notify the governor of the necessity for declaring a quarantine emergency if all of the following conditions are met:
   1. The commissioner has declared a quarantine pursuant to section 35-4-110 (1) or (2) or both.
   2. The commissioner has determined that the pest which is the subject of the quarantine is being or may be spread.
   3. The commissioner has determined that the pest poses a serious threat of economic harm to any segment of the agricultural or horticultural industry of this state.
2. Upon being so notified by the commissioner, the governor may declare a state of quarantine emergency to be in effect. Such state of emergency shall be in effect for no more than one hundred eighty days and may be renewed for successive periods of no more than one hundred eighty days upon certification by the commissioner to the governor that the threat from the pest continues to exist and continues to justify the emergency enforcement measures.
3. When the governor declares a quarantine emergency, the governor is authorized to accept assistance, services, facilities, and grants tendered by federal and local governmental units or other persons.
4. (Deleted by amendment, L. 96, p. 321 , § 4, effective April 16, 1996.)

History. Source: L. 85: Entire section added, p. 1134, § 8, effective May 16. L. 96: (2), (3), and (4) amended, p. 321, § 4, effective April 16.

35-4-111. Inspections - certificates - remedial measures

1. Should any owner or bailee request an inspection of crops, plant material, or other articles or premises for pests, the commissioner shall provide such inspection and issue a certificate setting forth the facts of said inspection and shall charge the owner or bailee adequate fees to cover the cost of such inspections and certificates. The commissioner has authority to impound and prohibit movement, sale, or disposal of such crops, plant material, or other articles until such fees are paid. The release of such crops, plant material, or other articles shall also be dependent on meeting all inspection requirements.
2. The commissioner may conduct inspections and issue phytosanitary and export certificates on plants for individual shipment to other states or foreign countries if those plants comply with the requirements or regulations of such state or foreign country. The commissioner may collect inspection and certification fees, in an amount established by the agricultural commission, to cover the direct and indirect costs of providing such services. All fees collected pursuant to this section shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the phytosanitary inspection fund, as that fund existed prior to July 1, 2009, shall be transferred to the plant health, pest control, and environmental protection cash fund.
3. The commission may enter into compliance agreements with producers and distributors of nursery stock, agricultural crops, and other plant materials for the purpose of certifying such plant materials as pest-free for export certification. At any time after entering into such an agreement, if the commissioner has reason to believe that the producer or distributor of the plant material that is the subject of the agreement has failed to comply with all of the terms of the agreement, the commissioner may terminate the agreement by giving the producer or distributor written notice of such termination and the grounds therefor.

History. Source: L. 37: P. 648, § 13. CSA: C. 80, § 55. CRS 53: § 6-10-11. C.R.S. 1963: § 6-10-11. L. 78: Entire section amended, p. 459, § 7, effective April 27. L. 85: Entire section amended, p. 1134, § 9, effective May 16. L. 2007: Entire section amended, p. 927, § 5, effective July 1. L. 2009: (2) amended, (HB 09-1249), ch. 87, p. 315, § 3, effective July 1.

35-4-112. Right of entry

Except as provided in section 35-4-107, the commissioner and any authorized agent thereof and county pest inspectors employed under this article, together with such help as they may need in the prosecution of their work, are authorized upon consent or upon obtaining an administrative search warrant, during reasonable business hours, to enter upon or into any premises, land, buildings, or other places of business for the purpose of carrying out the provisions of this article.

History. Source: L. 37: P. 649, § 16. CSA: C. 80, § 58. CRS 53: § 6-10-12. C.R.S. 1963: § 6-10-12. L. 78: Entire section amended, p. 459, § 8, effective April 27. L. 85: Entire section amended, p. 1134, § 10, effective May 16. L. 96: Entire section amended, p. 322, § 5, effective April 16.

35-4-113. Authority of commissioner to enter into agreements

1. The commissioner may enter into agreements with other agencies of this state or of other states or any agency of the federal government and delegate authority to representatives thereof when such agencies or representatives may assist in carrying out the provisions of this article.
2. The commissioner may enter into agreements with any agency of the federal government for the purposes of inspecting sites and plants and monitoring compliance with post-entry quarantine as required by the federal “Plant Protection Act”, 7 U.S.C. sec. 7712, as amended, and the rules promulgated pursuant thereto. The actual costs to offset the cash funds expended by the commissioner pursuant to such agreement, including, but not limited to, promulgating any rules necessary for the administration and enforcement of such agreement and conducting inspections of sites and plants shall be recovered from the persons who have signed post-entry quarantine growing agreements covering the sites where the articles are grown or, if no such agreement exists, from the owners of the articles at the growing sites.
3. The commissioner may enter into cooperative agreements with any other state or federal agency for the purpose of conducting inspections and issuing phytosanitary certificates pursuant to section 35-4-111.

History. Source: L. 37: P. 649, § 17. CSA: C. 80, § 59. CRS 53: § 6-10-13. C.R.S. 1963: § 6-10-13. L. 78: Entire section amended, p. 459, § 9, effective April 27. L. 85: Entire section amended, p. 1135, § 11, effective May 16. L. 96: Entire section amended, p. 322, § 6, effective April 16. L. 2007: (2) amended and (3) added, p. 927, § 6, effective July 1.

35-4-113.5. Delegation of duties

The commissioner, in his discretion, may delegate his authority to an employee to execute the provisions of this article.

History. Source: L. 85: Entire section added, p. 1135, § 12, effective May 16.

35-4-114. Penalties

Except for sections 35-4-107 and 35-4-110.5, any person who violates any of the provisions of this article commits a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not less than twenty-five dollars nor more than five hundred dollars. The commissioner or a board of county commissioners may refer such cases to the district attorney of the county in which such violation is alleged to have occurred for such action as may be deemed necessary. The conviction of a violation of any of the provisions of this article shall be cause for revocation of any certificate, permit, or appointment issued under this article.

History. Source: L. 37: P. 649, § 18. CSA: C. 80, § 60. CRS 53: § 6-10-14. C.R.S. 1963: § 6-10-14. L. 78: Entire section R&RE, p. 460, § 10, effective April 27. L. 85: Entire section amended, p. 1135, § 13, effective May 16.

Cross references: For certificates issued by the department of agriculture pursuant to this article, see § 35-4-111.

35-4-114.5. Civil penalties

1. Any person who violates any provision of this article or any rule or quarantine declared pursuant to this article is subject to a civil penalty, as determined by the commissioner. The maximum penalty shall not exceed one thousand dollars per violation.
2. No civil penalty may be imposed unless the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
3. If the commissioner is unable to collect such civil penalty or if any person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may bring suit in any court of competent jurisdiction to recover such amount plus costs and attorney fees.
4. Before imposing any civil penalty, the commissioner may consider the financial hardship such penalty may cause to the business of the person charged.
5. Any civil penalty recovered pursuant to this section shall be credited to the general fund.

History. Source: L. 96: Entire section added, p. 322, § 7, effective April 16.

35-4-115. Reports. (Repealed)

History. Source: L. 37: P. 650, § 19. CSA: C. 80, § 61. CRS 53: § 6-10-15. C.R.S. 1963: § 6-10-15. L. 78: Entire section repealed, p. 460, § 11, effective April 27.

35-4-116. Rules and regulations

The commissioner may promulgate such rules and regulations as he deems necessary for the administration and enforcement of this article. Such rules and regulations shall be promulgated in accordance with article 4 of title 24, C.R.S.

History. Source: L. 85: Entire section added, p. 1135, § 14, effective May 16.

35-4-117. County pest inspectors - weed and rodent control

Subject to the direction of the board of county commissioners, a county pest inspector may exercise the powers and duties granted to, and perform the duties of, a county in accordance with articles 5.5 and 7 of this title.

History. Source: L. 2013: Entire section added, (HB 13-1250), ch. 240, p. 1167, § 3, effective August 7.

35-4.5-101 and 35-4.5-102. (Repealed)

History. Source: L. 2015: Entire article repealed, (SB 15-021), ch. 20, p. 50, § 1, effective August 5.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was added in 2007 and was not amended prior to its repeal in 2015. For the text of this article prior to 2015, consult the 2014 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume.

35-5-101. Definitions

As used in this article, unless the context otherwise requires:

1. “APHIS” means the United States department of agriculture animal and plant health inspection, plant protection, and quarantine programs.

   (1.5) “Commissioner” means the commissioner of agriculture.

2. “County” includes a city and county.
3. “District” means an area as provided for in section 35-5-104.
4. “District advisory committee” means the committee appointed as provided in section 35-5-105.
5. “Insect pest”, as determined by the commissioner, means any of the small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class insecta, and which, upon investigation by the commissioner, are found to be in epidemic proportions.
6. “Inspector” means a county pest inspector.
7. “Landowner” means a person who owns five or more acres of land within the boundaries of the proposed district.

   (7.1) “Lessee” means a person leasing five or more acres of state-owned land controlled by the state board of land commissioners within the boundaries of the proposed district.

8. “Noxious weeds”, as determined by the commissioner, means those weeds which are especially troublesome and detrimental and which may cause damage or loss to a considerable portion of the land or livestock of a community.
9. “Person” includes person, firm, corporation, or association.
10. “Pest”, as determined by the commissioner, means a noxious, destructive, or troublesome plant, insect, or plant disease, when found to be in epidemic proportions and of sufficient economic importance to threaten the public welfare.
11. “Plant diseases”, as determined by the commissioner, means injurious action caused by the continuous or intermittent damage of all plants by any causal agent and expressed through symptoms.
12. “Resident landowner” means a person who owns five or more acres of land within the boundaries of the proposed district and has his legal residence within the county where the proposed district is located or within an adjacent county.

    (12.1) “Resident lessee” means a person leasing five or more acres of state-owned land controlled by the state board of land commissioners within the boundaries of the proposed district and having his legal residence within the county where the proposed district is located or within an adjacent county.

History. Source: L. 59: P. 176, § 1. CRS 53: § 6-16-1. C.R.S. 1963: § 6-5-1. L. 77: (1) and (1.5) R&RE and (7.1) and (12.1) added, p. 1577, § § 1, 2, effective June 4.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-5-102. Duty to control weeds

It is the duty of all persons owning land or any interest therein in the district, the department of transportation, the boards of county commissioners, school boards, the governing authorities of incorporated towns and cities and of railroads and ditch companies, and those persons supervising state-owned lands to use reasonable means to control the noxious weeds if the same are likely to be materially damaging to the land of neighboring landowners.

History. Source: L. 59: P. 177, § 2. CRS 53: § 6-16-2. C.R.S. 1963: § 6-5-2. L. 83: Entire section amended, p. 1311, § 1, effective May 10. L. 91: Entire section amended, p. 1074, § 56, effective July 1.

35-5-103. Methods of control - rules and regulations

The commissioner is empowered to designate the methods to be used for the control or eradication of the various noxious weeds, insect pests, and plant diseases and to publish such methods and make and publish such reasonable rules and regulations as are proper and necessary to carry into effect the provisions of this article. The commissioner is authorized to enter into agreements with any landowner, lessee, district, city, or town, or with federal, state, or county agencies for cooperation and for cost-sharing in the control and eradication of noxious weeds, insect pests, or plant diseases located upon land that they control or administer within the district in keeping with the provisions of this article. The commissioner, with the approval of the governor, is authorized to advance funds, which may be appropriated for this purpose subject to reimbursement, to carry into effect the provisions of this article.

History. Source: L. 59: P. 177, § 3. CRS 53: § 6-16-3. C.R.S. 1963: § 6-5-3. L. 83: Entire section amended, p. 1311, § 2, effective May 10.

Cross references: For rule-making procedures, see article 4 of title 24; for intergovernmental relationships, see part 2 of article 1 of title 29.

35-5-104. Pest control district - procedure to establish

1. Whenever twenty-five percent of the resident landowners and resident lessees within a contiguous territory desire to form a pest control district, as defined in this subsection (1), they may file a petition for that purpose with the board of county commissioners of the county in which the land is located. Such petition shall be addressed to the board of county commissioners of such county, and shall contain a description of the boundaries of the proposed district and a description of the land of each person signing such petition, and shall state that the said proposed district has been invaded, or is in danger of being invaded, by noxious weeds, insect pests, or plant diseases injurious to agricultural crops, trees, fruits, or pasture, and shall name the specific pests or diseases against which said petitioners desire to be protected, and shall state the termination date of the proposed district. Such petition shall be signed by each resident landowner and resident lessee joining in the petition by his proper signature, together with his address, and the date of the petition shall be the date of its filing in the office of the board of county commissioners. Any petitioner may revoke and cancel his signature to such petition at any time before said petition is filed, but not after such filing has been made.
2. Such petition shall be filed with the board of county commissioners during a regular or special session of the board, and shall be verified under oath by at least one of the persons signing it, setting forth that the said petition was signed within ninety days last preceding the making of said verification, and that all matters and things stated in said petition are true to the best of the knowledge and belief of the affiant, and that all signers have had an opportunity to read said petition.
3. After examination of the petition, if the board of county commissioners finds the petition in order and properly signed by twenty-five percent of the resident landowners and resident lessees within the proposed district, the board shall, within fifteen days after receipt of the petition, mail ballots to all landowners and lessees in the proposed district, to the addresses as shown by the records of the county assessor or state board of land commissioners, stating that said ballots are to be returned to the board’s office within ten days from date of mailing. If, after a tally of the votes has been made, the board finds that sixty-six and two-thirds percent of the landowners and lessees voting have voted in favor of the district, and the landowners and lessees voting own or lease fifty percent of the land in the proposed district, the board shall declare the district established. Acreage owned by the federal government or acreage owned by the state government not subject to a lease shall not be considered in determining the percentage of land voted.
4. Such petition may, in addition to the matters set forth in this section, request the board of county commissioners to take charge of and supervise the work in connection with the control or eradication of the pests named. The board, if a pest control district is created upon the petition in accordance with this article, shall proceed during the existence of said district, through the county pest inspector, to control or destroy such pests at the times and in the manner and by the aid of such means and additional help as the commissioner and county pest inspector recommend, and the board may enter into contracts to have the necessary work done in the district where noxious weeds, insect pests, or plant diseases occur in epidemic proportion. Such contracts shall be let through competitive bidding, and the board may pay for the work and materials expended. Said contracts may be let for periods not to exceed one year and may be renewed if necessary. The board of county commissioners also may enter into contracts with landowners and lessees in which the landowners and lessees are obligated for their share of the total cost of control operations.
5. If the owner or lessee of any lands adjoining an established pest control district desires to have such lands included within the district, he may petition the board of county commissioners of the county in which the district is located and to which district annexation of his land is desired. The petition shall contain a description of the boundaries of the lands so desired to be annexed and shall be signed by the petitioner. The board shall act on said petition within ten days after the receipt thereof. If the board finds that the petition is in order, that the boundaries of the lands described in the petition are accurate, that the lands adjoin the established district, and that the petition is properly signed, it shall, by order, declare that the lands petitioned to be annexed to the district shall be included as a part of the district. Within ten days after such action upon the petition, the board shall notify the petitioner, the county assessor, the district advisory committee of the district in which such lands are to be included, and the department of agriculture of its action. Two or more owners and lessees of lands adjoining an established pest control district may join in and sign a single petition for annexation of their adjoining lands to an established district in the manner prescribed in this subsection (5).
6. The district advisory committees of two or more adjoining pest control districts may petition the board of county commissioners of the county in which such districts are located, requesting the consolidation of such districts. The board shall schedule a public hearing on the petition within ten days after the receipt thereof. The public hearing shall be held within thirty days after receipt of the petition. If, after such hearing, the board determines that through such consolidation the districts could be more economically and efficiently operated, the board shall immediately, by order, declare the dissolution of the districts to be consolidated and the establishment of the consolidated new district, and shall thereupon notify the county assessor and district advisory committees of the dissolved districts of the termination of their respective committees, and shall appoint a new five-member district advisory committee for the consolidated district.
7. When a pest control district which was established for the control and eradication of specified pests desires to extend the termination date of the district, the district advisory committee shall petition the board of county commissioners of the county in which such district is located, requesting the extension of the termination date. Upon receipt of said petition, the board of county commissioners shall set a date for a hearing on the matter and shall publish notice thereof in a newspaper of general circulation in the county not less than ten days nor more than thirty days before the date of the hearing. If, after notice and hearing, the board of county commissioners determines that such extension of the termination date is advisable and is needed for adequate pest control in the district, the board of county commissioners shall immediately declare the extension of the termination date and shall so inform the district advisory committee, the county assessor, and the state board of land commissioners.
8. When a pest control district which was established for the control and eradication of specified pests desires to add additional pests to be controlled within the district, the district advisory committee shall petition the board of county commissioners of the county in which such district is located, requesting that a stipulated pest or pests should be added to the pests to be controlled in the district. The board of county commissioners shall act on the petition within ten days after receipt thereof. If the board of county commissioners determines that such pests should be controlled within the district, said board shall submit the question to all landowners and lessees of the district by causing to be mailed to each landowner and lessee, to the address as shown by the records of the county assessor or state board of land commissioners, a ballot requesting his vote for or against the addition of the stipulated pests to be controlled within the district and the return of such ballot within ten days to the board. If fifty-one percent of the landowners and lessees voting in the district vote in favor of the inclusion of said pests within those to be controlled, the board shall immediately declare that the stipulated pests shall be controlled within the district and shall so inform the district advisory committee.

History. Source: L. 59: P. 178, § 4. CRS 53: § 6-16-4. L. 61: P. 155, § § 1, 2. L. 63: P. 160, § 1. C.R.S. 1963: § 6-5-4. L. 75: (7) amended, p. 1340, § 1, effective May 31. L. 83: (1) and (3) to (8) amended, p. 1312, § 3, effective May 10. L. 2000: (6) amended, p. 5, § 1, effective August 2.

35-5-105. Advisory committee

After the formation of a pest control district and before any weed or pest control program has been initiated by the county pest inspector, the board of county commissioners shall appoint an advisory committee of five or more members, who shall serve at the pleasure of the board of county commissioners. Should a vacancy occur, the board of county commissioners shall fill the vacancy by appointment within thirty days. The committee members may be resident landowners or resident lessees and, insofar as is practical, shall have a practical knowledge of weed and pest control and shall geographically represent the district.

History. Source: L. 59: P. 179, § 5. CRS 53: § 6-16-5. C.R.S. 1963: § 6-5-5. L. 65: P. 178, § 1. L. 83: Entire section amended, p. 1314, § 4, effective May 10.

35-5-106. Pest inspector, deputies, and employees

The board of county commissioners of the county concerned may appoint a qualified person, subject to the approval of the commissioner and district advisory committee, as county pest inspector. It is the duty of said inspector to carry out his duties as provided in this article under the direction of the board and the commissioner. The inspector, with the approval of the board, may employ such deputies and employees as are necessary to perform his duties under this article. The salary of the inspector and of his deputies and employees shall be determined by the board.

History. Source: L. 59: P. 179, § 6. CRS 53: § 6-16-6. C.R.S. 1963: § 6-5-6.

Cross references: For appointment of county pest inspectors, see § 35-4-104.

35-5-107. Duties of pest inspector

1. The inspector shall cooperate with the commissioner in locating infestations of noxious weeds, insect pests, or plant diseases; make an annual report of known infestations of noxious weeds, insect pests, or plant diseases and compile data on areas controlled, eradicated, or under treatment; submit reports thereon to the commissioner, the district advisory committee, and the board of county commissioners by December 1 of each year; consult with the commissioner and the extension service and advise upon all matters pertaining to the best and most practical methods of noxious weed, insect pest, or plant disease control and eradication; and render every possible assistance to obtain the most effective control or eradication of noxious weeds, insect pests, or plant diseases within the district.
2. The commissioner or the inspector, or their deputies, having jurisdiction, together with such assistants as they may need in the prosecution of their work, are authorized during reasonable business hours to enter upon or into any premises, lands, or places within any pest control district in this state where they may suspect that pests occur which may be determined by the commissioner to be injurious to the welfare of the community for the purpose of inspecting, controlling, or eradicating the same or otherwise carrying out the provisions of this article.

History. Source: L. 59: P. 179, § 7. CRS 53: § 6-16-7. C.R.S. 1963: § 6-5-7.

35-5-108. Control or eradication methods and procedures - notice - assessments - protests

1. The county pest inspector shall give notice by radio, newspaper, or any other means of communication to the owner, lessee, agent, or occupant of any lands within a district on which noxious weeds, insect pests, or plant diseases are found, advising them of their presence and naming the noxious weed, insect pest, or plant disease, giving both common and scientific names. Such notice shall specify the best available methods of controlling or eradicating such noxious weeds, insect pests, or plant diseases and shall require that such methods be used for control or eradication thereof. Failure to receive such notice shall not constitute a defense to the assessment of a lien against the property, as provided in this section, for the expense for the control or eradication of such pests.
2. In case any such landowner, lessee, agent, or occupant refuses to comply with the requirements of the county pest inspector for the control or eradication of such noxious weeds, insect pests, or plant diseases, or causes the same to be done, it is the duty of the inspector to provide access to sprayers or other equipment needed and to enter upon such lands with the approval of the board of county commissioners and, as provided in this article, to effect the control or eradication of such noxious weeds, insect pests, or plant diseases.
3. Upon completion of the work, the board of county commissioners shall notify or cause to be notified said landowner, by certified mail, at the address shown on the records of the county assessor, or by one publication in a newspaper having general circulation within the county, as to the amount due, furnishing an itemized statement of the expense of the treatment of such noxious weeds, insect pests, or plant diseases (the amount paid the inspector shall not be included), and stating that, if the amount of said statement is not paid to the county treasurer of the county wherein the real estate is located within thirty days from the date of said notice, the amount thereof will be assessed as a lien upon said real estate, but no lien shall be in excess of the valuation for assessment of said real estate.
4. If any landowner within the district is dissatisfied with the itemized statement of expense, he may, within thirty days from the mailing or publication of the account showing such charge, file a written protest with the board of county commissioners. Not later than ten days after the filing of such protest, the board of county commissioners shall fix a time and place for hearing on the protest filed, to be held not less than ten days nor more than thirty days from the date of notice of the hearing, and immediately after such hearing the board of county commissioners shall make written findings and such changes in the assessment as may be determined to conform with such findings.
5. A copy of said final statement of expenses shall be filed with the county assessor. If the amount of the statement is not paid within thirty days of said notice or if a protest is filed, within thirty days after the findings or determination of such protest, the county assessor shall extend the amount upon the assessment rolls, and said assessment shall thereon become a part of the general taxes and constitute a lien against the entire contiguous tract owned by such person of which the portion so treated is all or a part. The assessment shall thereafter become due in the same manner and be collected in the same manner as the general ad valorem property tax; but not more than five percent of the total valuation for assessment of the entire contiguous tract of land of which the portion so treated is all or a part shall be spread on the tax rolls against said land in any one year. Any amount in excess of the five percent limitation and remaining unpaid may be carried over and charged on the tax roll of the succeeding years, and any unpaid balance so carried over shall bear interest at the rate of six percent per annum until paid. All of the provisions of the general laws for the enforcement of the collection of taxes shall be applicable thereto after the extension by the county assessor. Such assessments may be paid in full at any time before general taxes become due and payable.
6. 1. Upon completion of the work, the board of county commissioners shall notify or cause to be notified said lessee, by certified mail, at the address shown on the records of the state board of land commissioners, or by one publication in a newspaper having general circulation within the county, of the amount due, furnishing an itemized statement of the expense of the treatment of such noxious weeds, insect pests, or plant diseases (the amount paid the inspector shall not be included), and stating that, if the amount of said statement is not paid to the county treasurer of the county wherein the leased property is located within thirty days from the date of said notice, the amount thereof will be assessed as a lien upon any improvements located upon the leased property and owned by the lessee. The county shall institute civil proceedings in a court of competent jurisdiction to recover the amount of the assessment. In the event the value of said improvements is less than the amount of the assessment, the county may recover the difference by execution on such personal property of the lessee that is not exempt, as provided by law.
   2. If any lessee within the district is dissatisfied with the itemized statement of expense, he may file a written protest with the board of county commissioners as provided by subsection (4) of this section.
   3. A copy of the final statement of expense shall be filed with the county assessor. If the amount of the statement is not paid within thirty days of said notice or if a protest is filed, within thirty days after the findings or determination of such protest, the county assessor shall extend the amount upon the assessment rolls, and said assessment shall thereon become a part of the general taxes and constitute a lien against any improvements located upon the tract and owned by the lessee. If a judgment in favor of the county is not satisfied as the result of execution on the property, the county shall seek to satisfy the judgment by levying upon any personal property held by the lessee which is not exempt, as provided by law.

History. Source: L. 59: P. 180, § 8. CRS 53: § 6-16-8. C.R.S. 1963: § 6-5-8. L. 83: (1) and (2) amended and (6) added, p. 1314, § 5, effective May 10.

Cross references: For collection of ad valorem taxes, see article 10 of title 39.

35-5-109. Owner or lessee refuses action

When noxious weeds, insect pests, or plant diseases are found on a property not listed on the tax rolls of the county and the owner or lessee of the property refuses or fails to take the necessary action to control or eradicate such noxious weeds, insect pests, or plant diseases, after notice as prescribed in section 35-5-108, the county pest inspector shall treat the same as though listed on the tax rolls, and the expense thereof may be recovered by the county in an action therefor in any court of competent jurisdiction. The control or eradication of noxious weeds, insect pests, or plant diseases on county property may be contracted for by the inspector, with the approval of the board of county commissioners, at county expense.

History. Source: L. 59: P. 182, § 9. CRS 53: § 6-16-9. C.R.S. 1963: § 6-5-9. L. 83: Entire section amended, p. 1315, § 6, effective May 10.

35-5-110. Public nuisance - abatement

Any noxious weeds, insect pests, or plant diseases with respect to which a control district has been proclaimed, and any and all stages thereof, their carriers, and any and all premises, plants, and things infested or exposed to infestation therewith within such area are declared to be a public nuisance, subject to all laws and remedies relating to the prevention and abatement of nuisances. The inspector, under the supervision and direction of the commissioner and with the approval of the board of county commissioners, in a summary manner or otherwise, may take such action, including removal and destruction, with reference to such nuisance as in his discretion seems necessary. The remedies of this section shall be cumulative with all other remedies provided in this article.

History. Source: L. 59: P. 182, § 10. CRS 53: § 6-16-10. C.R.S. 1963: § 6-5-10.

35-5-111. Reports of acreage infested - county tax levy - fund - allocation

1. The commissioner is directed, and it is his duty, to ascertain each year, from reports of the inspectors and other sources, the approximate amount of land and highways infested with the most troublesome noxious weeds, insect pests, or plant diseases, and their location, and transmit such information tabulated by counties, not later than July 1 of each year, to the board of county commissioners of each county affected by such infestation. On the basis of such information, the board of county commissioners of each county may make a tax levy each year on real property for the purpose of paying the cost of noxious weed, insect pest, or plant disease control or eradication in a district of the county as provided by this section, but such levy shall not exceed two mills in any one year.
2. Moneys collected from such levy shall be set apart as a pest control fund, and moneys derived from a particular district shall be used only in that district, and moneys derived on a countywide basis shall be used for the whole county. Vouchers shall be drawn against said fund by the board for items of expense incident to the control or eradication of noxious weeds, insect pests, or plant diseases in the county or in any such district. Such expenditures and accounts shall be audited annually.

History. Source: L. 59: P. 182, § 11. CRS 53: § 6-16-11. L. 61: P. 158, § 1. L. 63: P. 160, § 2. C.R.S. 1963: § 6-5-11. L. 65: P. 178, § 2.

Cross references: For limitations on increasing levies of political subdivisions, see part 3 of article 1 of title 29.

35-5-112. Pest control district on public lands - notice - charges

1. When an area designated as a pest control district by the board of county commissioners of any county contains public lands, it is the duty of the commissioner to notify the proper state departments which control or supervise the public lands within the area so designated that such a district has been formed. It is the duty of any such department so notified to control or eradicate all noxious weeds, insect pests, or plant diseases on any lands under its jurisdiction, and included within the boundaries of the district and for which the district was organized, using the methods prescribed by the commissioner.
2. In case such department fails to so control or eradicate such pests, it is the duty of the inspector in the county where the infestation is located to enter upon such lands and undertake the control or eradication of such noxious weeds, insect pests, or plant diseases, or cause the same to be done, the expense thereof to be a proper charge against the department which has jurisdiction over the lands. If not paid, such charge may be recovered in an action therefor by the county in any court of competent jurisdiction; except that it is permissible for any such state department which controls or supervises lands in the designated pest control district to enter into a contract with the board of county commissioners of the county wherein the land is situated to authorize the county pest inspector to undertake the control or eradication of all noxious weeds, insect pests, or plant diseases, as provided in this article, on state-controlled land in the district on terms and conditions satisfactory to both parties.
3. In the case of lands controlled by the state board of land commissioners, which land is included within a district and leased to a lessee, the costs incurred in controlling or eradicating noxious weeds, insect pests, or plant diseases, which would be chargeable to the owner of the land if privately owned, shall be paid by the lessee.
4. All park land in the state, except that owned by the United States, shall be excluded from charges provided for in this article, and the board of county commissioners of the county in which any such park is located shall be billed for any and all assessments on such park lands.

History. Source: L. 59: P. 183, § 12. CRS 53: § 6-16-12. C.R.S. 1963: § 6-5-12. L. 83: (1), (2), and (3) amended, p. 1316, § 7, effective May 10.

35-5-113. Deputy or agent may exercise power

Whenever any power or authority is given by any provisions of this article to any person, it may be exercised by any deputy or agent duly authorized by him.

History. Source: L. 59: P. 183, § 13. CRS 53: § 6-16-13. C.R.S. 1963: § 6-5-13.

35-5-114. Liberal construction

This article, being necessary to secure and preserve the public health, safety, convenience, and welfare, and for the security of public and private property, shall be liberally construed to effect the purpose of this article.

History. Source: L. 59: P. 184, § 14. CRS 53: § 6-16-14. C.R.S. 1963: § 6-5-14.

35-5-115. Dissolution of district

The district may be dissolved by the same procedure as the district was created on petition of twenty-five percent of the resident landowners of the district upon a vote of sixty-six and two-thirds percent of those owning the land in the district under similar procedure to that of organizing the district, if a program is not in effect. On and after July 1, 1990, a district may also be dissolved when such question is presented to the resident landowners by the board of county commissioners and more than fifty percent of said landowners voting on the issue vote to dissolve the district; except that no vote is required when two or more districts are being consolidated pursuant to section 35-5-104 (6).

History. Source: L. 59: P. 184, § 15. CRS 53: § 6-16-15. C.R.S. 1963: § 6-5-15. L. 90: Entire section amended, p. 1557, § 2, effective July 1. L. 2000: Entire section amended, p. 5, § 2, effective August 2.

35-5-116. Major grasshopper and range caterpillar infestations

Authority is hereby granted the governor of the state of Colorado to declare a major grasshopper or range caterpillar infestation and to declare an emergency resulting from said major infestation. Upon said declaration, funds from the governor’s agricultural emergency and disaster fund shall be made available for grasshopper or range caterpillar control.

History. Source: L. 75: Entire section added, p. 1342, § 1, effective May 30. L. 77: Entire section amended, p. 1577, § 3, effective June 4.

35-5-117. Emergency measures

1. When the governor determines and declares an emergency resulting from a major grasshopper or range caterpillar infestation, he shall specify the area or areas of the major infestation. Within such area or areas, he is authorized to direct that such emergency measures be taken as he deems necessary to alleviate conditions which gravely jeopardize property and resources.
2. In directing that emergency measures be taken, the governor is hereby authorized to:
   1. Utilize equipment, supplies, facilities, personnel, and other like available resources belonging to the state of Colorado in possession of any state agency;
   2. Enter into contracts for the acquisition, rental, or hire of equipment, services, materials, and supplies;
   3. Accept assistance, services, and facilities tendered by federal and local governmental units or private agencies;
   4. Accept on behalf of the state the provisions and benefits of acts of congress designated to provide for assisting states.

History. Source: L. 75: Entire section added, p. 1342, § 1, effective May 30. L. 77: (1) amended, p. 1578, § 4, effective June 4.

35-5-118. Right of entry

All persons authorized to carry out emergency measures directed under the provisions of this article shall have free access to all public and private lands, premises, and buildings within the areas specified and are authorized to enter thereon and to perform such work and take such measures as directed without the consent of the owners thereof if the entry is reasonably necessary to actually alleviate or prevent the disaster.

History. Source: L. 75: Entire section added, p. 1343, § 1, effective May 30.

35-5-119. Procedure for establishing grasshopper and range caterpillar control districts. (Repealed)

History. Source: L. 75: Entire section added, p. 1343, § 1, effective May 30. L. 77: (1), (3), and (5) amended, p. 1578, § 5, effective June 4. L. 83: Entire section repealed, p. 1317, § 10, effective May 10.

35-5-120. Grasshopper and range caterpillar control

1. The board of county commissioners of each county in which the governor has declared an emergency resulting from a major grasshopper or range caterpillar infestation is hereby authorized and directed to establish a system of priorities for any operation involving the control of grasshoppers or range caterpillars in infested areas. Such board of county commissioners shall certify to the commissioner any area within a county which has established a grasshopper or range caterpillar control district in areas infested with grasshoppers or range caterpillars and in which sixty-six and two-thirds percent of the landowners and lessees have agreed to pay a proportionate share of the cost per acre for grasshopper or range caterpillar control, as determined by the commissioner, as a contribution to pay the cost of controlling the grasshoppers or range caterpillars which are infesting said area.
2. Upon receipt by the commissioner of a certification of such an area, and upon deposit with the commissioner of the landowner’s and lessee’s projected share of the cost of control for grasshoppers or range caterpillars, the commissioner shall immediately direct operations to commence to control the grasshoppers or range caterpillars in such area.
3. In attempting to control grasshoppers or range caterpillars in established control districts, the commissioner shall not be required to conduct control operations on other than range acreage.
4. If the commissioner, with approval of the district advisory committee as established in section 35-5-105, determines at any time that control operations would not significantly reduce the grasshopper or range caterpillar populations in the established control districts, he may order that said operations be suspended or terminated.

History. Source: L. 75: Entire section added, p. 1344, § 1, effective May 30. L. 77: Entire section amended, p. 1579, § 6, effective June 4. L. 83: (2) amended, p. 1316, § 8, effective May 10.

35-5-121. Immunity

Neither the state or its agencies, officers, or employees nor the officers, agents, employees, or representatives of any governmental or private concern shall be liable for any claim based upon the exercise or performance or the failure to exercise or perform a function prescribed under the provisions of sections 35-5-116 to 35-5-121.

History. Source: L. 75: Entire section added, p. 1344, § 1, effective May 30.

35-5-122. Costs of control operations

1. The costs of grasshopper or range caterpillar control operations shall be borne as follows:
   1. Landowners and lessees in grasshopper or range caterpillar control districts shall assume one-third of the cost in those instances where the commissioner enters into an arrangement with APHIS whereby APHIS agrees to pay one-third of such costs.
   2. Landowners and lessees in grasshopper or range caterpillar control districts shall assume two-thirds of the costs in those instances where the commissioner is unable to enter into a cost-sharing arrangement with APHIS.
   3. One-third of the costs shall be paid from the governor’s agricultural emergency and disaster fund.
   4. The money deposited by the landowners and lessees to control grasshoppers or range caterpillars shall be available to the commissioner to administer the control of such infestations.

History. Source: L. 77: Entire section added, p. 1579, § 7, effective June 4. L. 83: (1)(d) added, p. 1316, § 9, effective May 10.

35-5-123. Rules and regulations

1. The commissioner is authorized, after opportunity for hearing and in accordance with article 4 of title 24, C.R.S., to promulgate appropriate rules and regulations concerning:
   1. Payment of costs by landowners and lessees, APHIS, and the governor’s agricultural emergency and disaster fund;
   2. Procedures for awarding contracts for grasshopper and range caterpillar control operations, which procedures shall follow as nearly as practicable the procedures for awarding contracts of the department of personnel, the terms and conditions of such contracts, bonding requirements, and qualifications of those contracting to do the control work;
   3. Methods and materials of control to be used in grasshopper and range caterpillar control operations;
   4. Protection of the environment, businesses, and industries located in grasshopper and range caterpillar control districts.
2. The commissioner is further empowered to make and publish such reasonable rules and regulations as are proper and necessary to put into effect the provisions of this article.

History. Source: L. 77: Entire section added, p. 1580, § 7, effective June 4. L. 95: (1)(b) amended, p. 666, § 104, effective July 1.

35-5-124. No weed districts. (Repealed)

History. Source: L. 90: Entire section added, p. 1557, § 3, effective July 1. L. 2003: Entire section repealed, p. 847, § 2, effective April 7.

35-5-125. Cooperation between districts

1. When pests may be more economically, completely, or satisfactorily managed, two or more boards of county commissioners may contract with one another to manage and control pests, including, but not limited to, sharing costs and employees. A board of county commissioners shall not contract to share resources, including costs or employees, with another such board unless both boards and both district advisory committees of such boards authorize such sharing.
2. A contract created pursuant to subsection (1) of this section shall be in writing and contain the purposes, rights, powers, responsibilities, and financial obligations of each contracting county.
3. If other law has requirements applicable to special types of intergovernmental contracts or cooperative agreements, such law shall control.

History. Source: L. 2003: Entire section added, p. 847, § 1, effective April 7.

35-5.5-101. Short title

This article shall be known and may be cited as the “Colorado Noxious Weed Act”.

History. Source: L. 90: Entire article added, p. 1549, § 1, effective July 1. L. 96: Entire section amended, p. 763, § 3, effective May 23.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-5.5-102. Legislative declaration - rule of construction

1. In enacting this article the general assembly finds and declares that there is a need to ensure that all the lands of the state of Colorado, whether in private or public ownership, are protected by and subject to the jurisdiction of a local government empowered to manage undesirable plants as designated by the state of Colorado and the local governing body. In making such determination the general assembly hereby finds and declares that certain undesirable plants constitute a present threat to the continued economic and environmental value of the lands of the state and if present in any area of the state must be managed. It is the intent of the general assembly that the advisory commissions appointed by counties and municipalities under this article, in developing undesirable plant management plans, consider the elements of integrated management as defined in this article, as well as all appropriate and available control and management methods, seeking those methods which are least environmentally damaging and which are practical and economically reasonable.

   (1.5) The general assembly hereby finds and declares that:

   1. Noxious weeds have become a threat to the natural resources of Colorado, as thousands of acres of crop, rangeland, and habitat for wildlife and native plant communities are being destroyed by noxious weeds each year;
   2. An organized and coordinated effort must be made to stop the spread of noxious weeds and that such an effort can best be facilitated by a state coordinator who will assist in building local coalitions and coordinate the efforts of state, federal, local, and private landowners in developing plans for the control of noxious weeds without unnecessarily disrupting the development of such lands;
   3. The designation and classification of noxious weeds into categories for immediate eradication, containment, and suppression will further assist the state in coordinating efforts to stop the spread of noxious weeds;
   4. Because the spread of noxious weeds can largely be attributed to the movement of seed and plant parts on motor vehicles, and because noxious weeds are becoming an increasing maintenance problem on highway right-of-ways in this state, additional resources are needed to fight the spread of noxious weeds; and
   5. The use of moneys in the noxious weed management fund to assist local governing bodies and affected landowners in the eradication, containment, or suppression of noxious weeds best serves the citizens of Colorado.
2. This article is in addition to article 5 of this title and is intended to be an expansion of, not a substitution for, the provisions of said article 5.

History. Source: L. 90: Entire article added, p. 1549, § 1, effective July 1. L. 96: (1.5) added, p. 764, § 4, effective May 23. L. 2003: (1.5) amended, p. 2415, § 1, effective August 6.

35-5.5-103. Definitions

As used in this article, unless the context otherwise requires:

1. (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
2. “Alien plant” means a plant species that is not indigenous to the state of Colorado.
3. (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
4. “Commissioner” means the commissioner of the department of agriculture or his or her designee.

   (4.5) “Department” means the department of agriculture.

5. “District” means a local governing body’s geographic description of a land area where noxious weeds are to be managed.
6. (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
7. “Federal agency” means each agency, bureau, or department of the federal government responsible for administering or managing federal land.
8. “Federal land manager” means the federal agency having jurisdiction over any federal lands affected by the provisions of this article.
9. “Integrated management” means the planning and implementation of a coordinated program utilizing a variety of methods for managing noxious weeds, the purpose of which is to achieve specified management objectives and promote desirable plant communities. Such methods may include but are not limited to education, preventive measures, good stewardship, and the following techniques:
   1. “Biological management”, which means the use of an organism to disrupt the growth of noxious weeds.
   2. “Chemical management”, which means the use of herbicides or plant growth regulators to disrupt the growth of noxious weeds.
   3. “Cultural management”, which means methodologies or management practices that favor the growth of desirable plants over noxious weeds, including maintaining an optimum fertility and plant moisture status in an area, planting at optimum density and spatial arrangement in an area, and planting species most suited to an area.
   4. “Mechanical management”, which means methodologies or management practices that physically disrupt plant growth, including tilling, mowing, burning, flooding, mulching, hand-pulling, hoeing, and grazing.
10. “Landowner” means any owner of record of federal, tribal, state, county, municipal, or private land.

    (10.5) “Local advisory board” means those individuals appointed by the local governing body to advise on matters of noxious weed management.

11. “Local governing body” means the board of county commissioners of a county, the city council of a city and county or statutory or home rule city, the board of trustees of a statutory town or home rule town, or the board of selectmen or city council of a territorial charter municipality, as the context so requires.

    (11.4) “Local noxious weed” means any plant of local importance that has been declared a noxious weed by the local governing body.

    (11.6) “Management” means any activity that prevents a plant from establishing, reproducing, or dispersing itself.

    (11.7) “Management objective” means the specific, desired result of integrated management efforts and includes:

    1. “Eradication” which means reducing the reproductive success of a noxious weed species or specified noxious weed population in largely uninfested regions to zero and permanently eliminating the species or population within a specified period of time. Once all specified weed populations are eliminated or prevented from reproducing, intensive efforts continue until the existing seed bank is exhausted.
    2. “Containment” which means maintaining an intensively managed buffer zone that separates infested regions, where suppression activities prevail, from largely uninfested regions, where eradication activities prevail.
    3. “Suppression” which means reducing the vigor of noxious weed populations within an infested region, decreasing the propensity of noxious weed species to spread to surrounding lands, and mitigating the negative effects of noxious weed populations on infested lands. Suppression efforts may employ a wide variety of integrated management techniques.
    4. “Restoration” which means the removal of noxious weed species and reestablishment of desirable plant communities on lands of significant environmental or agricultural value in order to help restore or maintain said value.
12. “Management plan” means the noxious weed management plan developed by any person or the local advisory board using integrated management.
13. (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
14. “Municipality” has the meaning set forth in section 31-1-101 (6), C.R.S.
15. “Native plant” means a plant species that is indigenous to the state of Colorado.
16. “Noxious weed” means an alien plant or parts of an alien plant that have been designated by rule as being noxious or has been declared a noxious weed by a local advisory board, and meets one or more of the following criteria:
    1. Aggressively invades or is detrimental to economic crops or native plant communities;
    2. Is poisonous to livestock;
    3. Is a carrier of detrimental insects, diseases, or parasites;
    4. The direct or indirect effect of the presence of this plant is detrimental to the environmentally sound management of natural or agricultural ecosystems.

    (16.2) “Noxious weed management” means the planning and implementation of an integrated program to manage noxious weed species.

17. “Person” or “occupant” means an individual, partnership, corporation, association, or federal, state, or local government or agency thereof owning, occupying, or controlling any land, easement, or right-of-way, including any city, county, state, or federally owned and controlled highway, drainage or irrigation ditch, spoil bank, borrow pit, gas and oil pipeline, high voltage electrical transmission line, or right-of-way for a canal or lateral.
18. “Plant growth regulator” means a substance used for controlling or modifying plant growth processes without appreciable phytotoxic effect at the dosage applied.

    (18.5) “State noxious weed” means any noxious weed identified by the commissioner by rule after notifying and consulting with the state noxious weed advisory committee created in section 35-5.5-108.7.

    (18.6) “State weed coordinator” means the state weed coordinator under contract with or appointed by the commissioner pursuant to section 35-5.5-117.

20. (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
21. “Weed” means any undesirable plant.

History. Source: L. 90: Entire article added, p. 1550, § 1, effective July 1. L. 96: Entire section amended, p. 764, § 5, effective May 23. L. 2003: (4), IP(9), (10), and (18.5) amended and (11.7) added, p. 2416, § 2, effective August 6.

35-5.5-104. Duty to manage noxious weeds

It is the duty of all persons to use integrated methods to manage noxious weeds if the same are likely to be materially damaging to the land of neighboring landowners.

History. Source: L. 90: Entire article added, p. 1551, § 1, effective July 1. L. 96: Entire section amended, p. 767, § 6, effective May 23.

35-5.5-104.5. Intentional introduction, cultivation, or sale of noxious weeds - costs

1. 1. It shall be unlawful to intentionally introduce, cultivate, sell, offer for sale, or knowingly allow to grow in violation of this article or any rule promulgated hereunder in this state any noxious weed designated pursuant to section 35-5.5-108 (2)(a); except that this prohibition shall not apply to:
      1. Research sanctioned by a state or federal agency or an accredited university or college;
      2. Activities specifically permitted by the commissioner;
      3. Noxious weed management plans that are part of an approved reclamation plan pursuant to section 34-32-116 (7) or 34-32.5-116 (4), C.R.S.;
      4. Noxious weed management activities that are conducted on disturbed lands as part of an approved reclamation plan pursuant to section 34-33-111 (1), C.R.S.; or
      5. Noxious weed management activities that are part of activities conducted on disturbed lands pursuant to section 34-60-106 (12), C.R.S.
   2. It shall not be a violation of this section for a person to knowingly allow to grow a state noxious weed that is being properly managed in accordance with the rules promulgated by the commissioner.
2. Any entity or person that violates the provisions of this section shall be responsible for the costs associated with remediation of the noxious weeds. In assessing the cost of remediation, the commissioner may include both actual immediate and estimated future costs to achieve specified management objectives.

History. Source: L. 2003: Entire section added, p. 2417, § 3, effective August 6.

35-5.5-105. Noxious weed management - powers of county commissioners

1. The board of county commissioners of each county in the state shall adopt a noxious weed management plan for all of the unincorporated lands within the county. Such plan shall include all of the requirements and duties imposed by this article. Guidelines may be included that address no pesticide noxious weed management plans. In addition to and not in limitation of the powers delegated to boards of county commissioners in section 30-11-107 and article 15 of title 30, C.R.S., article 5 of this title, and elsewhere as provided by law, the board of county commissioners may adopt and provide for the enforcement of such ordinances, resolutions, rules, and other regulations as may be necessary and proper to enforce said plan and otherwise provide for the management of noxious weeds within the county, subject to the following limitation: No county ordinance, rule, resolution, other regulation, or exercise of power pursuant to this article shall apply within the corporate limits of any incorporated municipality, nor to any municipal service, function, facility, or property, whether owned by or leased to the incorporated municipality outside the municipal boundaries unless the county and municipality agree otherwise pursuant to part 2 of article 1 of title 29, C.R.S., or article 20 of title 29, C.R.S.
2. 1. The board of county commissioners shall provide for the administration of the noxious weed management plan authorized by this article through the use of agents, delegates, or employees and may hire additional staff or provide for the performance of all or part of the management plan through outside contract. Any agent, delegate, employee, staff, or contractor applying or recommending the use of chemical management methods shall be certified by the department of agriculture for such application or recommendation. Costs associated with the administration of the noxious weed management plan shall be paid from the noxious weed management fund of each county.
   2. Subject to the direction of the board of county commissioners, an agent of the county appointed or employed under this subsection (2) may exercise the powers and duties granted to, and perform the duties of, a county pest inspector in accordance with articles 4 and 5 of this title.
3. The board of county commissioners may cooperate with other counties and municipalities for the exercise of any or all of the powers and authorities granted by this article. Such cooperation shall take the form of an intergovernmental agreement pursuant to part 2 of article 1 of title 29, C.R.S., or article 20 of title 29, C.R.S.

History. Source: L. 90: Entire article added, p. 1551, § 1, effective July 1. L. 96: (1) and (2) amended, p. 767, § 7, effective May 23. L. 2013: (2) amended, (HB 13-1250), ch. 240, p. 1168, § 4, effective August 7.

35-5.5-106. Noxious weed management - municipal authority

1. The governing body of each municipality in the state shall adopt a noxious weed management plan for all lands within the territorial limits of the municipality. In addition to and independent of the powers elsewhere delegated by law, the governing body of a municipality may adopt and provide for the enforcement of such ordinances, resolutions, rules, and other regulations as may be necessary and proper to enforce said plan and otherwise provide for the management of noxious weeds within the municipality, subject to the following limitation: No municipal ordinance, resolution, rule, other regulation, or exercise of power pursuant to this article shall apply to unincorporated lands or facilities outside the corporate limits of the municipality, except such lands or facilities which are owned by or leased to the municipality, unless the municipality and the county otherwise agree pursuant to part 2 of article 1 of title 29, C.R.S., or article 20 of title 29, C.R.S.
2. The governing body of the municipality shall provide for the administration of the noxious weed management plan authorized by this article through the use of agents, delegates, or employees and may hire additional staff or provide for the performance of all or part of the noxious weed management plan through outside contract. Any agent, delegate, employee, staff, or contractor applying or recommending the use of chemical management methods shall be certified by the department of agriculture for such application or recommendation.
3. The governing body may cooperate with counties and other municipalities for the exercise of any or all of the powers and authorities granted by this article. Such cooperation shall take the form of an intergovernmental agreement pursuant to part 2 of article 1 of title 29, C.R.S., or article 20 of title 29, C.R.S.
4. To the degree that a municipality has, upon enactment of this article, or subsequent to that date, adopted an ordinance or ordinances for the management of noxious weeds, the adoption of such an ordinance or ordinances shall be deemed to satisfy the requirement for the adoption of a noxious weed management plan imposed by this article.

History. Source: L. 90: Entire article added, p. 1552, § 1, effective July 1. L. 96: (1), (2), and (4) amended, p. 768, § 8, effective May 23.

35-5.5-107. Local advisory board - formation - duties

1. The governing body of each county and municipality shall appoint a local advisory board. The local governing body, at its sole option, may appoint itself, or a commission of landowners, to act as the local advisory board for that jurisdiction. The members of each local advisory board shall be residents of the unincorporated portion of the county or residents of the municipality, as the case may be, and in the case of a county, at least a majority of the members of the local advisory board shall be landowners of over forty acres.
2. In the event a county or municipality elects to cooperate with another county or municipality for any of the purposes set forth in this article, the membership of the local advisory board shall be determined by the governing bodies of such cooperating local governments.
3. Each local advisory board shall annually elect a chairman and secretary. A majority of the members of the board shall constitute a quorum for the conduct of business.
4. Local advisory boards shall have the power and duty to:
   1. Develop a recommended management plan for the integrated management of designated noxious weeds and recommended management criteria for noxious weeds within the area governed by the local government or governments appointing the local advisory board. The management plan shall be reviewed at regular intervals but not less often than once every three years by the local advisory board. The management plan and any amendments made thereto shall be transmitted to the local governing body for approval, modification, or rejection.
   2. Declare noxious weeds and any state noxious weeds designated by rule to be subject to integrated management;
   3. Recommend to the local governing body that identified landowners be required to submit an individual integrated management plan to manage noxious weeds on their property.
5. The local governing body shall have the sole and final authority to approve, modify, or reject the management plan, management criteria, management practice, and any other decision or recommendation of the local advisory board.
6. The state weed coordinator shall review any recommendations of a local advisory board appointed pursuant to article 5 of this title and note any inconsistencies between the recommendations of the state weed coordinator or the commissioner and any such local advisory board.

History. Source: L. 90: Entire article added, p. 1552, § 1, effective July 1. L. 96: Entire section amended, p. 768, § 9, effective May 23.

35-5.5-108. Designated noxious weeds - rules - legislative declaration

1. The general assembly hereby finds and declares that the noxious weeds designated by rule are a present threat to the economic and environmental value of the lands of the state of Colorado and declare it to be a matter of statewide importance that the governing bodies of counties and municipalities include plans to manage such weeds as part of their duties pursuant to this article.
2. 1. The state list of plant species that are designated as noxious weeds shall be designated by rule and shall be managed under the provisions of this article. On and after August 6, 2003, the commissioner shall classify noxious weeds into one of a minimum of three categories, including:
      1. “List A”, which means rare noxious weed species that are subject to eradication wherever detected statewide in order to protect neighboring lands and the state as a whole;
      2. “List B”, which means noxious weed species with discrete statewide distributions that are subject to eradication, containment, or suppression in portions of the state designated by the commissioner in order to stop the continued spread of these species;
      3. “List C”, which means widespread and well-established noxious weed species for which control is recommended but not required by the state, although local governing bodies may require management.
   2. A local governing body may adopt eradication, containment, or suppression standards that are more stringent than the standards adopted by the commissioner.

   (2.1) The commissioner shall review and revise, as necessary, the state noxious weed list at least once every three years.

   (2.3) The commissioner shall develop and implement by rule state noxious weed management plans for noxious weed species classified as list A or list B species. For each noxious weed species, each management plan shall designate the management objectives for all lands of the state appropriate to achieve the stated purpose of the species classification.

   (2.5) The commissioner shall prescribe integrated management techniques to achieve specified management objectives for each listed species after consulting with the state noxious weed advisory committee. The prescribed management techniques shall be mandatory techniques for list A species and populations of list B species designated for eradication. The commissioner shall develop management techniques pursuant to science-based methodologies, peer reviewed studies, or any other method that is based on credible research.

   (2.6) The classifications made pursuant to paragraph

   1. of subsection (2) of this section shall primarily reflect the known distribution of the designated species, the feasibility of current control technologies to achieve specified management objectives, and the costs of carrying out the prescribed state weed management plan.

   (2.7)

   1. The commissioner shall also adopt rules for granting compliance waivers to local governing bodies and landowners; except that a waiver may not be granted to the affected landowner when a landowner has wilfully or wantonly violated the provisions of this section or section 35-5.5-104.5 or 35-5.5-108.5 attempts to delay eradication of a species without just cause.
   2. Such rules shall include:
      1. A process by which a local governing body or an affected landowner may petition the commissioner to change the management objectives specified in a state noxious weed management plan;
      2. The criteria used to evaluate such petitions; and
      3. Time frames in which the commissioner shall grant or deny such petitions.
   3. Actions sufficient to implement the management objective for a noxious weed species shall continue until the commissioner grants a waiver pursuant to this subsection (2.7).
3. The board of county commissioners or governing body of a municipality may declare additional noxious weeds, within its jurisdictional boundaries, after a public hearing with thirty days prior notice to the public. Any declaration of additional noxious weeds pursuant to this subsection (3) shall include the management objectives for all affected landowners.

History. Source: L. 90: Entire article added, p. 1553, § 1, effective July 1. L. 96: Entire section amended, p. 769, § 10, effective May 23. L. 2003: (2) and (3) amended and (2.1), (2.3), (2.5), (2.6), and (2.7) added, p. 2423, § 4, effective August 6.

35-5.5-108.5. Responsibilities related to eradication of designated noxious weeds - commissioner - local governing bodies - affected landowners

1. This section shall apply to noxious weeds that have been classified as list A species and to populations of list B species designated for eradication pursuant to section 35-5.5-108 (2)(a). This section shall govern the responsibilities of the commissioner, local governing bodies, and affected landowners.
2. Duties of commissioner.
   1. The commissioner may enforce the provisions of this section as necessary to ensure the cooperation of local governing bodies and affected landowners.
   2. The commissioner shall provide:
      1. Educational resources to local governing bodies and affected landowners regarding the eradication of list A species and populations of list B species designated for eradication. Such education shall include an explanation of why the species has been listed for eradication, the prescribed techniques for eradication in the most cost-effective manner, and the duties of the local governing body and affected landowner regarding such eradication.
      2. Financial or in-kind resources to local governing bodies or affected landowners to eradicate list A species and populations of list B species designated for eradication from the available moneys in the noxious weed management fund created in section 35-5.5-116. Such financial or in-kind resource allocation shall be determined by the commissioner according to the identified benefits to the citizens of Colorado, the surrounding community, and the affected landowners.
      3. The inventory and mapping infrastructure necessary to facilitate the classification of state noxious weeds and the development and implementation of state noxious weed management plans.
3. Duties of local governing bodies.
   1. In compliance with the rules promulgated by the commissioner, a local governing body shall initiate and maintain communications with landowners who are affected by list A species and populations of list B species designated for eradication by the commissioner.
   2. In addition to the existing powers and duties of a local governing body provided in this article a local governing body shall:
      1. Provide affected land owners with technical assistance for the eradication of list A species and populations of list B species designated for eradication by the commissioner;
      2. Carry out sufficient measures, including project oversight and enforcement, as may be necessary to ensure the eradication of list A species and populations of list B species designated for eradication by the commissioner;
      3. Provide the commissioner with assistance in disseminating financial resources to affected landowners and mapping data pursuant to rules promulgated by the commissioner; and
      4. Determine the cost of eradication to be borne by affected landowners.
   3. Local governing bodies may apply to the commissioner for a waiver of compliance with an eradication designation pursuant to section 35-5.5-108 (2.7).
   4. If the commissioner determines, in consultation with the local governing body, that the most cost-effective manner to eradicate designated noxious weeds is for the commissioner to implement an eradication program, the commissioner may implement the eradication program directly.
4. Duties of affected landowners or occupants.   Except as provided pursuant to section 35-5.5-104.5 (1)(a), an affected landowner or occupant whose property may be affected by list A species or by populations of list B species designated for eradication shall allow the commissioner or local weed control officials access to such property for the purpose of immediate inspection and eradication when at least one of the following events has occurred:
   1. The affected landowner or occupant has requested the inspection;
   2. A neighboring landowner or occupant has reported a suspected noxious weed infestation and requested an inspection; or
   3. An authorized agent of the local government or commissioner has made a visual observation from a public right-of-way or area and has reason to believe that a noxious weed infestation exists.
5. 1. If verbal permission to inspect the land by the affected landowner is not obtained, no entry upon any premises, lands, or places shall be permitted until the local governing body has notified the affected landowner that such inspection is pending by certified mail if the landowner’s mailing address is within the United States or mailed in a comparable manner to a landowner whose mailing address is outside of the United States. Where possible, inspections shall be scheduled and conducted with the concurrence of the affected landowner or occupant. A local governing body may notify an affected landowner in an electronic format, in addition to notice by certified mail.
   2. 1. If, after ten days with no response from the affected landowner or upon denial of access before the expiration of ten days, the inspector may seek an inspection warrant issued by a municipal, county, or district court having jurisdiction over the land. The court shall issue an inspection warrant upon presentation by the local governing body of an affidavit stating:
         1. The information that gives the inspector reasonable cause to believe that any provision of this section, section 35-5.5-104.5, or section 35-5.5-108, is being or has been violated;
         2. The affected landowner has failed to respond or the landowner or occupant has denied access to the inspector; and
         3. A general description of the location of the affected land.
      2. No affected landowner or occupant shall deny access to an authorized agent of the local governing body or the commissioner in possession of an inspection warrant.
6. An affected landowner shall notify a lessee or occupant of affected lands of all notices of inspection and eradication efforts on such lands as soon as practicable.
7. The local governing body of the county or municipality having jurisdiction over private and public lands on which list A species or populations of list B species designated for eradication are found shall notify the affected landowner or occupant of such lands by certified mail if the landowner’s mailing address is within the United States or mailed in a comparable manner to a landowner whose mailing address is outside of the United States. The notice shall name the noxious weeds, identify eradication as the required management objective, advise the affected landowner or occupant to commence eradication efforts within a specified period or condition, and state the integrated weed management techniques prescribed by the commissioner for eradication. Where possible, the local governing body shall consult with the affected landowner or occupant in the development of a plan for the eradication of noxious weeds on the premises or land.
8. Within five days after the local governing body mails notification, the landowner shall comply with the terms of the notification or submit an acceptable plan and schedule for the completion of the management objective.
9. 1. In the event the affected landowner or occupant fails to comply with the notice to eradicate the identified noxious weeds and implement an appropriate eradication program, the local governing body having authority over the public or private land shall:
      1. Provide for and complete the eradication of such noxious weeds at such time, upon such notice, and in such manner consistent with achieving the management objective as the local governing body deems appropriate; and
      2. Do one of the following:
         1. Assess the whole cost of the eradication, including up to one hundred percent of inspection, eradication, and other incidental costs in connection with eradication, upon the lot or tract of land where the noxious weeds are located; except that no local governing body shall levy a tax lien against land it administers as a part of a public right-of-way. Such assessment shall be a lien against each lot or tract of land until paid and shall have priority over all other liens except general taxes and prior special assessments. Such assessment may be certified to the county treasurer of the county in which the property is located and collected and paid over in the same manner as provided for the collection of taxes. Any funds collected pursuant to this section shall be utilized in furtherance of the local governing body’s weed management efforts.
         2. In the event the state board, department, or agency fails to comply with the notice to eradicate the identified noxious weeds, the local governing body in whose jurisdiction the infestation is located may enter upon such lands and undertake the management of such noxious weeds or cause the same to be done. The expenses associated with inspection and eradication shall be paid by the state board, department, or agency that has jurisdiction over the lands. An agreement for reimbursement shall be reached within two weeks after the date such statement of expense for eradication is submitted by the local governing body. Such reimbursement agreement shall be in writing. If no reimbursement agreement has been reached or the amount reflected in the agreement is not paid upon presentation, the amount in the agreement shall be submitted to the state controller, who shall treat such amount as an encumbrance on the budget of the state board, department, or agency involved or such charge may be recovered in any court with jurisdiction over such lands. The expense associated with eradication may be recovered in any court with jurisdiction over such infested land.
   2. No local governing body shall provide for or compel the eradication of list A species and populations of list B species designated for eradication or list B noxious weeds on private or public property pursuant to this subsection (9) without first applying the same measures to any land or rights-of-way owned or administered by the local governing body that are adjacent to the property.
10. The local governing body, through its delegates, agents, or employees, shall have the right to enter upon any premises, lands, or places during reasonable business hours for the purpose of ensuring compliance with the requirements of this section concerning noxious weed eradication.
11. No agent, employee, or delegate of a local governing body shall have a cause of action against an affected landowner or occupant for personal injury or property damages while on private or public land for purposes of eradication of noxious weeds except when such damages were the result of gross negligence, recklessness, or intentional action by the landowner.
12. If, in the opinion of the commissioner, any local governing body fails to adequately perform any of the duties set forth in this section, the commissioner is authorized to conduct any of the functions or duties of a local governing body pursuant to this section.
13. The commissioner or the local governing body may require the affected landowner to pay a portion of the costs associated with eradication of the noxious weeds.
14. An affected landowner may apply to the commissioner for a waiver of compliance with an eradication designation pursuant to section 35-5.5-108 (2.7).
15. For the purposes of this section, an “occupant” shall not include the owner of an easement or right-of-way.

History. Source: L. 2003: Entire section added, p. 2417, § 3, effective August 6.

35-5.5-108.7. State noxious weed advisory committee - repeal

1. 1. 1. There is hereby created the state noxious weed advisory committee, referred to in this section as the “state advisory committee”. The state advisory committee consists of seventeen members. Fifteen members are appointed by the commissioner and serve without per diem compensation or expenses. Of the fifteen members:
         1. At least one member represents private and public landowners or land managers;
         2. At least two members represent weed management professionals from the federal, state, or local levels;
         3. At least one member represents public or private weed scientists;
         4. At least two members represent local governing bodies;
         5. Four members must be agricultural producers, as defined in section 35-1-102; and
         6. At least three members represent knowledgeable resource specialists or industries, including environmental organizations.
      2. The remaining two members are:
         1. One nonvoting member who is appointed by the Colorado department of transportation with the approval of the commissioner; and
         2. One nonvoting member who is appointed by the department of natural resources with the approval of the commissioner.
      3. Representation on the state advisory committee must reflect the different geographic areas of the state equally, to the greatest extent possible. Members of the state advisory committee that represent the various stakeholders and regions shall solicit input from similar stakeholders within each member’s area of expertise and region of the state. Members of the state advisory committee shall communicate the committee’s recommendations to the region and stakeholders represented by each member.
   2. Staggered appointments shall be made so that not more than eight members’ terms expire in any one year, and thereafter appointments shall be for terms of two years each. Appointees shall be limited to two full terms each. Each state advisory committee member shall hold office until the expiration of the term for which such member is appointed or until a successor has been duly appointed.
   3. In the event of a vacancy on the state advisory committee, the commissioner shall fill such vacancy promptly to allow a quorum of the state advisory committee to function.
   4. The commissioner may remove any member of the state advisory committee for misconduct, incompetence, or neglect of duty.
   5. A quorum of the state advisory committee shall elect or appoint annually a chairman and a vice-chairman.
   6. A quorum of the state advisory committee shall be a majority of the members appointed to the state advisory committee.
   7. The state advisory committee shall meet at least quarterly.
2. The state advisory committee shall make recommendations to the commissioner concerning the:
   1. Designation of state noxious weeds;
   2. Classification of state noxious weeds;
   3. Development and implementation of state weed management plans;
   4. Prescribed techniques for eradication, containment, and suppression of state noxious weeds; and
   5. Management of noxious weeds on surface waters and public lands.
3. Recommendations of the state advisory committee shall be made by a majority vote of the members of the state advisory committee.
4. The state advisory committee shall periodically assess the progress made to implement the provisions of sections 35-5.5-104.5, 35-5.5-108.5, 35-5.5-108.7, and 35-5.5-108 (2)(a); measure the results and effectiveness of endeavors to eradicate, contain, and suppress noxious weeds within this state; and recommend to the commissioner ways to enhance statewide efforts to stop the spread of noxious weeds.
5. This section is repealed, effective September 1, 2023. Prior to the repeal, the state noxious weed advisory committee is reviewed under section 2-3-1203, C.R.S.

History. Source: L. 2003: Entire section added, p. 2422, § 3, effective August 6. L. 2008: (5) amended, p. 1913, § 123, effective August 5. L. 2013: (1)(a), (2)(c), (2)(d), and (5) amended and (2)(e) added, (SB 13-223), ch. 294, p. 1572, § 2, effective May 28.

35-5.5-109. Private lands - management of noxious weeds - charges

1. The local governing body, through its delegates, agents, and employees, shall have the right to enter upon any premises, lands, or places, whether public or private, during reasonable business hours for the purpose of inspecting for the existence of noxious weed infestations, when at least one of the following circumstances has occurred:
   1. The landowner or occupant has requested an inspection;
   2. A neighboring landowner or occupant has reported a suspected noxious weed infestation and requested an inspection; or
   3. An authorized agent of the local government has made a visual observation from a public right-of-way or area and has reason to believe that a noxious weed infestation exists.
2. 1. No entry upon any premises, lands, or places shall be permitted until the landowner or occupant has been notified by certified mail that such inspection is pending. Where possible, inspections shall be scheduled and conducted with the concurrence of the landowner or occupant.
   2. If after receiving notice that an inspection is pending the landowner or occupant denies access to the inspector of the local governing body, the inspector may seek an inspection warrant issued by a municipal, county, or district court having jurisdiction over the land. The court shall issue an inspection warrant upon presentation by the local governing body, through its agent or employee, of an affidavit stating: The information which gives the inspector reasonable cause to believe that any provision of this article is being or has been violated; that the occupant or landowner has denied access to the inspector; and a general description of the location of the affected land. No landowner or occupant shall deny access to such land when presented with an inspection warrant.
3. The local governing body of the county or municipality having jurisdiction over private lands upon which noxious weeds are found shall have the authority, acting directly or indirectly through its agent or staff, to notify the landowner or occupant of such lands, advising the landowner or occupant of the presence of noxious weeds. Said notice shall name the noxious weeds, advise the landowner or occupant to manage the noxious weeds, and specify the best available control methods of integrated management. Where possible, the local governing body shall consult with the affected landowner or occupant in the development of a plan for the management of noxious weeds on the premises or lands.
4. 1. Within a reasonable time after receipt of notification, which at no time shall exceed ten days, the landowner or occupant shall either:
      1. Comply with the terms of the notification;
      2. Acknowledge the terms of the notification and submit an acceptable plan and schedule for the completion of the plan for compliance; or
      3. Request an arbitration panel to determine the final management plan.
   2. The arbitration panel selected by the local governing body shall be comprised of a weed management specialist or weed scientist, a landowner of similar land in the same county, and a third panel member chosen by agreement of the first two panel members. The landowner or occupant shall be entitled to challenge any one member of the panel, and the local governing body shall name a new panel member from the same category. The decision of the arbitration panel shall be final.
5. 1. In the event the landowner or occupant fails to comply with the notice to manage the identified noxious weeds or implement the plan developed by the arbitration panel, the local governing body has the authority to:
      1. Provide for and compel the management of such noxious weeds at such time, upon such notice, and in such manner as the local governing body shall prescribe by ordinance or resolution; and
      2. Assess the whole cost thereof, including up to twenty percent for inspection and other incidental costs in connection therewith, upon the lot or tract of land where the noxious weeds are located; except that no local governing body shall levy a tax lien against land it administers as part of a public right-of-way. Such assessment shall be a lien against each lot or tract of land until paid and shall have priority over all other liens except general taxes and prior special assessments. Such assessment may be certified to the county treasurer of the county in which the property is located and collected and paid over in the same manner as provided for the collection of taxes. Any funds collected pursuant to this section shall be deposited in the local governing body’s weed fund or any similar fund.
   2. No local governing body shall provide for or compel the management of noxious weeds on private property pursuant to this subsection (5) without first applying the same or greater management measures to any land or rights-of-way owned or administered by the local governing body that are adjacent to the private property.
   3. No local governing body shall assess the cost of providing for or compelling the management of noxious weeds on private property until the level of management called for in the notice or the management plan developed by the arbitration panel has been successfully achieved.
6. The local governing body, through its delegates, agents, and employees, shall have the right to enter upon any premises, lands, or places, whether public or private, during reasonable business hours for the purpose of ensuring compliance with the requirements of this article concerning noxious weed management and any other local requirements.
7. No agent, employee, or delegate of a local governing body shall have a civil cause of action against a landowner or occupant for personal injury or property damage incurred while on public or private land for purposes consistent with this article except when such damages were willfully or deliberately caused by the landowner.

History. Source: L. 90: Entire article added, p. 1554, § 1, effective July 1. L. 96: (1), (2)(a), (3), (5), and (6) amended, p. 770, § 11, effective May 23.

35-5.5-110. Public lands - control of undesirable plants - charges

1. It is the duty of each state board, department, or agency that administers or supervises state lands to manage noxious weeds on any lands under its jurisdiction using the methods prescribed by the local governing body in whose jurisdiction such state lands are located. The local governing body may give notice to any such state board, department, or agency advising of the presence of noxious weeds and naming them. Such notice shall specify the best available methods of integrated management that are not in conflict with federal law or contractual restrictions included in federal land conveyances to the state. Wherever possible, the local governing body shall consult with the affected state board, department, or agency in the development of a plan for the management of noxious weeds on the premises or lands.
2. 1. Within a reasonable time after receipt of notification, which at no time shall exceed ten days, the state board, department, or agency shall do one of the following:
      1. Comply with the terms of the notification;
      2. Acknowledge the terms of the notification and submit an acceptable plan and schedule for the completion of the plan for compliance;
      3. Request an arbitration panel to determine the final management plan.
   2. The arbitration panel selected by the local governing body shall be comprised of a weed management specialist or weed scientist, a landowner of similar land in the same county, and a third panel member chosen by agreement of the first two panel members. The state board, department, or agency shall be entitled to challenge any one member of the panel, and the local governing body shall name a new panel member from the same category. The decision of the arbitration panel shall be final.
3. In the event the state board, department, or agency fails to comply with the notice to manage the identified noxious weeds or implement the plan developed by the arbitration panel, the local governing body in whose jurisdiction the infestation is located may enter upon such lands and undertake the management of such noxious weeds or cause the same to be done, the expense thereof to be a proper charge against said state board, department, or agency which has jurisdiction over the lands. An agreement for payment shall be reached within two weeks after the date such an expense is submitted, with respect to the amount of reimbursement to be paid. Such agreement shall be in writing. If no agreement has been reached and if the charge is not immediately paid, such charge shall be submitted to the controller, who shall treat such amount as an encumbrance on the budget of the state board, department, or agency involved, or such charge may be recovered in any court with jurisdiction over such lands. Any state board, department, or agency may enter into a contract with the local governing body to authorize the management of noxious weeds on state-administered land on terms and conditions satisfactory to both parties.
4. In addition to the requirements of subsection (3) of this section, the division shall enter into agreements with local governing bodies for the control of weeds on any property the division owns in fee title or has effective surface control over pursuant to a long-term lease or easement agreement. For purposes of this subsection (4) and subsection (5) of this section, “long-term lease or easement agreement” means any lease or easement agreement that exceeds ten years. Agreements between the division and local governing bodies for weed control shall describe the terms and conditions of weed control, provide an annual estimated budget for such weed control, and identify specific weed control responsibilities for the division and the property owner, if different than the division. Weed control agreements required pursuant to this subsection (4) shall be executed on or before July 1, 1997.
5. Any weed control expense incurred by a local governing body pursuant to subsection (3) of this section on any lands held by the division in fee title or by long-term lease or easement agreement, as described in subsection (4) of this section, and for which a weed control agreement as described in subsection (4) of this section has been signed, and which costs are in accordance with that long-term agreement, shall be deemed correct and final and shall be paid by the division pursuant to section 33-1-110 (6.5), C.R.S.

History. Source: L. 90: Entire article added, p. 1556, § 1, effective July 1. L. 96: (1) and (3) amended, p. 772, § 12, effective May 23; (3) amended and (4) and (5) added, p. 1370, § 3, effective June 3.

Editor’s note: Amendments to subsection (3) by House Bill 96-1008 and House Bill 96-1014 were harmonized.

35-5.5-111. Cooperation with federal and state agencies

The local governing bodies of all counties and municipalities in this state are hereby authorized to enter into cooperative agreements with federal and state agencies for the integrated management of noxious weeds within their respective territorial jurisdictions.

History. Source: L. 90: Entire article added, p. 1557, § 1, effective July 1. L. 96: Entire section amended, p. 772, § 13, effective May 23.

35-5.5-112. Public rights-of-way - management of noxious weeds - charges

It shall be the duty of each local governing body and each state board, department, or agency to confirm that all public roads, public highways, public rights-of-way, and any easements appurtenant thereto, under the jurisdiction of each such entity, are in compliance with this article, and any violations of this article shall be the financial responsibility of the appropriate local governing body or state board, department, or agency.

History. Source: L. 90: Entire article added, p. 1557, § 1, effective July 1. L. 96: Entire section amended, p. 772, § 14, effective May 23.

35-5.5-113. Public nuisance - abatement

All noxious weeds, at any and all stages, their carriers, and any and all premises, plants, and things infested or exposed to infestation therewith may be declared to be a public nuisance by the local governing body having jurisdiction over the lands upon which said noxious weeds are situated. Once declared, such nuisances are subject to all laws and remedies relating to the prevention and abatement of nuisances. The local governing body, in a summary manner or otherwise, may take such action, including removal and destruction, with reference to such nuisance as in its discretion appears necessary. The remedies of this section shall be in addition to all other remedies provided by law.

History. Source: L. 90: Entire article added, p. 1557, § 1, effective July 1. L. 96: Entire section amended, p. 773, § 15, effective May 23.

35-5.5-114. Review of compliance on federal land. (Repealed)

History. Source: L. 90: Entire article added, p. 1557, § 1, effective July 1. L. 96: Entire section repealed, p. 1218, § 12, effective August 7.

Cross references: For the legislative declaration contained in the 1996 act repealing this section, see section 1 of chapter 237, Session Laws of Colorado 1996.

35-5.5-114.1. Survey of compliance on federal land

On or before January 1, 1998, the state weed coordinator shall survey those counties that include significant amounts of federal land to determine the level of cooperation and compliance by the federal government with this article.

History. Source: L. 96: Entire section added, p. 773, § 16, effective May 23.

35-5.5-115. Rules

The commissioner shall promulgate rules as necessary to carry out the purposes of this article, which rules shall include a designation of state noxious weeds.

History. Source: L. 96: Entire section added, p. 773, § 17, effective May 23.

35-5.5-116. Noxious weed management fund - creation - allocation of funds

1. There is hereby created in the office of the state treasurer the noxious weed management fund. The fund consists of any civil penalties collected pursuant to section 35-5.5-118; any gifts, donations, and grants received pursuant to section 35-1-104 (1)(cc); and any moneys appropriated or transferred thereto by the general assembly. All interest derived from the deposit and investment of moneys in the fund shall be credited to the fund. The general assembly shall annually appropriate state moneys in the fund to the department of agriculture for the purposes specified in this section. Any unexpended and unencumbered moneys from an appropriation from the fund remain available for expenditure by the department in the next fiscal year without further appropriation.
2. The interest earned on moneys in the noxious weed management fund and appropriated to the department of agriculture shall be expended for costs incurred by the department of agriculture in administering this article, and any moneys appropriated that exceed the amount needed for such costs may be expended for noxious weed management projects in accordance with this section.
3. The department may expend moneys through grants or contracts to communities, weed control districts, or other entities it considers appropriate for noxious weed management projects.
4. The department may expend moneys for the following purposes:
   1. Noxious weed management programs with local weed control districts, if expenses are shared with such districts;
   2. With the approval of the agricultural commission, the department may make special grants to local weed control districts to eradicate or contain state noxious weeds, which grants may be issued without matching funds from the district;
   3. Administrative expenses incurred by the department;
   4. Any project the agricultural commission determines will significantly contribute to the management of noxious weeds within the state;
   5. With the approval of the agricultural commission, grants to the Colorado state university cooperative extension service, the Colorado state university experiment station, and universities for weed management research, evaluation, and education;
   6. Employment of a new and innovative noxious weed management project or the development, implementation, or demonstration of any noxious weed management project that may be proposed, implemented, or established by local, state, or national organizations, whether public or private. Such expenditures shall be shared with such organizations.
5. If a new and potentially harmful noxious weed is discovered growing in the state and its presence is verified by the department, the governor may declare a noxious weed emergency. In the absence of necessary funding from other sources, the department is authorized to allocate up to fifty thousand dollars of the principal in the noxious weed management fund to government agencies for emergency relief to manage or confine the new noxious weed species.

History. Source: L. 96: Entire section added, p. 773, § 17, effective May 23. L. 2016: (1) amended, (HB 16-1163), ch. 76, p. 199, § 1, effective April 12.

35-5.5-117. The state weed coordinator

1. There shall be designated in the department of agriculture a state weed coordinator, who shall be under contract with or appointed by the commissioner.
2. The state weed coordinator shall:
   1. Develop a recommended management plan for the integrated management of designated noxious weeds within state-owned lands;
   2. Facilitate cooperation between federal, state, and local land managers in the formation of a memorandum of understanding;
   3. Provide guidance and coordination for local governmental weed managers.

History. Source: L. 96: Entire section added, p. 773, § 17, effective May 23. L. 2005: (1) amended, p. 881, § 1, effective June 1.

35-5.5-118. Civil penalties

1. 1. Any person who violates this article or any rule adopted pursuant to this article is subject to a civil penalty, as determined by the commissioner. The penalty shall not exceed one thousand dollars per violation; except that such penalty may be doubled if it is determined that the person has violated the provision or rule more than once. No civil penalty shall be imposed unless and until the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
   2. In addition to any civil penalties assessed pursuant to paragraph (a) of this subsection (1), any person who violates the provisions of section 35-5.5-104.5, 35-5.5-108, or 35-5.5-108.5, or any rule adopted to implement these sections, shall, upon an order of the commissioner, pay the cost of inspection and eradication of list A or list B noxious weed species, including, but not limited to, any immediate remediation costs, the estimated cost of future eradication, any administrative costs, and any court cost and attorney fees incurred by the commissioner in enforcing section 35-5.5-104.5, 35-5.5-108, or 35-5.5-108.5, or any rule adopted to implement these sections. The commissioner may not enforce such order unless and until the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S. All moneys due and owing pursuant to this paragraph (b) shall be payable to the department for the payment and reimbursement of enforcement and costs associated with such enforcement and are hereby continuously appropriated to the department for such purpose.
2. If the commissioner is unable to collect a civil penalty, payment of costs imposed pursuant to subsection (1) of this section, or if the person fails to pay all or a specified portion of such penalty or payment, the department may bring suit in any court of competent jurisdiction to recover such amount plus costs and attorney fees.
3. Before imposing any civil penalty or payment of costs, the commissioner may consider the effect of such penalty or payment of costs on the ability of the person charged to stay in business.
4. All civil penalties and payment of costs collected pursuant to this section shall be deposited in the noxious weed management fund created in section 35-5.5-116.

History. Source: L. 96: Entire section added, p. 773, § 17, effective May 23. L. 2003: Entire section amended, p. 2425, § 5, effective August 6.

35-5.5-119. County funding

The board of county commissioners is authorized to levy a special tax, subject to the approval of the voters, upon every dollar of valuation of assessment of taxable property within the county for the purpose of creating a county fund to control noxious weeds; except that the amount raised from such levy in any one year shall not exceed the amount raised by five mills.

History. Source: L. 96: Entire section added, p. 773, § 17, effective May 23.

35-6-101 to 35-6-108. (Repealed)

History. Source: L. 85: Entire article repealed, p. 1135, § 15, effective May 16.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 11 of chapter 6, C.R.S. 1963. For amendments to this article prior to its repeal in 1985, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

Cross references: For current provisions concerning the quarantine and control of pests, see §§ 35-4-110 and 35-4-110.5.

35-7-101. Legislative declaration

Whereas, in many large areas of this state certain destructive rodent pests, such as jackrabbits, prairie dogs, ground squirrels, pocket gophers, and rats, have become so numerous and such a grave and immediate menace to the agricultural, horticultural, and livestock industries of the state that large numbers of the inhabitants engaged in such industries in the localities so infested are in great and imminent danger of being impoverished and reduced to want by the destruction of their crops; and, whereas, the situation is so serious and the emergency so urgent that public necessity demands that prompt, efficacious, and summary action be taken under the police power of the state to control, suppress, and eradicate the rodents in the areas infested by them; now, therefore, it is declared that in all fields, orchards, places, localities, and areas in the state infested with any such rodents in sufficient numbers as to materially injure agricultural or horticultural crops therein, such infestation is a public nuisance and subject to suppression and abatement as such under the provisions of this part 1.

History. Source: L. 27: P. 616, § 1. CSA: C. 5, § 44. CRS 53: § 6-7-1. C.R.S. 1963: § 6-7-1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-7-102. Agreement with the federal government

To the end that the situation may be speedily remedied, it is the duty of the department of agriculture, referred to in this part 1 as the “department”, to enter into written agreements on behalf of the state with the federal agency in charge of rodent control matters, referred to in this article as the “federal agency”, such agreements to define such procedure, in accordance with the provisions of this part 1, as they deem advisable and proper for the purpose of cooperating with the federal agency in the control and eradication within this state of the rodent pests mentioned in section 35-7-101.

History. Source: L. 27: P. 617, § 2. CSA: C. 5, § 45. L. 39: P. 210, § 1. CRS 53: § 6-7-2. C.R.S. 1963: § 6-7-2. L. 2002: Entire section amended, p. 1030, § 58, effective June 1.

35-7-103. Rodent pest control fund - creation

1. For the purpose of carrying out the provisions of this part 1, there is hereby created the rodent pest control fund. To insure continuity of contractual relations with the federal agency, said fund shall be permanent, and the same, together with all appropriations and all reimbursements or accretions thereto, from whatever source derived, is appropriated to carry out the purposes of this part 1.
2. All disbursements from the fund shall be by warrants drawn by the controller upon itemized vouchers certified by the federal agency as to correctness and approved by the department which shall approve the vouchers for all lawful expenses incurred in carrying out the purposes of this part 1 and in accordance with the terms of any cooperative agreements entered into by the department with the federal agency.

History. Source: L. 27: P. 617, § 3. L. 31: P. 708, § 1. CSA: C. 5, § 46. L. 39: P. 210, § 2. CRS 53: § 6-7-3. C.R.S. 1963: § 6-7-3. L. 2002: Entire section amended, p. 1030, § 59, effective June 1.

35-7-104. Cooperative agreements

Operations under the provisions of this part 1 for the control and eradication of rodent pests shall be in accordance with the approved procedure of the federal agency and in accordance with the terms of such agreements as shall be entered into by the department and the federal agency. To enable the department to carry out any such agreement or to perform the duties devolved upon the department in carrying out the purpose of this part 1, the department is authorized to enlist and pay the necessary expenses of volunteer agents and to employ and pay the salary and necessary expenses of such other agents as may be required to act in their behalf. To further enlarge and accelerate operation for the control of such rodent pests, the department, acting in conjunction with the federal agency, may enter into cooperative agreements with boards of county commissioners or with associations, corporations, or individuals owning land subject to or menaced by such infestations.

History. Source: L. 27: P. 618, § 4. CSA: C. 5, § 47. CRS 53: § 6-7-4. C.R.S. 1963: § 6-7-4. L. 2002: Entire section amended, p. 1030, § 60, effective June 1.

35-7-105. Boundaries of infested areas defined

For the purpose of carrying out this part 1, the respective boards of county commissioners have the power to define the boundaries of such rodent-infested areas within their jurisdictions and to put into operation such cooperative agreements for such areas in the manner as in their discretion may be deemed advisable.

History. Source: L. 31: P. 709, § 2. CSA: C. 5, § 48. CRS 53: § 6-7-5. C.R.S. 1963: § 6-7-5.

35-7-106. Government lands

On lands which are a part of any national forest, Indian reservation, or other national reserve or public domain of the United States, or of any state reservation, or of any unoccupied or leased state lands, the control of such rodent pests shall be carried on so far as possible at the expense of the federal government on federal lands and at the expense of the state government on unoccupied or leased state lands with such cooperation with occupants, lessees, licensees, or adjacent landowners as may be available.

History. Source: L. 27: P. 618, § 5. CSA: C. 5, § 49. CRS 53: § 6-7-6. C.R.S. 1963: § 6-7-6.

35-7-107. Land under contract of purchase

On state land sold under contract of purchase whereunder patent has not been issued, the control shall be prosecuted, so far as possible, on a cooperative basis, pursuant to such terms as may be agreed upon with the contract holder.

History. Source: L. 27: P. 619, § 6. CSA: C. 5, § 50. CRS 53: § 6-7-7. C.R.S. 1963: § 6-7-7.

35-7-108. Private lands

Upon privately owned lands, the control of rodent pests under this part 1 shall, so far as possible, be based on voluntary cooperation of owners, lessees, or occupants. If a private landowner enters into a cooperative agreement with the county pursuant to which the county agrees to control rodent pests on the landowner’s real property, the private landowner shall reimburse the county for actual expenses incurred by the county in connection with such rodent pests control operations.

History. Source: L. 27: P. 619, § 7. CSA: C. 5, § 51. CRS 53: § 6-7-8. C.R.S. 1963: § 6-7-8. L. 2011: Entire section amended, (HB 11-1087), ch. 19, p. 48, § 1, effective August 10.

35-7-109. Agreements with landowners

Owners of private lands may arrange, under written cooperative agreements with the department and the federal agency in charge of operations, for the control and eradication of rodent pests on their lands.

History. Source: L. 27: P. 619, § 8. CSA: C. 5, § 52. CRS 53: § 6-7-9. C.R.S. 1963: § 6-7-9. L. 2002: Entire section amended, p. 1030, § 61, effective June 1.

35-7-110. State reimbursed for actual cost

All poisons or other materials for such control furnished by the state to such cooperators shall be supplied at actual cost, and the state shall be reimbursed by such cooperators, landowners, lessees, or contract holders for the actual cost of materials and labor, other than supervision, expended by the state in such treatment under cooperative agreements with them. Such reimbursement shall be made by each owner, lessee, or contract holder in the proportion that the number of acres of land treated for him or her bears to the total acreage treated in the area designated for treatment or according to such equitable proportion or plan as shall be provided for in the agreement. Any such agreement shall require full reimbursement to be made to the state within thirty days after presentation by the department, or its agents, of an itemized account therefor.

History. Source: L. 27: P. 619, § 9. CSA: C. 5, § 53. CRS 53: § 6-7-10. C.R.S. 1963: § 6-7-10. L. 2011: Entire section amended, (HB 11-1087), ch. 19, p. 48, § 2, effective August 10.

35-7-111. County to appropriate funds

It is the duty of boards of county commissioners in all counties where any such infestation exists or is imminent to appropriate from the general fund such money as may be necessary to carry out the provisions of this part 1 within their respective counties. In counties where pest control districts have been created, or are about to be created, it is the duty of the board of county commissioners to appropriate from the county general fund such money as shall be necessary to establish and maintain a fund for the payment of all accounts charged or chargeable against them under the terms of this part 1.

History. Source: L. 29: P. 566, § 2. CSA: C. 5, § 54. L. 51: P. 296, § 8. CRS 53: § 6-7-11. C.R.S. 1963: § 6-7-11.

35-7-112. Eradication contracts required - procedure without contracts

1. In case a majority of resident landowners in a prescribed district have signed a cooperative agreement to destroy rodents on their lands, public notice may be given by publication by the boards of county commissioners wherein the lands are located at least once in a newspaper of general circulation in the counties affected to the effect that lands within the boundaries of such prescribed area, lying in one or more counties, are infested by said pests, or some kind thereof, in such numbers that in the opinion of the said department the same are liable to materially injure and imperil agricultural or horticultural crops within such area, and that such lands are about to be treated, under the provisions of this part 1, for the control and eradication of the pests. If, within thirty days after the publication of such notice, any owner of lands infested by the pests within the prescribed area fails to destroy the same, or to enter into a cooperative agreement for their control or eradication, then, at the time operations are instituted on such lands, it is the duty of the department, or its agents, to enter upon the lands and to destroy the pests thereon at the expense of the owner of such lands.
2. If the owner, after ten days’ written notice to him in person or by mail to his last known post office address, fails, neglects, or refuses to reimburse the department, or its agents, in the amount of such expenses, the department shall certify an itemized statement thereof, together with a description of such lands sufficient to identify the same to the board of county commissioners of the county wherein the same is situated. Thereupon, such an account shall be audited, allowed, and paid in like manner as provided in section 35-7-110. Public notices in this section provided for shall designate as accurately as may be the boundaries of the area to be treated; shall make specific reference to this statute and shall call upon all owners, known or unknown, of lands within the prescribed area to proceed at once to destroy the pests mentioned in such notice or to enter into cooperative agreements for their control or eradication; and shall designate reasonable times and places within or near such area where and when the federal agency, or other agents, and the department, or its agents, will be present for the purpose of entering into such cooperative agreements and proceeding with their execution.

History. Source: L. 27: P. 620, § 11. L. 31: P. 709, § 3. CSA: C. 5, § 55. CRS 53: § 6-7-12. C.R.S. 1963: § 6-7-12. L. 2002: (2) amended, p. 1031, § 62, effective June 1.

35-7-113. Itemized accounts

The department shall keep itemized accounts of the actual expenses of materials and labor in connection with the control and eradication of rodent pests, whether such work is done under cooperative agreements with owners, lessees, or contract holders or otherwise.

History. Source: L. 27: P. 622, § 12. CSA: C. 5, § 56. CRS 53: § 6-7-13. C.R.S. 1963: § 6-7-13.

35-7-114. Charges against landowner - lien rights

Whenever any county has been required to pay any expense charged against any landowners, under a cooperative agreement or otherwise, on account of such pest control operations conducted upon or for the benefit of his or her lands, such county shall have a lien upon such lands for the amount so paid or for such lesser amount as such landowner shall be adjudged to pay after a hearing before the board of county commissioners.

History. Source: L. 27: P. 622, § 13. CSA: C. 5, § 57. CRS 53: § 6-7-14. C.R.S. 1963: § 6-7-14. L. 2011: Entire section amended, (HB 11-1087), ch. 19, p. 49, § 3, effective August 10.

35-7-115. Enforcing collection - hearing

Upon payment by any county of any such bill of expenses so charged against any landowner, lessee, or contract holder, the board of county commissioners shall make demand and notice in writing, upon such landowner, lessee, or contract holder, in person or by mail addressed to him or her at his or her last known place of residence twenty days prior to the published meeting date, for reimbursement to the county in the amount of such expenses. Such written notice shall inform such person that he or she may appear before the board on the published meeting date and be heard as to the amount and accuracy of the claim. If such claim, as originally demanded by the board or as adjusted upon the hearing, is not paid, then, in the case of a private landowner, the board of county commissioners shall certify the claim to the county assessor who shall add the amount thereof to any taxes due or to become due upon his or her lands, and said lands shall be sold for the satisfaction thereof at the same time and in the same manner as is provided by law for the sale of real estate for delinquent taxes. In cases where such accounts are payable by a lessee or contract holder, suit may be maintained in behalf of the county in any court of competent jurisdiction for the recovery of such accounts and costs of suit. All such accounts when collected by the county shall be paid into the general fund thereof or into the fund used by the county to meet its obligations under this part 1.

History. Source: L. 31: P. 711, § 4. CSA: C. 5, § 58. CRS 53: § 6-7-15. C.R.S. 1963: § 6-7-15. L. 2011: Entire section amended, (HB 11-1087), ch. 19, p. 49, § 4, effective August 10.

Cross references: For the sale of real estate for delinquent taxes, see article 11 of title 39.

35-7-116. Collections paid to treasurer

All reimbursements to the state, whether made by individuals, counties, or other cooperators pursuant to this part 1, shall be turned over to the state treasurer and by him credited to the rodent pest control fund referred to in section 35-7-103.

History. Source: L. 27: P. 623, § 15. CSA: C. 5, § 59. L. 39: P. 211, § 3. CRS 53: § 6-7-16. C.R.S. 1963: § 6-7-16.

35-7-117. Record of poison purchased

The department, when acting in cooperation with the federal agency in rodent control operations through its officers, members, or authorized agents, may purchase and sell to landowners, lessees, contract holders, boards of county commissioners, and other cooperators strychnine and other poisons and supplies for rodent control. The department or its agents shall make and keep a record of all such sales made by showing the name and address of purchaser, date of purchase, and kind and amount of poison or rodent supplies purchased.

History. Source: L. 27: P. 623, § 16. CSA: C. 5, § 60. L. 39: P. 211, § 4. CRS 53: § 6-7-17. C.R.S. 1963: § 6-7-17. L. 2002: Entire section amended, p. 1031, § 63, effective June 1.

35-7-201. Control and eradication of rodents

1. The boards of county commissioners of the several counties of this state are authorized to purchase materials and equipment and to employ one or more suitable persons to destroy jackrabbits, prairie dogs, ground squirrels, or other injurious rodents within the limits of their respective counties. Any materials and equipment so purchased and compensation for such services shall be paid out of the general fund or a specially designated fund of such county.
2. The boards of county commissioners of the several counties of this state are authorized to levy such taxes as are necessary to pay the obligations for rodent control work as authorized under this section and to put into operation any plan of procedure for the eradication of such rodent pests within their jurisdictions as in their discretion is deemed advisable; except that control operations under the provisions of this section shall be in accordance with the approved procedure of the federal agency. The boards of county commissioners may solicit cooperation from the state board of stock inspection commissioners and the federal agency for the conduct of such rodent control work and may enter into cooperative agreements with the board of stock inspection commissioners and the federal agency for the furtherance of the rodent control work authorized under this section.

History. Source: L. 37: P. 1073, § § 1, 2. CSA: C. 45, § 38(1). CRS 53: § 36-13-1. C.R.S. 1963: § 36-13-1. L. 2002: (2) amended, p. 1031, § 64, effective June 1. L. 2011: (1) amended, (HB 11-1087), ch. 19, p. 49, § 5, effective August 10.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-7-202. Control and eradication of predatory animals

1. The boards of county commissioners of the several counties of the state are authorized to purchase materials and equipment and to employ one or more suitable persons to control coyotes or other injurious predatory animals within the limits of their respective counties. Any materials and equipment so purchased and compensation for such services shall be paid out of the general fund or a specially designated fund of such county.
2. The boards of county commissioners of the several counties of the state are authorized to levy such taxes as are necessary to pay the obligations for such predatory animal control work as authorized by this section and to put into operation any plan of procedure for the eradication of such predatory animals within their jurisdictions as in their discretion is deemed advisable.
3. Control operations under the provisions of this section shall be in accordance with the approved procedure of the federal agency. The boards of county commissioners may solicit cooperation from the state board of stock inspection commissioners and the federal agency for the conduct of such predatory animal control work and may enter into cooperative agreements with the state board of stock inspection commissioners and the federal agency for the furtherance of the predatory animal control work authorized under this section.

History. Source: L. 47: P. 369, § § 1, 2. CSA: C. 45, § 38(2). CRS 53: § 36-13-2. C.R.S. 1963: § 36-13-2. L. 2000: (1) amended, p. 1395, § 2, effective July 1. L. 2002: (3) amended, p. 1031, § 65, effective June 1.

Cross references: For control of predatory animals generally, see article 40 of this title.

35-7-203. Release of destructive rodent pests - definitions

1. No person shall release destructive rodent pests into a county unless the person complies with all requirements for such release imposed by the parks and wildlife commission and obtains both the prior approval of the commission and the prior approval, by resolution duly adopted, of the board of county commissioners of such county. A person need not obtain such prior approval before:
   1. Transporting destructive rodent pests through a county without releasing such destructive rodent pests; or
   2. Confining destructive rodent pests indoors or in cages or similar enclosures and using such destructive rodent pests for scientific purposes or as food for human or animal consumption; or
   3. Keeping destructive rodent pests indoors or in cages or similar enclosures as pets; or
   4. Releasing destructive rodent pests into the county in which such destructive rodent pests were originally taken into captivity.
2. For purposes of this section, “destructive rodent pests” means one or more rodents, including but not limited to prairie dogs, ground squirrels, pocket gophers, jackrabbits, and rats, that pose a threat to agricultural, horticultural, or livestock concerns or to human health.
3. The board of county commissioners of any county into which a person releases destructive rodent pests without the prior approval of such board may, at its discretion:
   1. Require the person who released the destructive rodent pests to eradicate the destructive rodent pests or remove the destructive rodent pests from the county; or
   2. Impose a fine upon the person who released the destructive rodent pests in an amount sufficient to compensate the county for the cost of eradicating the destructive rodent pests or removing the destructive rodent pests from the county.

History. Source: L. 99: Entire section added, p. 155, § 1, effective March 25. L. 2012: IP(1) amended, (HB 12-1317), ch. 248, p. 1236, § 93, effective June 4.

Cross references: For the parks and wildlife commission, see § 33-9-101.

35-8-101 to 35-8-107. (Repealed)

History. Source: L. 77: Entire article repealed, p. 293, § 10, effective May 26.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 9 of chapter 6, C.R.S. 1963. For amendments to this article prior to its repeal in 1977, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

35-9-101. Short title

This article shall be known and may be cited as the “Pesticide Act”.

History. Source: L. 90: Entire article R&RE, p. 1559, § 1, effective June 7.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 12 of chapter 6, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1990, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1990, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor’s notes following those sections that were relocated.

Cross references: For exemption of substances regulated by this act from the “Colorado Hazardous Substances Act of 1973”, see § 25-5-502 (10)(c); for regulations governing the commercial application of pesticides, see article 10 of this title.

Editor’s note: This section is similar to former § 35-9-101 as it existed prior to 1990.

35-9-102. Legislative declaration

The general assembly hereby finds and declares that the intent of this article is to regulate, in the public interest, the refilling, registration, labeling, transportation, distribution, storage, use, and disposal of any pesticide and of certain devices. The general assembly further finds and declares that it is the intent of this article to assure the dissemination of accurate information regarding the proper and prohibited uses of any pesticide or device. The provisions of this article are enacted to protect the public health, safety, and welfare of the people of this state.

History. Source: L. 90: Entire article R&RE, p. 1559, § 1, effective June 7. L. 2010: Entire section amended, (SB 10-034), ch. 376, p. 1766, § 1, effective July 1.

35-9-103. Definitions

As used in this article, unless the context otherwise requires:

1. “Active ingredient” means:
   1. In the case of a pesticide other than a plant regulator, defoliant, or desiccant, an ingredient which will prevent, destroy, repel, or mitigate any pest;
   2. In the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or rate of maturation or otherwise alter the behavior of ornamental or crop plants or the product thereof;
   3. In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant; and
   4. In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissue.
2. “Adulterated” refers to:
   1. Any pesticide whose strength or purity deviates from the professed strength or purity stated on its labeling or under which it is sold; or
   2. Any pesticide whose components or their relative proportions differ from those stated on its labeling; or
   3. Any substance which has been substituted wholly or in part for a pesticide; or
   4. Any pesticide from which any valuable constituent has been wholly or partly abstracted; or
   5. Any pesticide in which any contaminant is present in an amount which is determined by the commissioner to be a hazard.
3. “Commissioner” means the commissioner of agriculture.
4. “Dealer” means any person who distributes to any other person any restricted-use pesticide.
5. “Device” means any instrument or contrivance, other than a firearm, intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal life (other than man and other than bacteria, viruses, or other microorganisms on or in living man or other living animals); except that “device” shall not include equipment used for the application of pesticides when sold separately therefrom.
6. “Distribute” means to advertise, offer for sale, hold for sale, sell, barter, or supply in any fashion any pesticide in this state.
7. “EPA” means the environmental protection agency.
8. “Inert ingredient” means an ingredient which is not active.
9. “Limited-use pesticide” refers to any pesticide so designated by the commissioner.
10. “Pest” means any insect, rodent, nematode, fungus, weed, or other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism (except viruses, bacteria, or other microorganisms on or in living man or in other living animals) which the commissioner or the administrator of the EPA declares to be a pest.
11. “Pesticide” means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; except that the term “pesticide” shall not include any article that is a “new animal drug” as designated by the United States food and drug administration.

    (11.4) “Refill” means to transfer a pesticide for sale or distribution to a refillable container without changing the composition, formulation, or EPA registration number of the pesticide.

    (11.5) “Refillable container” means a container that is intended to be filled more than once with a pesticide for sale or distribution.

    (11.6) “Refiller” means a person that engages in refilling.

12. “Restricted-use pesticide” means any pesticide designated as a restricted-use pesticide by the commissioner or the administrator of the environmental protection agency.

History. Source: L. 90: Entire article R&RE, p. 1559, § 1, effective June 7. L. 2010: (11.4), (11.5), and (11.6) added, (SB 10-034), ch. 376, p. 1766, § 2, effective July 1.

Editor’s note: This section is similar to former § 35-9-102 as it existed prior to 1990.

35-9-104. Exemptions

1. The provisions of this article shall not apply to:
   1. Any carrier while lawfully engaged in transporting a pesticide or device within this state, if such carrier, upon request, permits the department of agriculture or its designated agent to copy all records showing the transactions regarding and the movement of the pesticide or device;
   2. Public officials of this state and the federal government engaged in the performance of their official duties except as specifically required by this article; or
   3. The manufacturer or shipper of a pesticide for experimental use only by or under the supervision of any agency of this state or of the federal government authorized by law to conduct research in the field of pesticides.
2. No pesticide or device shall be deemed in violation of this article when intended solely for export to a foreign country and when prepared or packed according to the specifications or directions of the purchaser. If not so exported, all provisions of this article shall apply.

History. Source: L. 90: Entire article R&RE, p. 1561, § 1, effective June 7.

Editor’s note: This section is similar to former § 35-9-108 as it existed prior to 1990.

35-9-105. Exclusive jurisdiction

Jurisdiction in all matters pertaining to the distribution and sale of pesticides and devices, including removal of pesticide residue from containers prior to refilling or disposal, is vested exclusively in the department of agriculture.

History. Source: L. 90: Entire article R&RE, p. 1561, § 1, effective June 7. L. 2010: Entire section amended, (SB 10-034), ch. 376, p. 1767, § 3, effective July 1.

Editor’s note: This section is similar to former § 35-9-113 as it existed prior to 1990.

35-9-106. Pesticide registration required - exemptions

1. Except as provided in subsection (2) of this section, every pesticide that is distributed in this state shall be registered with the commissioner as provided by this article and any rules adopted under this article.
2. The commissioner may exempt certain pesticides from the registration requirement consistent with the “Federal Insecticide, Fungicide, and Rodenticide Act”, 7 U.S.C. sec. 136 et seq., as amended, and rules promulgated by the EPA under the “Federal Insecticide, Fungicide, and Rodenticide Act”.

History. Source: L. 90: Entire article R&RE, p. 1561, § 1, effective June 7. L. 2010: Entire section amended, (SB 10-034), ch. 376, p. 1767, § 4, effective July 1.

Editor’s note: This section is similar to former § 35-9-104 as it existed prior to 1990.

35-9-107. Pesticide registration - application - fees - expiration - rules

1. Each applicant for registration of a pesticide shall file with the commissioner, in the form and manner the commissioner shall designate:
   1. The name and address of the applicant and, if it is different, the name and address of the person whose name will appear on the pesticide label;
   2. The name of the pesticide;
   3. A complete copy of the labeling accompanying the pesticide and a statement of all claims to be made for its use, including directions and precautions for use;
   4. A complete statement of each active ingredient and its percentage of the whole and, if requested by the commissioner, each inert ingredient and its percentage of the whole, which inert ingredient information shall be kept confidential as provided in section 35-9-109;
   5. If requested by the commissioner, a full description of all tests made and the results thereof, including, but not limited to, efficacy and hazard data upon which the claims are based;
   6. If requested by the commissioner, analytical standards and methods of analysis for each formulation of said pesticide and analytical methods for determining any residues of said pesticide at levels suspected harmful to plants, animals, or the environment; and
   7. Any other information required by the commissioner.
2. Each applicant shall pay, at the time the application is submitted, an annual application fee in an amount to be determined by the commissioner.
3. Repealed.
4. 1. Repealed.
   2. On and after January 1, 2011, registration of a pesticide shall expire each year on a date specified by the commissioner by rule.

History. Source: L. 90: Entire article R&RE, p. 1561, § 1, effective June 7. L. 2010: IP(1), (1)(d), and (4) amended and (3) repealed, (SB 10-034), ch. 376, p. 1767, § § 5, 6, effective July 1.

Editor’s note: (1) This section is similar to former § 35-9-104 as it existed prior to 1990.

(2) Subsection (4)(a)(II) provided for the repeal of subsection (4)(a), effective January 1, 2011. (See L. 2010, p. 1767 .)

35-9-108. Registration - review and evaluation - criteria - state limited-use or restricted-use pesticide - cancellation - summary suspension

1. The commissioner shall review the information provided with respect to each pesticide to determine if it meets the claims made for it and if the pesticide and its labeling and other materials comply with the provisions of this article and the rules and regulations adopted pursuant thereto.
2. If the commissioner determines that the pesticide, labeling, or any other materials submitted with the application do not comply with the provisions of this article, he shall notify the applicant of the particulars in which there is a lack of compliance.
3. The commissioner shall not register the pesticide until the applicant has made the necessary corrections or amendments as specified in the notice. The applicant may request a hearing to appeal an adverse determination pursuant to section 24-4-104, C.R.S.
4. The commissioner shall consider the following criteria to determine if a pesticide qualifies for registration:
   1. Its composition is such as to warrant the proposed claims for it;
   2. When used in accordance with generally accepted practices, it will not cause unacceptable, adverse effects on the environment;
   3. Its labeling and any other material required to be submitted pursuant to section 35-9-107 comply with the provisions of this article and any rules and regulations adopted pursuant thereto.
5. The commissioner, in his discretion, may, at the time of registration, designate the pesticide as a state restricted-use or limited-use pesticide and may restrict or limit the distribution or use of such pesticide. The commissioner may include in said restriction the time and conditions under which the pesticide may be distributed or used and may impose any or all of the following additional requirements:
   1. The pesticide shall be purchased, possessed, or used only under permit of the commissioner;
   2. The pesticide shall be purchased, possessed, or used only under the supervision of the commissioner; and
   3. The permittee shall maintain records as to the use of such pesticide in the form and manner the commissioner shall designate.
6. After a pesticide is registered, the commissioner may cancel the registration of said pesticide pending notice and an opportunity for hearing if he determines that:
   1. The pesticide or its labeling or packaging does not comply with the provisions of this article or any rules or regulations adopted thereunder; or
   2. The pesticide registration has been cancelled or suspended by the EPA.
7. If the commissioner has reasonable grounds to believe and finds that the registrant has been guilty of deliberate and willful violation of use or distribution restrictions imposed pursuant to this article or that the public health, safety, or welfare imperatively requires emergency action, he may summarily suspend the registration pending proceedings for suspension or cancellation of the registration.

History. Source: L. 90: Entire article R&RE, p. 1562, § 1, effective June 7.

Editor’s note: This section is similar to former § 35-9-104 as it existed prior to 1990.

35-9-109. Confidentiality of inert ingredients

1. Except as provided by this section, no inert ingredient information required by section 35-9-107 (1)(d) shall be released to any person by the commissioner.
2. A registrant may authorize the commissioner to disclose any inert ingredient information required by section 35-9-107 by filing a signed authorization for release of information with the commissioner.
3. When a treating physician or the poison control service provider selected pursuant to section 25-32-105, C.R.S., determines that a medical emergency exists and information submitted to the commissioner concerning inert ingredients pursuant to section 35-9-107 (1)(d) is necessary for emergency or first-aid treatment, the commissioner may immediately disclose the information necessary to that treating physician or to such poison control service provider. The commissioner shall require such treating physician or such poison control service provider to submit to the commissioner a statement of need for the information and a confidentiality agreement, in the form and manner the commissioner shall designate, as soon as circumstances permit.
4. If the treating physician or the poison control service provider, after receiving confidential information regarding a pesticide, determines that there is a need to disclose the information to another health professional, including a physician or a toxicologist, due to an immediate health emergency, whether public or individual, the treating physician or the poison control service provider shall so inform the commissioner. The commissioner shall require confidentiality from any such health professional to whom the confidential information is disclosed.

History. Source: L. 90: Entire article R&RE, p. 1563, § 1, effective June 7. L. 94: (3) and (4) amended, p. 1669, § 5, effective July 1, 1995. L. 2003: (3) amended, p. 2001, § 62, effective May 22. L. 2010: (1), (2), and (3) amended, (SB 10-034), ch. 376, p. 1768, § 7, effective July 1.

Editor’s note: This section is similar to former § 35-9-104 as it existed prior to 1990.

35-9-110. Device registration - required

1. Every device which is sold in this state and which is subject to the provisions of this article shall be registered with the commissioner in accordance with this article and any rules and regulations adopted pursuant thereto.
2. The commissioner shall designate the classes of devices which are subject to this article.

History. Source: L. 90: Entire article R&RE, p. 1563, § 1, effective June 7.

Editor’s note: This section is similar to former § 35-9-104 as it existed prior to 1990.

35-9-111. Device registration - application - fees - expiration - rules

1. Each applicant for registration of a device shall file with the commissioner, in the form and manner he shall designate:
   1. The name and address of the applicant and, if different, the name and address of the person whose name will appear on the device;
   2. The name of the device;
   3. A complete copy of the labeling accompanying the device, including its packaging, directions, and precautions for use, and a statement of all claims being made for the device;
   4. If requested by the commissioner, a complete description of all tests made and the results thereof, including, but not limited to, efficiency and hazard data upon which the claims are based; and
   5. Any other information required by the commissioner.
2. Each applicant shall pay, at the time the application is submitted, an annual application fee in an amount to be determined by the commissioner.
3. Repealed.
4. 1. Repealed.
   2. On and after January 1, 2011, registration of a device shall expire each year on a date specified by the commissioner by rule.

History. Source: L. 90: Entire article R&RE, p. 1564, § 1, effective June 7. L. 2010: (3) repealed and (4) amended, (SB 10-034), ch. 376, p. 1768, § § 8, 9, effective July 1.

Editor’s note: (1) This section is similar to former § 35-9-104 as it existed prior to 1990.

(2) Subsection (4)(a)(II) provided for the repeal of subsection (4)(a), effective January 1, 2011. (See L. 2010, p. 1768 .)

35-9-112. Renewal of pesticide and device registration

1. A registrant of either a pesticide or a device shall submit a renewal application in the form and manner designated by the commissioner on or before the expiration date of the registration and shall pay a renewal fee in an amount determined by the commissioner.
2. If an application for renewal of a pesticide or device registration is not received on or before the expiration date of the registration, the registration shall expire. An expired registration may be renewed within two years after the expiration date of the registration upon payment of all late fees and any other penalties or sums assessed pursuant to this article, if the applicant satisfies the commissioner that the requirements of section 35-9-107 have been met.
3. The commissioner may require the applicant to submit any additional information he deems necessary, including, but not limited to:
   1. A full description of all tests made of the pesticide or device, and the results thereof, including, but not limited to, efficacy and hazard data upon which any claims for the pesticide or device are based; and
   2. With respect to any pesticide, the analytic standards and methods of analysis for each formulation of said pesticide and the analytic methods used to determine any residues of the said pesticide at levels suspected harmful to plants, animals, or the environment.
4. The commissioner, at the time of such renewal, may, in his discretion, designate any such pesticide as a state restricted-use or limited-use pesticide in the same manner as set forth in section 35-9-108 (5).

History. Source: L. 90: Entire article R&RE, p. 1564, § 1, effective June 7. L. 2010: (1) and (2) amended, (SB 10-034), ch. 376, p. 1768, § 10, effective July 1.

Editor’s note: This section is similar to former § 35-9-104 as it existed prior to 1990.

35-9-113. Misbranded

1. The term “misbranded” shall apply:
   1. To any pesticide or device if its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular;
   2. To any pesticide:
      1. If it is an imitation of or is offered for sale under the name of another pesticide;
      2. If its labeling bears any reference to registration under the provisions of this article unless such reference is required by this article or rules or regulations adopted pursuant thereto;
      3. If any word, statement, or other information required by this article or rules adopted under this article 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;
      4. If the label does not bear:
         1. The name and address of the manufacturer, registrant, or person for whom manufactured;
         2. The name, brand, or trademark under which the pesticide is sold;
         3. An ingredient statement on that part of the immediate container of the retail package which is presented or displayed under customary conditions of purchase and on the outside container or wrapper thereof, if there is one and if the ingredient statement on the immediate container cannot be clearly read through such outside container or wrapper; except that 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 which is presented or displayed under customary conditions of purchase;
         4. Directions for use and a warning or caution statement which are necessary and, if complied with, adequate to protect the public and to prevent injury to the public, including living people, useful vertebrate animals, useful vegetation, useful invertebrate animals, wildlife, and land;
         5. The weight or measure of the content, subject to the provisions of article 14 of this title; and
         6. Any registration number or establishment number issued by the EPA;
      5. If the pesticide contains any substance or substances in quantities highly toxic to people, unless the label bears, in addition to any other matter required by this article:
         1. The skull and crossbones;
         2. The word “poison” prominently in red on a background of distinctly contrasting color; and
         3. A statement of a practical treatment in case of poisoning by the pesticide;
      6. If the pesticide container does not bear a label or if the label does not contain all the information required by this article or rules adopted pursuant thereto.

History. Source: L. 90: Entire article R&RE, p. 1565, § 1, effective June 7.

Editor’s note: This section is similar to former § 35-9-104 as it existed prior to 1990.

35-9-114. Pesticide dealer license - required

1. Effective January 1, 1992, any person who acts as a pesticide dealer must possess a valid pesticide dealer license issued by the commissioner in accordance with this article and any rules or regulations adopted pursuant thereto.
2. Each business location, including branch offices, and each business name must be licensed.

History. Source: L. 90: Entire article R&RE, p. 1566, § 1, effective June 7.

Editor’s note: This section is similar to former § 35-9-105 as it existed prior to 1990.

35-9-115. Pesticide dealer license - requirements - application - fees - expiration

1. Each applicant for a pesticide dealer license shall make application to the commissioner providing all information in the form and manner the commissioner shall designate.
2. Each applicant for a pesticide dealer license shall pay a fee in an amount determined by the commissioner.
3. Each pesticide dealer license shall expire on January 1 of each year.
4. Each licensee shall report to the commissioner, in the form and manner he shall designate, any change to the information provided in such licensee’s application or in such reports previously submitted, within fifteen days of such change.

History. Source: L. 90: Entire article R&RE, p. 1566, § 1, effective June 7.

35-9-116. Renewal of pesticide dealer license

1. Each pesticide dealer shall make an application to renew its license on or before the first working day of January for the year of renewal. Said application shall be in the form and manner prescribed by the commissioner and shall be accompanied by the renewal fee.
2. If the application for renewal of any pesticide dealer license is not received on or before the first working day of January for the year of renewal, a penalty fee of ten percent of the license fee shall be assessed and added to the renewal fee. No license shall be renewed until the total fee is paid.
3. If a pesticide dealer license renewal application is not received by February 1 of the renewal year, the license shall not be renewed and the dealer must apply for a new license.

History. Source: L. 90: Entire article R&RE, p. 1566, § 1, effective June 7. L. 2010: (2) and (3) amended, (SB 10-034), ch. 376, p. 1769, § 11, effective July 1.

Editor’s note: This section is similar to former § 35-9-105 as it existed prior to 1990.

35-9-117. Dealer and refiller records and reports - rules

1. Licensed pesticide dealers shall keep records of designated sales in the form and manner designated by the commissioner.
2. Such records shall be kept at the address designated on the license application or on a change report as required by section 35-9-115 (4) for a period of two years from the date of the sale of such pesticide.
3. Licensees shall submit such additional reports as may be required by the commissioner.
4. Refillers shall keep and maintain records in the form and manner specified by the commissioner by rule.

History. Source: L. 90: Entire article R&RE, p. 1566, § 1, effective June 7. L. 2010: (4) added, (SB 10-034), ch. 376, p. 1769, § 12, effective July 1.

35-9-117.5. Refillable container residue removal requirements - rules

A refiller shall comply with refillable container residue removal requirements established by the commissioner by rule.

History. Source: L. 2010: Entire section added, (SB 10-034), ch. 376, p. 1769, § 13, effective July 1.

35-9-118. Powers and duties of the commissioner - rules

1. The commissioner is authorized to administer and enforce the provisions of this article and any rules and regulations adopted pursuant thereto.
2. The commissioner is authorized to adopt all reasonable rules for the administration and enforcement of this article, including, but not limited to:
   1. Declaring to be a pest any form of plant or animal life or virus which is injurious to plants, animals, or persons, or to land or any inanimate objects, or to the environment;
   2. Determining that certain pesticides are highly toxic to people; except that, in making this determination, the commissioner shall be guided by the criteria set forth in 40 CFR 156.62, as amended;
   3. 1. Adopting a list of restricted use pesticides or limited use pesticides for the state or designated areas within this state if the commissioner determines that such pesticides require rules restricting their distribution or use. The commissioner may include in the rule the time and conditions of distribution or use of such restricted use or limited use pesticides and may require that any such pesticide be purchased, possessed, or used only under permit of the commissioner and under his supervision. The commissioner may require all persons issued such permits to maintain records regarding the use of such pesticides.
      2. Nothing in this paragraph (c) shall require the commissioner to adopt a list of pesticides which are registered by the EPA pursuant to section 18 or 24 (c) of the “Federal Insecticide, Fungicide, and Rodenticide Act”, as amended, or are restricted by the EPA pursuant to section 3 of said act.
   4. Determining standards for denaturing any pesticides, including, but not limited to, any arsenicals, fluorides, or fluosilicates by color, taste, odor, or form;
   5. The collection and examination of samples of pesticides or devices;
   6. The safe handling, transportation, storage, display, distribution, and disposal of pesticides and their containers; except that, with respect to the adoption of rules or regulations concerning the transportation of pesticides or the disposal of pesticides and their containers, such rules shall be promulgated in concert with, and shall not be duplicative of, rules adopted by the department of transportation and the department of public health and environment, respectively;
   7. Restricting or prohibiting the use of certain types or sizes of containers or packages for specific pesticides; except that the commissioner shall be guided by federal regulations concerning pesticide containers;
   8. Determining labeling requirements for all pesticides required to be registered under the provisions of this article and any rules or regulations adopted pursuant thereto;
   9. Classifying or subclassifying any pesticide registration, device registration, or pesticide dealer license.

   (2.5)

   1. The commissioner shall expedite, to the extent practicable and efficient, the processing of applications for the issuance of a special local needs registration made pursuant to section 24 (c) of the “Federal Insecticide, Fungicide, and Rodenticide Act”, as amended.
   2. Notwithstanding section 35-9-113 (1)(b)(IV)(D), the commissioner shall not deny registration of a pesticide product pursuant to this article for which a special local needs registration has been issued pursuant to section 24 (c) of the “Federal Insecticide, Fungicide, and Rodenticide Act”, as amended, for the reason that a contract between a grower or grower’s group and a manufacturer or seller includes contractual provisions limiting liability of the manufacturer or seller.
3. 1. The commissioner shall promulgate rules, pursuant to article 4 of title 24, to determine the annual registration fee for each pesticide registered. For the purpose of funding the department of agriculture’s state waters protection efforts, the fee must include an increment as approved by the agricultural commission in consultation with the advisory committee created in section 35-10-125, which increment, along with the remainder of the fee, shall be collected by the commissioner and transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3.
   2. The commissioner shall promulgate rules and regulations, pursuant to article 4 of title 24, C.R.S., to determine the amount of any licensing, renewal, or penalty fee authorized under this article.
4. The commissioner is authorized to enter into cooperative agreements with any agency or political subdivisions of this state or any other state, or with any agency of the United States government, for the purpose of carrying out the provisions of this article, receiving grants-in-aid, securing uniformity of rules, and entering into reciprocal registration and licensing agreements.

   (4.5) Repealed.

5. The powers and duties vested in the commissioner by this article may be delegated to qualified employees of the department.
6. The commissioner is authorized to conduct hearings required under sections 35-9-121 and 35-9-122 pursuant to article 4 of title 24, C.R.S., and to use administrative law judges to conduct such hearings when their use would result in a net saving of costs to the department.

History. Source: L. 90: Entire article R&RE, p. 1567, § 1, effective June 7. L. 91: (2)(f) amended, p. 1074, § 57, effective July 1. L. 94: (3)(a) amended, p. 1644, § 75, effective May 31; (2)(f) amended, p. 2804, § 572, effective July 1. L. 98: (2.5) added, p. 721, § 2, effective May 18; (3)(a) amended, p. 1341, § 63, effective June 1. L. 99: (4.5) added, p. 1324, § 4, effective July 1. L. 2004: (4.5) amended, p. 1044, § 13, effective July 1. L. 2005: (3)(a) amended, p. 1268, § 4, effective July 1. L. 2008: (4.5) repealed, p. 1625, § 3, effective August 5. L. 2009: (3)(a) amended, (HB 09-1249), ch. 87, p. 316, § 4, effective July 1. L. 2010: IP(2) and (2)(b) amended, (SB 10-034), ch. 376, p. 1769, § 14, effective July 1. L. 2019: (3)(a) amended, (SB 19-186), ch. 422, p. 3690, § 4, effective August 2.

Editor’s note: This section is similar to former §§ 35-9-104, 35-9-105, and 35-9-106 as they existed prior to 1990.

Cross references: (1) For the “Federal Insecticide, Fungicide, and Rodenticide Act”, see Pub.L. 92-516, codified at 7 U.S.C. § 136 et seq.; for provisions concerning administrative law judges, see part 10 of article 30 of title 24.

(2) For the legislative declaration contained in the 1999 act enacting subsection (4.5), see section 1 of chapter 318, Session Laws of Colorado 1999.

35-9-119. Investigations - access - subpoena

1. The commissioner, upon his own motion or upon the complaint of any person, may make any and all investigations necessary to insure compliance with this article.
2. 1. At any reasonable time during regular business hours, the commissioner shall have free and unimpeded access upon consent or upon obtaining an administrative search warrant:
      1. To all buildings, yards, warehouses, and storage facilities in which any pesticides are kept, stored, handled, processed, or transported for the purpose of carrying out any provision of this article or any rule made pursuant to this article;
      2. To all records required to be kept at any reasonable time and may make copies of such records for the purpose of carrying out any provision of this article or any rule made pursuant to this article.
   2. The commissioner shall have full authority to administer oaths and take statements, to issue administrative subpoenas requiring the attendance of witnesses before him and the production of all books, memoranda, papers, and other documents, articles, or instruments, and to compel the disclosure by such witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of any witness to obey any subpoena, the commissioner may petition the district court, and, upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey such an order of the court shall be punishable as a contempt of court.
3. Complaints of record made to the commissioner and the results of his investigations may, in the discretion of the commissioner, be closed to public inspection, except as provided by court order, during the investigatory period and until dismissed or until notice of hearing and charges are served on a licensee or registrant.

History. Source: L. 90: Entire article R&RE, p. 1568, § 1, effective June 7.

Editor’s note: This section is similar to former § 35-9-107 as it existed prior to 1990.

35-9-120. Prohibited acts

1. It is unlawful and a violation of this article for any person:
   1. To distribute within the state or deliver for transportation in intrastate commerce or transport between points within this state through any point outside this state any of the following:
      1. Any pesticide or device which has not been registered pursuant to the provisions of this article and any rules and regulations adopted pursuant thereto;
      2. Any pesticide or device if any of the claims made for it or any of the directions for its use or any other labeling differs from the representations made in connection with its registration or reregistration; except that, at 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;
      3. Any pesticide unless it is in the registrant’s or the manufacturer’s unbroken immediate container and there is affixed to such container a label bearing the information required in this article and the rules adopted pursuant to this article, and, if there is an outside container or wrapper of such retail package through which the required information cannot be clearly read, there is an additional label on such container or wrapper containing such information;
      4. Any pesticide which is adulterated or misbranded, or any device which is misbranded;
      5. Any pesticide in any container which violates rules adopted pursuant to this article or in any container which is unsafe due to damage;
   2. To distribute any pesticide to any person who is required by law or rules adopted under such law to be certified, licensed, or have a permit to use or purchase the pesticide unless such person or the person’s agent, to whom sale or delivery is made, has a valid certification, license, or permit to use or purchase the kind and quantity of such pesticide sold or delivered; except that, subject to conditions established by the commissioner, such permit may be obtained immediately prior to sale or delivery from any person so designated by the commissioner;
   3. To detach, alter, deface, or destroy, wholly or in part, any label or labeling provided for in this article or rules adopted pursuant thereto, or to add any substance to, or take any substance from, a pesticide in a manner that may defeat the purpose of this article or the rules adopted pursuant thereto;
   4. To use or cause to be used any pesticide contrary to the rules and restrictions adopted pursuant to section 35-9-118 (2)(c);
   5. To use for the person’s own advantage or to reveal, other than under the authority of section 35-9-109, any information relative to formulas of products acquired by authority of section 35-9-107 (1)(d);
   6. To perform any of the acts or to hold oneself out as being qualified to perform any of the acts for which licensure as a pesticide dealer is required without possessing a valid license to do so;
   7. 1. To make false, misleading, deceptive, or fraudulent representations through any media regarding:
         1. Pesticides or any aspect of their use, including, but not limited to, representations regarding their safety and effectiveness; or
         2. Devices or any aspect of their use, including, but not limited to, representations regarding their safety and effectiveness.
      2. It is a false representation to make claims as to the safety of any pesticide or device or their components or ingredients, including, but not limited to, such claims as “safe”, “noninjurious”, “harmless”, or “nontoxic to humans and pets”, with or without such qualifying phrases as “when used as directed” and “when properly applied”.
   8. To refuse or neglect to comply with the provisions of this article;
   9. To refuse or neglect to comply with any rule adopted under this article, or any lawful order of the commissioner;
   10. To impersonate any state, county, or city inspector or official;
   11. To make a false statement in any invoice, record, report, or application required under this article or any rule promulgated under this article; or
   12. To make any fraudulent statements in any confidentiality agreement authorized pursuant to section 35-9-109 or to violate any of the provisions of said agreement.
2. It is unlawful and a violation of this article for any pesticide dealer:
   1. To store pesticides in a manner inconsistent with labeling directions, except as provided by law, or in a fraudulent, faulty, unsafe, or negligent manner;
   2. To dispose of empty pesticide containers or unused materials inconsistent with labeling directions or in a negligent or unsafe manner;
   3. To permit the use of his license by persons to whom the license was not issued;
   4. To fail to maintain records and file reports as required by this article or rules adopted pursuant thereto;
   5. To fail to notify the commissioner of any change of address within thirty days after said change of address;
   6. To make a false statement of fact in any invoice or any record, report, or application required by this article or by any rule adopted pursuant thereto; or
   7. To sell a pesticide without having an appropriately licensed pest control consultant supervising said sale.

   (2.5) It is unlawful and a violation of this article for any refiller:

   1. To fail to maintain any records or reports required under this article or any rule promulgated under this article;
   2. To make a false statement of fact in any record or report required by this article or any rule promulgated under this article; or
   3. To fail to clean a refillable container in accordance with residue removal procedures specified by the commissioner by rule.
3. Any violation of paragraph
   1. , (c), (f), or (g) of subsection (1) of this section is a deceptive trade practice and is subject to the “Colorado Consumer Protection Act”, article 1 of title 6, C.R.S.

History. Source: L. 90: Entire article R&RE, p. 1569, § 1, effective June 7. L. 2010: (1)(j) and (3) amended and (1)(j.5) and (2.5) added, (SB 10-034), ch. 376, pp. 1769, 1770, § § 15, 16, effective July 1.

Editor’s note: This section is similar to former § 35-9-103 as it existed prior to 1990.

35-9-121. Enforcement

1. The commissioner or his designee shall enforce the provisions of this article.
2. 1. Whenever the commissioner has reasonable cause to believe a violation of any provision of this article or any rule made pursuant to this article has occurred and immediate enforcement is deemed necessary, he may issue a cease-and-desist order, which may require any person to cease violating any provision of this article or any rule made pursuant to this article. Such cease-and-desist order shall set forth the provisions alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all actions be ceased forthwith.
   2. 1. At any time after service of the order to cease and desist, the person may request, at his discretion, an immediate hearing or a hearing not more than ten days, excluding Saturdays, Sundays, and legal holidays, after such request to determine whether a violation has occurred. Such hearing shall be conducted pursuant to the provisions of article 4 of title 24, C.R.S.
      2. The registrant shall pay a penalty fee of one hundred dollars, in addition to any other assessed penalty, if the commissioner determines that the registrant has violated this article or any rule promulgated under this article after a hearing is held pursuant to subparagraph (I) of this paragraph (b).
   3. In the event that any person fails to comply with a cease-and-desist order within twenty-four hours, the commissioner may bring a suit for a temporary restraining order and injunctive relief to prevent any further or continued violation of such order.
   4. No stay of a cease-and-desist order shall be issued before a hearing thereon involving both parties.
   5. Matters brought before a court pursuant to this section shall have preference over other matters on the court’s calendar.
3. Whenever the commissioner possesses evidence satisfactory to him that any person has engaged in or is about to engage in any act or practice constituting a violation of any provision of this article or of any rule adopted under this article, he may apply to any court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article or any rule adopted under this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.

History. Source: L. 90: Entire article R&RE, p. 1571, § 1, effective June 7. L. 2005: (2)(b) amended, p. 1268, § 5, effective July 1.

Editor’s note: This section is similar to former § 35-9-107 as it existed prior to 1990.

35-9-122. Denial - suspension - revocation

1. The commissioner, pursuant to the provisions of article 4 of title 24, C.R.S., may issue letters of admonition, or deny, refuse to renew, suspend, or revoke any pesticide or device registration or any pesticide dealer license if the applicant, holder of the registration, or licensee:
   1. Has refused or failed to comply with any provision of this article, any rule adopted under this article, or any lawful order of the commissioner;
   2. Has been convicted of a felony for an offense related to conduct regulated by this article;
   3. Has used fraud or deception in the procurement or attempted procurement of any registration or license authorized under this article, or the renewal thereof;
   4. Has failed to comply with a lawful order of the commissioner;
   5. Has had an equivalent registration or license cancelled, denied, revoked, or suspended by any authority;
   6. Has been adjudicated a violator or has committed a violation of the “Federal Insecticide, Fungicide, and Rodenticide Act”, as amended; except that a consent decree entered into with the environmental protection agency shall not be considered a violation of such act unless an order from the regional administrator of the environmental protection agency or the consent decree shall specifically state that a violation has occurred;
   7. Has refused to provide the commissioner with reasonable, complete, and accurate information regarding methods or materials used or work performed when requested by the commissioner; or
   8. Has falsified any information requested by the commissioner.
2. In any proceeding held under this section, the commissioner may accept as prima facie evidence of grounds for disciplinary action any disciplinary action taken against a licensee or holder of a registration from another jurisdiction if the violation which prompted the disciplinary action in that jurisdiction would be grounds for disciplinary action under this section.
3. No licensee whose license has been revoked may apply or reapply for a license under this article until two years from the date of such revocation.

History. Source: L. 90: Entire article R&RE, p. 1571, § 1, effective June 7.

Editor’s note: This section is similar to former § 35-9-109 as it existed prior to 1990.

Cross references: For the “Federal Insecticide, Fungicide, and Rodenticide Act”, see Pub.L. 92-516, codified at 7 U.S.C. § 136 et seq.

35-9-123. Embargo

1. This section shall apply whenever the commissioner finds or has reasonable cause to believe that any pesticide or device:
   1. Is adulterated or misbranded;
   2. Has not been registered under the provisions of this article;
   3. Fails to bear on its label the information required by this article; or
   4. Is in violation of any provision of this article or any rule made pursuant to this article.
2. If any of the conditions specified in subsection (1) of this section apply, the commissioner may affix to such pesticide or device a tag or other appropriate marking giving notice thereof and stating that the pesticide or device has been detained or embargoed and warning all persons not to remove or dispose of such pesticide or device by sale or otherwise until permission for removal or disposal is given by the commissioner or a court of competent jurisdiction.
3. Any person who removes or disposes of such detained or embargoed pesticide or device by sale or otherwise, without prior permission, or removes or alters the tag or marking commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S. In addition, such person may be subjected to appropriate administrative proceedings.
4. When a pesticide or device detained or embargoed under subsection (2) of this section has been found by the commissioner to be in violation of any provision of this article or any rule promulgated pursuant to this article and if the violation has not been resolved in thirty days, the commissioner may petition a court of competent jurisdiction for a condemnation of such pesticide or device. When the commissioner has found that a pesticide or device so detained or embargoed is not adulterated or misbranded, he shall remove the tag or other marking.
5. If the court finds that a detained or embargoed pesticide or device is in violation of this article or rules adopted thereunder, such pesticide or device shall after entry of the decree be destroyed at the expense of the owner, claimant, or custodian thereof, under the supervision of the commissioner, and all court costs and attorney fees and storage and other proper expenses shall be assessed against the owner, claimant, or custodian of such pesticide or device or his agent. However, if the adulteration or misbranding can be corrected by proper labeling or processing of the pesticide or device, the court, after entry of the decree and after such costs, attorney fees, and expenses have been paid and a good and sufficient bond has been executed, conditioned upon the proper labeling or processing of such pesticide or device, may by order direct that such pesticide or device be delivered to the owner, claimant, or custodian thereof for such labeling or processing under the supervision of the commissioner. The expense of such supervision shall be paid by the owner, claimant, or custodian. The pesticide or device shall be returned to the owner, claimant, or custodian of the pesticide or device on the representation to the court by the commissioner that the pesticide or device is no longer in violation of this article and that the expenses of such supervision have been paid.

History. Source: L. 90: Entire article R&RE, p. 1572, § 1, effective June 7. L. 2002: (3) amended, p. 1547, § 304, effective October 1.

Editor’s note: This section is similar to former § 35-9-110 as it existed prior to 1990.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002.

35-9-124. Civil penalties

1. Any person who violates any provision of this article or any regulation made pursuant to this article is subject to a civil penalty, as determined by the commissioner. The maximum penalty shall not exceed five thousand dollars per violation. Each day the violation occurs shall constitute a separate violation.
2. No civil penalty may be imposed unless the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
3. If the commissioner is unable to collect such civil penalty or if any person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may recover such amount plus costs and attorney fees by action in any court of competent jurisdiction.
4. Before imposing any civil penalty, the commissioner may consider the effect of such penalty on the ability of the person charged to stay in business.

History. Source: L. 90: Entire article R&RE, p. 1573, § 1, effective June 7.

Editor’s note: This section is similar to former § 35-9-109 as it existed prior to 1990.

35-9-125. Criminal penalties

1. No person may be charged under this section unless it is determined, after notice and an opportunity for hearing conducted pursuant to article 4 of title 24, C.R.S., that such person has twice committed the violation to be charged; except that this subsection (1) shall not apply to any person who violates any of the provisions of section 35-9-120 (1)(a), (1)(b), (1)(e), (1)(f), (1)(j), (1)(k), or (2)(c).
2. Any person who violates any of the provisions of section 35-9-120 (1)(a), (1)(b), (1)(c), (1)(e), (1)(f), (1)(h), (1)(j), (1)(k), (2)(a), (2)(b), (2)(c), or (2)(g) or 35-9-123 (3) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
3. Any person who violates section 35-9-120 (1)(g), (2)(d), or (2)(f) commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
4. Any person who violates any of the provisions of section 35-9-120 (2)(e) commits a class 3 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

History. Source: L. 90: Entire article R&RE, p. 1573, § 1, effective June 7. L. 2002: (2), (3), and (4) amended, p. 1547, § 305, effective October 1.

Editor’s note: This section is similar to former § 35-9-109 as it existed prior to 1990.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (2), (3), and (4), see section 1 of chapter 318, Session Laws of Colorado 2002.

35-9-126. Pesticide fund - transfer of moneys to plant health, pest control, and environmental protection cash fund - fees

1. All fees and civil fines collected pursuant to this article shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the pesticide fund, as that fund existed prior to July 1, 2009, shall be transferred to the plant health, pest control, and environmental protection cash fund.
2. (Deleted by amendment, L. 2009, (HB 09-1249), ch. 87, p. 316, § 5, effective July 1, 2009.)

History. Source: L. 90: Entire article R&RE, p. 1574, § 1, effective June 7. L. 2006: (1) amended, p. 1267, § 20, effective January 1, 2007. L. 2009: Entire section amended, (HB 09-1249), ch. 87, p. 316, § 5, effective July 1.

35-9-127. Advisory committee

An advisory committee, as established pursuant to article 10 of this title, shall assist the commissioner as set forth therein and in developing rules and regulations to carry out the provision of this article.

History. Source: L. 90: Entire article R&RE, p. 1574, § 1, effective June 7.

Editor’s note: This section is similar to former § 35-9-106 as it existed prior to 1990.

35-9-128. Information

The commissioner, in cooperation with other agencies of this state or the federal government, may publish information pertaining to pesticides and conduct workshops for the purpose of informing pesticide dealers of new developments in the field of pesticides.

History. Source: L. 90: Entire article R&RE, p. 1574, § 1, effective June 7.

35-10-101. Short title

This article shall be known and may be cited as the “Pesticide Applicators’ Act”.

History. Source: L. 90: Entire article R&RE, p. 1576, § 1, effective May 31.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 14 of chapter 6, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1990, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1990, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor’s notes following those sections that were relocated.

Editor’s note: This section is similar to former § 35-10-101 as it existed prior to 1990.

35-10-102. Legislative declaration

The general assembly hereby finds and declares that pesticides perform a valuable function in controlling insects, rodents, weeds, and other forms of life which may be injurious to crops, livestock, and other desirable forms of plant and animal life, to structures, and to individuals. The general assembly further finds and declares that pesticides contain toxic substances which may pose a serious risk to the public health and safety and that regulation of pesticide use is necessary to prevent adverse effects on individuals and the environment.

History. Source: L. 90: Entire article R&RE, p. 1576, § 1, effective May 31.

Editor’s note: This section is similar to former § 35-10-102 as it existed prior to 1990.

35-10-103. Definitions

As used in this article, unless the context otherwise requires:

1. “Certified operator” means an individual who applies any restricted-use pesticides for a commercial applicator, registered limited commercial applicator, or registered public applicator, without the on-site supervision of a qualified supervisor and that should be licensed pursuant to section 35-10-114.
2. “Commercial applicator” means any person, other than a private applicator, who engages in the business of applying pesticides for hire or operating a device for hire that is designated by the commissioner as requiring licensure for use under this article.
3. “Commissioner” means the commissioner of agriculture.
4. “Department” means the department of agriculture.
5. “Device” means any instrument or contrivance, other than a firearm, intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal life (other than man and other than bacteria, viruses, or other microorganisms on or in living man or other living animals); except that “device” shall not include equipment used for the application of pesticides when sold separately therefrom.
6. “EPA” means the United States environmental protection agency.
7. “General-use pesticide” means any pesticide so designated by the commissioner or the administrator of the EPA.
8. “Limited commercial applicator” means any person engaged in applying pesticides in the course of conducting a business other than the production of any agricultural commodity; except that such application shall be only in or on property owned or leased by the person or the person’s employer.

   (8.5) “Local government” means a county, home rule county, city, town, city and county, home rule city, special district, or other political subdivision of the state.

9. “Pest” means any insect, rodent, nematode, fungus, weed, or other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism (except viruses, bacteria, or other microorganisms on or in living man or in other living animals) which the commissioner or the administrator of the EPA declares to be a pest.
10. “Pesticide” means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; except that the term “pesticide” shall not include any article that is a “new animal drug” as designated by the United States food and drug administration.
11. “Plant regulator” means any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation or for otherwise altering the behavior of plants or the produce thereof; except that “plant regulator” shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments. Also, “plant regulator” shall not be required to include any of those nutrient mixtures or soil amendments which are commonly known as vitamin-hormone horticultural products, intended for improvement, maintenance, survival, health, and propagation of plants, which are not for pest destruction and which are nontoxic and nonpoisonous in the undiluted packaged concentration.

    (11.5) “Private applicator” means any person who uses or supervises the use of a pesticide for purposes of producing any agricultural commodity on property owned or leased by the applicator or the applicator’s employer or, if the pesticide is applied without compensation other than trading of personal services between producers of agricultural commodities, on the property of another person.

12. “Public applicator” means any agency of the state, any county, city and county, or municipality, or any other local governmental entity or political subdivision which applies pesticides.
13. “Qualified supervisor” means any individual who, without supervision, evaluates pest problems or recommends pest controls using pesticides or devices that require licensure under this article for use; mixes, loads, or applies any pesticide; sells pesticide application services; operates devices that require licensure under this article for use; or supervises others in any of these functions.
14. “Restricted-use pesticide” means any pesticide designated as a restricted- or limited-use pesticide by the commissioner or as a restricted-use pesticide by the administrator of the EPA.
15. 1. “Technician” means any individual who:
       1. Uses, under the supervision of a qualified supervisor, a device that requires licensure under this article for use;
       2. Mixes, loads, or applies general-use pesticides under the supervision of a qualified supervisor, mixes or loads restricted-use pesticides under the supervision of a qualified supervisor, or applies restricted-use pesticides under the on-site supervision of a qualified supervisor; or
       3. Evaluates pest problems, recommends products or treatments for pest problems, or sells application services under the supervision of a qualified supervisor.
    2. “Technician” does not include any individual whose duties are solely clerical or janitorial or otherwise completely disassociated from pest control.
16. “Under the on-site supervision of” refers to work performed by an individual acting under the instruction and control of a qualified supervisor who is present at the work site at the time the work is being performed.
17. “Under the supervision of” refers to work performed by an individual acting under the instruction and control of a qualified supervisor, even if the qualified supervisor is not physically present at the work site at the time the work is performed.
18. “Use” means all aspects of the handling of pesticides, including but not limited to the mixing, loading, application or administration, spill control, and disposal of a pesticide or its container.

History. Source: L. 90: Entire article R&RE, p. 1576, § 1, effective May 31. L. 96: (8) and (15)(a)(II) amended and (8.5) and (18) added, p. 1373, § 1, effective July 1. L. 2006: (1), (2), and (8) amended and (11.5) added, p. 1259, § 1, effective July 1; (2), (13), and (15)(a)(I) amended, p. 291, § 1, effective July 1.

Editor’s note: (1) This section is similar to former § 35-10-103 as it existed prior to 1990.

(2) Amendments to subsection (2) by House Bill 06-1239 and House Bill 06-1274 were harmonized.

35-10-104. Scope of article

1. Any person who uses or supervises the use of any pesticide or device in the state of Colorado shall be subject to this article and to any rules adopted pursuant thereto.
2. (Deleted by amendment, L. 2006, p. 1260 , § 2, effective January 1, 2007.)

History. Source: L. 90: Entire article R&RE, p. 1578, § 1, effective May 31. L. 2006: Entire section amended, p. 1260, § 2, effective January 1, 2007.

35-10-105. Commercial applicator - business license required

Any person acting as a commercial applicator must possess a valid commercial applicator business license issued by the commissioner in accordance with this article and any rules and regulations adopted pursuant thereto. A commercial applicator business license may only be issued for the class or subclass of pesticide application in which the qualified supervisor employed or otherwise retained by the commercial applicator is licensed.

History. Source: L. 90: Entire article R&RE, p. 1579, § 1, effective May 31.

Editor’s note: This section is similar to former § 35-10-106 as it existed prior to 1990.

35-10-106. Commercial applicator - license requirements - application - fees

1. As requisites for licensure, the applicant for a commercial applicator business license shall:
   1. Obtain liability insurance in the minimum amount of four hundred thousand dollars with the provision that such policy shall not be cancelled unless written notice is provided to the commissioner at least ten days prior to such cancellation; except that liability insurance policies containing a so-called “pollution exclusion” shall satisfy this paragraph (a);
   2. Employ or secure the services by documented agreement of a qualified supervisor who is licensed in the class or subclass of pesticide application or device use performed by the business;
   3. Provide verifiable training to all technicians in his employ according to standards adopted by the commissioner;
   4. Identify all pesticide application equipment in the form and manner prescribed by the commissioner;
   5. If it engages in aerial application of pesticides, possess a certificate issued by the federal aviation administration as specified in license qualifications adopted by the commissioner.
2. Each applicant for a commercial applicator business license shall submit an application providing all information in the form and manner the commissioner shall designate, including, but not limited to, verification that the applicant has complied with subsection (1) of this section.
3. 1. If a commercial applicator operates under more than one business name from a single location, the name of each such business providing services related to pesticide application shall be listed with the commissioner in the form and manner he shall designate. The commissioner may require that a separate fee be paid for each business name so listed.
   2. No additional commercial applicator business license shall be required for such additional business names.
   3. If a commercial applicator operates under more than one business name from a single location, the applicator must maintain separate pesticide application records pursuant to section 35-10-111 and separate business records for each such business name.
4. Each applicant for a commercial applicator business license shall pay a license fee in an amount determined by the commissioner.
5. The expiration date of each commercial applicator business license shall be determined by the commissioner, but the duration of such license shall not exceed three years.
6. Each licensee shall report to the commissioner, in the form and manner the commissioner shall designate, any change to the information provided in such licensee’s application or in such reports previously submitted, within fifteen days of such change.

History. Source: L. 90: Entire article R&RE, p. 1579, § 1, effective May 31. L. 2006: (1)(b) and (5) amended, p. 291, § 2, effective July 1.

Editor’s note: This section is similar to former §§ 35-10-106, 35-10-108, and 35-10-110 as they existed prior to 1990.

35-10-107. Commercial applicator business license - renewals

1. Each commercial applicator shall make an application to renew its business license on or before the expiration date of the license. Said application shall be in the form and manner prescribed by the commissioner and shall be accompanied by the renewal fee.
2. If the application for renewal is not received on or before the expiration date of the license, a penalty fee of ten percent of the renewal fee shall be assessed and added to the renewal fee. No license shall be renewed until the total fee is paid.
3. If the application and fee for renewal are not received on or before the thirtieth day following the expiration date of the license, the business license shall not be renewed, and the commercial applicator shall apply for a new license.

History. Source: L. 90: Entire article R&RE, p. 1580, § 1, effective May 31. L. 2006: Entire section amended, p. 292, § 3, effective July 1. L. 2015: (2) and (3) amended, (SB 15-119), ch. 201, p. 694, § 4, effective May 19.

Editor’s note: This section is similar to former § 35-10-109 as it existed prior to 1990.

35-10-108. Commercial applicators - invoice notice

Commercial applicators shall include a statement in conspicuous type on each customer invoice that indicates that commercial applicators are licensed by the department. Said statement shall be exactly prescribed by rule adopted by the commissioner.

History. Source: L. 90: Entire article R&RE, p. 1580, § 1, effective May 31.

35-10-109. Limited commercial and public applicators - no business license required - training - rules

1. A business license is not required for limited commercial or public applicators; except that the commissioner shall require such applicators that apply restricted-use pesticides to register with the department. The commissioner shall determine the form and manner of the registration, as well as the amount of any administrative fees associated with the registration. A limited commercial or public applicator may register voluntarily, regardless of whether the applicator applies restricted-use pesticides, by submitting a request in the form and manner specified by the commissioner.
2. 1. A public applicator shall not allow a person working for it to apply a general-use pesticide that has been listed by the commissioner by rule unless the person has been trained in the core elements of pesticide use as required by the commissioner by rule. The public applicator shall maintain a record of the training as specified by the commissioner by rule.
   2. The owner or designee of a limited commercial applicator must be trained in the core elements of pesticide use as required by the commissioner by rule before applying a general-use pesticide that has been listed by the commissioner by rule. The limited commercial applicator shall maintain a record of the training as specified by the commissioner by rule.

History. Source: L. 90: Entire article R&RE, p. 1580, § 1, effective May 31. L. 2006: Entire section amended, p. 1261, § 3, effective January 1, 2007. L. 2015: Entire section amended, (SB 15-119), ch. 201, p. 695, § 6, effective May 19.

Editor’s note: This section is similar to former § 35-10-113 as it existed prior to 1990.

35-10-110. Registered limited commercial and registered public applicators - requirements for operation

1. For each class or subclass of pesticide application a registered limited commercial or registered public applicator applies, the applicator shall employ at least one qualified supervisor who is licensed in that class or subclass of pesticide application or shall secure the services of such qualified supervisor by documented agreement.
2. Notwithstanding subsection (1) of this section, no registered public applicator shall be required to pay licensing or certification fees for any qualified supervisor or certified operator whom the applicator may employ.
3. Every registered limited commercial or registered public applicator shall provide verifiable training to all technicians in its employ according to standards adopted by the commissioner. Such standards shall be identical to those adopted by the commissioner with respect to commercial applicators pursuant to section 35-10-106 (1)(c).
4. If the commissioner, pursuant to section 35-10-109, establishes a registry of limited commercial and public applicators, he or she may also require that each registered applicator report, in the form and manner the commissioner shall designate, any change to the information provided by such applicator to the registry or in any such reports previously submitted, within fifteen days after said change.

History. Source: L. 90: Entire article R&RE, p. 1580, § 1, effective May 31. L. 2006: Entire section amended, p. 1261, § 4, effective January 1, 2007.

Editor’s note: This section is similar to former § 35-10-113 as it existed prior to 1990.

35-10-111. Record-keeping requirements

1. Each commercial, registered limited commercial, licensed private, and registered public applicator shall keep and maintain records of each pesticide application in the form and manner designated by the commissioner. The applicator shall retain the records for three years after the date of the pesticide application; except that the record retention period for private applicators is two years.
2. The records shall be kept as follows:
   1. For a commercial applicator, at the address specified in the application for the commercial applicator’s business license;
   2. For a registered limited commercial or registered public applicator, at the address specified in the registry authorized in section 35-10-109; or
   3. For a licensed private applicator, at the address of record on file with the commissioner.

History. Source: L. 90: Entire article R&RE, p. 1581, § 1, effective May 31. L. 2006: Entire section amended, p. 1261, § 5, effective January 1, 2007. L. 2015: Entire section amended, (SB 15-119), ch. 201, p. 694, § 3, effective May 19.

Editor’s note: This section is similar to former § 35-10-111 as it existed prior to 1990.

35-10-112. Notification requirements - registry of pesticide-sensitive persons - preemption - rules

1. 1. The commissioner shall promulgate rules for the establishment of a registry of pesticide-sensitive persons to be maintained by the department. Pesticide-sensitive persons may apply to be placed on the registry if they can provide proof of medical justification by a physician licensed in Colorado in the form and manner prescribed by the commissioner. The proof of medical justification shall be updated every two years. The registry shall be updated at least annually, and the published registry shall be made readily accessible, in a form and manner prescribed by the commissioner, to all commercial, registered limited commercial, and registered public applicators on record with the commissioner.
   2. The commissioner shall provide standardized notification signs to any person accepted for the registry for such person to post on his property. These signs shall be designed, manufactured, and distributed solely by the department.
   3. 1. A commercial, registered limited commercial, or registered public applicator, prior to applying a pesticide in any turf or ornamental category, shall take reasonable actions to give notice of the date and approximate time of any such pesticide application, prior to the application, to any pesticide-sensitive person whose name is on the published registry and:
         1. Who resides on the property to be treated;
         2. Resides on property that abuts the property to be treated; or
         3. Resides in a multi-unit dwelling that abuts a common area to be treated.
      2. If two property sites would be considered to be abutting but for the fact that such sites are separated by an alley, for the purposes of this section such sites are deemed to be abutting.
   4. A commercial, registered limited commercial, or registered public applicator in the wood-destroying organism pest control, residential or commercial pest control, or interior plant pest control categories, prior to making a structural pesticide application to a multi-unit dwelling, shall take reasonable actions to give notice of the date and approximate time of any such pesticide application, prior to the application, to any pesticide-sensitive person whose name is on the published registry and who resides at that multi-unit dwelling.
   5. The commissioner may establish rules to further clarify the circumstances and manner in which notice shall be given to pesticide-sensitive persons.
2. 1. Any commercial, registered limited commercial, or registered public applicator making a pesticide application in any turf or ornamental category shall, at the time of application, post a sign or signs notifying the public of the application. Such signs shall be posted at any conspicuous point or points of entry to the property receiving the application.
   2. Any commercial, registered limited commercial, or registered public applicator making a pesticide application in any aquatic category shall post, at the time of application, a sign or signs notifying the public of the application. Such signs shall be posted in the manner designated by the commissioner through the adoption of rules pursuant to article 4 of title 24, C.R.S.
   3. The notice-of-application signs specified in paragraphs (a) and (b) of this subsection (2) shall be water resistant and shall measure at least four inches in height and five inches in width. Each sign shall contain the following information in black lettering and symbols on a bright yellow background:
      1. The word “WARNING”, in at least sixty-point bold-faced type;
      2. The words “PESTICIDES APPLIED”, in at least twenty-four-point bold-faced type;
      3. The symbol of a circle at least two inches in diameter with a diagonal slash over an adult, child, and dog; and
      4. The name of the commercial, registered limited commercial, or registered public applicator that made the application, in at least eighteen-point bold-faced type.
   4. If a commercial or registered limited commercial applicator makes a pesticide application on a commercial property site pursuant to paragraph (a) or (b) of this subsection (2) and an owner of the site or an agent of an owner of the site is not present at the site, then, in addition to the information required by paragraph (c) of this subsection (2), the notice-of-application signs posted by the applicator at the site shall also contain the following information in black lettering and symbols on a bright yellow background in at least eighteen-point bold-faced type:
      1. The telephone number of the applicator;
      2. The name of the pesticide applied; and
      3. The date the pesticide was applied.
3. No county, city and county, municipality, home rule county, home rule city and county, or home rule municipality shall enact or impose any notification requirements upon commercial applicators which are more stringent than those imposed by this article; except that each county, city and county, municipality, home rule county, home rule city and county, and home rule municipality shall retain the authority to impose any notification requirements upon private individuals, property owners, and the general public. Any such notification requirement imposed by any county, city and county, municipality, home rule county, home rule city and county, or home rule municipality on private individuals, property owners, or the general public shall not be held to be applicable to any commercial applicator, nor shall any commercial applicator be exposed to any liability for a failure to comply with any such notification requirement.

History. Source: L. 90: Entire article R&RE, p. 1581, § 1, effective May 31. L. 96: (1)(a), (1)(c), and (3) amended and (2)(d) added, p. 1374, § § 2, 3, effective July 1. L. 2006: (1)(a) and (1)(c) amended and (1)(d) and (1)(e) added, p. 292, § 4, effective July 1; (1)(a), (1)(c), (2)(a), (2)(b), IP(2)(c), (2)(c)(IV), and IP (2)(d) amended and (1)(d) added, p. 1262, § 6, effective January 1, 2007.

Editor’s note: Amendments to subsections (1)(a), (1)(c), and (1)(d) by House Bill 06-1239 and House Bill 06-1274 were harmonized.

35-10-112.5. Statewide uniformity of pesticide control and regulation - exceptions

1. The general assembly hereby determines that:
   1. The citizens of this state benefit from a system of safe, effective, and scientifically sound pesticide regulation;
   2. A system of pesticide regulation that is consistent and coordinated, that creates statewide uniform standards, and that conforms with both state and federal technical standards and requirements is essential to the public health, safety, and welfare, and finds that local regulation of pesticides that is inconsistent with and adopts different standards from federal and state requirements does not assist in achieving these benefits;
   3. Through statute and regulation, the state has created a system of pesticide regulation based upon scientific standards that protects the citizens of this state;
   4. Although the cultivation of marijuana is illegal under federal law and so the use of pesticides in cultivating marijuana is not specifically allowed by any pesticide’s label, the cultivation of marijuana is specifically allowed and regulated by Colorado law, and the use of pesticides should be regulated pursuant to this article and rules promulgated pursuant to this article rather than pursuant to local laws; and
   5. Pesticide regulation is a matter of statewide concern.
2. A local government shall not adopt or continue in effect any ordinance, rule, resolution, charter provision, or statute regarding the use of any pesticide by persons regulated by this article or federal law and pertaining to:
   1. Any labeling or registration requirements for pesticides, including requirements regarding the name of the product, the name and address of the manufacturer, and any applicable registration numbers;
   2. 1. The use and application of pesticides by persons regulated by this article or federal law, including but not limited to, directions for use, classification of pesticides as general or restricted use, mixing and loading, site of application, target pest, dosage rate, method of application, application equipment, frequency and timing of applications, application rate, reentry intervals, worker specifications, container storage and disposal, required intervals between application and harvest of food or feed crops, rotational crop restrictions, and warnings against use on certain crops, animals, or objects or against use in or adjacent to certain areas.
      2. Subparagraph (I) of this paragraph (b) applies to the use and application of pesticides by persons regulated by this article or federal law in connection with the cultivation of marijuana.
   3. Except as specifically provided in this article, any warnings and precautionary statements, notifications, or statements of practical treatment; or
   4. Licensure, training, or certification requirements for persons regulated under this article, including any insurance and record-keeping requirements.
3. 1. Nothing in this article may be construed to limit the authority of a local government as defined by state law to:
      1. Zone for the sale or storage of any pesticide, provide or designate sites for disposal of any pesticide or pesticide container, adopt or enforce building and fire code requirements, regulate the transportation of pesticides consistently with and in no more strict of a manner than state and federal law, adopt regulations pursuant to a storm water management program that is consistent with federal or state law, or adopt regulations to protect surface or groundwater drinking water supplies consistent with state or federal law concerning the protection of drinking water supplies;
      2. Take any action specifically authorized or required by any federal or state law or regulation with respect to pesticides, or to take any action otherwise prohibited by this article in order to comply with any specific federal or state requirement or in order to avoid a fine or other penalty under federal or state law;
      3. Regulate the use of pesticides on property owned or leased by the local government;
      4. Issue local general occupational licenses to persons regulated by this article.
   2. This subsection (3) does not authorize a local government to utilize the police power or the authority to zone, to provide or designate disposal sites, to adopt and enforce building and fire codes, or to regulate the transportation of pesticides as described in paragraph (a) of this subsection (3) to directly or indirectly regulate or prohibit the application of pesticides by persons regulated by this article or by federal law, including in connection with the cultivation of marijuana.
   3. Nothing in this article shall be construed to be an implicit grant of authority to a local government that is not otherwise granted by state law.
4. Any local government that promulgates an ordinance that concerns pesticides, that is promulgated pursuant to section 31-15-707 (1)(b), C.R.S., or that is promulgated pursuant to any authority described in paragraph
   1. of subsection (3) of this section concerning pesticides shall file the following with the department of agriculture:

      (a) A certified copy of the ordinance; and

   2. A map or legal description of the geographic area that the local government intends to regulate under the ordinance.

History. Source: L. 96: Entire section added, p. 1375, § 4, effective July 1. L. 2015: (1), IP(2), (2)(b), and (3)(b) amended, (HB 15-1367), ch. 271, p. 1081, § 20, effective June 4, 2016.

Cross references: For the legislative declaration in HB 15-1367, see section 1 of chapter 271, Session Laws of Colorado 2015.

35-10-113. Qualified supervisor - license required

Any individual acting as a qualified supervisor must possess a valid qualified supervisor license issued by the commissioner in accordance with this article and any rules and regulations adopted pursuant thereto.

History. Source: L. 90: Entire article R&RE, p. 1582, § 1, effective May 31.

Editor’s note: This section is similar to former § 35-10-105 as it existed prior to 1990.

35-10-114. Certified operator - license required

Any individual acting as a certified operator shall possess a valid certified operator license issued by the commissioner in accordance with this article and any rules and regulations adopted pursuant thereto.

History. Source: L. 90: Entire article R&RE, p. 1582, § 1, effective May 31. L. 96: Entire section amended, p. 1377, § 5, effective July 1.

Editor’s note: This section is similar to former § 35-10-105 as it existed prior to 1990.

35-10-114.5. Private applicator - license required

Any private applicator who uses or supervises the use of a restricted-use pesticide shall possess a valid private applicator license issued by the commissioner in accordance with this article and any rules adopted pursuant to this article. An unlicensed private applicator may use a restricted-use pesticide under the supervision of a licensed private applicator for uses authorized by the licensed private applicator’s license.

History. Source: L. 2006: Entire section added, p. 1263, § 7, effective January 1, 2007.

35-10-114.7. Licensed private applicators - rules - repeal. (Repealed)

History. Source: L. 2006: Entire section added, p. 1263, § 8, effective July 1.

Editor’s note: Subsection (2) provided for the repeal of this section, effective January 1, 2007. (See L. 2006, p. 1263 .)

35-10-115. Qualified supervisor, certified operator, and private applicator licenses - examination - application - fees

1. Each applicant for a qualified supervisor, certified operator, or private applicator license shall:
   1. Pass a written examination in each class or subclass of pesticide application, or device use, in which he or she wishes to be licensed;
   2. Possess the degree of experience and any other qualifications which may be required by the commissioner for licensure under this section; and
   3. If he wishes to be licensed to engage in aerial application of pesticides, possess a certificate issued by the federal aviation administration as specified in license qualifications adopted by the commissioner.
2. Each applicant for licensure under this section shall submit an application providing all information in the form and manner the commissioner shall designate, including, but not limited to, verification that such applicant has complied with subsection (1) of this section.
3. Each licensee shall be required to report to the commissioner, in the form and manner he shall designate, any change to the information provided in such licensee’s application or in any such reports previously submitted, within fifteen days of such change.
4. Each applicant for a license issued under this section shall pay a license fee in an amount determined by the commissioner, after review by the advisory committee created in section 35-10-125.
5. The commissioner shall issue licenses to qualified private applicators on and after January 1, 2007. A license issued in Colorado by the United States environmental protection agency, issued to a private applicator before January 1, 2007, shall remain valid for purposes of this article through the expiration date of such license.

History. Source: L. 90: Entire article R&RE, p. 1582, § 1, effective May 31. L. 2006: (1)(a) amended, p. 293, § 5, effective July 1; IP(1) amended and (5) added, p. 1263, § 9, effective January 1, 2007.

35-10-116. Qualified supervisor and certified operator licenses - expiration - renewal of licenses - reinstatement

1. Licenses issued pursuant to section 35-10-115 shall be valid for a period determined by the commissioner, but the duration of such license shall not exceed three years.
2. A licensee licensed pursuant to section 35-10-115 may have the option to apply to renew a license without further examination if he has completed, within the previous three years, the competency requirements established by the commissioner.
3. A licensee shall submit a renewal application in the form and manner designated by the commissioner on or before the termination date of such license and shall pay a renewal fee in an amount determined by the commissioner.
4. If the application for renewal of any license issued pursuant to section 35-10-115 is not postmarked on or before the expiration date of the license, a penalty fee of ten percent of the renewal fee shall be assessed and added to the renewal fee. No license shall be renewed until the total renewal fee is paid.
5. If the application and fee for renewal of any license issued pursuant to section 35-10-115 are not received on or before the thirtieth day following the expiration date of the license, the license shall not be renewed and the licensee shall apply for a new license.
6. Notwithstanding subsection (5) of this section, any license issued pursuant to this section that is not renewed on or before the expiration date of the license may be reinstated within one hundred eighty days after the expiration date upon:
   1. Application and payment of a reinstatement fee as determined by the commissioner; and
   2. Proof that all renewal requirements have been satisfied as of the expiration date of the license.
7. Licenses not reinstated within one hundred eighty days after the expiration date shall not be reinstated. The former holder of such a license who wishes to be licensed shall apply for a new license.

History. Source: L. 90: Entire article R&RE, p. 1583, § 1, effective May 31. L. 2006: (1) amended and (6) and (7) added, p. 293, § 6, effective July 1. L. 2015: (5) amended, (SB 15-119), ch. 201, p. 694, § 5, effective May 19.

35-10-117. Unlawful acts

1. Unless otherwise authorized by law, it is unlawful and a violation of this article for any person:
   1. To perform any of the acts for which licensure as a commercial applicator, qualified supervisor, certified operator, or private applicator is required without possessing a valid license to do so;
   2. To hold oneself out as being so qualified to perform any of the acts for which licensure as a commercial applicator, qualified supervisor, or certified operator is required without possessing a valid license to perform such acts;
   3. To solicit, advertise, or offer to perform any of the acts for which licensure as a commercial applicator, qualified supervisor, or certified operator is required without possessing a valid license to perform such acts; to act as an agent for any principal to solicit from any person the purchase of pesticide application or pest control services from the principal when the principal does not possess a valid license to perform the services being offered; or to enter into a contract to perform such services;
   4. To refuse to comply with a cease-and-desist order issued pursuant to section 35-10-120;
   5. To refuse or fail to comply with the provisions of this article;
   6. 1. To make false, misleading, deceptive, or fraudulent representations.
      2. No claims of absolute safety shall be made for any product regulated by this article.
   7. To impersonate any state, county, city and county, or municipal official or inspector;
   8. To refuse or fail to comply with any rules or regulations adopted by the commissioner pursuant to this article or to any lawful order issued by the commissioner;
   9. To use, store, or dispose of pesticides, pesticide containers, rinsates, or other related materials, or to supervise or recommend such acts, in a manner inconsistent with labeling directions or requirements, unless otherwise provided for by law, or in an unsafe, negligent, or fraudulent manner; or
   10. To refuse or fail to comply with any requirements of the federal worker protection standards set forth in 40 CFR part 170.
2. It is unlawful and a violation of this article for any person acting as a commercial, registered limited commercial, or registered public applicator, or as a qualified supervisor or certified operator:
   1. To use, store, or dispose of pesticides, pesticide containers, rinsates, or other related materials, or to supervise or recommend such acts, in a manner inconsistent with labeling directions or requirements, unless otherwise provided for by law, or in an unsafe, negligent, or fraudulent manner;
   2. To use or recommend the use of any pesticide not registered with the department pursuant to article 9 of this title or to use or recommend the use of a pesticide in any manner inconsistent with the restrictions of the commissioner or the administrator;
   3. To use or recommend the use of any device that requires licensure for use in any manner inconsistent with the restrictions of the commissioner or the administrator;
   4. To use any device that requires licensure for use or any pesticide, or to direct or recommend such use, without providing appropriate supervision, including, but not limited to, the application of any pesticide without providing the supervision of a qualified supervisor licensed in that class or subclass of pesticide application;
   5. To maintain or supervise the maintenance of any device that requires licensure for use or pesticide application equipment, including, but not limited to, loading pumps, hoses, or metering devices, in an unsafe or negligent manner;
   6. To fail to provide the notification required pursuant to section 35-10-112 (1)(c);
   7. To make false or misleading representations or statements of fact in any application, record, or report required by this article or any rules or regulations adopted pursuant thereto;
   8. To fail to maintain or submit any records or reports required by this article or any rules or regulations adopted pursuant thereto.
3. It is unlawful and a violation of this article for any commercial applicator, qualified supervisor, or certified operator:
   1. To permit the use of his license by any other person;
   2. To use or supervise or recommend the use of any device that requires licensure for use, or any pesticide, which, including but not limited to generally accepted standards of practice, would be ineffective or inappropriate for the pest problem being treated;
   3. 1. To use any device that requires licensure for use or apply any pesticide or to recommend or supervise such acts in any manner that fails to meet generally accepted standards for such use or application except as provided by subparagraph (II) of this paragraph (c).
      2. If a commercial applicator receives instructions from a party contracting for such applicator’s services and the commercial applicator knows or should know that using the device or applying the pesticide in the manner specified by the contracting party may not or does not meet generally accepted standards for such use or application, the commercial applicator must so inform the contracting party. If the contracting party, after being so advised, continues to require the commercial applicator to perform the application or use the device according to these instructions, the commercial applicator may follow these instructions for such application or use unless such application or use would violate any of the directions contained on the pesticide or the device or the labeling of either or would violate any provision of this article or article 9 of this title or any rule or regulation adopted pursuant to this article or article 9 of this title. If the commercial applicator complies with these requirements, the party contracting for such application of any pesticide or use of any device shall have no cause of action for damages against the commercial applicator if the application or use causes death or injury to the contracting party or his property or is unsatisfactory in its result, unless the contracting party establishes, by a preponderance of the evidence, that such death, injury, or unsatisfactory result resulted from negligence or an intentional act not encompassed within or necessitated by the instructions provided by such contracting party.
4. It is unlawful and a violation of this article for any commercial applicator:
   1. To operate any device that requires licensure for use, or to apply any pesticide, if the insurance required by section 35-10-106 (1)(a) is not in full force and effect at the time of such use or application, or if it does not have on file with the department, in the form and manner designated by the commissioner, verification that said insurance is in full force and effect;
   2. To fail to provide any customer with any information required to be so provided by this article or by any rules and regulations adopted pursuant thereto.
5. It is unlawful and a violation of this article for any employee or official of the department to disclose or use for his own advantage any information derived from any applications, reports, or records, including medical records, submitted to the department pursuant to this article or to reveal such information to anyone except authorized persons, who may include officials or employees of the state, the federal government, the courts of this or other states, and physicians.
6. The failure by any person to comply with the provisions of subsection (1)(a), (1)(b), (1)(c), (1)(f), or (4)(b) of this section is a deceptive trade practice and is subject to the protections of the “Colorado Consumer Protection Act”, article 1 of title 6, C.R.S.

History. Source: L. 90: Entire article R&RE, p. 1583, § 1, effective May 31. L. 2006: (2)(b), (2)(c), (2)(d), (3)(b), (3)(c)(I), and (4)(a) amended and (2)(b.5) added, p. 294, § 7, effective July 1; (1)(a) and IP(2) amended and (1)(i) and (1)(j) added, p. 1264, § 10, effective January 1, 2007.

Editor’s note: This section is similar to former § 35-10-114 as it existed prior to 1990.

35-10-117.5. Unlawful acts for licensed private applicators

1. It is unlawful and a violation of this article for a licensed private applicator:
   1. To make false or misleading representations or statements of fact in any license, application, record, or report required by this article or any rules adopted pursuant thereto;
   2. To fail to maintain or submit any records or reports required by this article or any rules adopted pursuant thereto; or
   3. To permit the use of a private applicator license by any person other than the person to whom the license was issued.

History. Source: L. 2006: Entire section added, p. 1264, § 11, effective January 1, 2007.

35-10-118. Powers and duties of the commissioner

1. The commissioner is authorized to administer and enforce the provisions of this article and any rules and regulations adopted pursuant thereto.
2. The commissioner is authorized to adopt all reasonable rules for the administration and enforcement of this article, including, but not limited to:
   1. The regulation of all aspects of pesticide application, including, but not limited to, the storage, use, application, and disposal of any pesticide or device that requires licensure for use by any person subject to this article;
   2. The establishment of qualifications for any applicant and standards of practice for any of the licenses authorized under this article, including the establishment of classifications and subclassifications for any license authorized under this article;
   3. The issuance and reinstatement of any license authorized under this article and the grounds for any disciplinary actions authorized under this article, including letters of admonition, other discipline through stipulation, or the restriction, probation, denial, suspension, or revocation of any license authorized under this article;
   4. The content of the examination required for the administration of this article and the amount of any examination and examination grading fee.
3. The commissioner shall, for examinations required for any license under this article:
   1. Develop each such examination, or adopt a commercially standardized examination, required for the administration of this article and the amount of any examination and examination grading fee;
   2. Establish a passing score for each examination that reflects a minimum level of competency in the class or subclass for which the applicant is being tested;
   3. Administer each such examination or contract with a person, corporation, or other entity to administer each such examination.
4. The commissioner shall establish standards and procedures to issue a license to any person who possesses a valid license from another jurisdiction, where the qualifications for that license are substantially similar to those adopted for a comparable license authorized under this article.
5. The commissioner shall establish any competency requirements and standards for any individuals licensed under section 35-10-115.
6. The commissioner is authorized to conduct hearings required under sections 35-10-119 and 35-10-120 pursuant to article 4 of title 24, C.R.S., and to use administrative law judges to conduct such hearings when their use would result in a net saving of costs to the department.
7. The commissioner is authorized to determine the amount of any licensing fee authorized under this article based on the actual cost of administering and enforcing the article and any rules and regulations adopted pursuant thereto.
8. The commissioner is authorized to enter into cooperative agreements with any agency or political subdivision of this state or any other state, or with any agency of the United States government, for the purpose of carrying out the provisions of this article, receiving grants-in-aid, securing uniformity of rules, and entering into reciprocal licensing agreements.

   (8.5)

   1. The department may provide the following only to the extent of funding received pursuant to paragraph (b) of this subsection (8.5):
      1. Education programs for urban residents regarding the proper use of pesticides and regarding the dangers of misuse or overuse of pesticides; and
      2. Education programs for firefighters regarding precautions and procedures that are necessary when fighting fires that involve or are in the vicinity of pesticides or fertilizers.
   2. The commissioner may accept gifts, grants, and donations of any kind from any private or public source for the purposes of this subsection (8.5). The commissioner shall transmit all such gifts, grants, or donations to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3.
9. The commissioner is authorized to promulgate rules and regulations to comply with the “Federal Insecticide, Fungicide, and Rodenticide Act”, as amended; except that such rules and regulations shall not contravene any provision of this article, article 9 of this title, or any other provision of state law.

   (9.5) The commissioner shall designate by rule which devices, when operated for hire, require the operator to be licensed as a commercial applicator. Licensure shall be required only for the use of those devices that, as determined by the commissioner, may constitute a significant risk to public health or safety.

10. The powers and duties vested in the commissioner by this article may be delegated to qualified employees of the department.

History. Source: L. 90: Entire article R&RE, p. 1585, § 1, effective May 31. L. 96: (2)(c) and (3) amended and (8.5) added, p. 1377, § 6, effective July 1. L. 2006: IP(2), (2)(a), (2)(d), and (3) amended and (9.5) added, p. 295, § § 8, 9, effective July 1; (8.5)(b) amended, p. 1265, § 12, effective January 1, 2007. L. 2009: (8.5)(b) amended, (HB 09-1249), ch. 87, p. 316, § 6, effective July 1.

Editor’s note: This section is similar to former §§ 35-10-104 and 35-10-117 as they existed prior to 1990.

Cross references: For the “Federal Insecticide, Fungicide, and Rodenticide Act”, see Pub.L. 92-516, codified at 7 U.S.C. § 136 et seq.

35-10-119. Inspections - investigations - access - subpoena

1. The commissioner shall provide for the inspection and analysis of pesticides being used and for the inspection of equipment, devices that require licensure for use, or apparatus used for the application of pesticides, and the commissioner may require proper repairs or other changes before further use.
2. The commissioner, upon his own motion or upon the complaint of any person, may make any and all investigations necessary to insure compliance with this article.
3. Complaints of record made to the commissioner and the results of his investigations may, in the discretion of the commissioner, be closed to public inspection, except to the person in interest, as defined in section 24-72-202 (4), C.R.S., or as provided by court order, during the investigatory period and until dismissed or until notice of hearing and charges are served on a licensee.
4. At any reasonable time during regular business hours, the commissioner shall have free and unimpeded access upon consent or upon obtaining an administrative search warrant:
   1. To any land, water, or structures thereon in which any devices that require licensure for use, pesticides, containers, rinsates, or other related materials are or have been kept, used, stored, handled, processed, disposed of, or transported for the purpose of carrying out any provision of this article or any rule made pursuant to this article;
   2. To all records required to be kept and may make copies of such records for the purpose of carrying out any provision of this article or any rule made pursuant to this article.
5. The commissioner shall have full authority to administer oaths and take statements, to issue subpoenas requiring the attendance of witnesses before him and the production of all books, memoranda, papers, and other documents, articles, or instruments, and to compel the disclosure by such witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of any witness to obey any subpoena, the commissioner may petition the district court, and, upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey such an order of the court shall be punishable as a contempt of court.

History. Source: L. 90: Entire article R&RE, p. 1587, § 1, effective May 31. L. 2006: (1) and (4)(a) amended, p. 296, § 10, effective July 1; (4)(a) amended, p. 1265, § 13, effective January 1, 2007.

Editor’s note: (1) This section is similar to former § 35-10-115 as it existed prior to 1990.

(2) Amendments to subsection (4)(a) by House Bill 06-1239 and House Bill 06-1274 were harmonized.

35-10-120. Enforcement

1. The commissioner or his designee shall enforce the provisions of this article.
2. Whenever the commissioner has reasonable cause to believe a violation of any provision of this article or any rule made pursuant to this article has occurred and immediate enforcement is deemed necessary, the commissioner may issue a cease-and-desist order, which may require any person to cease violating any provision of this article or any rule made pursuant to this article. Such cease-and-desist order shall set forth the provisions alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all actions cease forthwith. At any time after service of the order to cease and desist, the person may request, at the person’s discretion, a hearing to be held within a reasonable period of time to determine whether or not such violation has occurred. Such hearing shall be conducted pursuant to the provisions of article 4 of title 24, C.R.S., and shall be determined promptly.
3. Whenever the commissioner possesses sufficient evidence satisfactory to him indicating that any person has engaged in or is about to engage in any act or practice constituting a violation of any provision of this article or of any rule adopted under this article, the commissioner may apply to any court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article or any rule or order under this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.

History. Source: L. 90: Entire article R&RE, p. 1587, § 1, effective May 31. L. 96: (2) amended, p. 1378, § 7, effective July 1.

Editor’s note: This section is similar to former §§ 35-10-118 and 35-10-119 as they existed prior to 1990.

35-10-121. Disciplinary actions - denial of license

1. The commissioner may issue letters of admonition, impose other discipline through stipulation, or restrict, impose probation on, deny, suspend, refuse to renew, or revoke any license or registration authorized under this article if the applicant, registrant, or licensee:
   1. Has refused or failed to comply with any provision of this article, any rule or regulation adopted under this article, or any lawful order of the commissioner;
   2. Has been convicted of a felony for an offense related to the conduct regulated by this article;
   3. Has had an equivalent license or registration denied, revoked, or suspended by any authority;
   4. Has been adjudicated a violator or has committed a violation of the “Federal Insecticide, Fungicide, and Rodenticide Act”, as amended; except that a consent decree entered into with the EPA shall not be considered a violation of such act unless an order from the regional administrator of the EPA or the consent decree shall specifically state that a violation has occurred;
   5. Has refused to provide the commissioner with reasonable, complete, and accurate information regarding methods or materials used or work performed when requested by the commissioner; or
   6. Has falsified any information requested by the commissioner.
2. In any proceeding held under this section, the commissioner may accept as prima facie evidence of grounds for disciplinary action any disciplinary action taken against a licensee, registrant, or certified person from another jurisdiction if the violation that prompted the disciplinary action in that jurisdiction would be grounds for disciplinary action under this section.

   (2.5) Proceedings under this section shall be conducted pursuant to article 4 of title 24, C.R.S.; except that section 24-4-104 (3), C.R.S., shall not apply to such proceedings in cases of deliberate or willful violation; in cases of violation of labeling directions or requirements; or in cases in which the actions or omissions of the licensee or registrant in violation of this article have caused or threatened to cause substantial danger or harm to public health and safety, to property, or to the environment, as defined by the commissioner pursuant to section 35-10-118 (2). In such cases, no revocation, suspension, limitation, or modification of a license or registration shall be lawful unless the commissioner has given the licensee or registrant notice in writing regarding any facts or conduct that may warrant such action and has afforded the licensee or registrant opportunity to submit written data, views, and arguments with respect to such facts or conduct.

3. No licensee or registrant whose license or registration has been revoked may apply or reapply for any license or registration under this article until two years after the date of such revocation.
4. Any person aggrieved by a final disciplinary action taken by the commissioner may appeal such action to the Colorado court of appeals in accordance with section 24-4-106 (11), C.R.S.

History. Source: L. 90: Entire article R&RE, p. 1588, § 1, effective May 31. L. 96: IP(1) amended and (2.5) and (4) added, p. 1378, § 8, effective July 1. L. 2006: IP(1), (1)(c), (2), (2.5), and (3) amended, p. 1265, § 14, effective July 1.

Editor’s note: This section is similar to former § 35-10-112 as it existed prior to 1990.

Cross references: For the “Federal Insecticide, Fungicide, and Rodenticide Act”, see Pub.L. 92-516, codified at 7 U.S.C. § 136 et seq.

35-10-122. Civil penalties

1. Any person who violates any provision of this article or any rule or regulation adopted pursuant to this article is subject to a civil penalty, as determined by the commissioner or a court of competent jurisdiction. The maximum penalty shall not exceed one thousand dollars per violation; except that such penalty may be doubled if it is determined, after notice and an opportunity for hearing, that the person has violated the provision, rule, or regulation for the second time.
2. No civil penalty may be imposed by the commissioner unless the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
3. If the commissioner is unable to collect such civil penalty or if any person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may bring suit to recover such amount plus costs and attorney fees by action in any court of competent jurisdiction.
4. Before imposing any civil penalty, the commissioner or a court of competent jurisdiction may consider the effect of such penalty on the ability of the person charged to stay in business.

History. Source: L. 90: Entire article R&RE, p. 1589, § 1, effective May 31. L. 96: (1), (2), and (4) amended, p. 1379, § 9, effective July 1.

Editor’s note: This section is similar to former § 35-10-120 as it existed prior to 1990.

35-10-123. Criminal penalties

1. No person may be charged under this section unless it is determined, after notice and an opportunity for hearing conducted pursuant to article 4 of title 24, C.R.S., that such person has twice committed the violation to be charged; except that this subsection (1) shall not apply to any person who violates any of the provisions of section 35-10-117 (1)(a), (1)(b), (1)(c), (1)(g), and (5).
2. Any person who violates any of the provisions of section 35-10-117 (1)(a), (1)(b), (1)(c), (1)(e), (1)(g), (1)(i), (1)(j), (2)(a), (2)(b), (2)(c), (2)(d), (3)(a), or (4)(a) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
3. Any person who violates any of the provisions of section 35-10-117 (1)(f), (2)(f), (2)(g), (4)(b), and (5) commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

History. Source: L. 90: Entire article R&RE, p. 1589, § 1, effective May 31. L. 2002: (2) and (3) amended, p. 1547, § 306, effective October 1. L. 2006: (2) amended, p. 1266, § 15, effective July 1.

Editor’s note: This section is similar to former § 35-10-120 as it existed prior to 1990.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (2) and (3), see section 1 of chapter 318, Session Laws of Colorado 2002.

35-10-124. Information

1. The commissioner, in cooperation with other agencies of this state or the federal government, may publish information pertaining to the use and handling of pesticides and conduct workshops for the purpose of informing the pesticide applicators of new developments in the field of pesticides.
2. The commissioner shall provide internet access to finalized enforcement action information to the general public consisting of, at a minimum, the name of the violator, date of the action, city or county in which the violation occurred, nearest major intersection of roads to where the violation occurred, and final enforcement disposition. The commissioner shall publish the information in a form and manner designated by the commissioner within thirty days after the final disposition.

History. Source: L. 90: Entire article R&RE, p. 1589, § 1, effective May 31. L. 2015: Entire section amended, (SB 15-119), ch. 201, p. 695, § 7, effective May 19.

Editor’s note: This section is similar to former § 35-10-116 as it existed prior to 1990.

35-10-125. Advisory committee - sunset review

1. The state agricultural commission created by section 35-1-105 shall appoint an advisory committee of fifteen members to advise the commissioner on agricultural, human health, environmental, wildlife, worker safety, and other matters regarding the use of pesticides in Colorado and to assist the commissioner in promulgating rules to carry out this article.
2. The committee is a state public body, as that term is defined in section 24-6-402 (1)(d), C.R.S., and consists of the following members:
   1. A formulator, or his Colorado representative, actively engaged in the sale of pesticides in Colorado;
   2. A commercial applicator, licensed under this article, who is actively engaged in the commercial application of pesticides for the control of agricultural crop pests;
   3. A commercial applicator, licensed under this article, who is actively engaged in the commercial application of pesticides for the control of turf or ornamental pests;
   4. A commercial applicator, licensed under this article, who is actively engaged in the application of pesticides for the control of structural pests;
   5. A qualified supervisor, employed by a limited commercial applicator registered under this article, who is actively engaged in the application of pesticides;
   6. Two representatives from public applicators registered under this article, each of whom shall be an elected official or a designee thereof;
   7. A representative from Colorado state university agricultural experiment station or extension service;
   8. Two representatives from the Colorado department of public health and environment, both of whom have expertise in either:
      1. Human health with respect to toxicology, pest-related disease vectors, and epidemiology;
      2. Hazardous materials and food safety;
      3. Air pollution and hazardous pesticide air pollutants; or
      4. Water pollution and agricultural activities;
   9. Two representatives from the general public, one of whom is actively engaged in urban agricultural production;
   10. A member of a state or national apiary or beekeeper association who is currently active in apiary management and who is either an elected official of or a designee of the association;
   11. A representative from the agricultural sector who is a worker, as that term is defined in 40 CFR 170.3; and
   12. A representative from the agricultural sector who is actively engaged in organic agricultural production.
3. All members of the advisory committee, with the exception of the formulator, shall be residents of this state.
4. The appointment of the formulator, the commercial applicator engaged in the control of agricultural crop pests, and one of the representatives from a registered public applicator shall expire on January 1, 1991; and the appointment of the commercial applicator engaged in the control of turf or ornamental pests, the representative from the general public who is actively engaged in agricultural production, the qualified supervisor employed by a registered limited commercial applicator, and the representative from the department of health shall expire on January 1, 1992. The initial appointment of all other members shall be for a term of three years. Thereafter, the appointment of each member to the committee shall be for a term of three years.
5. Members of the advisory committee shall receive no compensation but shall be reimbursed for actual and necessary traveling and subsistence expenses incurred in the performance of their official duties as members of such committee.
6. Repealed.

History. Source: L. 90: Entire article R&RE, p. 1589, § 1, effective May 31. L. 96: (6) repealed, p. 31, § 2, effective March 18. L. 2006: (2)(e) and (4) amended, p. 1266, § 16, effective July 1; (2)(h) amended, p. 296, § 11, effective July 1. L. 2015: (1), IP(2), (2)(h), and (2)(i) amended and (2)(j), (2)(k), and (2)(l) added, (SB 15-119), ch. 201, p. 695, § 8, effective May 19.

Editor’s note: This section is similar to former § 35-10-121 as it existed prior to 1990.

35-10-126. Transfer of moneys to plant health, pest control, and environmental protection cash fund - fees

All fees and civil fines collected pursuant to this article shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3.

History. Source: L. 90: Entire article R&RE, p. 1590, § 1, effective May 31. L. 2006: Entire section amended, p. 1266, § 17, effective July 1. L. 2009: Entire section amended, (HB 09-1249), ch. 87, p. 317, § 7, effective July 1.

Editor’s note: This section is similar to former § 35-10-107 as it existed prior to 1990.

35-10-127. Deadline for promulgation of rules and regulations for implementation of article, as amended. (Repealed)

History. Source: L. 90: Entire article R&RE, p. 1590, § 1, effective May 31. L. 2006: Entire section repealed, p. 296, § 12, effective July 1.

35-10-128. Repeal of article - termination of functions

Effective September 1, 2023, this article is repealed. Prior to the repeal, the department of regulatory agencies shall review the regulation by the commissioner of the application of pesticides pursuant to this article as provided for in section 24-34-104, C.R.S., and shall report on the extent of local regulation of pesticides pursuant to section 31-15-707 (1)(b), C.R.S., or under the police power of any political subdivision of the state.

History. Source: L. 90: Entire article R&RE, p. 1590, § 1, effective May 31. L. 91: Entire section amended, p. 689, § 63, effective April 20. L. 93: Entire section amended, p. 997, § 2, effective June 2. L. 96: Entire section amended, p. 1379, § 10, effective July 1. L. 2006: Entire section amended, p. 296, § 13, effective July 1; entire section amended, p. 1267, § 18, effective July 1; entire section amended, p. 1267, § 19, effective January 1, 2007. L. 2015: Entire section amended, (SB 15-119), ch. 201, p. 693, § 2, effective May 19.

Editor’s note: This section is similar to former § 35-10-125 as it existed prior to 1990.

35-11-101. Short title

This article shall be known and may be cited as the “Colorado Chemigation Act”.

History. Source: L. 87: Entire article RC&RE, p. 1278, § 1, effective July 1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was repealed in 1983 and was subsequently recreated and reenacted in 1987, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1983, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

35-11-102. Definitions

As used in this article, unless the context otherwise requires:

1. “Chemical” means any fertilizer or pesticide.
2. “Chemigation” means any process whereby chemicals are applied to land or crops in or with water through a closed irrigation system. “Chemigation” does not mean any process whereby chemicals are applied to land or crops in or with water pumped from a stock watering well, a domestic well with a diameter of two inches or less, or from a tailwater collection pond.
3. “Commissioner” means the commissioner of agriculture.
4. “Contamination” means the degradation of natural water quality as a result of man’s activities.
5. “Department” means the department of agriculture.
6. “Fertilizer” means any formulation or product used as a plant nutrient which is intended to promote plant growth and contains one or more plant nutrients.
7. “Groundwater” means any water not visible on the surface of the ground under natural conditions.
8. “Irrigation system” means any device or combination of devices having a hose, pipe, or other conduit, which connects directly to any source of groundwater or surface water, through which water or a mixture of water and chemicals is drawn and applied for agricultural or horticultural purposes. “Irrigation system” does not include any hand-held hose sprayer or other similar device which is constructed so that an interruption in water flow automatically prevents any backflow to the water source and does not include stock water wells, any domestic well with a diameter of two inches or less, or a system which includes a tailwater collection pond.
9. “Open discharge system” means a system in which the water is pumped or diverted directly into a ditch or canal in such a manner that the force of gravity at the point of discharge into the ditch or canal cannot cause water to flow back to the point from which the water was pumped or diverted.
10. “Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, or any other legal or commercial entity.
11. “Pesticide” means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, insect, rodent, nematode, fungus, weed, or other form of plant or animal life or virus, except viruses on or in living humans or animals, and any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.
12. “Pollution” means the man-made or man-induced alteration of the physical, chemical, biological, or radiological integrity of water.

History. Source: L. 87: Entire article RC&RE, p. 1278, § 1, effective July 1. L. 88: (2) and (8) amended, p. 1219, § 1, effective July 1.

35-11-103. Chemigation permit

1. On and after January 1, 1990, no person shall apply or authorize the application of chemicals to land or crops through the use of chemigation unless such person obtains a chemigation permit from the department.
2. On and after July 1, 1987, a person may obtain, pursuant to section 35-11-105, a provisional chemigation permit from the department for the application of chemicals to land or crops through the use of chemigation.
3. Nothing in this section shall require a person to obtain a chemigation permit to pump or divert water mixed with any chemical to or through an open discharge system.

History. Source: L. 87: Entire article RC&RE, p. 1279, § 1, effective July 1.

35-11-104. Rules and regulations

1. The commissioner shall promulgate rules and regulations pursuant to section 24-4-103, C.R.S., to:
   1. Administer the chemigation permit program;
   2. Establish equipment or performance standards and installation requirements;
   3. Establish fees for the direct and indirect costs of administering the provisions of this article; and
   4. Establish criteria for the entry of inspectors upon lands for purposes of conducting inspections.
2. The commissioner shall immediately notify the director of the department of public health and environment of the summary suspension of any permit, of the denial, suspension or revocation of a permit, including the specific reason thereof; and the commissioner shall also notify the director of the department of public health and environment of any criminal or civil proceeding brought pursuant to this article. The notice required herein shall contain the legal description of the location of the well which is the subject of the commissioner’s action.

History. Source: L. 87: Entire article RC&RE, p. 1279, § 1, effective July 1. L. 94: (2) amended, p. 2804, § 573, effective July 1.

35-11-105. Issuance of provisional chemigation permit - fees

1. On and after July 1, 1987, and before January 1, 1990, any person who intends to utilize chemigation may, before commencing, file with the department an application for a provisional chemigation permit for each irrigation system utilizing chemigation. Such application shall be on forms provided by the department.
2. The applicant for a provisional chemigation permit shall, on the application, certify that the irrigation system for which he is seeking a permit includes properly installed and functioning equipment in compliance with section 35-11-107.
3. Upon receipt of a complete application for a provisional chemigation permit, the department may issue a provisional chemigation permit to the applicant for a specific irrigation system. The permit holder shall attach, in a prominent place, the permit to the irrigation system for which the permit was issued.
4. The fee for a provisional chemigation permit and the annual renewal permit shall be established by rule and regulation of the commissioner and shall reflect all direct and indirect costs for the administration of this article but shall not exceed fifty dollars. The inspection fee for a provisional chemigation permit shall be established by the commissioner and shall reflect all direct and indirect costs of the inspection but shall not exceed forty dollars. A provisional chemigation permit shall expire on March 31 of the year subsequent to the date the provisional chemigation permit was issued. The reinstatement fee for an expired provisional chemigation permit shall be double the amount of the fee for a provisional chemigation permit. A provisional chemigation permit shall not be assignable. The amount of indirect costs assessed under this subsection (4) shall be based on the number of FTE in the program expressed as a percentage of the total FTE in the department. In no case shall the indirect costs assessment exceed this percentage.
5. In the event that a ground water management district contracts with the department for the enforcement of the provisions of this article pursuant to the provisions of section 35-11-113, the amount of the provisional fee and the annual renewal fee for persons utilizing chemigation within such district shall be in an amount up to twenty dollars, as established by the commissioner. There shall be no state inspection fee for inspections made within such district.

History. Source: L. 87: Entire article RC&RE, p. 1280, § 1, effective July 1. L. 88: (4) amended and (5) added, p. 1220, § 2, effective July 1.

35-11-106. Issuance of chemigation permit - fees

1. On and after January 1, 1990, any person who intends to utilize chemigation shall, before commencing, file with the department an application for a chemigation permit for each irrigation system utilizing chemigation. Such application shall be on forms provided by the department.
2. The applicant for a chemigation permit shall, on the application, certify that the irrigation system for which he is seeking a permit includes properly installed and functioning equipment in compliance with the provisions of section 35-11-107. Upon receipt of a permit, the permit holder shall attach, in a prominent place, the permit to the irrigation system for which the permit was issued.
3. The fee for a chemigation permit and the annual renewal fee shall be established by the commissioner through rules. Such fees shall reflect all direct and indirect costs of the department for the administration of this article. The inspection fee shall be established by rule of the commissioner and shall reflect all direct and indirect costs for the inspection. A chemigation permit shall expire on March 31 of the year subsequent to the date the chemigation permit was issued. The reinstatement fee for an expired chemigation permit shall be double the amount of the fee for a chemigation permit. The reinstatement fee shall not be assessed to any person who filed an affidavit in lieu of a permit for the year prior to the year such person seeks a permit. A chemigation permit shall not be assignable. The amount of indirect costs assessed under this subsection (3) shall:
   1. Repealed.
   2. Effective July 1, 2006, be based on the number of FTE in the program expressed as a percentage of the total FTE in the department. In no case shall the indirect costs assessment exceed this percentage.
4. In the event that a ground water management district contracts with the department for the enforcement of the provisions of this article pursuant to the provisions of section 35-11-113, the amount of the fee and annual renewal fee, for persons utilizing chemigation within such district, shall be in an amount established by the commissioner. There shall be no state inspection fee for inspections made within such district.

History. Source: L. 87: Entire article RC&RE, p. 1280, § 1, effective July 1. L. 88: (3) amended and (4) added, p. 1220, § 3, effective July 1. L. 92: Entire section amended, p. 158, § 1, effective February 25. L. 2003: (3) amended, p. 390, § 2, effective March 5.

Editor’s note: Subsection (3)(a)(II) provided for the repeal of subsection (3)(a), effective July 1, 2006. (See L. 2003, p. 390 .)

35-11-107. Equipment and installation requirements

1. An irrigation system utilizing chemigation on and after January 1, 1990, or an irrigation system which has been issued a provisional chemigation permit shall have, as component parts thereof, a properly installed and functioning:
   1. Backflow prevention check valve and vacuum relief valve between the main check valve and the irrigation pump;
   2. Inspection port to check the performance of the check valve on the irrigation pipeline;
   3. Automatic low-pressure drain placed between the main check valve and the irrigation pump so that a chemical will drain away from the source of water supply;
   4. Check valve in the chemical injection line; and
   5. Simultaneous interlock device between the power system of the chemical injection unit and the irrigation pumping plant to protect the water supply from contamination in the event such pumping plant ceases to operate.
2. An irrigation system which would otherwise be subject to all of the requirements of subsection (1) of this section may be exempted from one or more of such requirements if the owner of such irrigation system can demonstrate that the possibility of the source of water from which the irrigation system draws its water cannot be polluted or contaminated as the result of utilizing such irrigation system for chemigation.

History. Source: L. 87: Entire article RC&RE, p. 1281, § 1, effective July 1.

35-11-108. Affidavit in lieu of permit

For the calendar year beginning January 1, 1990, and for each calendar year thereafter, the owner of an irrigation system who does not intend to utilize chemigation during the calendar year shall notify the department of such intent. Notification shall be by an affidavit provided by the department.

History. Source: L. 87: Entire article RC&RE, p. 1281, § 1, effective July 1.

35-11-109. Replacement or modification of equipment

Any permit holder who replaces, alters, or modifies or who authorizes the replacement, alteration, or modification of chemigation equipment for an irrigation system which has been issued a chemigation permit shall notify the department within seven days of such replacement, alteration, or modification. Such notification shall be on a form provided by the department. The permit holder shall certify that the irrigation system as replaced, altered, or modified continues to comply with the provisions of this article.

History. Source: L. 87: Entire article RC&RE, p. 1281, § 1, effective July 1.

35-11-110. Failure to pass inspection - summary suspension - repair orders

1. A permit holder operating any irrigation system which does not pass an inspection due to the failure to have installed and operating any device required by section 35-11-107 or the failure to properly install such a device shall have such permit summarily suspended by the inspector at the time of the inspection. Such summary suspension shall be subject to proceedings for suspension and revocation of the permit by the commissioner in accordance with the applicable provisions of article 4 of title 24, C.R.S. Any irrigation system which has had its permit suspended or revoked shall not be used for chemigation until such irrigation system has been inspected and a reinstatement fee paid. Such reinstatement fee shall be in an amount which is double the amount of the permit fee plus the amount of the inspection fee.
2. A permit holder operating any irrigation system which does not pass an inspection because of a defect in any device which is properly installed shall be subject to a repair order issued by the inspector at the time of inspection. The permit holder shall remedy the defect within sixty days of the issuance of the order, and the inspector shall reinspect the irrigation system within ninety days of the issuance of the repair order. Any irrigation system subject to a repair order shall not be used for chemigation until the irrigation system is reinspected and the defect remedied. A fee may be charged or collected for the reinspection in specified circumstances described in the rules and regulations.

History. Source: L. 87: Entire article RC&RE, p. 1282, § 1, effective July 1.

35-11-111. Inspections - entry upon land

1. Each irrigation system for which a permit has been issued may be inspected once every two years.
2. Prior to an inspection, the inspector shall notify a permit holder of the time and date of an inspection. The inspector shall inform the permit holder that he is entitled to be present at the inspection. If a permit holder denies access to an inspector, the inspector may seek an inspection warrant issued by the district court for the district in which the permit holder’s land is located. The court shall issue such inspection warrant upon presentation by the inspector of an affidavit stating: The information which gives the inspector reasonable cause to believe that any provision of this article is being violated or has been violated, or the information showing that such entry and inspection is required in order to determine whether the provisions of this article are being complied with, as the case may be, that the inspector notified the permit holder of an inspection, that the inspector was denied access by the permit holder, and a general description of the location of the affected land.
3. Each irrigation system subject to the provisions of this article which has not been issued a permit pursuant to the provisions of this article may be inspected, without prior notice, by an inspector who has information which gives him reasonable cause to believe that any provision of this article is being violated. If the landowner denies access to the inspector, the inspector may seek an inspection warrant issued by the district court for the district in which the landowner’s land is located. The district court shall issue such inspection warrant upon presentation by an inspector of an affidavit stating: The information which gives the inspector reasonable cause to believe that any provision of this article is being violated or has been violated, that the landowner has denied access to the inspector, and a general description of the location of the affected land.
4. Except as otherwise provided in section 35-11-113, inspectors shall be employees of the department.

History. Source: L. 87: Entire article RC&RE, p. 1282, § 1, effective July 1. L. 88: (1) amended, p. 1221, § 5, effective July 1.

35-11-112. Denial, suspension, or revocation of permit

1. Pursuant to the applicable provisions of article 4 of title 24, C.R.S., the commissioner may deny, suspend, revoke, restrict, or refuse to renew the permit of an applicant or permit holder, as the case may be, who:
   1. Fails to have installed and operating, or to have properly installed, any device required by section 35-11-107;
   2. Has used for chemigation an irrigation system which is subject to a repair order under section 35-11-110 (2) and which has not been reinspected and approved;
   3. Has utilized chemigation without a permit on or after January 1, 1990;
   4. Has utilized for chemigation any equipment which did not, at the time of such use, meet the requirements established by section 35-11-107 or by any rule or regulation adopted by the commissioner pursuant to this article;
   5. Has contaminated groundwater or surface water by the use of chemigation;
   6. Has violated any provision of this article or any rule or regulation promulgated by the commissioner pursuant to this article.

History. Source: L. 87: Entire article RC&RE, p. 1283, § 1, effective July 1.

35-11-113. Enforcement by ground water management districts

Any ground water management district may contract with the department to enforce the provisions of this article and the rules and regulations promulgated pursuant to this article within the boundaries of the district. Inspectors in ground water management districts which contract with the department shall be employees of the district, and the state or the department shall not be liable for the acts or omissions of such inspectors.

History. Source: L. 87: Entire article RC&RE, p. 1283, § 1, effective July 1.

35-11-114. Chemigation program management fund - transfer of moneys to plant health, pest control, and environmental protection cash fund - fees

1. All fees collected pursuant to this article shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the chemigation program management fund, as that fund existed prior to July 1, 2009, shall be transferred to the plant health, pest control, and environmental protection cash fund.
2. (Deleted by amendment, L. 2009, (HB 09-1249), ch. 87, p. 317, § 8, effective July 1, 2009.)

History. Source: L. 87: Entire article RC&RE, p. 1283, § 1, effective July 1. L. 2009: Entire section amended, (HB 09-1249), ch. 87, p. 317, § 8, effective July 1.

35-11-115. Penalties

1. On and after January 1, 1990, any person utilizing chemigation without a permit commits a class 6 felony and shall be punished as provided in section 18-1.3-401 (1)(a)(IV), C.R.S., and by a fine not to exceed one thousand dollars.
2. Any person who violates any provision of subsection (1) of this section shall also be subject to a civil penalty assessed by the court of not less than one hundred dollars nor more than one thousand dollars for each such violation. All civil penalties collected under this subsection (2) shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3.

History. Source: L. 87: Entire article RC&RE, p. 1283, § 1, effective July 1. L. 88: (1) amended, p. 1221, § 4, effective July 1. L. 89: (1) amended, p. 848, § 126, effective July 1. L. 2002: (1) amended, p. 1547, § 307, effective October 1. L. 2009: (2) amended, (HB 09-1249), ch. 87, p. 317, § 9, effective July 1.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (1), see section 1 of chapter 318, Session Laws of Colorado 2002.

35-11-116. Injunctive proceedings

1. The department may, through the attorney general of the state of Colorado, apply for civil penalties and for an injunction to enjoin any person from committing any act declared to be unlawful by this article. Such application shall be heard in the district court of the county in which the grounds for the action arose.
2. In such proceedings, if the court enters a temporary restraining order, preliminary injunction, or permanent injunction or awards civil penalties, the person against whom such injunctive order was entered or against whom such civil penalties were awarded shall pay the costs of the proceeding, including reasonable attorney fees.

History. Source: L. 87: Entire article RC&RE, p. 1284, § 1, effective July 1.

35-11-117. Effective date of rules and regulations

The effective date for the initial rules and regulations promulgated pursuant to this article shall be July 1, 1989.

History. Source: L. 88: Entire section added, p. 1221, § 6, effective July 1.

35-11.5-101. Short title

This article shall be known and may be cited as the “Organic Certification Act”.

History. Source: L. 89: Entire article added, p. 1376, § 1, effective June 6.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-11.5-102. Legislative declaration

The general assembly declares that the purpose of this article is to provide a means for the general public to recognize and purchase organically grown agricultural products and to assist Colorado producers in the marketing of such products. The general assembly further declares that uniformity in labeling will protect both consumers and producers by providing assurance of compliance with recognized production standards.

History. Source: L. 89: Entire article added, p. 1376, § 1, effective June 6.

35-11.5-103. Definitions

As used in this article, unless the context otherwise requires:

1. 1. “Agricultural products” means any agricultural, horticultural, floricultural, viticultural, or vegetable product grown or produced.
   2. Nothing in paragraph (a) of this subsection (1), as amended by House Bill 05-1180, as enacted at the first regular session of the sixty-fifth general assembly, shall be construed as changing the property tax classification of property owned by a floricultural operation.
2. “Commissioner” means the commissioner of agriculture.
3. “Department” means the department of agriculture.
4. Repealed.
5. Repealed.
6. Repealed.
7. Repealed.
8. “Secretary” means the United States secretary of agriculture or a representative to whom authority has been delegated to act in the secretary’s stead.
9. “State organic certification program” or “state certification” means the program that implements 7 U.S.C. sec. 6501 et seq. and 7 CFR part 205 in Colorado in order that the state certify organic producers pursuant to 7 U.S.C. sec. 6507.

History. Source: L. 89: Entire article added, p. 1376, § 1, effective June 6. L. 2002: (8) and (9) added, p. 1112, § 3, effective June 3 and (4) to (7) repealed, p. 1111, § 2, effective October 18. L. 2005: (1) amended, p. 351, § 10, effective August 8.

Cross references: For the legislative intent contained in the 2002 act enacting subsections (8) and (9) and repealing subsections (4) to (7), see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-104. Rules

1. To carry out the provisions of this article, the commissioner shall adopt appropriate rules pursuant to section 24-4-103, C.R.S., concerning the following:
   1. Fees to fund all direct and indirect costs of the administration and implementation of this article;
   2. Repealed.
   3. Repealed.
   4. Repealed.
   5. Repealed.
   6. Repealed.
   7. Repealed.
   8. Repealed.
   9. Repealed.
   10. The provisions of 7 U.S.C. sec. 6501 et seq. and 7 CFR part 205, applicable to the certification of organic producers;
   11. Confidentiality of information and documents pursuant to section 35-11.5-105 (4);
   12. Establishment of minimum standards for the qualification of individuals who are authorized to make inspections as agents of the commissioner under this article and who are not employees of the department.

History. Source: L. 89: Entire article added, p. 1377, § 1, effective June 6. L. 2002: IP(1) and (1)(a) amended and (1)(j) and (1)(k) added, p. 1112, § 4, effective June 3 and (1)(b) to (1)(i) repealed, p. 1112, § 5, effective October 18. L. 2010: (1)(1) added, (SB 10-038), ch. 165, p. 581, § 1, effective July 1.

Cross references: For the legislative intent contained in the 2002 act amending the introductory portion to subsection (1) and subsection (1)(a), enacting subsections (1)(j) and (1)(k), and repealing subsections (1)(b) to (1)(i), see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-105. Delegation of duties - inspections - cooperative agreements - confidentiality

1. 1. Except as otherwise provided in paragraph (b) of this subsection (1), the powers and duties vested in the commissioner by this article may be delegated to qualified employees of the department.
   2. Inspections conducted under the state organic certification program may be performed by the commissioner or the commissioner’s authorized agents.
2. The department may receive grants-in-aid from any agency of the United States and may cooperate and enter into agreements with any agency of the United States, any agency of any other state, and any other agency of this state or its political subdivisions.
3. The department and the commissioner shall coordinate with the secretary to implement the state organic certification program pursuant to this article.
4. The commissioner and the commissioner’s authorized representative shall maintain strict client confidentiality under the organic certification program and shall not disclose to third parties any business-related information concerning any client obtained while implementing this article; except that the secretary shall have access to such information and the following information shall be made available to the public:
   1. Certificates issued during the current calendar year and the three immediately preceding calendar years;
   2. A list of producers and handlers whose operations have been certified during the current calendar year and the three immediately preceding calendar years, including for each the name of the operation, type of operation, products produced, and the effective date of the certification;
   3. The results of laboratory analyses for residues of pesticides and other prohibited substances conducted during the current calendar year and the three immediately preceding calendar years; and
   4. Other business information as permitted in writing by the producer or handler.

History. Source: L. 89: Entire article added, p. 1377, § 1, effective June 6. L. 2002: (3) and (4) added, p. 1113, § 6, effective June 3. L. 2010: (1) amended, (SB 10-038), ch. 165, p. 581, § 2, effective July 1.

Cross references: For the legislative intent contained in the 2002 act enacting subsections (3) and (4), see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-106. Organic producer certification required. (Repealed)

History. Source: L. 89: Entire article added, p. 1377, § 1, effective June 6. L. 2002: Entire section repealed, p. 1113, § 7, effective October 18.

Cross references: For the legislative intent contained in the 2002 act repealing this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-107. Organic producer certification - application - fees. (Repealed)

History. Source: L. 89: Entire article added, p. 1378, § 1, effective June 6. L. 2002: Entire section repealed, p. 1114, § 8, effective October 18.

Cross references: For the legislative intent contained in the 2002 act repealing this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-108. Renewal. (Repealed)

History. Source: L. 89: Entire article added, p. 1378, § 1, effective June 6. L. 2002: Entire section repealed, p. 1114, § 9, effective October 18.

Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-109. Prohibited acts. (Repealed)

History. Source: L. 89: Entire article added, p. 1378, § 1, effective June 6. L. 93: (2) amended, p. 1791, § 84, effective June 6. L. 2002: Entire section repealed, p. 1114, § 10, effective October 18.

Cross references: For the legislative intent contained in the 2002 act repealing this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-110. Administration and enforcement. (Repealed)

History. Source: L. 89: Entire article added, p. 1378, § 1, effective June 6. L. 2002: Entire section repealed, p. 1114, § 11, effective October 18.

Cross references: For the legislative intent contained in the 2002 act repealing this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-111. Denial - suspension - revocation. (Repealed)

History. Source: L. 89: Entire article added, p. 1379, § 1, effective June 6. L. 2002: Entire section repealed, p. 1115, § 12, effective October 18.

Cross references: For the legislative intent contained in the 2002 act repealing this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-112. Civil penalties. (Repealed)

History. Source: L. 89: Entire article added, p. 1379, § 1, effective June 6. L. 2002: Entire section repealed, p. 1116, § 13, effective October 18.

Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-113. Organic certification fund - transfer of moneys to plant health, pest control, and environmental protection cash fund - fees

1. All fees and penalties collected pursuant to this article shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the organic certification fund, as that fund existed prior to July 1, 2009, shall be transferred to the plant health, pest control, and environmental protection cash fund.
2. (Deleted by amendment, L. 2009, (HB 09-1249), ch. 87, p. 318, § 10, effective July 1, 2009.)

History. Source: L. 89: Entire article added, p. 1380, § 1, effective June 6. L. 2002: Entire section amended, p. 1116, § 14, effective June 3. L. 2009: Entire section amended, (HB 09-1249), ch. 87, p. 318, § 10, effective July 1.

Cross references: For the legislative intent contained in the 2002 act amending this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-114. Advisory board

1. Effective July 1, 2010, for the purpose of assisting the commissioner in formulating rules for carrying out the provisions of this article, there is hereby created an organic certification advisory board, to be composed of twelve members appointed by the commissioner, as follows: Nine shall represent certified organic operations; one shall be a consumer representing the general public; one shall be a representative from the Colorado cooperative extension service; and one shall be a representative from the Colorado agricultural experiment station. The nine advisory board members representing certified organic operations shall represent the following four categories of organic certification, in proportion to the number of organic operations certified in each category:
   1. Crop production;
   2. Livestock production;
   3. Processing/handling; and
   4. Wild crop handling.
2. The members of the organic certification advisory board shall serve terms of three years and may be reappointed.
3. Members of the advisory board shall receive no compensation but shall be reimbursed for actual and necessary traveling and subsistence expenses incurred in the performance of their official duties as members of such board.
4. (Deleted by amendment, L. 93, p. 675 , § 11, effective May 1, 1993.)

History. Source: L. 89: Entire article added, p. 1380, § 1, effective June 6. L. 93: (1) and (4) amended, p. 675, § 11, effective May 1. L. 2010: (1) and (2) amended, (SB 10-038), ch. 165, p. 582, § 3, effective July 1.

35-11.5-115. Liability

The state assumes no liability for persons who misrepresent any agricultural product under the authority of this article.

History. Source: L. 89: Entire article added, p. 1381, § 1, effective June 6.

35-11.5-116. Accreditation

The commissioner shall seek accreditation from the secretary and shall create and submit a plan for the establishment of a state organic certification program to the secretary for approval pursuant to 7 U.S.C. sec. 6507.

History. Source: L. 2002: Entire section added, p. 1117, § 15, effective June 3.

Cross references: For the legislative intent contained in the 2002 act enacting this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-11.5-117. Conflict with federal law

If the secretary or a court of competent jurisdiction determines that there is a conflict between this article and any provisions of the federal “Organic Foods Production Act of 1990”, 7 U.S.C. sec. 6501 et seq. or 7 CFR part 205, the provisions of the federal act and rules shall control, and the commissioner shall perform the duties and discharge the obligations contained in the federal act. If such a determination is made, the commissioner shall submit a report to the general assembly explaining the conflict.

History. Source: L. 2002: Entire section added, p. 1117, § 15, effective June 3.

Cross references: For the legislative intent contained in the 2002 act enacting this section, see section 1 of chapter 285, Session Laws of Colorado 2002.

35-12-101. Short title

This article shall be known and may be cited as the “Commercial Fertilizer, Soil Conditioner, and Plant Amendment Act”.

History. Source: L. 71: R&RE, p. 133, § 1. C.R.S. 1963: § 6-13-1. L. 77: Entire section amended, p. 1581, § 1, effective July 1. L. 2008: Entire article amended, p. 1608, § 1, effective August 5.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 13 of chapter 6, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume.

35-12-102. Administration of article

This article shall be administered by the commissioner of agriculture or the commissioner’s duly authorized representatives.

History. Source: L. 71: R&RE, p. 133, § 1. C.R.S. 1963: § 6-13-2. L. 2008: Entire article amended, p. 1608, § 1, effective August 5.

35-12-103. Definitions

As used in this article 12, unless the context otherwise requires:

1. “Availability” means the immediate potential property of a plant nutrient to be utilized by a plant and have agronomic value when used according to directions.
2. “Bulk fertilizer”, “bulk soil conditioner”, or “bulk plant amendment” means a commercial fertilizer, soil conditioner, or plant amendment, respectively, distributed in nonpackaged form or in a container containing more than one hundred pounds.
3. “Commercial fertilizer” means a fertilizer or other substance containing one or more essential available plant nutrients that is distributed for its plant nutrient content and is designed for use and has value in promoting plant growth. “Commercial fertilizer” does not include untreated manures, compost and treated manure distributed without commercial fertilizer labeling, soil conditioners, plant amendments, and other products exempted by rule of the commissioner.
4. “Commission” means the state agricultural commission.
5. “Commissioner” means the commissioner of agriculture of Colorado or the commissioner’s authorized agent.
6. “Compost” means a substance, derived from a process of biologically degrading organic materials, that contains one or more essential available plant nutrients and complies with the minimum standards specified by rule of the commissioner that regulate compost.
7. “Custom mix” means a commercial fertilizer, soil conditioner, or plant amendment prepared expressly for, and according to specifications furnished by, a customer prior to mixing.
8. “Department” means the Colorado department of agriculture and includes the state agricultural commission, the commissioner of agriculture, and all employees and agents of the department.
9. “Distribute” means to import, consign, sell, offer to sell, barter, or otherwise supply a commercial fertilizer, soil conditioner, plant amendment, compost, or manure, for use in or shipment to this state.
10. “Distributor” means any person who distributes a commercial fertilizer, soil conditioner, plant amendment, compost, or manure.
11. “Essential” means necessary for the maintenance and growth of plants.
12. “Fertilizer” means a substance or product that contains one or more essential available plant nutrients.
13. “Grade” means the percentage of total nitrogen, available phosphate, and soluble potash in the same terms, order, and percentages as in the guaranteed analysis.
14. 1. “Guaranteed analysis” means the minimum percentage of plant nutrients claimed in the following order and form:

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    2. Guarantees for plant nutrients, other than nitrogen, phosphorus, and potassium, may be permitted or required by rule of the commissioner. The guarantees for these other nutrients shall be expressed in the form, availability, and minimum quantity of the element set by rule. The sources of nutrients, salts, chelates, and similar compounds are required to be stated on the application for registration and may be included as a parenthetical statement on the label.
    3. Guaranteed analysis of a custom mix may appear as in paragraph (a) of this subsection (14) or may include the net weight and guaranteed analysis of each plant nutrient or fertilizer in the mix.
15. “Investigational allowance” means an allowance for variations inherent in the taking, preparation, and analysis of an official sample of commercial fertilizer, soil conditioner, or plant amendment.
16. “Label” means the display of all written, printed, or graphic matter on the immediate container of, or a statement accompanying, a commercial fertilizer, soil conditioner, plant amendment, compost, or manure.
17. “Labeling” means all written, printed, graphic, or verbal information on, accompanying, or used in promoting any commercial fertilizer, soil conditioner, plant amendment, compost, or manure, including advertisements, brochures, and posters and television, radio, and internet announcements.
18. “Manufacturing facility” means any place where a commercial fertilizer, soil conditioner, plant amendment, or compost is manufactured, produced, compounded, mixed, blended, or in any way altered chemically or physically. Mobile units shall be considered a part of the manufacturing facility where the units are based.
19. “Manure” means animal or vegetable manure and includes treated and untreated manure.
20. “Official sample” means any sample of commercial fertilizer, soil conditioner, plant amendment, compost, or manure that is taken and designated as “official” by the department.
21. “Packaged fertilizer”, “packaged soil conditioner”, or “packaged plant amendment” means a commercial fertilizer, soil conditioner, or plant amendment, respectively, that is distributed in a closed container and contains one hundred pounds or less of the commercial fertilizer, soil conditioner, or plant amendment.
22. “Percent” or “percentage” means the percentage by weight.
23. “Plant amendment and soil conditioner guaranteed analysis” means the percentage of each of the ingredients.
24. “Plant amendments” means any devices or substances applied to the soil, plants, or seeds that are intended to improve germination, growth, yield, product quality, reproduction, flavor, or other desirable characteristics of plants. “Plant amendments” does not include commercial fertilizers, soil amendments, untreated manures, pesticides, plant regulators, compost and treated manures that are distributed without plant amendment labeling, or other materials exempted by rules promulgated by the commissioner.
25. “Plant nutrients” means those chemical or organic forms of nitrogen (N), phosphorus (P2O5), potassium (K2O), other secondary and micronutrients, calcium (Ca), magnesium (Mg), sulfur (S), boron (B), copper (Cu), iron (Fe), manganese (Mn), molybdenum (Mo), or zinc (Zn) that are absorbed by crops and are essential to the plants.
26. “Product” means a commercial fertilizer, plant amendment, or soil conditioner in the form in which it is intended to be distributed. For the purposes of this article, a product that differs from another product in the name of the product, composition, labeling claims or directions for use, grade, or guaranteed analysis shall be considered a separate product that requires its own registration.
27. “Registrant” means a person who is registered or is required to be registered to manufacture or distribute commercial fertilizers, soil conditioners, plant amendments, or compost under the provisions of this article.
28. “Sewage sludge, sewage effluents, and biosolids” means all materials resulting from domestic wastewater treatment that contain concentrations of organic or inorganic materials.
29. “Soil conditioner” means a substance, defined by rule of the commissioner, intended to improve the chemical or physical characteristics of the soil that is sold, offered for sale, or intended for sale. It does not include commercial fertilizers, plant amendments, untreated manures, compost and treated manures that are distributed without soil conditioner labeling claims, or any other materials that may be exempted by rule of the commissioner. Soil conditioners may be sold in package or in bulk.
30. “Specialty fertilizer” means a commercial fertilizer distributed primarily for nonfarm use, such as home gardens, lawns, shrubbery, flowers, golf courses, parks, and cemeteries.
31. “Ton” means a net weight of two thousand pounds avoirdupois.
32. “Treated manures” means substances composed primarily of excreta, plant or animal material, sewage sludge, sewage effluents, and biosolids, or mixtures of such substances that have been treated in any manner, including mechanical drying, grinding, pelleting, or other means, or by adding other chemicals or substances.
33. “Untreated manures” means substances composed primarily of excreta, plant remains, or mixtures of such substances that have not been treated in any manner, including mechanical drying, grinding, pelleting, or other means, or by adding other chemicals or substances.

Total Nitrogen (N) percent Available Phosphate (P2O5) percent Soluble Potash (K2O) percent

History. Source: L. 71: R&RE, p. 133, § 1. C.R.S. 1963: § 6-13-3. L. 77: Entire section R&RE, p. 1581, § 2, effective July 1. L. 96: (2), (16)(a)(I), (16)(b), and (20) amended, p. 101, § 1, effective March 20. L. 2008: Entire article amended, p. 1608, § 1, effective August 5. L. 2019: IP and (30) amended, (HB 19-1329), ch. 267, p. 2513, § 1, effective May 23.

35-12-104. Registration

1. Each product shall be registered by the person whose name appears on the label before being distributed in, into, or for use in this state. The application for registration shall be submitted to the commissioner on forms furnished by the commissioner and shall be accompanied by a fee established by the commission. For each fiscal year, commencing on July 1, fifty percent of the department’s direct and indirect costs of administering and enforcing this article shall be funded from the general fund. The commission shall establish a fee schedule to cover any direct and indirect costs not funded from the general fund. All registrations shall expire annually on the date specified by rule of the commissioner. Applications for renewal of registrations must be submitted on or before such date. Each application for registration or renewal of registration shall include the following information:
   1. The name and address of the registrant;
   2. The name of the product;
   3. The grade, if a commercial fertilizer;
   4. The guaranteed analysis;
   5. The sources from which the guaranteed plant nutrients, soil conditioner, or plant amendment derive; and
   6. One copy of the label used in this state for the sale of each of the products being registered.

   (1.5) Repealed.

2. The registration requirements of subsection (1) of this section shall not apply to custom mix fertilizers, untreated manure, or compost and treated manures that are distributed without commercial fertilizer, plant amendment, or soil conditioner labeling claims.
3. The commissioner may require proof of labeling statements and other claims made for any commercial fertilizer, soil conditioner, or plant amendment before approving any registration. If the registrant makes no claims, the commissioner may require proof of the usefulness and value of the commercial fertilizer, soil conditioner, or plant amendment. As evidence of proof, the commissioner may rely on experimental data, evaluations, or advice furnished by experts such as Colorado state university and may accept or reject additional sources of proof in evaluating any commercial fertilizer, soil conditioner, or plant amendment. In all cases, only experimental proof shall relate to those conditions in Colorado for which use the product is intended.
4. Commercial fertilizer shall contain the minimum stipulated quantities of plant nutrients required by rules promulgated by the commissioner.
5. The commissioner may stipulate by rule the quantities of active substances required in soil conditioners or plant amendments to be sold or distributed for use in this state.
6. No commercial fertilizer, soil conditioner, or plant amendment shall be sold or distributed for use in this state without a current registration. Any person who fails to renew the registration of commercial fertilizer, soil conditioner, or plant amendment on or before the expiration date of the registration shall pay a late fee, as established by the commission, in addition to the registration fee.
7. Each manufacturing facility that produces custom mixes in this state must be registered. All registrations shall expire annually on the date specified by rule of the commissioner. Applications for renewal of registrations must be submitted on or before such date.
8. 1. Each manufacturing facility in this state producing compost that is distributed without commercial fertilizer, plant amendment, or soil conditioner claims shall register with the commissioner unless exempted by rule of the commissioner.
   2. The application for registration shall be submitted to the commissioner on forms furnished by the commissioner and shall be accompanied by a fee established by the commission. Any person who fails to renew said manufacturing facility registration shall pay a late fee, as established by the commission, in addition to the registration fee.
   3. At the time of registration, each manufacturing facility shall submit copies of all labels that will be affixed to or accompany the compost products it distributes.

History. Source: L. 71: R&RE, p. 136, § 1. C.R.S. 1963: § 6-13-4. L. 77: Entire section R&RE, p. 1585, § 3, effective July 1. L. 96: (2) and (3) repealed, p. 102, § 2, effective March 20. L. 98: (1.5) added, p. 1341, § 64, effective June 1. L. 2003: IP(1) and (7) amended, p. 1725, § 5, effective May 14. L. 2005: IP(1) and (7) amended, p. 1268, § 6, effective July 1. L. 2007: IP(1) and (7) amended, p. 1903, § 4, effective July 1. L. 2008: Entire article amended, p. 1613, § 1, effective August 5. L. 2010: IP(1) amended and (1.5) added, (HB 10-1377), ch. 212, p. 921, § 1, effective May 6. L. 2013: IP(1) amended, (HB 13-1300), ch. 316, p. 1697, § 107, effective August 7.

Editor’s note: Subsection (1.5)(b) provided for the repeal of subsection (1.5), effective July 1, 2012. (See L. 2010, p. 921 .)

35-12-105. Labels

1. Any packaged commercial fertilizer distributed in this state shall have placed on or affixed to the container a label setting forth in clearly legible and conspicuous form the following information:
   1. The name and address of the registrant;
   2. The net weight or other measure prescribed by rule;
   3. The name of the product and grade;
   4. The guaranteed analysis in the form specified in section 35-12-103 (14)(a);
   5. The date of manufacture, processing, packaging, or repackaging, or a code that permits the determination of such date, or, if distributed in bulk, the shipment or delivery date;
   6. Directions for use as specified by rule of the commissioner.
2. Any commercial fertilizer distributed in this state in bulk shall be accompanied by a printed or written statement showing the information required in subsection (1) of this section.
3. Any packaged soil conditioner or plant amendment distributed in this state shall have placed or affixed on the container a label setting forth in clearly legible and conspicuous form the following information:
   1. The name and address of the registrant;
   2. The net weight or other measure prescribed by rule;
   3. The name of the product;
   4. An accurate statement of composition, including the percent of each ingredient;
   5. The purpose of the product;
   6. The date of manufacture, processing, packaging, or repackaging, or a code that permits determination of the date, or, if distributed in bulk, the shipment or delivery date;
   7. Directions for use as specified by rule of the commissioner.
4. Any soil conditioner or plant amendment distributed in bulk in this state shall be accompanied by a printed or written statement showing the information required in subsection (3) of this section.
5. Any custom mix delivered in containers shall have placed on or affixed to the container a label, or if delivered in bulk, shall be accompanied by a printed or written statement, which label and statement shall set forth the following information:
   1. The name and address of the manufacturer;
   2. The net weight or measure as prescribed by rule of the commissioner;
   3. The guaranteed analysis and quantity of each registered product contained in the mix;
   4. The date on which the product was manufactured or delivered; and
   5. Directions for use as specified by rule of the commissioner.
6. No product may be labeled, advertised, distributed, or sold as a commercial fertilizer, soil conditioner, or plant amendment unless its substance conforms to the applicable definitions prescribed in this article or in the rules promulgated by the commissioner pursuant to this article.
7. No additional substances other than those allowed in section 35-12-103 (12) may be listed or guaranteed on a label or labeling or on a written statement accompanying the bulk distribution of commercial fertilizers, soil conditioners, or plant amendments without the permission of the commissioner. The commissioner may allow additional substances to be listed or guaranteed on the label, labeling, or written statement if satisfactory supportive data is furnished to the commissioner in order to substantiate the value and usefulness of the substance. The commissioner may rely on sources other than the department, such as Colorado state university, for assistance in evaluating the supportive data. If the commissioner permits such additional substances to be listed or guaranteed, the nature of the substances shall be determinable by laboratory methods. The substances shall be subject to inspection and analysis pursuant to methods and procedures prescribed by the commissioner by rule.
8. The commissioner may allow or require commercial fertilizers, soil conditioners, or plant amendments to be sold and labeled by volume in addition to or instead of by weight pursuant to rules promulgated by the commissioner.

History. Source: L. 71: R&RE, p. 137, § 1. C.R.S. 1963: § 6-13-5. L. 77: Entire section R&RE, p. 1587, § 4, effective July 1. L. 96: (3)(f) repealed, p. 102, § 3, effective March 20. L. 2008: Entire article amended, p. 1615, § 1, effective August 5.

35-12-106. Distribution fees

1. All registrants, except those who package only in containers of ten pounds or less, shall pay the commissioner a distribution fee as established by the commission for all commercial fertilizers, soil conditioners, or plant amendments distributed in this state. For the purpose of funding the department’s state waters protection efforts, an additional fee per ton of commercial fertilizer shall be paid to the commissioner as established by the commission. This increment per ton of commercial fertilizer shall be collected by the commissioner and transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3.
2. Registrants of specialty fertilizers, soil conditioners, or plant amendments packaged in containers of ten pounds or less shall pay the commissioner a distribution fee as established by the commission, for all specialty fertilizers, soil conditioners, or plant amendments distributed in this state.
3. Each person registering any commercial fertilizer, soil conditioner, or plant amendment and each person producing custom mixes in this state shall keep adequate records showing the pounds or tonnage distributed in this state, and the commissioner has the authority to examine such records to verify the statement of pounds or tonnage.
4. Each registrant shall file an affidavit with the commissioner within forty-five days after the date specified by rule of the commissioner that discloses the pounds or tonnage of commercial fertilizer, soil conditioner, or plant amendment distributed in the state during the preceding twelve-month period and any other information as required by rules adopted by the department. If the affidavit is not filed and the distribution fee is not paid within the forty-five-day period, or if the report of pounds or tonnage is false, the commissioner may revoke the registration and assess a penalty established by the commission. The distribution fee and the penalty shall constitute a debt and become the basis for a judgment against the registrant.
5. When more than one person is involved in the distribution of a commercial fertilizer, soil conditioner, or plant amendment, the last registrant to distribute the product is responsible for reporting the annual pounds or tonnage and paying the distribution fee, unless the annual report and payment has been made by a prior distributor.
6. Distribution fees are not required for ingredients that have already been included in the tonnage or pounds for which a Colorado distribution fee has been paid.
7. The distribution fees required to be paid by this section shall not apply to untreated manure or compost and treated manure distributed without commercial fertilizer, soil conditioner, or plant amendment labeling claims.
8. 1. For each fiscal year, commencing July 1, fifty percent of the direct and indirect costs of administering and enforcing this article shall be funded from the general fund. The commission shall establish a fee schedule to cover any direct and indirect costs not funded from the general fund. All moneys collected pursuant to this section shall be transmitted to the state treasurer, who shall credit the same to the inspection and consumer services cash fund created in section 35-1-106.5.
   2. Repealed.

History. Source: L. 71: R&RE, p. 138, § 1. C.R.S. 1963: § 6-13-6. L. 77: Entire section amended, p. 1588, § 5, effective July 1. L. 90: (1) amended, p. 1334, § 7, effective July 1. L. 96: (4) amended, p. 103, § 4, effective March 20. L. 98: (8) added, p. 1341, § 65, effective June 1. L. 2003: (1) and (2) amended and (9) added, p. 1726, § 6, effective May 14. L. 2005: (1), (2), and (9) amended, p. 1269, § 7, effective July 1. L. 2007: (1), (2), and (9) amended, p. 1904, § 5, effective July 1. L. 2008: Entire article amended, p. 1617, § 1, effective August 5. L. 2009: (1) amended, (HB 09-1249), ch. 87, p. 320, § 16, effective July 1. L. 2010: (8) amended, (HB 10-1377), ch. 212, p. 922, § 2, effective May 6. L. 2013: (8)(a) amended, (HB 13-1300), ch. 316, p. 1697, § 108, effective August 7. L. 2019: (1) amended, (SB 19-186), ch. 422, p. 3690, § 5, effective August 2.

Editor’s note: Subsection (8)(b)(II) provided for the repeal of subsection (8)(b), effective July 1, 2012. (See L. 2010, p. 922 .)

35-12-107. County tonnage reports. (Repealed)

History. Source: L. 71: R&RE, p. 138, § 1. C.R.S. 1963: § 6-13-7. L. 77: IP(1) and (1)(b) amended and (3) added, p. 1589, § 6, effective July 1. L. 96: Entire section repealed, p. 103, § 5, effective March 20. L. 2008: Entire article amended, p. 1619, § 1, effective August 5.

Editor’s note: Although this section was repealed in 1996, it was contained in a 2008 act that amended this entire article.

35-12-108. Inspection, sampling, and analysis

1. The commissioner shall sample, inspect, make analyses of, and test commercial fertilizers, soil conditioners, plant amendments, and compost distributed within this state at such time and place and to such an extent as the commissioner deems advisable to determine whether such products are in compliance with the provisions of this article. The commissioner is authorized to enter upon any public or private premises or carriers during regular business hours in order to access commercial fertilizers, soil conditioners, plant amendments, and compost subject to the provisions of this article and the rules adopted pursuant to this article.
2. The methods of analysis and sampling shall be those adopted by the commissioner from sources including the association of official analytical chemists international or a successor organization, Colorado state university, or other authoritative sources deemed reliable by the commissioner.
3. The commissioner, in determining whether any commercial fertilizer, soil conditioner, plant amendment, or compost violates this article, shall base such determination solely upon official samples obtained and analyzed in accordance with subsections (1) and (2) of this section.
4. The result of an analysis of a sample of any commercial fertilizer, soil conditioner, plant amendment, or compost that indicates a deficiency shall be forwarded promptly to the registrant. Upon request within thirty days after the date the analysis report is forwarded, the commissioner shall furnish to the registrant a portion of any official sample. If, within forty-five days after forwarding of the analysis report indicating a deficiency, no adequate evidence contradicting the analysis report is made available to the commissioner, the report of the sample analysis shall become official.

History. Source: L. 71: R&RE, p. 139, § 1. C.R.S. 1963: § 6-13-8. L. 77: Entire section amended, p. 1590, § 7, effective July 1. L. 2008: Entire article amended, p. 1619, § 1, effective August 5.

35-12-109. Deviation from guaranteed analysis - penalties. (Deleted by amendment, L. 2008.)

History. Source: L. 71: R&RE, p. 139, § 1. C.R.S. 1963: § 6-13-9. L. 77: (2) and (3) amended, p. 1590, § 8, effective July 1. L. 96: (1) amended, p. 103, § 6, effective March 20. L. 2008: Entire article amended, p. 1619, § 1, effective August 5.

35-12-110. Commercial value. (Deleted by amendment, L. 2008.)

History. Source: L. 71: R&RE, p. 140, § 1. C.R.S. 1963: § 6-13-10. L. 77: Entire section amended, p. 1591, § 9, effective July 1. L. 2008: Entire article amended, p. 1620, § 1, effective August 5.

35-12-111. Misbranding

1. No person shall distribute a misbranded product. A commercial fertilizer, soil conditioner, plant amendment, or compost is misbranded:
   1. If its labeling is false or misleading in any particular;
   2. If it is distributed under the name of another product;
   3. If it is not labeled as required in section 35-12-105 and in accordance with rules prescribed under this article;
   4. 1. If it purports to be, is represented as, or is represented as containing a commercial fertilizer, soil conditioner, plant amendment, or compost, unless the plant nutrient, commercial fertilizer, soil conditioner, plant amendment, or compost conforms to the definitions of terms prescribed by this article or under the rules promulgated by the commissioner.
      2. In the adoption of such rules, the commissioner shall give due regard to commonly accepted definitions and official terms such as those issued by the association of American plant food control officials or a successor organization.
   5. If it does not conform to the ingredient form, availability, minimums, labeling, and investigational allowances set forth in the rules promulgated by the commissioner.

History. Source: L. 71: R&RE, p. 140, § 1. C.R.S. 1963: § 6-13-11. L. 77: Entire section R&RE, p. 1591, § 10, effective July 1. L. 2008: Entire article amended, p. 1620, § 1, effective August 5.

35-12-112. Adulteration

1. No person shall distribute an adulterated product. A commercial fertilizer, soil conditioner, plant amendment, or compost is deemed adulterated:
   1. If it contains any deleterious or harmful substance in sufficient amount to render it injurious to human health or beneficial plant, animal, or aquatic life, when applied in accordance with directions for use on the label or normal application practices, or if adequate warning statements or directions for use, which may be necessary to protect human health or beneficial plant, animal, or aquatic life, are not shown on the label;
   2. If its composition falls below or differs from that which it is purported to possess by its labeling;
   3. If it contains unwanted crop seed or weed seed;
   4. If the concentration of any metal in the product exceeds the level established for that constituent by rule of the commissioner; or
   5. If it contains an infectious agent in sufficient amount to render it injurious to human health or beneficial plant, animal, or aquatic life.

History. Source: L. 71: R&RE, p. 140, § 1. C.R.S. 1963: § 6-13-12. L. 77: IP(1) and (1)(a) amended, p. 1592, § 11, effective July 1. L. 2008: Entire article amended, p. 1621, § 1, effective August 5.

35-12-113. Publications

The commissioner shall publish at least annually, in such form as the commissioner deems proper, information concerning the sales of commercial fertilizers, soil conditioners, and plant amendments, together with such data on their production and use as the commissioner considers advisable, and a report of the results of the analyses based on official samples of commercial fertilizers, soil conditioners, and plant amendments sold within the state as compared with the analyses guaranteed under sections 35-12-103 (14), 35-12-104, and 35-12-105. Information concerning the sale, production, and use of commercial fertilizers, soil conditioners, and plant amendments shall not identify or otherwise disclose the operations of any person.

History. Source: L. 71: R&RE, p. 140, § 1. C.R.S. 1963: § 6-13-13. L. 77: Entire section amended, p. 1592, § 12, effective July 1. L. 2008: Entire article amended, p. 1621, § 1, effective August 5.

35-12-114. Rules

The commissioner is authorized, pursuant to section 24-4-103, C.R.S., to adopt and enforce rules to implement, administer, and enforce this article. The rules shall include, but are not limited to, rules relating to sampling, analytical methods, ingredient form, availability, minimums, exempted materials, investigational allowances, definitions, records, labels, labeling, liability bond, misbranding, mislabeling, commercial fertilizers, specialty fertilizers, soil conditioners, plant amendments, and compost, as may be necessary to carry into effect the full intent and meaning of this article. The commissioner shall not adopt any rule that is inconsistent with a rule promulgated by a state entity for any substance governed by this article.

History. Source: L. 71: R&RE, p. 141, § 1. C.R.S. 1963: § 6-13-14. L. 77: Entire section amended, p. 1592, § 13, effective July 1. L. 2008: Entire article amended, p. 1621, § 1, effective August 5.

35-12-115. Investigations - access - subpoena

1. The commissioner, upon the commissioner’s own motion or upon the complaint of any person, may make any investigations necessary to ensure compliance with this article.
2. 1. At any time during regular business hours, for the purpose of carrying out any provision of this article or any rule made pursuant to this article, the commissioner shall have free and unimpeded access upon consent or upon obtaining an administrative search warrant:
      1. To all buildings, yards, warehouses, storage facilities, vehicles, and any other public or private properties, premises, or carriers in which any commercial fertilizer, soil conditioner, plant amendment, or compost is kept, stored, handled, processed, distributed, or transported;
      2. To all business records related to the production or distribution of any commercial fertilizer, soil conditioner, plant amendment, or compost, including but not limited to any records required to be kept by this article or any rule promulgated pursuant to this article. The commissioner may also make copies of such records.
   2. The commissioner shall have full authority to administer oaths and take statements; to issue administrative subpoenas requiring the attendance of witnesses before the commissioner and the production of all books, memoranda, papers, and other documents, articles, or instruments; and to compel the disclosure by witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of any witness to obey any subpoena, the commissioner may petition the district court and, upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey such an order of the court shall be punishable as a contempt of court.
3. Complaints of record made to the commissioner and the results of the investigations of the commissioner may, in the discretion of the commissioner, be closed to public inspection, except as permitted by court order, during the investigatory period and until dismissed or until notice of hearing and charges are served. Any action taken by the commissioner shall be a public record as defined in section 24-72-202, C.R.S.

History. Source: L. 71: R&RE, p. 141, § 1. C.R.S. 1963: § 6-13-15. L. 77: Entire section amended, p. 1592, § 14, effective July 1. L. 2008: Entire article amended, p. 1622, § 1, effective August 5.

35-12-116. Cancellation of registration or refusal to register

1. The commissioner may revoke or suspend the registration of or may refuse to register any commercial fertilizer, soil conditioner, or plant amendment upon a finding supported by satisfactory evidence that the registrant or person applying for registration has violated any provision of this article or any rule adopted pursuant to this article. No registration shall be refused, suspended, or revoked until the registrant has been given the notice and opportunity of a hearing required by article 4 of title 24, C.R.S.
2. The commissioner may revoke or suspend the registration of or may refuse to register any manufacturing facility required to be registered under section 35-12-104 (7) or (8) upon a finding that the registrant or person applying for registration has submitted false information to the commissioner or has violated any provision of this article or any rule adopted pursuant to this article. No registration shall be refused, suspended, or revoked until the registrant has been given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.

History. Source: L. 71: R&RE, p. 141, § 1. C.R.S. 1963: § 6-13-16. L. 77: Entire section amended, p. 1593, § 15, effective July 1. L. 2008: Entire article amended, p. 1623, § 1, effective August 5.

35-12-117. Stop distribution, stop use, or removal orders

1. The commissioner may issue and enforce a written or printed stop distribution, stop use, or removal order directed to the owner or custodian of any lot of commercial fertilizer, soil conditioner, plant amendment, or compost when the commissioner finds the commercial fertilizer, soil conditioner, plant amendment, or compost is being distributed or used in violation of any of the provisions of this article. The commissioner shall release the commercial fertilizer, soil conditioner, plant amendment, or compost peat moss, or peat humus from the order when the owner or custodian has complied with requirements of this article and has paid all costs and expenses incurred in connection with the entry and enforcement of such order. Any person who has received a stop distribution, stop use, or removal order may request a hearing, pursuant to article 4 of title 24, C.R.S., to determine whether the violation occurred.
2. In the event that a person fails to comply with a stop distribution, stop use, or removal order within twenty-four hours after the issuance of the order, the commissioner may bring suit for a temporary restraining order and injunctive relief in order to prevent any further or continued violation of such order.
3. Matters brought before a court pursuant to this section shall have preference over other matters on the court’s calendar.
4. Whenever the commissioner possesses evidence satisfactory to the commissioner that a person has engaged or is about to engage in a violation of this article or rules adopted pursuant to this article, the commissioner may apply to a court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article and rules adopted pursuant to this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.

History. Source: L. 71: R&RE, p. 141, § 1. C.R.S. 1963: § 6-13-17. L. 77: Entire section amended, p. 1593, § 16, effective July 1. L. 2008: Entire article amended, p. 1623, § 1, effective August 5.

35-12-118. Seizure, condemnation, and sale

Any lot of commercial fertilizer, soil conditioner, plant amendment, or compost that is in violation of this article shall be subject to seizure on complaint of the commissioner to a court of competent jurisdiction in the county in which the product is located. In the event the court finds the product to be in violation of this article and orders the condemnation of the product, it shall be disposed of in any manner consistent with the quality of the product and the laws of this state. In no instance shall the disposition of the commercial fertilizer, soil conditioner, plant amendment, or compost be ordered by the court without first affording the owner an opportunity to apply to the court for release of the product or for permission to process or relabel the product to bring it into compliance with this article.

History. Source: L. 71: R&RE, p. 141, § 1. C.R.S. 1963: § 6-13-18. L. 77: Entire section amended, p. 1593, § 17, effective July 1. L. 2008: Entire article amended, p. 1624, § 1, effective August 5.

35-12-119. Civil penalties

1. Any person who violates any provision of this article or any rule adopted pursuant to this article is subject to a civil penalty, as determined by the commissioner. The maximum penalty shall not exceed one thousand dollars per violation. Each day the violation occurs shall constitute a separate violation.
2. No civil penalty may be imposed unless the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
3. If the commissioner is unable to collect such civil penalty or if any person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may recover such amount plus costs and attorney fees by action in any court of competent jurisdiction.
4. Before imposing any civil penalty, the commissioner may consider the effect of such penalty on the ability of the person charged to stay in business.

History. Source: L. 71: R&RE, p. 141, § 1. C.R.S. 1963: § 6-13-19. L. 2008: Entire article amended, p. 1624, § 1, effective August 5.

35-12-120. Exchange between manufacturers. (Deleted by amendment, L. 2008.)

History. Source: L. 71: R&RE, p. 142, § 1. C.R.S. 1963: § 6-13-20. L. 77: Entire section amended, p. 1594, § 18, effective July 1. L. 2008: Entire article amended, p. 1625, § 1, effective August 5.

35-13-101. Legislative declaration

1. This is an article to prescribe uniform regulations in this state for safety in the design, construction, location, installation, and operation of equipment for storing, handling, transporting by tank or tank trailer, and utilizing anhydrous ammonia as an agricultural fertilizer; and to provide for the enjoining or abatement of violations of regulations issued under this article; and to prohibit the refilling or use of such containers without authorization by the owner thereof; and to prohibit the adoption by municipalities or other political subdivisions of ordinances or regulations in conflict with this article.
2. The general assembly hereby declares that any violation of this article or rules promulgated pursuant to this article shall constitute a substantial danger to public health and safety.

History. Source: L. 67: P. 325, § 1. C.R.S. 1963: § 6-17-1. L. 2008: Entire section amended, p. 633, § 1, effective August 5.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-13-102. Definitions

As used in this article, unless the context otherwise requires:

1. “Anhydrous ammonia” means the compound formed by the combination of the two gaseous elements, nitrogen and hydrogen, in the proportion of one part nitrogen to three parts hydrogen by volume in compressed and liquefied form.
2. “Commissioner” means the commissioner of agriculture.

History. Source: L. 67: P. 325, § 2. C.R.S. 1963: § 6-17-2.

35-13-103. Commissioner to promulgate rules

The commissioner shall, in addition to other relevant criteria, use as a guide to make, promulgate, and enforce rules setting forth minimum general safety standards covering the design, construction, location, installation, and operation of equipment for storage, handling, transportation by tank truck or tank trailer, and utilization of anhydrous ammonia fertilizer such standards as provided in American national standards institute standard K61.1-1999, or subsequent revisions thereof. Said rules shall be as are reasonably necessary for the protection of the safety of the public and persons using such materials and shall be in substantial conformity with the generally accepted standards of safety concerning the same subject matter. Such rules shall be adopted by the commissioner only after a public hearing thereon.

History. Source: L. 67: P. 325, § 3. C.R.S. 1963: § 6-17-3. L. 2003: Entire section amended, p. 1726, § 7, effective May 14.

Cross references: For rule-making procedures, see article 4 of title 24.

35-13-104. Condition of equipment

All equipment shall be installed and maintained in a safe operating condition and in conformity with the rules and regulations adopted under section 35-13-103.

History. Source: L. 67: P. 326, § 4. C.R.S. 1963: § 6-17-4.

35-13-105. Restriction of use of containers

1. No person, firm, or corporation, other than the owner and those authorized by the owner to do so, shall sell, fill, refill, deliver, or permit to be delivered, or use in any manner any anhydrous ammonia storage tank, mobile transportation tank, or tank-mounted applicator for any other purpose whatsoever.
2. No person shall fill, refill, deliver, or permit to be delivered any anhydrous ammonia storage tank, mobile transportation tank, or tank-mounted applicator that has not been registered in compliance with the provisions of this article and rules promulgated pursuant to this article.

History. Source: L. 67: P. 326, § 5. C.R.S. 1963: § 6-17-5. L. 2003: Entire section amended, p. 2387, § 4, effective July 1, 2004. L. 2008: Entire section amended, p. 633, § 2, effective August 5.

Cross references: For the legislative declaration contained in the 2003 act amending this section, see section 1 of chapter 360, Session Laws of Colorado 2003.

35-13-106. Effect of rules and regulations - prohibitions

The rules and regulations promulgated pursuant to this article shall have uniform force and effect throughout the state, and no municipality or other political subdivision shall enact or enforce any ordinances, rules, or regulations which do not meet the rules and regulations promulgated pursuant to this article; except that home rule cities enforcing ordinances, rules, and regulations equal to or more stringent than those prescribed under this article may continue to perform such functions.

History. Source: L. 67: P. 326, § 6. C.R.S. 1963: § 6-17-6.

35-13-107. Enforcement - investigation - access to locations and records

1. The commissioner, pursuant to the provisions of the “State Administrative Procedure Act”, article 4 of title 24, C.R.S., shall enforce the provisions of this article and of rules promulgated pursuant to this article or section 35-1-107 (5).
2. Upon the commissioner’s own motion or upon the complaint of any person, the commissioner may make any investigations necessary to ensure compliance with this article.
3. At any time during regular business hours, upon consent or upon obtaining an administrative search warrant and for the purpose of enforcing any provision of this article or rule promulgated pursuant to this article, the commissioner shall have free and unimpeded access to:
   1. All buildings, yards, warehouses, storage facilities, tanks, tank trailers, vehicles, and any other public or private property, premises, or carriers in which anhydrous ammonia is kept, stored, handled, distributed, or transported; and
   2. All business records required to be kept that relate to the storage, use, transportation, or distribution of anhydrous ammonia. The commissioner may make copies of such records.
4. 1. Whenever the commissioner has reasonable cause to believe a violation of any provision of this article or any rule promulgated pursuant to this article has occurred and immediate enforcement is deemed necessary, the commissioner may issue a cease-and-desist order, which may require any person to cease violating any provision of this article or any rule promulgated pursuant to this article. Such cease-and-desist order shall set forth the provisions alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all actions be ceased forthwith.
   2. In the event that any person fails to comply with a cease-and-desist order within twenty-four hours, the commissioner may bring a suit for a temporary restraining order and injunctive relief to prevent any further or continued violation of such order.
   3. No stay of a cease-and-desist order shall be issued before a hearing on the order involving both parties.
   4. Matters brought before a court pursuant to this section shall have preference over other matters on the court’s calendar.
5. The commissioner shall have full authority to administer oaths and take statements, to issue administrative subpoenas requiring the attendance of witnesses before the commissioner and the production of all books, memoranda, papers, and other documents, articles, or instruments, and to compel the disclosure by such witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of any witness to obey an administrative subpoena, the commissioner may petition the district court, and, upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey such an order of the court shall be punishable as a contempt of court.
6. Whenever the commissioner considers that a violation of any provision of this article or rule promulgated pursuant to this article has occurred or will occur, and that immediate and irreparable injury, loss, or damage will result if such violation is not immediately restrained or enjoined, the commissioner may apply to any court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article or any rule promulgated pursuant to this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.

History. Source: L. 67: P. 326, § 7. C.R.S. 1963: § 6-17-7. L. 2003: IP(1) and (1)(a) amended, p. 1727, § 8, effective May 14. L. 2008: Entire section amended, p. 634, § 3, effective August 5.

35-13-108. Civil penalties

1. 1. The commissioner may impose a civil penalty on any person who violates any provision of this article or any rule adopted under this article or under section 35-1-107 (5). Such penalty shall not exceed seven hundred fifty dollars per day per violation.
   2. Before imposing a civil penalty, the commissioner may consider the effect of such penalty on the ability of the violator to stay in business.
2. The commissioner shall not impose a civil penalty unless the person charged is given notice and an opportunity for a hearing pursuant to the “State Administrative Procedure Act”, article 4 of title 24, C.R.S.
3. If the commissioner is unable to collect, or if any person fails to pay, all or any portion of a civil penalty imposed pursuant to this section, the commissioner may recover the amount of the penalty, plus costs and attorney fees, by action in a court of competent jurisdiction.
4. All moneys collected pursuant to this section shall be transmitted to the state treasurer, who shall credit the same to the inspection and consumer services cash fund created in section 35-1-106.5.

History. Source: L. 67: P. 326, § 8. C.R.S. 1963: § 6-17-8. L. 2003: Entire section amended, p. 1727, § 9, effective May 14. L. 2005: (4) amended, p. 1270, § 8, effective July 1. L. 2007: (4) amended, p. 1904, § 6, effective July 1.

35-13-109. Registration - application - fees

1. On or before the date specified by rule of the commissioner each year, every person who owns one or more anhydrous ammonia storage tanks, mobile transportation tanks, or tank-mounted applicators within this state shall register each of such tanks or applicators with the department and shall pay a registration fee as established by the agricultural commission. A registration is not transferable. No reduction of a registration fee shall be made for a fractional part of a year.
2. An application for registration shall state:
   1. The name of the applicant;
   2. If the applicant is a firm, the names of its members;
   3. If the applicant is a corporation, the names of its officers;
   4. The applicant’s business address;
   5. The applicant’s telephone number;
   6. The name and location of each fixed bulk facility; and
   7. The serial number or other identifying number of each mobile transportation tank or tank-mounted applicator.
3. For the fiscal year commencing on July 1, 2007, and for each subsequent fiscal year, the agricultural commission shall establish a fee schedule to cover all of the direct and indirect costs of administering and enforcing the provisions of this article.
4. 1. All fees, fines, and penalties collected pursuant to this section shall be transmitted to the state treasurer, who shall credit the same to the inspection and consumer services cash fund created in section 35-1-106.5.
   2. Repealed.

History. Source: L. 2003: Entire section added, p. 1727, § 10, effective May 14. L. 2005: (4)(a) amended, p. 1270, § 9, effective July 1. L. 2007: (3) and (4)(a) amended, p. 1904, § 7, effective July 1. L. 2008: (1) amended, p. 635, § 4, effective August 5. L. 2016: (4)(b) amended, (SB 16-189), ch. 210, p. 790, § 98, effective June 6.

Editor’s note: Subsection (4)(b)(II) provided for the repeal of subsection (4)(b), effective September 1, 2017. (See L. 2016, p. 790 .)

35-14-101. Short title

This article shall be known and may be cited as the “Measurement Standards Act of 1983”.

History. Source: L. 83: Entire article R&RE, p. 1339, § 1, effective July 1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 1 of chapter 152, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1983, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1983, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor’s notes following those sections that were relocated.

35-14-102. Definitions

As used in this article, unless the context otherwise requires:

1. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)

   (1.7) “Certificate of conformance” means a document issued by the national type evaluation program constituting evidence of conformance of a weighing and measuring device with the requirements of national institute of standards and technology handbook 44.

2. “Certified scales” means scales located throughout the state which are used for public weighing and which meet the requirements of certification.
3. “Certified weighers” means a natural person who is certified under the provisions of this article.
4. “Commercial weighing and measuring devices” means those devices commercially used or employed in establishing the size, quantity, extent, area, or measurement of quantities, things, produce, or articles for distribution or consumption that are sold or offered or exposed for sale or hire or in computing any basic charge or payment for services rendered on the basis of weight, measure, or count.

   (4.5) “Commission” means the state agricultural commission.

5. “Commissioner” means the commissioner of agriculture.

   (5.5) “Commodity” means any agricultural commodity, consumer commodity, or any other goods.

6. “Commodity in package form” means a commodity put up or packaged in any manner in advance of sale in units suitable for either wholesale or retail sale. An individual item or lot of any commodity not in package form but on which there is marked a selling price based on an established price per unit of weight or of measure shall be construed to be a commodity in package form. The term “package” shall be construed to mean “commodity in package form”.
7. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
8. “Correct” means conformance to all applicable requirements of this article.
9. “Department” means the department of agriculture.

   (9.5) “Grain protein analyzer” means the equipment and accessories used to determine the protein content of grain.

10. “Grain sample” means that portion of a grain, seed, or other agricultural commodity taken from the bulk of grain, seed, or other agricultural commodity for the purpose of determining moisture content.
11. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
12. “Inch pound system” means the United States customary system of weights and measures as approved by the United States department of commerce.
13. “Label” means any written, printed, or graphic matter affixed to, applied to, attached to, blown into, molded into, formed upon, embossed upon, or appearing upon or adjacent to a consumer commodity or a package containing any consumer commodity for purposes of branding, identifying, or giving any information with respect to the commodity or to the contents of the package; except that an inspector’s tag or other nonpromotional matter affixed to or appearing upon a consumer commodity shall not be deemed to be a label requiring the repetition of label information required by this article.
14. “Laboratory” means the metrology laboratory of the division of inspection and consumer services in the department.
15. “Metric system” means the “Systeme Internationale System of Weights and Measures”, as adopted by the United States department of commerce.
16. “Metrology services” means all testing and calibrating and, when necessary, the making of adjustments to weights and measures.
17. “Moisture content” means the percentage content of moisture and other volatiles on a wet basis in a grain sample as determined in a manner recognized by the United States department of agriculture.
18. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
19. “Moisture-testing device” means all equipment and accessories required for determining the moisture content in a grain sample.
20. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)

    (20.5) “National type evaluation program” means the evaluation program administered by the national conference on weights and measures.

21. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
22. “Not susceptible of repair” means any weight or measure that is designed or constructed in such a fashion so as to fail to comply with the applicable design or construction standards for such weight or measure or that cannot be repaired to meet the tolerance standards for such weight or measure.
23. and (23.5) (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
24. “Placing in service” means placing in use any new, used, repaired, or reconditioned weighing and measuring device.
26. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
27. “Random-weight package” means a package that is one of a lot, shipment, or delivery of packages of the same consumer commodity with varying weights, as when packages of the same consumer commodity have no fixed pattern of weight.

    (27.5) “Reference standards” means the physical standards of the state that serve as the legal reference from which all other standards and weights and measures are derived pursuant to section 35-14-104.

29. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
30. “Secondary standards” means the physical standards that are traceable to the reference standards through comparisons, using acceptable procedures, and are used in the enforcement of weights and measures laws and rules.

    (30.5) “Standard” means a weight or measure used as a reference to establish a measured quantity value.

31. “Traceable” means the system of determining the value of a standard by comparison with approved standards of the national institute of standards and technology.

    (31.5) and (31.6)(Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)

32. “Vehicle” means any device by which any property, produce, commodity, or article is or may be transported.
33. “Weight” means net weight as used in connection with any commodity or service; except that, where the label states that the product is sold by drained weight, the term “weight” means net drained weight.
34. “Weights” or “measures” means all weights or measures of every kind, any instruments and devices for weighing and measuring, and any appliances and accessories associated with any or all of such instruments and devices.

History. Source: L. 83: Entire article R&RE, p. 1339, § 1, effective July 1. L. 95: (16), (22), and (31) amended and (1.7), (20.5), (23.5), (31.5), and (31.6) added, p. 893, § 1, effective July 1. L. 2009: (1), (1.7), (4), (7), (11), (14), (16), (17), (18), (20), (20.5), (21), (22), (23), (23.5), (24), (25), (26), (28), (29), (30), (31.5), (31.6), and (33) amended and (4.5), (5.5), (27.5), and (30.5) added, (SB 09-113), ch. 88, p. 323, § 6, effective April 2. L. 2011: (9.5) added, (HB 11-1159), ch. 95, p. 279, § 1, effective August 10.

Editor’s note: (1) This section is similar to former §§ 35-14-101 and 35-14-102 as they existed prior to 1983.

(2) Subsection (3) is repealed, effective September 1, 2028, pursuant to § 35-14-134.

35-14-103. Systems of weights and measures - customary or metric

The inch pound system and the metric system of weights and measures are jointly valid, and either one or both of these systems shall be used for all commercial purposes in this state. The definitions of basic units of weights and measures, the tables of weights and measures, and the equivalents of weights and measures, as published by the national institute of standards and technology, are recognized and shall govern weighing and measuring equipment and transactions in this state.

History. Source: L. 83: Entire article R&RE, p. 1342, § 1, effective July 1. L. 95: Entire section amended, p. 894, § 2, effective July 1.

35-14-104. Physical standards

Weights and measures that are traceable to the United States prototype standards supplied by the federal government, or approved as being satisfactory by the national institute of standards and technology, shall be the state’s reference standards of weights and measures and shall be maintained in such calibration as prescribed by the national institute of standards and technology. All secondary standards may be prescribed by the commissioner and shall be verified upon their initial receipt and as often thereafter as deemed necessary by the commissioner. The commissioner shall have the custody and keep accurate records of the state standards of weights and measures and of the other standards and equipment provided for by this article.

History. Source: L. 83: Entire article R&RE, p. 1342, § 1, effective July 1. L. 95: Entire section amended, p. 894, § 3, effective July 1. L. 2009: Entire section amended, (SB 09-113), ch. 88, p. 326, § 7, effective April 2.

Editor’s note: This section is similar to former §§ 35-14-103 and 35-14-104 as they existed prior to 1983.

35-14-105. Technical requirements for weighing and measuring devices - certificate required - exception

1. The specifications, tolerances, and other technical requirements, including user requirements, for commercial, law enforcement, data gathering, and other weighing and measuring devices adopted by the national conference on weights and measures and published in the national institute of standards and technology handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Commercial Weighing and Measuring Devices”, and supplements or revisions to that handbook, apply to weighing and measuring devices in this state, except as modified or rejected or as otherwise specified by this article or any rule promulgated pursuant to this article. Except as provided in subsection (2) of this section, any weight or measure or any weighing or measuring instrument or device shall be issued a certificate of conformance from the national type evaluation program prior to use for commercial or law enforcement purposes.
2. A certificate of conformance is not required for a grain protein analyzer.

History. Source: L. 83: Entire article R&RE, p. 1342, § 1, effective July 1. L. 95: Entire section amended, p. 894, § 4, effective July 1. L. 2009: Entire section amended, (SB 09-113), ch. 88, p. 326, § 8, effective April 2. L. 2011: Entire section amended, (HB 11-1159), ch. 95, p. 279, § 2, effective August 10.

Editor’s note: This section is similar to former § 35-14-104 as it existed prior to 1983.

35-14-106. Administration

The commissioner shall administer and enforce the provisions of this article and shall have and may exercise any and all of the administrative powers conferred upon the head of a department of the state. The commissioner is authorized to employ, pursuant to section 13 of article XII of the state constitution, such deputies and inspectors as he may deem necessary for the proper enforcement of this article, subject to the constitution and laws of the state. The powers and duties given to and imposed upon the commissioner are also given to and imposed upon the deputies and inspectors when acting under the instructions and at the direction of the commissioner.

History. Source: L. 83: Entire article R&RE, p. 1342, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-14-105 as it existed prior to 1983.

35-14-107. Powers and duties of commissioner - rules

1. The commissioner shall:
   1. Maintain traceability of this state’s standards to the standards of the national institute of standards and technology;
   2. Implement and carry out the provisions of this article;
   3. Establish requirements for labeling, requirements for the presentation of cost-per-unit information, standards of weight, measure, or count, and reasonable standards of fill for any packaged commodity;
   4. Grant any exemptions from this article or any rules promulgated pursuant to this article if in the commissioner’s opinion such exemption would serve the public interest;
   5. Conduct investigations to ensure compliance with this article;
   6. Delegate to appropriate personnel any responsibilities for the proper administration of this article;
   7. Test annually the standards of weights and measures used by any city or county within the state and approve the same when found to be correct; except that tuning forks used to determine the accuracy of radar guns shall not be subject to annual testing;
   8. Inspect and test weights and measures kept, offered, or exposed for sale, including prepackaged commodities;
   9. Inspect and test, to ascertain if they are correct, all commercial weighing and measuring devices for which the owner is required to be licensed under this article;
   10. Test all weights and measures used in checking the receipt or disbursement of supplies in every state institution if funds are appropriated for such maintenance;
   11. Approve for use, and may mark, such weights and measures as he or she finds to be correct and may reject and mark as rejected such weights and measures as he or she finds to be incorrect. Weights and measures that have been rejected may be seized if not corrected within the time specified or if used or disposed of in an unauthorized manner. The commissioner may condemn and seize weights and measures found to be incorrect and that are not capable of being made correct.
   12. Weigh, measure, or inspect packaged commodities kept, offered, or exposed for sale, sold, or in the process of delivery to determine whether they contain the amounts represented and whether they are kept, offered, or exposed for sale in accordance with this article and the rules promulgated pursuant to this article. Accuracy of weight, measure, or count shall be determined by procedures set forth in the national institute of standards and technology handbook 133 as adopted by the national conference on weights and measures 1980, and any supplements or revisions thereto unless otherwise specified by the commissioner by rule. When the nature of the packaged commodity requires assistance in testing, the commissioner may request the person in possession of the package to furnish equipment and assistance to complete the test.
   13. Prescribe the appropriate term or unit or weight or measure to be used whenever he determines, in the case of a specific commodity, that an existing practice of declaring the quantity by weight, measure, numerical count, or combination thereof does not facilitate value comparison or is represented in any manner that tends to mislead or deceive any person;
   14. Allow reasonable variations from the stated quantity of contents, which shall include those caused by loss or gain of moisture during the course of good distribution practice or by unavoidable deviations in good manufacturing practice, only after the commodity has entered intrastate commerce;
   15. Promulgate such rules as are necessary for the implementation and administration of this article in accordance with article 4 of title 24, C.R.S., including rules regarding the use of weights and measures, methods of sale, unit pricing, declaration of quantity, retail sales price representations for commodities and services, including requirements for cents-off and introductory offer promotions, and labeling requirements;
   16. Negotiate and enter into contracts with local governments for the implementation and enforcement of this article.
2. The commissioner may, upon request, inspect and test any weight, measure, or standard used by a governmental entity.

History. Source: L. 83: Entire article R&RE, p. 1343, § 1, effective July 1. L. 95: (1)(a) and (1)(l) amended, p. 894, § 5, effective July 1. L. 2009: (1)(a), (1)(d), (1)(g), (1)(i), (1)(k), (1)(l), and (1)(o) amended and (2) added, (SB 09-113), ch. 88, pp. 326, 323, § § 9, 4, effective April 2.

Editor’s note: This section is similar to former §§ 35-14-107 and 35-14-108 as they existed prior to 1983.

35-14-108. Special police powers

1. When necessary to perform his duties or to implement the provisions of this article or the rules and regulations promulgated pursuant thereto, the commissioner or his authorized agent may:
   1. Enter any commercial premises during normal business hours; except that, in the event such premises are not open to the public, he shall first present his credentials and obtain consent before making entry thereto unless a search warrant has previously been obtained;
   2. Issue stop-use, hold, or removal orders with respect to any weights and measures commercially used and stop-sale, hold, and removal orders with respect to any packaged commodities or bulk commodities kept, offered, or exposed for sale which do not meet the requirements of this article;
   3. Seize, for use as evidence and without formal warrant, any incorrect or unapproved weight, measure, package, or commodity found to be used, retained, offered, or exposed for sale or sold in violation of the provisions of this article or any rule or regulation promulgated pursuant thereto;
   4. Stop any commercial vehicle and, after presentment of his credentials, require that the person in charge of the vehicle produce any documents in his possession concerning the contents of said vehicle, inspect the contents of such vehicle at the site, and, if necessary, require such person to proceed with the vehicle to some specified place for inspection.
2. The commissioner may administer oaths and take statements, issue subpoenas requiring the attendance of witnesses before him or her and the production of all books, memoranda, papers, and other documents, articles, or instruments, and compel the disclosure by such witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of any witness to obey any subpoena, the commissioner may petition the district court, and, upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey such an order of the court shall be punishable as a contempt of court.
3. If the owner, or the owner’s agent, of any commercial premises or vehicle refuses to admit the commissioner to inspect such premises or vehicle, the commissioner may obtain from the district or county court for the district or county in which such premises or vehicle is located a warrant to enter and inspect such premises or vehicle.

History. Source: L. 83: Entire article R&RE, p. 1344, § 1, effective July 1. L. 2009: (2) and (3) added, (SB 09-113), ch. 88, p. 328, § 10, effective April 2.

Editor’s note: This section is similar to former § 35-14-112 as it existed prior to 1983.

35-14-109. Contract services. (Repealed)

History. Source: L. 83: Entire article R&RE, p. 1345, § 1, effective July 1. L. 87: (2) repealed, p. 492, § 43, effective July 1. L. 2009: Entire section repealed, (SB 09-113), ch. 88, p. 328, § 11, effective April 2.

Editor’s note: This section was similar to former §§ 35-14-114 and 35-14-115 as they existed prior to 1983.

35-14-110. Misrepresentation of quantity

No person shall sell, offer, advertise, or expose for sale less than the quantity of commodity or service he represents nor take any more than the quantity of commodity or service he represents.

History. Source: L. 83: Entire article R&RE, p. 1345, § 1, effective July 1.

Editor’s note: This section is similar to former §§ 35-14-119 and 35-14-120 as they existed prior to 1983.

35-14-111. Misrepresentation of price

No person shall misrepresent the price of any commodity or service sold or offered, exposed, or advertised for sale by weight, measure, or count nor represent the price in any manner calculated or tending to mislead or in any way deceive a person.

History. Source: L. 83: Entire article R&RE, p. 1345, § 1, effective July 1.

Editor’s note: This section is similar to former §§ 35-14-119 and 35-14-120 as they existed prior to 1983.

35-14-112. Method of sale - general

Except as otherwise provided by the commissioner by rule, commodities in liquid form shall be sold by liquid measure or by weight, and commodities not in liquid form shall be sold only by weight, by measure, or by count, so long as the method of sale provides accurate quantity and pricing information.

History. Source: L. 83: Entire article R&RE, p. 1345, § 1, effective July 1. L. 93: Entire section amended, p. 272, § 4, effective July 1. L. 2006: Entire section amended, p. 1507, § 55, effective June 1. L. 2009: Entire section amended, (SB 09-113), ch. 88, p. 328, § 12, effective April 2.

Editor’s note: This section is similar to former § 35-14-118 as it existed prior to 1983.

Cross references: For the legislative declaration contained in the 1993 act amending this section, see section 1 of chapter 79, Session Laws of Colorado 1993.

35-14-113. Method of sale - special food products. (Repealed)

History. Source: L. 83: Entire article R&RE, p. 1345, § 1, effective July 1. L. 2009: Entire section repealed, (SB 09-113), ch. 88, p. 328, § 13, effective April 2.

Editor’s note: This section was similar to former § 35-14-118 as it existed prior to 1983.

35-14-114. Method of sale - special nonfood products. (Repealed)

History. Source: L. 83: Entire article R&RE, p. 1346, § 1, effective July 1. L. 93: Entire section amended, p. 272, § 5, effective July 1. L. 95: (2)(a) amended, p. 896, § 6, effective July 1. L. 2009: Entire section repealed, (SB 09-113), ch. 88, p. 330, § 14, effective April 2.

Editor’s note: This section was similar to former § 35-14-118 as it existed prior to 1983.

35-14-115. Machine vended commodities

1. Each vending machine which dispenses commodities in package form shall indicate:
   1. Proper identity;
   2. Net quantity; and
   3. Name, address, and telephone number of the vendor or of the responsible party.
2. The requirements for product identity and net quantity can be met either by display of the package or by information posted on the outside of the machine.

History. Source: L. 83: Entire article R&RE, p. 1346, § 1, effective July 1.

35-14-116. Railroad car tare weights

1. Whenever stenciled tare weights on freight cars are employed in the sale of commodities or the assessment of freight charges, the following conditions and requirements shall apply:
   1. All newly stenciled or restenciled tare weights shall be accurately represented to the nearest one hundred pounds for inch pound units and to the nearest fifty kilograms for metric units, and the representation shall include the date of weighing.
   2. The allowable difference between actual tare weight and stenciled tare weight on freight cars in use shall be:
      1. If in inch pounds:
         1. Plus or minus three hundred pounds for cars of fifty thousand pounds or less;
         2. Plus or minus four hundred pounds for cars over fifty thousand pounds but not over sixty thousand pounds; or
         3. Plus or minus five hundred pounds for cars over sixty thousand pounds;
      2. If in metric:
         1. Plus or minus one hundred fifty kilograms for cars twenty-five thousand kilograms or less;
         2. Plus or minus two hundred kilograms for cars over twenty-five thousand kilograms but not over thirty thousand kilograms; or
         3. Plus or minus two hundred fifty kilograms for cars over thirty thousand kilograms.
   3. Tare weight determinations for verification or change of stenciled weights shall only be made on properly prepared and adequately cleaned freight cars.
   4. Tank cars, covered hopper cars, flat cars equipped with multideck racks or special superstructures, mechanical refrigerator cars, and house-type cars equipped with special lading protective devices must be reweighed and restenciled only by owners or their authorized representatives if the car bears no lightweight (empty weight) stenciling or if repairs or alterations result in a change of weight in excess of the permissible lightweight tolerance.

History. Source: L. 83: Entire article R&RE, p. 1346, § 1, effective July 1.

35-14-117. Unit pricing - application - inch pound or metric

1. Except for random-weight packages unit priced in accordance with rules promulgated pursuant to this article, any retail establishment providing unit price information in addition to the total price for any commodity shall also provide the unit price information for all such commodities as required by rules promulgated pursuant to this article.
2. Either metric or inch pound unit prices may be used for commodities marked in either system; except that, when unit price is changed to metric for any given type of commodity, unit pricing for all sources or suppliers of that commodity should change to metric.

History. Source: L. 83: Entire article R&RE, p. 1347, § 1, effective July 1. L. 2009: (1) amended, (SB 09-113), ch. 88, p. 330, § 15, effective April 2.

35-14-118. Declarations on packages

1. Except as otherwise provided in this article, any commodity in package form shall bear on the outside of the package a definite, plain, and conspicuous declaration of:
   1. The net quantity of the contents in terms of weight, measure, or count; and
   2. In the case of any package not sold on the premises where packed, the name and place of business of the manufacturer, packer, or distributor;
   3. The identity of the commodity in the manner specified by rule promulgated pursuant to this article.
2. Under paragraph
   1. of subsection (1) of this section, the commissioner, by regulation, shall establish reasonable variations or tolerances to be allowed and also exemptions as to small packages.

History. Source: L. 83: Entire article R&RE, p. 1347, § 1, effective July 1. L. 2009: (1)(c) added, (SB 09-113), ch. 88, p. 330, § 16, effective April 2.

Editor’s note: This section is similar to former § 35-14-119 as it existed prior to 1983.

35-14-119. Misleading packages - allowances

No commodity in package form shall be so wrapped, nor shall it be in a container so made, formed, or filled as to mislead the purchaser as to the quantity of the contents of the package, and the contents of a container shall not fall below such reasonable standard of fill as may have been prescribed for the commodity in question by the commissioner.

History. Source: L. 83: Entire article R&RE, p. 1348, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-14-119 as it existed prior to 1983.

35-14-120. Declaration of unit price on random-weight packages

In addition to the declarations required by section 35-14-118, any package being one of a lot containing random weights of the same commodity and bearing the total selling price of the package shall bear on the outside of the package a plain and conspicuous declaration of the price per single unit of weight.

History. Source: L. 83: Entire article R&RE, p. 1348, § 1, effective July 1.

Editor’s note: This section is similar to former §§ 35-14-119 and 35-14-120 as they existed prior to 1983.

35-14-121. Weigher - qualification - certification - revocation

1. A person who has sufficiently good moral character to carry on the business stated in the application, subject to section 24-5-101, C.R.S., who has the ability to weigh accurately, make correct weight certificates, and who has received from the commissioner a certificate of certified weigher may use the title of and shall be authorized to act as a certified weigher.
2. An application for a certificate of certified weigher shall be made upon a form provided by the commissioner. The application shall include evidence that the applicant has the qualifications required by subsection (1) of this section.
3. The commissioner may adopt rules for determining the qualifications of the applicant for a license as a certified weigher. For the purpose of determining qualifications of the applicant, the commissioner may approve the qualifications of the applicant upon the basis of the information supplied in the application or he may examine such applicant orally or in writing or both. He shall grant certificates of certified weigher to such applicants as may be found to possess the qualifications required by subsection (1) of this section. The commissioner shall keep a record of all such applicants and of all certificates issued.
4. The commissioner may, upon request and without charge, issue a limited certification as a certified weigher to any qualified officer or employee of a municipality or county of this state or of a state commission, board, institution, or agency authorizing such officer or employee to act as a certified weigher only within the scope of his official employment.
5. All certificates of certified weighers in existence as of June 30, 2009, shall expire five years after issuance. All certificates issued on or after July 1, 2009, shall expire on the date specified by the commissioner by rule. A certified weigher who fails to renew a certificate on or before the expiration date of the certificate shall pay a late fee, as established by the commission, in addition to the certificate fee. Renewal applications shall be in such form as the commissioner shall prescribe.
6. The following persons shall be permitted, but shall not be required, to obtain certification as certified weigher:
   1. A weights and measures officer when acting within the scope of his official duties;
   2. A person weighing property, produce, commodities, or articles that he or his employer, if any, is buying or selling; and
   3. A person weighing property, produce, commodities, or articles in conformity with the requirements of federal law or the laws of this state relative to warehousemen or processors.
7. The commissioner, in accordance with section 24-4-104, C.R.S., may suspend, deny, revoke, restrict, place on probation, or refuse to renew the certificate of any certified weigher or applicant for such certificate if such certified weigher or applicant has been convicted in any court of competent jurisdiction of violating any provision of this article or if the commissioner is satisfied that the person has violated any provision of this article.

History. Source: L. 83: Entire article R&RE, p. 1348, § 1, effective July 1. L. 95: (1) and (7) amended, p. 896, § 7, effective July 1. L. 2009: (5) amended, (SB 09-113), ch. 88, p. 330, § 17, effective April 2.

Editor’s note: This section is repealed, effective September 1, 2028, pursuant to § 35-14-134.

35-14-122. Public scales - requirements - weight certificates - procedures - records

1. 1. Provision shall be made for official certified scales throughout the state for the purpose of doing public weighing if the scale owners agree to meet the requirements of this article. Such scales shall be operated only by a certified weigher. All equipment used by certified weighers shall be approved by the commissioner.
   2. The commissioner shall require the owner or operator of all certified scales to post on the outside of the scale house, where it can be conveniently observed by all persons, a sign at least twelve inches high and thirty-six inches long, stating the maximum weighing capacity of the scale. No person shall weigh or attempt to weigh any article or load having a greater weight or suspected weight greater than the rated capacity of the scale.
2. 1. It shall be the duty of each certified weigher to weigh upon the certified scales any load delivered at the scales for weighing when engaged to do so by any person and to issue a certificate of correct weight. The certificate of correct weight shall state the gross weight of the load, the tare weight, the net weight of the load, and the date of weighing. In addition, the weight certificate shall indicate the state license number of the vehicle, or other positive identification, a serial number, the name of the shipper or the owner of the load, the nature of the load, the name of the receiver of the load, whether the driver is off or on the scale, the name of the certified weigher, and the location of the certified scale. For issuing a certificate, the certified weigher may charge a reasonable fee; except that no charge may be made for weighing done or for certificates issued upon the demand of the commissioner or any employee acting in an official capacity under the provisions of this article.
   2. All certified weighers shall keep a daily register in which they shall enter every transaction by them as certified weighers, including the gross weight of each load, the weight of the vehicle, the net weight of the load, the license number of the vehicle, if any, the name of the dealer or owner, the name of the weigher, the name of the person for whom the weighing was done, and the date of weighing. The daily register shall be kept by the certified weigher and shall be open at all times to inspection by the supervisor of measurements standards and all other inspectors of the department and by any other person interested therein. Such daily registers shall be kept for a period of two years.
3. A weighing made of any vehicle or combination of vehicles to ascertain the gross, tare, or net weight for commercial purposes or certification by a certified weigher shall not be determined by any procedure denominated as a split-weighing or fore-and-aft draft. The gross, tare, or net weight of any vehicle or combination of vehicles as a single unit shall be determined upon scales with platforms of sufficient size to accommodate the vehicle or combination of vehicles as one entire unit; except that the gross, tare, or net weight of a combination of vehicles may be determined upon a scale which will not accommodate the combination of vehicles as one entire unit if the same are separated and the weight of each member thereof can and is determined separately as an independent unit. In such cases, weight certificates shall be issued for each such separate weighing.
4. The certified scales shall be available for use by the public each day of the year during all reasonable business hours. Sundays and other legal holidays are excepted.
5. All persons, firms, and corporations which do public weighing for a fee shall keep a complete record of each such weighing for a period of two years, and at least one copy of each weighing certificate shall be retained on record at the place of weighing.
6. 1. All commodities bought, sold, delivered, or in the process of changing ownership that use the weight of the content for final determination and settlement shall be weighed on a scale licensed in accordance with this article if neither the buyer nor the seller owns his or her own scale. The weigher shall issue a weight certificate containing all the information required by subsection (2) of this section to both the buyer and the seller. If the buyer or seller owns his or her own scale licensed by the department and uses such scale to determine the weight of such commodities, such party shall issue a ticket or invoice in duplicate to the other party. Said ticket or invoice shall contain all the information required by subsection (2) of this section.
   2. All commodities bought, sold, delivered, or in the process of changing ownership for which a weight certificate, ticket, or invoice has been issued pursuant to paragraph (a) of this subsection (6) and which are being hauled or transported on the streets, roads, or highways of this state shall be accompanied with a weight certificate or a ticket or invoice containing the information required by subsection (2) of this section.

History. Source: L. 83: Entire article R&RE, p. 1349, § 1, effective July 1. L. 2009: (6)(a) amended, (SB 09-113), ch. 88, p. 336, § 24, effective April 2.

Editor’s note: This section is repealed, effective September 1, 2028, pursuant to § 35-14-134.

35-14-123. Weighing and measuring device service providers - certification - fees - placing in service - rules

1. No person, other than the owner, may repair, service, or place in service any commercial weighing or measuring device for which the owner must obtain a license to operate unless the person is certified by the commissioner as a commercial weighing and measuring device service provider. The commissioner may specify the requirements for certification of service providers by rule. For the purposes of this section, only one certificate is required for each business employing service persons. The application for a commercial weighing and measuring device service provider certificate shall be submitted to the commissioner on forms furnished by the commissioner and shall be accompanied by a fee established by the commission. All certificates shall expire on the date specified by the commissioner by rule. A provider who fails to renew a certificate on or before the expiration date of the certificate shall pay a late fee, as established by the commission, in addition to the certificate fee.
2. The commissioner shall adopt rules specifying:
   1. The categories and requirements for certification of commercial weighing and measuring device service providers; and
   2. The performance requirements for commercial weighing and measuring devices service providers.
   3. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
3. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
4. Each commercial weighing or measuring device not exempted pursuant to section 35-14-126 that is placed in service by a commercial weighing and measuring device service provider shall comply with section 35-14-105. When repairing, servicing, or placing in service any such device, a commercial weighing and measuring device service provider shall comply with the most current version of the national institute of standards and technology handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Commercial Weighing and Measuring Devices”.
5. 1. No commercial weighing and measuring device service provider may use a standard when repairing, servicing, or placing in service a commercial weighing or measuring device that is not exempted pursuant to section 35-14-126 unless the commissioner has approved the standard.
   2. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
6. Each commercial weighing and measuring device service provider shall at least annually submit all standards used to repair, service, or place in service any commercial weighing or measuring device not exempted pursuant to section 35-14-126 to the laboratory for approval pursuant to section 35-14-128; except that, if such standards are annually approved in another state by that state’s national institute of standards and technology-recognized metrology laboratory and evidence is shown of current approval, traceable to standards of the national institute of standards and technology, which is less than a year after date of issuance, the commissioner may exempt the service provider from obtaining a Colorado approval for the current year.
7. Upon placing in service any commercial weighing or measuring device not exempted pursuant to section 35-14-126, the service provider shall submit a placing-in-service report to the commissioner within ten days after the placing-in-service date. The commissioner shall promulgate rules to specify the information to be included in placing-in-service reports.
8. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
9. (Deleted by amendment, L. 95, p. 896 , 8, effective July 1, 1995.)
10. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
11. Nothing in this section shall be construed to prohibit a person from performing repairs or service on a weighing or measuring device that the commissioner has condemned or placed under work order, but such person may not remove any tag placed on any weighing or measuring device pursuant to this article.

History. Source: L. 83: Entire article R&RE, p. 1350, § 1, effective July 1. L. 87: (1) amended, p. 490, § 39, effective July 1. L. 95: (1), IP(2), (3), (5), (6), (7), (9), and (10) amended, p. 896, § 8, effective July 1. L. 2009: Entire section amended, (SB 09-113), ch. 88, p. 331, § 18, effective April 2.

Editor’s note: This section is repealed, effective September 1, 2028, pursuant to § 35-14-134.

35-14-124. Inaccurate devices - stickers - tags - wire seals - rules

1. A blue tag indicating “Work Order” shall be placed on any commercial weighing or measuring device that in the judgment of the commissioner is out of tolerance or in need of minor repairs. Repairs shall be made within thirty days, and, if not so made, the device shall be removed from commercial use. If the repairs cannot be completed or the device cannot be placed into service due to delay in obtaining parts or other justified circumstances, the commissioner may extend the time limit for repair or placing in service for a reasonable time.
2. A red tag indicating “CONDEMNED” shall be placed on any commercial weighing or measuring device that is to be removed from use. A wire seal may be so placed as to make the device unusable in any form. A device that has been condemned pursuant to this subsection (2) shall not be used for any commercial purpose.
3. 1. A tag indicating “no license fee paid” shall be placed on any commercial weighing or measuring device that the owner is not licensed to operate. A wire seal may be so placed as to make the device unusable in any form. A device on which a “no license fee paid” tag has been placed shall not be used for any commercial purpose. A “no license fee paid” tag need not be placed on devices that are being held for resale and are not being used.
   2. When a weighing or measuring device is found in a commercial establishment, it shall be prima facie evidence that said device is being used or employed. If the owner of any such device does not have a license for its use, the device shall have a “no license fee paid” or “not approved for commercial use” tag attached.
4. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 333, § 19, effective April 2, 2009.)
5. The commissioner shall promulgate rules to clarify the circumstances under which a blue or red tag should be issued.

History. Source: L. 83: Entire article R&RE, p. 1352, § 1, effective July 1. L. 2009: Entire section amended and (5) added, (SB 09-113), ch. 88, pp. 333, 323, § § 19, 5, effective April 2.

Editor’s note: (1) Amendments to this section by sections 5 and 19 of Senate Bill 09-113 were harmonized.

(2) This section is repealed, effective September 1, 2028, pursuant to § 35-14-134.

35-14-124.5. Disciplinary powers

1. The commissioner may deny an application for, refuse to renew, revoke, or suspend a license or certificate or place a licensee or certificate holder on probation, if such person has:
   1. Violated any provision of this article or of any rule adopted by the commissioner under this article;
   2. Been convicted of a felony under any state or federal law; except that, in considering a conviction of a felony, the commissioner shall be governed by section 24-5-101, C.R.S.;
   3. Committed fraud or deception in the procurement or attempted procurement of a license or certificate;
   4. Failed to comply with a lawful order of the commissioner concerning the administration of this article;
   5. Been convicted of deceptive trade practices under any state or federal law;
   6. Used a commercial weighing or measuring device or moisture-testing device in deceptive trade practices in violation of any state or federal law.
2. All proceedings concerning the denial, refusal to renew, revocation, or suspension of a license or certificate or the placing of a licensee or certificate holder on probation shall be conducted pursuant to article 4 of title 24, C.R.S.
3. Any previous violation of this article by an applicant or associate of the applicant shall be sufficient grounds for denial of a license. For purposes of this subsection (3), “associate” means:
   1. A person associated with the applicant in the business for which such applicant seeks to be licensed or certified;
   2. A partner, officer, director, or stockholder of more than thirty percent of the outstanding shares of a partnership or corporation, when such partnership or corporation is the applicant.

History. Source: L. 95: Entire section added, p. 899, § 9, effective July 1. L. 2009: (1)(f) amended, (SB 09-113), ch. 88, p. 334, § 20, effective April 2.

Editor’s note: This section is repealed, effective September 1, 2028, pursuant to § 35-14-134.

35-14-125. Household scales. (Repealed)

History. Source: L. 83: Entire article R&RE, p. 1352, § 1, effective July 1. L. 2009: Entire section repealed, (SB 09-113), ch. 88, p. 334, § 21, effective April 2.

35-14-126. Commercial weighing device exemption - licensing - testing

1. No license shall be required for the use of the following commercial weighing or measuring devices and such devices shall be exempt from testing:
   1. Person weighers also referred to as pennyweight scales;
   2. Any scale used as an in-plant scale to determine ingredients or other such services where the end product or service is determined by some means other than the in-plant scale;
   3. Those scales operated by the United States postal service;
   4. Postal scales used exclusively for determining postage fees and where final determination of weight is made by the United States postal service;
   5. A pharmacist’s prescription scale having less than a four-ounce capacity;
   6. Any other device exempted by the commissioner by rule.

History. Source: L. 83: Entire article R&RE, p. 1353, § 1, effective July 1. L. 2009: IP(1) amended and (1)(f) added, (SB 09-113), ch. 88, p. 334, § 22, effective April 2.

35-14-127. Licenses - fees - rules - stickers - certificates

1. Before operating any scale, textile meter, or cordage meter for commercial purposes, except those exempted in section 35-14-126, the owner shall first procure from the department a license for the operation of the device. All such licenses shall expire on the date established by the commissioner by rule.
2. Any person desiring to obtain a license for the operation of a scale, textile meter, or cordage meter shall file an application with the department upon a form furnished by the commissioner, which shall contain such information as the commissioner may require. Every application for a license shall be accompanied by the proper fee. A person who fails to renew a license on or before the expiration date of the license shall pay a late fee, as established by the commission, in addition to the license fee.
3. The commissioner shall test or cause to be tested for accuracy every scale, textile meter, or cordage meter for which the owner has been issued a license to operate at least once every twelve months or more often if necessary. Upon testing and approving a device for use, the commissioner shall affix an approval sticker to the device and may issue a device identification number. If the design, construction, or location of any scale, textile meter, or cordage meter is such as to require a testing procedure involving special equipment or accessories or an abnormal amount of labor, such equipment, accessories, and labor shall be supplied by the licensed owner of the scale, textile meter, or cordage meter as required by the commissioner. Nothing in this section shall prevent an inspector from testing a scale, textile meter, or cordage meter before the issuance of a license if the license fee is paid or is in the process of being paid.
4. 1. 1. The commission shall establish annual license fees for the operation of commercial weighing and measuring devices based on the number, capacity, and types of devices.
      2. (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
   2. (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
   3. The capacity of a given scale shall be determined by the manufacturer’s rated capacity.
   4. The annual license fee for belt conveyor and in-motion railroad scales shall be as determined by the commission.
5. The commission shall determine the annual license fee for textile meters, cordage meters, moisture meters, grain protein analyzers, certified weighers, persons who sell or install weighing and measuring devices, and persons who service weighing and measuring devices.
6. (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
7. (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
8. (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
9. (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
10. (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
11. (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 334, § 23, effective April 2, 2009.)
12. The fees for inspection and testing pursuant to section 35-14-107 (2) shall be as determined by the commission.

    (12.5)

    1. For the fiscal year commencing on July 1, 2007, and for each subsequent fiscal year, the commission shall establish fees associated with the licensing, testing, inspection, and regulation of scales with a capacity of one thousand pounds or less, cordage meters, and textile meters. Such fees shall cover the direct and indirect costs of administering and enforcing this article other than subsection (12) of this section, paragraph (b) of this subsection (12.5), and section 35-14-128 (2).
    2. 1. For each fiscal year, commencing on July 1, twenty-five percent of the direct and indirect costs associated with the licensing, testing, inspection, and regulation of certified weighers, scales with a capacity of greater than one thousand pounds, belt conveyers, in-motion railroad scales, moisture-testing devices, and grain protein analyzers must be funded from the general fund. The commission shall establish a fee schedule to cover any direct and indirect costs not funded from the general fund.
       2. Repealed.
13. All license fees and testing fees collected by the department under this article shall be transmitted to the state treasurer, who shall credit the same to the inspection and consumer services cash fund created in section 35-1-106.5.

History. Source: L. 83: Entire article R&RE, p. 1353, § 1, effective July 1. L. 2003: (2), (4)(a), (4)(c), (5), (6), (7), (8), (9), (10), (12), and (13) amended and (4)(a.5) added, p. 1728, § 11, effective May 14. L. 2005: IP(4)(a)(I), IP(4)(a.5), (4)(c), (5), (6), (7), (8), (9), (10), (12), and (13) amended, p. 1270, § 10, effective July 1. L. 2006: (4)(a)(II) amended, p. 1516, § 85, effective July 1. L. 2007: IP(4)(a)(I), (4)(a)(II), (4)(a.5), (4)(c), (5) to (10), (12), and (13) amended and (12.5) added, p. 1905, § 8, effective July 1. L. 2009: (1), (2), (3), (4)(a)(I), (4)(c), (5), (11), (12), and (12.5) amended, (SB 09-113), ch. 88, p. 334, § 23, effective April 2. L. 2010: (12.5)(b) amended, (HB 10-1377), ch. 212, p. 922, § 3, effective May 6. L. 2011: (5), (12.5)(b)(I), and (12.5)(b)(II)(A) amended, (HB 11-1159), ch. 95, p. 280, § 3, effective August 10. L. 2020: (12.5)(b)(I) amended, (SB 20-136), ch. 70, p. 296, § 45, effective September 14.

Editor’s note: (1) This section is similar to former § 35-14-123 as it existed prior to 1983.

(2) Subsection (12.5)(b)(II)(B) provided for the repeal of subsection (12.5)(b)(II), effective July 1, 2012. (See L. 2010, p. 280 .)

(3) This section is repealed, effective September 1, 2028, pursuant to § 35-14-134.

Cross references: For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020.

35-14-128. Laboratory approval - service - condemnation

1. The commissioner may inspect and test any weights, measures, or standards submitted to the metrology laboratory. Weights, measures, and standards may not be approved by the department’s laboratory unless the design and construction of the unit complies with the design and construction requirements prescribed by the national institute of standards and technology or other entity approved by the commissioner. The commissioner may establish approval periods, conditions, and limitations by rule.
2. 1. The laboratory may require that specified weights, measures, or standards submitted for calibration be cleaned or sanded, scraped, and painted before submission. The fee for any metrology service shall be established by the commission. For each fiscal year, commencing on July 1, seventy-five percent of the direct and indirect costs associated with metrology laboratory services, including the regulation of weighing and measuring device sales, installation, and service persons, shall be funded from the general fund. The commission shall establish a fee schedule to cover any direct and indirect costs not funded from the general fund.
   2. Repealed.
3. The laboratory may seize any weight, measure, or standard that it deems not to be susceptible of repair. Within twenty-four hours after such seizure, the laboratory shall cause notice of such seizure to be served personally or by first-class mail upon the owner of such weight, measure, or standard, advising such owner of the seizure and of the laboratory’s intention to destroy such weights, measures, or standards, pursuant to section 35-14-107 (1)(k). Such notice shall also state that the owner of such weights, measures, or standards may, within twenty days after the date of personal service or mailing, request in writing that the commissioner conduct a hearing to determine whether such weights, measures, or standards are not susceptible of repair. If a hearing is requested, it shall be conducted promptly, and the commissioner or the commissioner’s designated agent shall preside over such hearing, and the laboratory shall take no further action pending such hearing. If a hearing is not requested, the seized weights, measures, or standards may be destroyed after the expiration of the twenty-day period.

History. Source: L. 83: Entire article R&RE, p. 1354, § 1, effective July 1. L. 95: (1) amended, p. 899, § 10, effective July 1. L. 2003: (2) amended, p. 1731, § 12, effective May 14. L. 2005: (2) amended, p. 1271, § 11, effective July 1. L. 2007: (2) amended, p. 1907, § 9, effective July 1. L. 2009: Entire section amended, (SB 09-113), ch. 88, p. 336, § 25, effective April 2. L. 2010: (2) amended, (HB 10-1377), ch. 212, p. 922, § 4, effective May 6. L. 2013: (2)(a) amended, (HB 13-1300), ch. 316, p. 1698, § 109, effective August 7.

Editor’s note: Subsection (2)(b)(II) provided for the repeal of subsection (2)(b), effective July 1, 2012. (See L. 2010, p. 280 .)

35-14-129. Moisture-testing devices and grain protein analyzers - specifications

1. Before operating any moisture-testing device or grain protein analyzer for commercial use, the owner of the device or analyzer shall first procure a license for operation of the device or analyzer from the commissioner. An application for the license must be made upon a form furnished by the commissioner. A moisture-testing device or a grain protein analyzer is considered in commercial use if the results of the device or analyzer are a factor in determining:
   1. The price of the commodity tested; or
   2. For a moisture-testing device, the drying or other processing charge based upon moisture content of the commodity.
2. to (6)Repealed.

History. Source: L. 83: Entire article R&RE, p. 1355, § 1, effective July 1. L. 95: (2) to (6) repealed, p. 899, § 11, effective July 1. L. 2009: IP(1) amended, (SB 09-113), ch. 88, p. 337, § 26, effective April 2. L. 2011: (1) amended, (HB 11-1159), ch. 95, p. 280, § 4, effective August 10.

Editor’s note: This section is repealed, effective September 1, 2028, pursuant to § 35-14-134.

35-14-130. Stop sale order

1. The commissioner may issue warning notices to anyone who has not complied with this article and may establish a time period to correct any minor violation.
2. The commissioner may issue a stop sale order directing that any products not meeting the requirements of this article or the rules promulgated by the commissioner be taken off sale.

History. Source: L. 83: Entire article R&RE, p. 1356, § 1, effective July 1. L. 2009: Entire section amended, (SB 09-113), ch. 88, p. 337, § 27, effective April 2.

35-14-131. Civil penalties

1. A person who violates any provision of this article or any rule adopted pursuant to this article is subject to a civil penalty, as determined by the commissioner or a court of competent jurisdiction. The maximum penalty shall not exceed seven hundred fifty dollars per violation; except that such penalty may be doubled if it is determined, after notice and an opportunity for hearing, that the person has violated the provision or rule for the second time. Each day the violation occurs shall constitute a separate violation.
2. No civil penalty may be imposed by the commissioner unless the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
3. If the commissioner is unable to collect such civil penalty or if a person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may bring suit to recover such amount plus costs and attorney fees by action in a court of competent jurisdiction.
4. Before imposing a civil penalty, the commissioner or a court of competent jurisdiction may consider the effect of such penalty on the business.
5. It is a violation for any person to:
   1. Sell, offer, or expose for sale or hire or have in his or her possession for the purpose of selling or hiring an incorrect weight or measure or any device or instrument used or calculated to falsify any weight or measure;
   2. Use, or possess for current use or for hire, in the buying or selling of any commodity or thing, in the computation of any basic charge or payment for services rendered on the basis of weight or measurement, or in the determination of weight or measurement when a charge is made for such determination, any weight or measure that is not approved by the commissioner or the commissioner’s designated agent, unless specific written permission to use such weight or measure has been received from the commissioner;
   3. Dispose of any rejected or condemned weight or measure in a manner contrary to law or rule;
   4. Remove, break, or deface, contrary to law or rule, any tag, seal, or mark placed on any weight or measure pursuant to this article, except in the case of the commissioner or a service person, certified pursuant to section 35-14-123, performing duties provided for in this article or any rule adopted pursuant thereto;
   5. Sell, or offer or expose for sale, less than the quantity such person represents of any commodity, thing, or service;
   6. Take more than the quantity such person represents of any commodity, thing, or service when, as a buyer, such person furnishes the weight or measure by means of which the amount of the commodity, thing, or service is determined;
   7. Keep for the purpose of sale, advertise or offer or expose for sale, or sell any commodity, thing, or service in a condition or manner contrary to the requirements of this article;
   8. Use in retail trade, except in the preparation of packages put up in advance of sale and medical prescriptions, a weight or measure that is so positioned that its indications may not be accurately read and the weighing or measuring operation observed from some position that may reasonably be assumed by a customer; except that this paragraph (h) shall not apply to livestock scales used in any licensed yard selling livestock;
   9. Violate any provision of this article or any rule promulgated under this article for which a specific penalty has not been prescribed;
   10. Act as or represent oneself to be a certified weigher without being certified therefor, or for any certified weigher to: Falsely certify, represent, or record the weight of any load, or part of any load, or of any article whatsoever obtained from a commercial weighing and measuring device not exempted pursuant to section 35-14-126; falsely certify, represent, or record any net or gross weight required by this article to be in said certificate or record; refuse to weigh any article or thing that it is such person’s duty to weigh; or refuse to state in any weight certificate anything required to be therein;
   11. Alter a weight certificate, use or attempt to use any such certificate for any load or part of a load or for articles or things other than for which the certificate is given, or, after weighing and before the delivery of any articles or things so weighed, alter or diminish the quantity thereof;
   12. Hinder or obstruct in any way the commissioner or the commissioner’s authorized agent in the performance of the commissioner’s official duties under this article;
   13. Act as or represent oneself to be a certified weighing or measuring device service provider without being so certified.
6. A civil penalty collected under this section shall be transmitted to the state treasurer, who shall credit it to the inspection and consumer services cash fund created in section 35-1-106.5. Penalties shall be determined by the commissioner or the commissioner’s designee and may be collected by the department by action instituted in a court of competent jurisdiction for collection of such penalty. In determining the amount of any civil penalty to be assessed, the commissioner shall consider any relevant factors. The final decision of the commissioner or the commissioner’s designee shall be subject to judicial review. If such an action is instituted for the collection of such penalty, the court may consider the appropriateness of the amount of the penalty if such issue is raised by the party against whom the penalty was assessed.

History. Source: L. 83: Entire article R&RE, p. 1356, § 1, effective July 1. L. 95: (1), (2)(b), (2)(d), (2)(e), (2)(f), (2)(j), (2)(l), (2)(m), and (3) amended, p. 899, § 12, effective July 1. L. 2003: (3) amended, p. 1731, § 13, effective May 14. L. 2005: (3) amended, p. 1271, § 12, effective July 1. L. 2007: (3) amended, p. 1907, § 10, effective July 1. L. 2009: Entire section amended, (SB 09-113), ch. 88, p. 337, § 28, effective April 2.

Editor’s note: (1) This section is similar to former § 35-14-132 as it existed prior to 1983.

(2) Subsections (5)(d), (5)(j), and (5)(m) are repealed, effective September 1, 2028, pursuant to § 35-14-134.

35-14-132. Criminal penalties

1. Any person who willfully makes, installs, sells or offers to sell, or uses or allows to be used on his or her weights or measures any counterfeit seal, or seal of the commissioner without proper authority, commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
2. The commissioner shall inform the district attorney of the proper district of any criminal violation of this article. It is the duty of each district attorney to whom the commissioner presents satisfactory evidence of any violation of this article to cause appropriate proceedings to be commenced and prosecuted in a court of competent jurisdiction. If the district attorney fails to so act within a reasonable time, the commissioner may notify and be represented by the attorney general.
3. All criminal fines imposed and collected for violations of the provisions of this article shall be paid into the county treasury for the use of the people of the county in which the offense was committed.

History. Source: L. 83: Entire article R&RE, p. 1357, § 1, effective July 1. L. 2002: (1) amended, p. 1548, § 308, effective October 1.

Editor’s note: This section is similar to former § 35-14-132 as it existed prior to 1983.

Cross references: For the legislative declaration contained in the 2002 act amending this section, see section 1 of chapter 318, Session Laws of Colorado 2002.

35-14-133. Enforcement

1. The commissioner or the commissioner’s designee shall enforce this article.
2. Whenever the commissioner has reasonable cause to believe a violation of any provision of this article or any rule promulgated pursuant to this article has occurred and immediate enforcement is deemed necessary, the commissioner may issue a cease-and-desist order, which may require any person to cease violating any provision of this article or any rule promulgated pursuant to this article. Such cease-and-desist order shall set forth the provisions alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all actions cease forthwith. At any time after service of the order to cease and desist, the person may request, at the person’s discretion, a hearing to be held within a reasonable period of time to determine whether such violation has occurred. Such hearing shall be conducted pursuant to article 4 of title 24, C.R.S., and shall be determined promptly.
3. Whenever the commissioner possesses sufficient evidence satisfactory to him or her indicating that a person has engaged in or is about to engage in an act or practice constituting a violation of this article or any rule or order adopted pursuant to this article, the commissioner may apply to a court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article or any rule or order adopted pursuant to this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.

History. Source: L. 83: Entire article R&RE, p. 1358, § 1, effective July 1. L. 2009: Entire section amended, (SB 09-113), ch. 88, p. 340, § 29, effective April 2.

Editor’s note: This section is similar to former § 35-14-134 as it existed prior to 1983.

35-14-134. Repeal of sections - review of functions

Sections 35-14-102 (3), 35-14-121 to 35-14-124.5, 35-14-127, 35-14-129, and 35-14-131 (5)(d), (5)(j), and (5)(m) are repealed, effective September 1, 2028. Before the repeal, the licensing and certification functions of the department are scheduled for review in accordance with section 24-34-104.

History. Source: L. 88: Entire section added, p. 932, § 24, effective April 28. L. 90: Entire section amended, p. 333, § 19, effective April 3. L. 91: Entire section amended, p. 689, § 64, effective April 20. L. 95: Entire section amended, p. 901, § 13, effective July 1. L. 99: Entire section amended, p. 628, § 35, effective August 4. L. 2004: Entire section amended, p. 349, § 17, effective July 1. L. 2009: Entire section amended, (SB 09-113), ch. 88, p. 322, § 1, effective April 2. L. 2018: Entire section amended, (HB 18-1146), ch. 377, p. 2282, § 2, effective June 6.

35-15-101 to 35-15-110. (Repealed)

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: (1) This article was added in 1988. For amendments to this article prior to its repeal in 1996, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

(2) Section 35-15-110 provided for the repeal of this article, effective July 1, 1996. (See L. 94, p. 1555 .)

35-20-101 to 35-20-110. (Repealed)

History. Source: L. 89: Entire article repealed, p. 1395, § 5, effective April 12.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 8 of chapter 7, C.R.S. 1963. For amendments to this article prior to its repeal in 1989, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

35-21-101. Definitions

As used in this part 1, unless the context otherwise requires:

1. “Candling” means examining the interior of an egg by use of transmitted light sufficient to view the interior of the egg.
2. “Commission” means the state agricultural commission.
3. “Commissioner” means the commissioner of agriculture.
4. (Deleted by amendment, L. 2009, (SB 09-127), ch. 63, p. 224, § 7, effective July 1, 2009.)
5. “Consumer” means any person who buys eggs for household consumption and not for resale.
6. “Dealer” means any person who is engaged in selling poultry eggs or other eggs.
7. “Department” means the department of agriculture.
8. “Edible eggs” means eggs which are free from mold, blood ring, blood spot, bloody whites, filth, stuck yolk, black rot, white rot, mixed rot, or any other inedible quality as defined by the United States department of agriculture.
9. (Deleted by amendment, L. 95, p. 699 , § 15, effective May 23, 1995.)
11. (Deleted by amendment, L. 2009, (SB 09-127), ch. 63, p. 224, § 7, effective July 1, 2009.)
12. Repealed.
13. “Manufacturer” means any person engaged in the business of manufacturing or preparing any product intended for sale for human consumption in which eggs in any form or part are used.

    (13.5) “Other eggs” means the eggs with a shell of any avian species, as designated by the commissioner by rule, other than the domesticated chicken.

14. “Person” means a person, partnership, association, or corporation.
15. “Poultry eggs”, “shell eggs”, or “eggs” means shell eggs of the domesticated chicken.
16. “Producer” means any person engaged in producing poultry eggs or other eggs in this state.
17. “Restaurant” means any person engaged in the business of catering or furnishing meals to the public.
19. Repealed.
20. Where applicable, the singular includes the plural; the plural, the singular; and the masculine, the feminine.

History. Source: L. 65: R&RE, p. 213, § 1. C.R.S. 1963: § 7-9-1. L. 73: P. 214, § 1. L. 95: (6), (8), (9), and (12) amended, p. 699, § 15, effective May 23. L. 2009: (1), (4), (6), (10), and (11) amended and (12), (18), and (19) repealed, (SB 09-127), ch. 63, pp. 224, 223, § § 7, 4, effective July 1. L. 2020: IP, (6), and (16) amended and (13.5) added, (HB 20-1211), ch. 159, p. 712, § 3, effective June 29; IP amended, (HB 20-1343), ch. 217, p. 1077, § 3, effective September 14.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 9 of chapter 7, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1965, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1965, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume.

Editor’s note: (1) Subsection IP(1) was amended in HB 20-1211. Those amendments were superseded by the amendment to subsection IP(1) in HB 20-1343.

(2) Section 9 of chapter 159 (HB 20-1211), Session Laws of Colorado 2020, provides that the act changing this section applies to offenses committed on or after June 29, 2020.

35-21-102. Importation, classification, and grades

1. All shell eggs shall be edible eggs, and shall be candled and graded into Colorado consumer grades.
2. The consumer grades and weight classes for shell eggs, and standards for quality of individual shell eggs, shall be based on the United States department of agriculture grades and weight classes for shell eggs and standards for quality of individual shell eggs. The commission may adopt regulations as applicable and necessary to conform to current United States department of agriculture regulations for shell eggs.
3. (Deleted by amendment, L. 2009, (SB 09-127), ch. 63, p. 225, § 8, effective July 1, 2009.)
4. A copy of the United States department of agriculture regulations governing the grading of shell eggs and United States standards, grades, and weight classes for shell eggs shall be kept on file in the office of the commissioner and shall be open to public inspection during normal business hours.

History. Source: L. 65: R&RE, p. 215, § 1. C.R.S. 1963: § 7-9-2. L. 73: P. 214, § 2. L. 2009: (1) and (3) amended, (SB 09-127), ch. 63, p. 225, § 8, effective July 1.

35-21-103. Refrigeration - transportation

1. Repealed.
2. All eggs shall be kept under adequate refrigeration. The refrigeration shall be such that the temperature of the eggs does not exceed the temperature established in rules adopted by the commissioner pursuant to section 35-21-106 (1).
3. Every vehicle used to transport eggs shall be maintained in a sanitary condition and shall be enclosed to protect eggs from extreme heat or cold.
4. to (9)(Deleted by amendment, L. 95, p. 699 , § 16, effective May 23, 1995.)

History. Source: L. 65: R&RE, p. 215, § 1. C.R.S. 1963: § 7-9-3. L. 73: P. 215, § 3. L. 95: Entire section amended, p. 699, § 16, effective May 23. L. 2009: (1) repealed and (2) and (3) amended, (SB 09-127), ch. 63, pp. 225, 226, § § 11, 9, 12, effective July 1.

35-21-104. Licenses - application - fees - rules

1. Every person selling poultry eggs or other eggs within this state shall obtain from the department a dealer’s license for each place where the business is conducted. A license is not transferable. The license expires and may be renewed in accordance with rules promulgated by the commissioner. No reduction of license fee may be made for a fractional part of a year.
2. (Deleted by amendment, L. 95, p. 700 , § 17, effective May 23, 1995.)
3. An application for a license shall state:
   1. The name of the applicant;
   2. If the applicant is a firm, the names of its members;
   3. If the applicant is a corporation, the names of its officers;
   4. The location of the business;
   5. The telephone number of the business;
   6. Any ownership information concerning the application that the commissioner may require; and
   7. Any contact information that the commissioner may require.
4. 1. (Deleted by amendment, L. 2009, (SB 09-127), ch. 63, p. 223, § 5, effective July 1, 2009.)
   2. 1. The license categories shall be established by rule by the commissioner based on the average number of cases of poultry eggs (thirty dozen per case) or other eggs sold per week during the previous twelve months.
      2. The commission may establish a late fee for a license renewed after it has expired.
      3. Fees for each license category shall be as established by the commission.
      4. The applicant for a license shall keep such records as may be necessary to indicate accurately the quantity of poultry eggs or other eggs sold per week during the year and shall allow the commissioner to examine these records in determining the quantity of poultry eggs or other eggs sold. A licensee shall retain the records of quantity sold for two years.
   4. (Deleted by amendment, L. 95, p. 700 , § 17, effective May 23, 1995.)
   5. Repealed.
   6. (Deleted by amendment, L. 95, p. 700 , § 17, effective May 23, 1995.)
   7. (Deleted by amendment, L. 95, p. 700, § 17, effective May 23, 1995.)
   8. (Deleted by amendment, L. 95, p. 700, § 17, effective May 23, 1995.)
   9. (Deleted by amendment, L. 95, p. 700, § 17, effective May 23, 1995.)
   10. For the fiscal year commencing on July 1, 2007, and for each subsequent fiscal year, the agricultural commission shall establish a fee schedule to cover all of the direct and indirect costs of administering and enforcing this part 1.
5. All license fees shall be deposited with the state treasurer and credited to the inspection and consumer services cash fund created in section 35-1-106.5.

History. Source: L. 65: R&RE, pp. 200, 217, § § 16, 1. C.R.S. 1963: § 7-9-4. L. 73: P. 216, § 4. L. 95: Entire section amended, p. 700, § 17, effective May 23. L. 2003: (4)(a), (4)(b), and (5) amended, p. 1731, § 14, effective May 14. L. 2005: (4)(a), (4)(b), and (5) amended, p. 1272, § 13, effective July 1. L. 2007: (4)(a), (4)(b), and (5) amended and (4)(j) added, p. 1907, § 11, effective July 1. L. 2009: (1), (3)(d), (3)(e), (4)(a), and (4)(b) amended, (3)(f) and (3)(g) added, and (4)(e) repealed, (SB 09-127), ch. 63, pp. 223, 226, 225, § § 5, 13, 10, effective July 1. L. 2020: (1), (4)(b)(I), and (4)(b)(IV) amended, (HB 20-1211), ch. 159, p. 712, § 4, effective June 29; (4)(j) amended, (HB 20-1343), ch. 217, p. 1077, § 4, effective September 14.

Editor’s note: (1) This section is repealed, effective September 1, 2031, pursuant to § 35-21-108.

(2) Subsection (4)(j) was originally numbered as (4)(g) in House Bill 07-1198 but has been renumbered on revision for ease of location.

(3) Section 9 of chapter 159 (HB 20-1211), Session Laws of Colorado 2020, provides that the act changing this section applies to offenses committed on or after June 29, 2020.

35-21-105. Exemption - rules

1. 1. Except as provided in subsection (2) of this section, a person who produces and sells only on the premises at which the poultry eggs were produced, at a farmers’ market, or through a community-supported agricultural organization, less than two hundred fifty dozen poultry eggs per month is exempt from this part 1; except that such a producer may apply for a dealer’s license and, if in compliance with this part 1, be issued a dealer’s license.
   2. The commissioner may promulgate rules exempting small producers of other eggs or dealers of other eggs from any provision of this article 21 and setting the conditions for the exemption; except that such a producer may apply for a dealer’s license and, if in compliance with this article 21, be issued a dealer’s license.
2. A person transporting eggs for sale at a farmers’ market or similar venue under subsection (1) of this section shall:
   1. Comply with the transport requirements of section 35-21-103 (3) and any rules, including rules requiring refrigeration, promulgated under this part 1 regarding the safe transport and washing of eggs; and
   2. Affix to the egg package a label containing the address at which the eggs originated and the date on which the eggs were packaged. Any eggs not treated for salmonella must also include the following statement on the package: “Safe Handling Instructions: To prevent illness from bacteria, keep eggs refrigerated, cook eggs until yolks are firm, and cook any foods containing eggs thoroughly. These eggs do not come from a government-approved source.”

History. Source: L. 65: R&RE, p. 220, § 1. C.R.S. 1963: § 7-9-5. L. 2009: Entire section amended, (SB 09-127), ch. 63, p. 224, § 6, effective July 1. L. 2012: Entire section amended, (SB 12-048), ch. 16, p. 44, § 7, effective March 15. L. 2013: (2)(b) amended, (HB 13-1158), ch. 100, p. 319, § 4, effective April 4. L. 2020: (1) amended, (HB 20-1211), ch. 159, p. 712, § 5, effective June 29; (1) and (2)(a) amended, (HB 20-1343), ch. 217, p. 1077, § 5, effective September 14.

Editor’s note: (1) Subsection (1) was amended in HB 20-1211. Those amendments were harmonized in part with and superseded in part by the amendment of subsection (1) in HB 20-1343.

(2) Section 9 of chapter 159 (HB 20-1211), Session Laws of Colorado 2020, provides that the act changing this section applies to offenses committed on or after June 29, 2020.

Cross references: For the legislative declaration in the 2012 act amending this section, see section 1 of chapter 16, Session Laws of Colorado 2012.

35-21-106. Rules - commissioner to enforce - procedure

1. The commissioner may formulate rules concerning licensing, transporting, processing, labeling, sale, storage, inspection, and record keeping for the furtherance and enforcement of this part 1 for both poultry eggs and other eggs. The commissioner shall promulgate the rules in accordance with article 4 of title 24.
2. 1. The commissioner is responsible for enforcing this article. The commissioner or the commissioner’s designee shall have access during regular business hours to business premises, facilities, vehicles, and records pertinent to activities regulated under this article.
   2. If the commissioner determines that this article 21 or the rules promulgated for the enforcement of this article 21 are being violated, the commissioner may cause “stop sale notices” to be placed on all poultry eggs or other eggs being sold or offered for sale in violation of this article 21 or the rules. A person shall not sell or otherwise dispose of poultry eggs or other eggs upon which a “stop sale notice” has been issued until the “stop sale notice” has been cancelled by the commissioner or a duly authorized agent.
3. 1. If an authorized person from the department requests to inspect poultry eggs or other eggs, it is unlawful for a person to refuse to submit for inspection the following or to refuse to stop a vehicle transporting the following:
      1. Poultry eggs;
      2. Other eggs;
      3. Poultry egg products; or
      4. Other egg products.
   2. Any authorized agent of the department may, while enforcing this article 21, seize and hold as evidence any carton or container of poultry eggs or other eggs received, packed, stored, delivered for shipment, loaded, or in transit in violation of this article 21.

History. Source: L. 65: R&RE, p. 220, § 1. C.R.S. 1963: § 7-9-6. L. 95: (1) and (2) amended, p. 703, § 18, effective May 23. L. 2009: (1) and (2)(a) amended, (SB 09-127), ch. 63, p. 226, § § 14, 15, effective July 1. L. 2020: (1), (2)(b), and (3) amended, (HB 20-1211), ch. 159, p. 713, § 6, effective June 29; (1) amended, (HB 20-1343), ch. 217, p. 1077, § 6, effective September 14.

Editor’s note: (1) Subsection (1) was amended in HB 20-1211. Those amendments were harmonized in part with and superseded in part by the amendment of subsection (1) in HB 20-1343.

(2) Section 9 of chapter 159 (HB 20-1211), Session Laws of Colorado 2020, provides that the act changing this section applies to offenses committed on or after June 29, 2020.

Cross references: For rule-making procedures, see article 4 of title 24.

35-21-107. Penalty

1. Any person who violates any of the provisions of this part 1 is guilty of a misdemeanor. It is the duty of the commissioner to notify the district attorney of the judicial district in which a violation occurs, and the district attorney of said district shall conduct such proceedings as may be necessary with the cooperation of the commissioner. Upon conviction in any court of competent jurisdiction, any person in violation of this part 1 shall be punished by a fine of not more than five hundred dollars. Each calendar day on which such a violation occurs shall constitute a separate violation. Fines and penalties imposed under this part 1 shall be collected and remitted as provided by law.
2. After proper hearing as provided in article 4 of title 24, the commissioner may deny an application for licensure, place a licensee on probation, or restrict, suspend, revoke, or refuse to renew the license of a person who violates this part 1 or any rule adopted under this part 1. The restriction, revocation, or suspension of or refusal to renew a license may be in addition to, or in lieu of, any penalties or fines imposed in subsection (1) of this section.

History. Source: L. 65: R&RE, p. 220, § 1. C.R.S. 1963: § 7-9-7. L. 73: P. 217, § 5. L. 95: (2) amended, p. 704, § 19, effective May 23. L. 2020: Entire section amended, (HB 20-1343), ch. 217, p. 1077, § 7, effective September 14.

Editor’s note: Subsection (2) is repealed, effective September 1, 2031, pursuant to § 35-21-108.

35-21-107.5. Civil penalties

1. 1. The commissioner may impose a civil penalty on any person who violates this part 1 or any rule adopted under this part 1. The penalty must not exceed seven hundred fifty dollars per day per violation.
   2. Before imposing a civil penalty, the commissioner may consider the effect of such penalty on the ability of the violator to stay in business.
2. 1. The commissioner shall not impose a civil penalty unless the person charged is given notice and an opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
   2. Upon a finding that the commissioner did not have probable cause to impose a civil penalty, the person charged may recover from the department such person’s costs and attorney fees.
3. If the commissioner is unable to collect a civil penalty or if any person fails to pay all or any portion of a civil penalty imposed pursuant to this section, the commissioner may recover the amount of the penalty, plus costs and attorney fees, by action in a court of competent jurisdiction.
4. The commissioner shall transmit civil penalties collected under this section to the state treasurer, who shall credit the money to the general fund.

History. Source: L. 95: Entire section added, p. 704, § 20, effective May 23. L. 2003: (4) amended, p. 1733, § 15, effective May 14. L. 2005: (4) amended, p. 1274, § 14, effective July 1. L. 2007: (4) amended, p. 1909, § 12, effective July 1. L. 2020: (4) amended, (HB 20-1211), ch. 159, p. 713, § 7, effective June 29; (1)(a) amended, (HB 20-1343), ch. 217, p. 1078, § 8, effective September 14.

Editor’s note: Section 9 of chapter 159 (HB 20-1211), Session Laws of Colorado 2020, provides that the act changing this section applies to offenses committed on or after June 29, 2020.

35-21-108. Repeal of sections - review of functions

Sections 35-21-104 and 35-21-107

(2) and this section are repealed, effective September 1, 2031. Before the repeal, the licensing functions of the department are scheduled for review in accordance with section 24-34-104.

History. Source: L. 88: Entire section added, p. 933, § 26, effective April 28. L. 90: Entire section amended, p. 333, § 20, effective April 3. L. 91: Entire section amended, p. 690, § 65, effective April 20. L. 95: Entire section amended, p. 704, § 21, effective May 23. L. 2004: Entire section amended, p. 349, § 18, effective July 1. L. 2009: Entire section amended, (SB 09-127), ch. 63, p. 223, § 3, effective July 1. L. 2020: Entire section amended, (HB 20-1211), ch. 159, p. 711, § 2, effective June 29.

Editor’s note: Section 9 of chapter 159 (HB 20-1211), Session Laws of Colorado 2020, provides that the act changing this section applies to offenses committed on or after June 29, 2020.

35-21-201. Legislative declaration

In accordance with the general assembly’s authority to protect the health and welfare of consumers, promote food safety, and advance animal welfare, the general assembly finds and declares that the regulation of egg production on farms and of the sale of eggs and egg products will further these goals.

History. Source: L. 2020: Entire part added, (HB 20-1343), ch. 217, p. 1071, § 1, effective September 14.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 9 of chapter 7, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1965, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1965, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume.

35-21-202. Definitions

As used in this part 2, unless the context otherwise requires:

1. “Business owner or operator” means any person who owns or controls the operations of a business.
2. 1. “Cage-free housing system” means an indoor or outdoor controlled environment for egg-laying hens to which all of the following apply:
      1. For an indoor environment, the egg-laying hens are free to roam unrestricted except by the following:
         1. Exterior walls; and
         2. Interior fencing used to contain the entire egg-laying hen flock within the building or subdivide flocks into smaller groups if farm employees can walk through each contained or subdivided area to provide care to egg-laying hens and if each egg-laying hen has the minimum amount of usable floor space described in section 35-21-203 (1)(b)(II);
      2. Egg-laying hens are provided enrichments that allow them to exhibit natural behaviors, including, at a minimum, scratch areas, perches, nest boxes, and dust bathing areas; and
      3. Farm employees can provide care while standing within the egg-laying hens’ usable floor space.
   2. “Cage-free housing system” includes multi-tiered aviaries, partially slatted systems, and single-level all-litter floor systems.
   3. “Cage-free housing system” does not include systems commonly described as battery cages, colony cages, enriched cages, enriched colony cages, modified cages, convertible cages, furnished cages, or similar cage systems.
3. “Commissioner” means the commissioner of agriculture.
4. “Egg-laying hen” means a female domesticated chicken, turkey, duck, goose, or guinea fowl kept for the purpose of commercial egg production.
5. 1. “Egg product” means an egg of an egg-laying hen that is separated from the shell and intended for human food, whether in liquid, solid, dried, or frozen form, whether raw or cooked, and with:
      1. The egg yolk and egg white in their natural proportions; or
      2. The egg yolk and egg white separated, mixed, or mixed and strained.
   2. “Egg product” does not include combination food products, including pancake mixes, cake mixes, cookies, pizzas, cookie dough, or ice cream, that include egg as one of multiple ingredients in the product; except that merely adding sugar, salt, water, seasoning, coloring, flavoring, preservatives, stabilizers, or similar food additives does not make an egg product a combination food product.
6. “Enclosure” means a structure used to confine an egg-laying hen.
7. 1. “Farm” means the land, building, support facilities, and other equipment that are wholly or partially used for the commercial production of animals or animal products used for food.
   2. “Farm” does not include live animal markets or official plants where mandatory inspection is maintained under the federal “Egg Products Inspection Act”, 21 U.S.C. sec. 1031 et seq., as amended.
8. “Farm owner or operator” means a person that owns a farm or controls the operations of a farm.
9. “Multi-tiered aviary” means a cage-free housing system where egg-laying hens have unfettered access to multiple elevated platforms that provide the egg-laying hens with usable floor space both on top of and underneath the platforms.
10. “Partially slatted system” means a cage-free housing system where egg-laying hens have unfettered access to elevated flat platforms under which manure drops through the flooring to a pit or litter removal belt below the platform.
11. “Sale” means a commercial sale by a business that sells any item covered by this part 2. “Sale” does not include any sale undertaken at an official plant where mandatory inspection is maintained under the federal “Egg Products Inspection Act”, 21 U.S.C. sec. 1031 et seq., as amended.
12. “Shell egg” means a whole egg of an egg-laying hen in its shell form, intended for use as human food.
13. “Single-level all-litter floor system” means a cage-free housing system bedded with litter where egg-laying hens have limited or no access to elevated flat platforms.
14. 1. “Usable floor space”:
       1. Means the total square footage of floor space provided to each egg-laying hen, as calculated by dividing the total square footage of floor space provided to egg-laying hens in an enclosure by the number of egg-laying hens in that enclosure; and
       2. Includes both ground space and elevated level or nearly level flat platforms upon which egg-laying hens can roost.
    2. “Usable floor space” does not include perches or ramps.

History. Source: L. 2020: Entire part added, (HB 20-1343), ch. 217, p. 1071, § 1, effective September 14.

35-21-203. Enclosure requirements - repeal

1. 1. 1. On and after January 1, 2023, a farm owner or operator shall not knowingly confine an egg-laying hen in an enclosure with less than one square foot of usable floor space per egg-laying hen.
      2. This subsection (1)(a) is repealed, effective January 1, 2025.
   2. On and after January 1, 2025, a farm owner or operator shall not knowingly confine an egg-laying hen in an enclosure:
      1. That is not a cage-free housing system; or
      2. That has less than:
         1. One square foot of usable floor space per egg-laying hen in a cage-free housing system that provides egg-laying hens with unfettered access to vertical space, such as a multi-tiered aviary or a partially slatted system; or
         2. One and one-half square feet of usable floor space per egg-laying hen in a cage-free housing system that does not provide egg-laying hens with unfettered access to vertical space, such as a single-level all-litter floor system.
2. 1. A business owner or operator shall not knowingly sell or transport for sale in the state a shell egg or egg product that the business owner or operator knows or should know was produced by an egg-laying hen that was confined in a manner that conflicts with the standards required in subsection (1) of this section.
   2. 1. This subsection (2) takes effect January 1, 2023.
      2. This subsection (2)(b) is repealed, effective January 1, 2025.
3. For the purposes of this part 2, a sale is deemed to occur at the location where the buyer takes physical possession of the item.

History. Source: L. 2020: Entire part added, (HB 20-1343), ch. 217, p. 1073, § 1, effective September 14.

35-21-204. Exceptions

1. Section 35-21-203 (1) does not apply during:
   1. Medical research;
   2. Examination, testing, individual treatment, or operation for veterinary purposes, but only if performed by or under the direct supervision of a veterinarian licensed in accordance with article 315 of title 12;
   3. Transportation;
   4. A state or county fair exhibition, a 4-H program, and similar exhibitions;
   5. Slaughter, if done in accordance with an applicable law; or
   6. Temporary periods for animal husbandry purposes for no more than six hours in any twenty-four-hour period and no more than twenty-four hours total in any thirty-day period.
2. This part 2 does not apply to:
   1. The production in the state, sale in the state, or transport for sale in the state of shell eggs by a farm owner or operator with annual shell egg production from three thousand or fewer egg-laying hens if all shell eggs sold in the state or transported for sale in the state by the farm owner or operator are derived from three thousand or fewer egg-laying hens; or
   2. The sale of or transport for sale of shell eggs in the state by a business owner or operator at one or more business locations in the state if all of the following conditions are met:
      1. Each business location owned by or operated by the business owner or operator sells fewer than twenty-five cases of thirty dozen shell eggs per week;
      2. All business locations owned by or operated by the business owner or operator collectively sell fewer than one hundred cases of thirty dozen shell eggs per week; and
      3. The business owner or operator is not a farm owner or operator.

History. Source: L. 2020: Entire part added, (HB 20-1343), ch. 217, p. 1074, § 1, effective September 14.

35-21-205. Defense

It is a defense in a proceeding to enforce this part 2 that a business owner or operator relied in good faith upon a written certification by the supplier that the shell egg or egg product was not derived from an egg-laying hen that was confined in a manner that conflicts with the standards in section 35-21-203 (1).

History. Source: L. 2020: Entire part added, (HB 20-1343), ch. 217, p. 1075, § 1, effective September 14.

35-21-206. Penalty

1. If a farm owner or operator or business owner or operator violates this part 2, the commissioner may impose a civil penalty not to exceed one thousand dollars per violation.
2. If the commissioner is unable to collect a civil penalty or if a farm owner or operator or business owner or operator fails to pay any portion of a civil penalty imposed under this section, the commissioner may recover the amount of the penalty, plus costs and attorney fees, by an action in a court.
3. The commissioner shall not impose a civil penalty unless the person charged is given notice and opportunity for a hearing in accordance with article 4 of title 24.

History. Source: L. 2020: Entire part added, (HB 20-1343), ch. 217, p. 1075, § 1, effective September 14.

35-21-207. Enforcement - rules

1. The commissioner shall enforce this part 2. A farm owner or operator or a business owner or operator shall allow the commissioner or the commissioner’s designee access during regular business hours to the farm or business, vehicles, and records pertinent to activities regulated in this part 2.
2. The commissioner shall promulgate rules governing the enforcement of this part 2, including rules governing the inspection of farms, shell eggs, and egg products, to ensure shell eggs and egg products sold in Colorado are produced in compliance with this part 2.
3. The commissioner may use a government or private inspection or process verification provider to ensure compliance with this part 2. To rely on a government or private inspection or process verification provider, the commissioner must approve the specific inspection or process verification provider as competent to ensure compliance with this part 2 during both production and handling of shell eggs and egg products.

History. Source: L. 2020: Entire part added, (HB 20-1343), ch. 217, p. 1075, § 1, effective September 14.

35-21-208. Certification - repeal

1. 1. To sell shell eggs and egg products, to offer to sell shell eggs or egg products, or to transport shell eggs or egg products for sale within the state:
      1. A farm owner or operator must obtain a certificate that the shell eggs or egg products are produced in compliance with this part 2 from the commissioner;
      2. A business owner or operator must obtain a copy of the certificate issued under subsection (1)(a)(I) of this section from a farm owner or operator that the shell eggs or egg products comply with this part 2. The business owner or operator shall retain the copy and provide the copy to the commissioner upon request.
   2. The commissioner shall certify shell eggs and egg products as compliant with this part 2 if:
      1. The enclosures for the egg-laying hens are inspected in accordance with the rules promulgated under section 35-21-207 (2); or
      2. The commissioner determines the shell eggs and egg products are accompanied with documentation proving the enclosures for the egg-laying hens have undergone government or private inspection and process verification services described in section 35-21-207 (3).
2. The certification issued under this section expires at the end of the calendar year.
3. 1. This section applies to the sale of, an offer to sell, or the transportation of shell eggs and egg products for sale within the state occurring on or after January 1, 2023.
   2. This subsection (3) is repealed, effective January 1, 2025.

History. Source: L. 2020: Entire part added, (HB 20-1343), ch. 217, p. 1076, § 1, effective September 14.

35-21-209. Effects on other animal welfare laws

This part 2 does not limit or replace any other state statute or rule that protects the welfare of animals. This part 2 does not preempt a local governing body from adopting and enforcing its own animal welfare ordinance, rule, resolution, or charter provision that is more stringent than this part 2.

History. Source: L. 2020: Entire part added, (HB 20-1343), ch. 217, p. 1076, § 1, effective September 14.

35-22-101 to 35-22-113. (Repealed)

History. Source: L. 77: Entire article repealed, p. 293, § 11, effective May 26.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 10 of chapter 7, C.R.S. 1963, and was not amended prior to its repeal in 1977. For the text of this article prior to 1977, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

35-23-101. Legislative declaration

The purpose of this article is to provide the means whereby producers, shippers, carriers, buyers, and sellers of fruits, vegetables, and such other agricultural products as may be mutually agreed upon, on application, may secure prompt and efficient inspection and classification of such products. The standardization of the produce industry by means of the proper classification and grading of fruits, vegetables, and other agricultural products is recognized to be beneficial to the producer, carrier, shipper, buyer, seller, and consumer. Prompt and efficient inspection, under competent authority, furnishes the producer and the shipper prima facie evidence of quality and condition of products; it guarantees the carrier and the receiver as to the quality and condition of products carried and received by them; and it assures the ultimate consumer of the quality and condition of products purchased.

History. Source: L. 31: P. 368, § 1. CSA: C. 69, § 60. CRS 53: § 7-6-1. C.R.S. 1963: § 7-5-1. L. 71: P. 155, § 1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Cross references: For the effect of the “Colorado Agricultural Marketing Act of 1939” on this article, see § 35-28-123.

35-23-102. Responsible officer

The inspection in this state of fruits, vegetables, and other agricultural products, and the classification of grades thereof, shall be under the direction and control of the commissioner of agriculture.

History. Source: L. 31: P. 369, § 2. CSA: C. 69, § 61. CRS 53: § 7-6-2. C.R.S. 1963: § 7-5-2. L. 71: P. 155, § 2.

35-23-103. Federal cooperation

The commissioner is empowered to enter into such agreements with the United States department of agriculture as he may determine to be necessary or advisable for the establishment of a joint state and federal inspection service in Colorado for fruits, vegetables, and other agricultural products.

History. Source: L. 31: P. 369, § 3. CSA: C. 69, § 62. CRS 53: § 7-6-3. C.R.S. 1963: § 7-5-3.

35-23-104. Employees of inspection service

Pursuant to section 13 of article XII of the state constitution, the commissioner shall employ and discharge such supervisors, deputies, inspectors, and employees as the needs of the inspection service require. Inspectors shall be experienced in the inspection of fruits, vegetables, and other agricultural products, and in commercial packing practices, and shall hold, at the time of appointment, a federal inspector’s license.

History. Source: L. 31: P. 369, § 4. CSA: C. 69, § 63. L. 45: P. 342, § 1. CRS 53: § 7-6-4. C.R.S. 1963: § 7-5-4. L. 71: P. 155, § 3.

35-23-105. Authority to enter business places

In carrying out the provisions of this article, the commissioner and his deputies, inspectors, and employees are authorized to enter on any business day, during the usual hours of business, any storehouse, warehouse, cold storage plant, packing house, or other building or place where fruits, vegetables, or other agricultural products are kept or stored by any person engaged in the shipping of fruits, vegetables, or other agricultural products, or to stop or inspect at any time any automobile, truck, trailer, or other vehicle transporting or containing any such fruits, vegetables, or other agricultural products.

History. Source: L. 31: P. 370, § 5. CSA: C. 69, § 64. CRS 53: § 7-6-5. C.R.S. 1963: § 7-5-5. L. 71: P. 156, § 4.

35-23-106. Establishment of regulations and grades

The commissioner is empowered to establish and enforce such grades, grading rules, and regulations in addition to those established by this article, in no event less than the minimum requirements prescribed by this article, as he may deem necessary on fruits, vegetables, and other agricultural products, which shall not conflict with any provisions of this article, after a thorough investigation has been made of the needs of the particular fruit, vegetable, or other agricultural product for which grades, grading rules, and regulations are contemplated; but, whenever it is deemed advisable by the commissioner, such grades shall be the same as the grades promulgated by the United States department of agriculture. Such grades, grading rules, and regulations, before they become effective, shall be submitted for approval at one or more public meetings called for that purpose and attended by representative growers and shippers of the localities interested in the industry affected. Such meetings shall be advertised at least once in a newspaper published in such localities, one week or more prior to the meeting. Said meeting shall be presided over by the commissioner or any of his duly authorized deputies and, insofar as possible and practicable, shall be conducted at such places as can be conveniently reached by representatives of the affected industry. Grades, grading rules, and regulations, established in accordance with the provisions of this section, shall not be modified during the current shipping season of the fruit, vegetable, or other agricultural product for which they are established. In like manner the commissioner may provide for standard packages for all fruits, vegetables, and other agricultural products, but no standard packages shall be eliminated or changed without two years’ notice to the industry involved.

History. Source: L. 31: P. 371, § 6. CSA: C. 69, § 65. CRS 53: § 7-6-6. C.R.S. 1963: § 7-5-6. L. 71: P. 156, § 5.

Cross references: For rule-making procedures, see article 4 of title 24.

35-23-107. Appeal to change regulations and grades

On receipt of a written appeal by representative growers or shippers representing at least fifty-one percent of the acreage of the commodity for which grades, grading rules, regulations, or standard packages have been established by the commissioner under the provisions of this section and section 35-23-106, protesting against the grades, grading rules, regulations, or standard packages so established, the commissioner shall call a hearing. Due notice shall be given by the commissioner to all interested parties of the date and place of such hearing, and the grades, grading rules, regulations, or standard packages shall be sustained, modified, or revoked, in the discretion of the commissioner on the basis of the evidence presented. If such grades, grading rules, regulations, or standard packages are not changed or modified by the commissioner, in accordance with the provisions of this section and section 35-23-106, they shall continue to be in full force and effect. Grades, grading rules, regulations, and standard packages, established under the provisions of this section and section 35-23-106, shall be promulgated by the commissioner and published at least once in one or more newspapers or farm journals of general circulation in the state.

History. Source: L. 31: P. 372, § 6. CSA: C. 69, § 66. CRS 53: § 7-6-7. C.R.S. 1963: § 7-5-7.

35-23-108. Power of regulation

The commissioner, with the concurrence of the state agricultural commission, is authorized to promulgate such rules and regulations relative to the proper marking of containers, the issue of certificates of inspection, the tagging of the vehicle of transportation, and such other rules and regulations as he deems necessary for the improvement of the quality of marketing of all fruits, vegetables, or other agricultural products.

History. Source: L. 31: P. 372, § 7. CSA: C. 69, § 67. CRS 53: § 7-6-8. C.R.S. 1963: § 7-5-8. L. 71: P. 157, § 6.

35-23-109. Engaging in trade prohibited

The commissioner and his deputies, inspectors, and employees are each prohibited, during their respective terms of employment or office, from engaging in this state or elsewhere, either directly or indirectly, in the business of buying or selling fruits, vegetables, or other agricultural products or in dealing in the same on commission.

History. Source: L. 31: P. 373, § 8. CSA: C. 69, § 68. CRS 53: § 7-6-9. C.R.S. 1963: § 7-5-9.

35-23-110. Malfeasance of inspectors - penalty

Any inspector employed under this article who knowingly makes a wrong or improper inspection of any fruit, vegetable, or other agricultural product, or knowingly and improperly certifies that the grade, quality, or condition of a fruit, vegetable, or other agricultural product does or does not conform to the standards established under this article, or fails to bring action to prosecute any violators of this article, or accepts money or other consideration directly or indirectly for an incorrect or improper performance of his duty, and any person who improperly influences any such inspector in the performance of his duty, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than three months, or by both such fine and imprisonment.

History. Source: L. 31: P. 373, § 9. CSA: C. 69, § 69. CRS 53: § 7-6-10. L. 63: P. 321, § 4. C.R.S. 1963: § 7-5-10.

35-23-111. Inspection made mandatory

It is unlawful for any person, firm, corporation, or other organization to ship potatoes in excess of one thousand pounds, except those destined for commercial processing, unless they have first been inspected by a duly authorized inspector who shall issue a certificate of inspection showing the grade or other classification thereof.

History. Source: L. 31: P. 374, § 10. CSA: C. 69, § 70. L. 53: P. 312, § 1. CRS 53: § 7-6-11. C.R.S. 1963: § 7-5-11. L. 71: P. 157, § 7. L. 95: Entire section amended, p. 705, § 22, effective May 23.

35-23-112. Appeal of inspection

Any interested party, who is dissatisfied with any classification of grades of any fruits, vegetables, or other agricultural products made as the result of inspection under this article, within such time after the inspection and in such manner as shall be prescribed by the commissioner, may appeal to the commissioner, and the commissioner is directed to promulgate rules and regulations governing the time and manner of such appeal. Upon such appeal to him being regularly taken, the commissioner shall cause such investigation to be made and such tests to be applied as he may deem necessary to determine the true grade or classification in the particular case in question and shall issue a finding determining the true grade or classification in the particular case. Whenever an appeal to the commissioner is taken, he shall fix and assess, and collect or cause to be collected, the established fee for an original inspection for each such appeal, which shall be uniform and which shall be refunded to the person paying the same, if the findings of the commissioner on appeal are to the effect that the grade or classification as determined and certified on the original inspection was erroneous and a new or different grade or classification is determined by the commissioner. Any reinspection certificate issued as the result of an appeal shall supersede the original inspection certificate.

History. Source: L. 31: P. 374, § 11. CSA: C. 69, § 71. CRS 53: § 7-6-12. C.R.S. 1963: § 7-5-12. L. 71: P. 157, § 8.

35-23-113. Issuance of certificate of inspection

A certificate evidencing that official inspection has been made and designating the classification of the grades of fruits, vegetables, or other agricultural products so inspected shall be issued by the inspector and delivered to the applicant. A certificate so issued shall be accepted in any court of this state as prima facie evidence of the true grade or other classification of such fruit, vegetable, or other agricultural product at the time of inspection.

History. Source: L. 31: P. 376, § 14. CSA: C. 69, § 74. CRS 53: § 7-6-15. C.R.S. 1963: § 7-5-15. L. 71: P. 157, § 9.

35-23-114. Inspection fees - agricultural products inspection cash fund

1. The state agricultural commission, after conferring with interested industry groups, is authorized to fix, assess, and collect fees for the inspection and issuance of certificates of inspection on fruits, vegetables, and other agricultural products.
2. 1. Such fees shall be uniform for the particular service rendered. The amount of such fees for services rendered under the provisions of this article shall be determined by the commission as nearly as may be to the end that such fees shall pay at least fifty percent of the operational cost of the inspection service mandated by section 35-23-111 , but appropriations from the general fund shall be fifty percent of the operational cost of such mandatory inspection or two hundred thousand dollars, whichever is the lesser amount, and one hundred percent of the operational costs of all other inspection services provided pursuant to this article. Such fees shall be paid by the person, firm, corporation, or other organization requesting the service at the time such service is rendered or as otherwise provided and authorized by the commission.
   2. (Deleted by amendment, L. 93, p. 353 , § 1, effective April 12, 1993.)
3. 1. Fees for inspections mandated by section 35-23-111 and fees for all other inspection services provided pursuant to this article and collected under the provisions of this section shall be deposited in the state treasury and credited to the agricultural products inspection cash fund, which fund is hereby created. All interest derived from the deposit or investment of moneys credited to the agricultural products inspection cash fund shall also be credited to the fund. All moneys credited to the agricultural products inspection cash fund shall be used as provided in this section and shall not be deposited in or transferred to the general fund of this state or any other fund. All moneys in said fund are to be appropriated by the general assembly to the department of agriculture to be used for inspection services provided pursuant to this article. Moneys in the agricultural products inspection cash fund may be used:
      1. Repealed.
      2. For the department’s direct and indirect costs; except that, effective July 1, 2006, no more than five percent of said moneys shall be used for the department’s indirect costs.
   2. Repealed.
4. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the mandatory fruit and vegetable inspection fund, as that fund existed prior to July 1, 2009, shall be transferred to the agricultural products inspection cash fund.

History. Source: L. 31: P. 378, § 18. CSA: C. 69, § 78. L. 45: P. 342, § 2. L. 51: P. 409, § 1. CRS 53: § 7-6-19. C.R.S. 1963: § 7-5-19. L. 65: P. 197, § 10. L. 71: P. 158, § 10. L. 73: P. 201, § 1. L. 84: (2) and (3) amended, p. 938, § 1, effective April 27. L. 85: (2) and (3) amended, p. 1137, § 1, effective July 1. L. 92: Entire section amended, p. 159, § 2, effective February 25. L. 93: (2) amended, p. 353, § 1, effective April 12. L. 2002: (3) amended, p. 878, § 9, effective August 7. L. 2003: (3) amended, p. 390, § 3, effective March 5; (3) amended, p. 382, § 1, effective March 5. L. 2009: IP(3)(a) amended and (4) added, (HB 09-1249), ch. 87, p. 320, § 17, effective July 1.

Editor’s note: (1) Amendments to subsection (3) by Senate Bill 03-169 and Senate Bill 03-180 were harmonized.

(2) Subsection (3)(b)(II) provided for the repeal of subsection (3)(b), effective July 1, 2003. (See L. 2003, p. 382 .)

(3) Subsection (3)(a)(I)(B) provided for the repeal of subsection (3)(a)(I), effective July 1, 2006. (See L. 2003, p. 390 .)

35-23-115. Information confidential

All information obtained as the result of any inspection made under the provisions of this article shall not be open to inspection by the public; except that the commissioner shall prepare and certify to any financially interested party a copy of the original inspection certificate of any inspection upon the payment to him of his fees therefor. The commissioner is authorized to prescribe rules and regulations governing the issuance of such certificates.

History. Source: L. 31: P. 380, § 20. CSA: C. 69, § 80. CRS 53: § 7-6-20. C.R.S. 1963: § 7-5-20. L. 71: P. 158, § 11.

Cross references: For rule-making procedures, see article 4 of title 24.

35-23-116. Penalty

Any person, firm, corporation, or other organization which violates any of the provisions of this article or willfully interferes with the commissioner or his deputies, inspectors, or employees in the performance or on account of the execution of his duties as provided by this article is guilty of a misdemeanor. Any person convicted under this article shall be punished by the revoking of his license by the commissioner and by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than three months, or by both such fine and imprisonment.

History. Source: L. 31: P. 397, § 41. CSA: C. 69, § 101. CRS 53: § 7-6-41. C.R.S. 1963: § 7-5-41.

35-23.5-101. Short title

This article shall be known and may be cited as the “Controlled Atmosphere Storage of Apples Act”.

History. Source: L. 77: Entire article added, p. 1599, § 1, effective May 24.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-23.5-102. Definitions

As used in this article, unless the context otherwise requires:

1. “Commissioner” means the commissioner of agriculture.
2. “Controlled atmosphere storage” means the storage of apples under conditions which comply with the provisions of this article and the rules and regulations adopted pursuant to the provisions of this article.

History. Source: L. 77: Entire article added, p. 1599, § 1, effective May 24.

35-23.5-103. Voluntary inspection of facility - rules - fee

The commissioner may inspect a controlled atmosphere storage facility upon request by the operator or under conditions set forth in rules adopted by the commissioner pursuant to sections 24-4-103, C.R.S., and 35-23.5-104. The commissioner may fix, assess, and collect fees in amounts that cover actual costs associated with inspection and the issuance of certificates of inspection.

History. Source: L. 77: Entire article added, p. 1599, § 1, effective May 24. L. 95: Entire section amended, p. 705, § 23, effective May 23.

35-23.5-104. Commissioner to develop rules

The commissioner shall develop reasonable rules concerning the voluntary inspection of apples stored pursuant to this article and the controlled atmosphere storage of apples, including, among other factors, the following: Storage facility regulations; record keeping and reports; length of storage time, including the maximum time allowed to reach prescribed atmospheric conditions of temperature, oxygen, and carbon dioxide; quality regulations; and labeling and marketing.

History. Source: L. 77: Entire article added, p. 1600, § 1, effective May 24. L. 95: Entire section amended, p. 705, § 24, effective May 23.

35-23.5-105. Storage in another state

1. When apples have been grown and stored in another state which has laws governing controlled atmosphere storage of apples similar to the provisions in effect in this state, and the apples have been stored in compliance with those provisions, such apples may be represented as having been exposed to controlled atmosphere storage when sold in this state if the state in which they were stored permits apples which are stored in this state and in compliance with the laws of this state to be represented as having been exposed to controlled atmosphere storage when sold in that state.
2. When apples have been grown and stored in another state which does not have laws governing controlled atmosphere storage of apples similar to provisions in effect in this state, but the apples have been stored in facilities and under conditions comparable to that required under this article and the rules adopted pursuant thereto, they may be represented as having been exposed to controlled atmosphere storage when sold in this state.

History. Source: L. 77: Entire article added, p. 1600, § 1, effective May 24.

35-23.5-106. Suspension or revocation. (Repealed)

History. Source: L. 77: Entire article added, p. 1600, § 1, effective May 24.

Editor’s note: Section 35-23.5-108 provided for the repeal of this section, effective July 1, 1995. (See L. 91, p. 690 .)

35-23.5-107. Penalty

1. It is unlawful for any person to:
   1. Operate a facility for the storage of apples that is represented as being a controlled atmosphere storage facility unless it meets the standards set pursuant to rule by the commissioner under the provisions of this article;
   2. Sell, exchange, offer for sale, advertise, label, or otherwise represent that apples have been exposed to controlled atmosphere storage, unless such apples have been stored in a facility that meets the standards set pursuant to rule by the commissioner under provisions of this article.
   3. Repealed.
2. Any person who violates any provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars for each such offense. Each day of violation shall be deemed a separate offense.
3. The commissioner may initiate an action in the proper court for injunctive relief to prevent or restrain any violation of this article or the rules adopted pursuant thereto.

History. Source: L. 77: Entire article added, p. 1600, § 1, effective May 24. L. 95: IP(1), (1)(a), and (1)(b) amended, p. 705, § 25, effective May 23.

Editor’s note: Section 35-23.5-108 provided for the repeal of subsection (1)(c), effective July 1, 1995. (See L. 91, p. 690 .)

35-23.5-108. Repeal - review of functions. (Repealed)

History. Source: L. 88: Entire section added, p. 933, § 27, effective April 28. L. 90: Entire section amended, p. 333, § 21, effective April 3. L. 91: Entire section amended, p. 690, § 66, effective April 20. L. 95: Entire section amended, p. 706, § 26, effective May 23. L. 97: Entire section repealed, p. 1030, § 62, effective August 6.

35-24-101 to 35-24-208. (Repealed)

History. Source: L. 85: Entire article repealed, p. 902, § 4, effective April 5.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 6 of chapter 7, C.R.S. 1963. For amendments to this article prior to its repeal in 1985, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

Cross references: For current provisions concerning dairy products and imitation dairy products, see parts 1 and 2 of article 5.5 of title 25.

35-24.5-101. Short title

This article shall be known and may be cited as the “Colorado Aquaculture Act”.

History. Source: L. 91: Entire article added, p. 189, § 1, effective June 7.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-24.5-102. Legislative declaration

1. The general assembly finds and declares that it is in the interest of the people of the state that the practice of aquaculture be encouraged in order to promote agricultural diversification, augment food supplies, expand employment opportunities, promote economic activity, increase stocks of fish and other aquatic life, protect and better use and manage the land and water resources of the state, and provide other benefits to the state.
2. The general assembly further finds and declares that aquaculture shall be considered an agricultural enterprise as defined in the “Colorado Agricultural Development Authority Act”, article 75 of this title, and, for property tax assessment purposes, shall be classified pursuant to section 39-1-102 (1.6)(b), C.R.S.

History. Source: L. 91: Entire article added, p. 189, § 1, effective June 7.

35-24.5-103. Definitions

As used in this article, unless the context otherwise requires:

1. “Aquaculture” means the controlled propagation, growth, and harvest of, and subsequent commerce in, cultured aquatic stock, including but not limited to fish and other aquatic vertebrates, mollusks, crustaceans, and algae and other aquatic plants, by an aquaculturist.
2. “Aquaculture facility” means any facility, structure, lake, pond, tank, or tanker truck used for the purpose of propagating, selling, brokering, trading, or transporting live fish or viable gametes.
3. “Aquaculturist” means an individual, partnership, or corporation, other than an employee of a state or federal hatchery, involved in producing, transporting, or marketing cultured aquatic stock or products thereof.
4. “Aquatic disease” means any departure from a normal state of health of aquatic organisms caused by disease agents.
5. “Aquatic organism” means an individual member of any species of fish, mollusk, crustacean, aquatic reptile, aquatic amphibian, or aquatic insect or other aquatic invertebrate. “Aquatic organism” includes the viable gametes (eggs or sperm) of an aquatic organism.
6. “Board” means the aquaculture board.
7. “Commercial aquaculturist” means an aquaculturist engaged in the business of growing, selling, brokering, or processing live or viable aquatic organisms for commercial purposes.
8. “Commission” means the state agricultural commission.
9. “Commissioner” means the commissioner of agriculture.
10. “Cultured aquatic stock” means aquatic organisms raised from privately owned stocks and aquatic organisms lawfully acquired and held in private ownership until they become intermingled with wild aquatic organisms; except that “cultured aquatic stock” does not include state-owned fish, crustaceans, amphibians, or mollusks lawfully taken and used or sold for bait only.
11. “Department” means the department of agriculture.
12. “Division” means the division of parks and wildlife in the department of natural resources.

History. Source: L. 91: Entire article added, p. 190, § 1, effective June 7.

35-24.5-104. Aquaculture board

1. There is hereby created and established in the department an aquaculture board, which shall consist of the following:
   1. The five persons who make up the fish health board as established in section 33-5.5-101, C.R.S.; and
   2. Two additional members, to be appointed by the commissioner, who are familiar with the commercial marketing or processing of aquatic organisms and their products or with the financing of commercial aquaculture.
2. The term of office of the two additional members shall be three years. Each of these members shall serve until his or her successor has been appointed and qualified, and either member shall be eligible for reappointment. They shall serve without compensation except for actual and necessary traveling expenses.
3. The board shall annually select a chairman and a vice-chairman, who may be the same as the chairman and vice-chairman of the fish health board.
4. A majority of the board shall constitute a quorum, and, if a quorum is present, in person or by telephone, the board may act upon a vote of a majority of those present.
5. The board shall constitute a “public entity” and each member and employee of the board shall constitute a “public employee” within the meaning of the “Colorado Governmental Immunity Act”, article 10 of title 24, C.R.S.
6. The board shall exercise its powers and perform its duties and functions specified in this article under the department and the executive director thereof as if the same were transferred to the department by atype 2 transfer, as such transfer is defined in the “Administrative Organization Act of 1968”, article 1 of title 24, C.R.S.

History. Source: L. 91: Entire article added, p. 191, § 1, effective June 7.

35-24.5-105. Duties of the board

1. The board shall consider, initiate, and recommend rules, not inconsistent with law, to the commissioner concerning the regulation of the aquaculture industry and its markets, except for rules that regulate, control, or otherwise relate to fish health, to the spread of aquatic disease, or to the importation into the state or the distribution and management of any exotic aquatic species, all of which subjects are within the jurisdiction of the parks and wildlife commission.
2. The board shall develop appropriate programs to assist in the protection, growth, and promotion of the aquaculture industry of the state and shall recommend policies and procedures to the commissioner and the commission for the accomplishment of such a plan.
3. The board shall review any suspensions or revocations of aquaculture facility permits and any orders for the destruction of aquatic organisms or for quarantine of aquaculture facilities which last beyond thirty days, and all such suspensions, revocations, and orders shall be conditioned upon the board’s approval; except that destruction orders may be approved by the commissioner upon a determination that a situation exists which threatens imminent danger to existing aquatic populations or to human health and safety and that no more reasonable means exist to control the situation. Destruction of aquatic organisms or quarantines shall be done in accordance with applicable regulations of the department.
4. The board shall review aquaculture facility permitting procedures and shall make recommendations to the department concerning such procedures and any related fees and charges.

History. Source: L. 91: Entire article added, p. 191, § 1, effective June 7. L. 2012: (1) amended, (HB 12-1317), ch. 248, p. 1236, § 94, effective June 4.

35-24.5-106. Rules

1. To carry out the provisions of this article, the board is authorized to consider and recommend to the commissioner appropriate rules to be promulgated pursuant to section 24-4-103, C.R.S., including but not limited to rules concerning the following:
   1. Fees to fund all direct and indirect costs of the administration and enforcement of this article;
   2. Standards applicable to products of cultured aquatic stock offered for sale; and
   3. The establishment of standards for and certification of private aquaculture facilities, which may include standards for commercial aquaculturists.
2. Nothing in this section diminishes or supersedes the authority of the division or the parks and wildlife commission to regulate or manage wild populations of aquatic organisms in the waters of the state or in facilities controlled or managed by the division or by the United States fish and wildlife service.

History. Source: L. 91: Entire article added, p. 192, § 1, effective June 7. L. 2012: (2) amended, (HB 12-1317), ch. 248, p. 1236, § 95, effective June 4.

35-24.5-107. Powers and duties of the commissioner

1. To carry out the provisions of this article, the commissioner is authorized to adopt appropriate rules pursuant to section 24-4-103, C.R.S., including but not limited to rules concerning the following:
   1. Fees to fund all direct and indirect costs of the administration and enforcement of this article and article 5.5 of title 33, C.R.S.;
   2. Standards applicable to products of cultured aquatic stock offered for sale; and
   3. The establishment of standards for and certification of private aquaculture facilities, which may include standards for commercial aquaculturists.
2. Nothing in this section diminishes or supersedes the authority of the division or the parks and wildlife commission to regulate or manage wild populations of aquatic organisms in the waters of the state or in facilities controlled or managed by the division or by the United States fish and wildlife service.
3. The commissioner shall institute appropriate programs to assist in the protection, growth, and promotion of the aquaculture industry in the state.
4. The commissioner shall provide facilities and support to the board for use in carrying out its duties.
5. The commissioner shall provide for the issuance of permits for aquaculture facilities and shall establish permit fees to offset the costs of regulating the aquaculture industry.
6. The commissioner shall enforce all rules and regulations concerning aquaculture except those which relate to fish health, or to the spread of aquatic diseases, or to the importation into the state or the distribution and management of any exotic aquatic species, all of which rules and regulations shall be enforced by the division.
7. The commissioner may contract for the services of any certified aquatic disease laboratory or certified aquatic disease specialist in this state or in any other state, or with any other government agency, through intergovernmental agreement, contract, or memorandum of understanding to implement and enforce the rules and regulations of the commissioner.
8. The commissioner may quarantine aquaculture facilities subject to the review of the aquaculture board pursuant to section 35-24.5-105 (3).
9. Nothing in this section shall be construed to conflict with or to supersede the authority of the Colorado department of public health and environment to regulate the growing, harvesting, and shipping of molluskan shellfish or any other processed fish or seafood products intended for human consumption.

History. Source: L. 91: Entire article added, p. 193, § 1, effective June 7. L. 94: (9) amended, p. 2804, § 574, effective July 1. L. 2012: (2) amended, (HB 12-1317), ch. 248, p. 1236, § 96, effective June 4.

35-24.5-108. Delegation of duties - cooperative agreements

1. The powers and duties vested in the commissioner by this article may be delegated to qualified employees of the department.
2. After thorough consultation with the board, the department may receive and expend grants-in-aid from any agency of the United States and may cooperate and enter into agreements with any agency of the United States, any agency of any other state, and any agency of this state or its political subdivisions for the purposes of this article.

History. Source: L. 91: Entire article added, p. 194, § 1, effective June 7.

35-24.5-109. Facility permit required

1. On or after January 1, 1992, no person shall operate a fish production facility for the purpose of propagating, selling, trading, or transporting live fish or viable gametes unless such fish production facility possesses a valid and current aquaculture facility permit issued by the commissioner.
2. One or more satellite stations of a fish production facility may operate under one aquaculture facility permit if all such satellite stations are listed on such facility permit.
3. Each person seeking to obtain an aquaculture facility permit shall make application to the commissioner on forms prescribed and furnished by the commissioner.
4. An annual facility permit fee in an amount to be established by the commissioner, not to exceed one hundred eighty dollars, shall accompany the application.
5. No aquaculture facility permit shall be required for persons to obtain and possess live fish for aquaria or private ponds so long as such aquaria or ponds are hydrologically closed systems and are not connected to state waters and so long as live fish which have been held in such aquaria or ponds are not released into state waters.
6. No aquaculture facility permit shall be required of any federal, state, or county agency or of any person possessing a valid scientific collecting permit who is conducting research or educational activities with lawfully acquired fish, nor shall such permit be required of any zoo accredited by the American association of zoological parks and aquariums; except that such persons and entities must adhere to all other division of parks and wildlife regulations including record-keeping and importation requirements.
7. Any person who operates or uses an aquaculture facility, whether as owner, operator, lessee, or pursuant to any contract, or who otherwise buys, sells, trades, or acts as a broker of live fish or viable gametes, shall be subject to all applicable regulations including record-keeping and importation requirements.

History. Source: L. 91: Entire article added, p. 194, § 1, effective June 7.

35-24.5-110. Civil penalties - disciplinary actions

1. 1. Any person that violates any of the provisions of this article or any rule or regulation promulgated by the commission pursuant to this article may be punished upon a finding of such violation by the commissioner as follows:
      1. In any first administrative proceeding, a fine of not less than one hundred dollars nor more than one thousand dollars;
      2. In any subsequent administrative proceeding against the same person, a fine of not less than one thousand dollars nor more than five thousand dollars.
   2. If the commissioner is unable to collect such civil penalty or if any person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may bring suit to recover such amount plus costs and attorney fees by action in any court of competent jurisdiction.
2. In addition to the penalties provided in subsection (1) of this section, the commissioner may withhold, deny, suspend, or revoke the aquaculture facility permit of any aquaculturist if the commissioner finds that such person has committed any of the following:
   1. Fraud or material deception in the obtaining or renewal of a permit;
   2. Failure to comply with any provision of this article or rules promulgated by the commissioner or any lawful order of the commissioner pursuant thereto;
   3. Failure to comply with any provision of section 33-6-114.5 (1) to (6), C.R.S., or with any rule or regulation of the division, or with any statutory provision relating to fish health, the spread of aquatic diseases, or the importation into the state, distribution, or management of any exotic aquatic species;
   4. Contracting with or assisting unlicensed persons to perform services or operate in a manner for which a license is required under this article.
3. Any revocation or suspension of a permit by the commissioner shall be subject to review by the board pursuant to section 35-24.5-105 (3); except that the commissioner may issue an order to cease and desist from doing any act which is determined to present an immediate danger to other aquatic stock pending such review by the board. For the purpose of enforcing any such cease-and-desist order, the commissioner has, in addition to any other powers conferred by statute, the power to exercise such physical control over property and persons as may be necessary to protect the health of such aquatic stock or of the public.
4. Whenever the commissioner possesses sufficient evidence satisfactory to the commissioner indicating that any person has engaged in or is about to engage in any act or practice constituting a violation of any provision of this article or of any rule adopted under this article, the commissioner may apply to any court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article or any rule or order under this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.

History. Source: L. 91: Entire article added, p. 195, § 1, effective June 7.

35-24.5-111. Aquaculture fund created

All fees and penalties collected pursuant to this article shall be transmitted to the state treasurer, who shall credit the same to the aquaculture cash fund, which fund is hereby created. The moneys in the fund shall be subject to annual appropriation by the general assembly to the department for the direct and indirect costs of the administration of this article.

History. Source: L. 91: Entire article added, p. 196, § 1, effective June 7.

35-25-101. Short title

This article shall be known and may be cited as the “Colorado Bee Act”.

History. Source: L. 73: P. 203, § 1. C.R.S. 1963: § 7-7-1. L. 90: Entire section amended, p. 1593, § 1, effective April 3.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-25-102. Definitions

As used in this article, unless the context otherwise requires:

1. “Advisory committee” means that committee appointed by the commissioner pursuant to the provisions of section 35-25-104.

   (1.5) Repealed.

2. “Apiary” or “beeyard” means a hive or hives of bees in close proximity to one another.

   (2.5) Repealed.

3. “Beekeeper” means any person producing or causing to be produced bees or bee products.
4. “Bees” means honey-producing insects of the genus apis, including all life stages.
5. “Beeswax” means the wax produced by the honeybee.
6. Repealed.
7. “Brood” means bees in any stage of development preceding emergence as adults.
8. “Certificate of inspection” means a document issued by the commissioner indicating the health conditions of the colony or apiary.
9. “Colony” means one group of bees established in a place acceptable to said bees for the rearing of young and the storage of honey.
10. “Comb” means any structure acceptable to bees for the storage of honey and pollen and the rearing of brood.
11. “Commissioner” means the commissioner of agriculture.
12. “Contagious disease” means any disease produced by disease agents or parasitic agents to bees or beekeepers which shall be determined by the commissioner as being hazardous to the beekeeping industry in this state.
13. “Entry permit” means a document issued by the commissioner permitting entry of bees, equipment, or appliances into the state of Colorado, accompanied by a health certificate from the originating state indicating the number of colonies and county of destination.
14. “Equipment” means any object that is attached to or made a part of a hive.
15. “Frame” means any device designed to receive single sheets of wax foundation and in which bees are encouraged to draw comb.
16. “Hive” means any structure containing bees and designed to receive movable frames of comb.

    (16.5) to (18) Repealed.

    (19) “Person” means any body politic, individual, partnership, association, corporation, company, joint stock association, or organized group of persons whether incorporated or not and includes any trustee, receiver, or assignee. “Body politic” means any agency of this state or of the federal government or any unit of local government including any county, city, town, school district, local improvement or service district, special district, or other governmental unit having authority under the law to tax or impose assessments, including special assessments.

History. Source: L. 73: P. 203, § 1. C.R.S. 1963: § 7-7-2. L. 75: (17) R&RE and (20) and (21) added, p. 1347, § 1, effective May 31. L. 83: (16.5) added, p. 1359, § 1, effective June 1. L. 85: (16.5) repealed, p. 1140, § 4, effective May 31. L. 90: (1.5), (2.5), (6), (17), and (18) repealed and (12) and (19) amended, pp. 1597, 1593, § § 13, 2, effective April 3.

35-25-102.5. Licensing functions subject to periodic review. (Repealed)

History. Source: L. 79: Entire section added, p. 1612, § 8, effective June 7. L. 88: Entire section amended, p. 933, § 28, effective April 28. L. 90: Entire section repealed, p. 1597, § 13, effective April 3.

35-25-103. Enforcement

1. The commissioner or his authorized agents are authorized and directed to enforce the provisions of this article.
2. 1. If it appears to the commissioner after examination of the facts that a violation of any provision of this article has occurred, he may refer the facts to the district attorney for the county in which the violation occurred.
   2. Nothing in this article shall be construed as requiring the commissioner to report for prosecution minor violations of this article or rules and regulations when the commissioner believes that the public interest will best be served by a suitable notice of warning in writing.
3. Each district attorney to whom any such violation is reported shall cause appropriate proceedings to be instituted in any competent court without delay.
4. The commissioner may, by publication in such manner as he may prescribe, give notice of all judgments entered in actions instituted under the authority of this article.
5. 1. Any person who violates any provision of this article or any regulation made pursuant to this article is subject to a civil penalty, as determined by the commissioner. The maximum penalty shall not exceed one thousand dollars per violation.
   2. No civil penalty may be imposed unless the person being charged has been given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
   3. If the commissioner is unable to collect such civil penalty or if any person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may recover such amount plus costs and attorney fees by action in any court of competent jurisdiction.
   4. Whenever the commissioner is found to have lacked substantial justification to impose a civil penalty, the person charged may recover his costs and attorney fees from the department of agriculture.
   5. Moneys collected from any civil penalties under the provisions of this section shall be paid to the state treasurer, who shall credit the same to the bee inspection fund.
   6. Before imposing any civil penalty, the commissioner may consider the effect of such penalty on the ability of the person charged to stay in business.
6. The commissioner shall have full authority to administer oaths and take statements, to issue subpoenas requiring the attendance of witnesses before him and the production of all books, memoranda, papers, and other documents, articles, or instruments, and to compel the disclosure by such witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of any witness to obey any subpoena, the commissioner may petition the district court, and, upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey such an order of the court shall be punishable as a contempt of court.

History. Source: L. 73: P. 204, § 1. C.R.S. 1963: § 7-7-3. L. 90: (2) amended and (5) and (6) added, p. 1593, § 3, effective April 3.

35-25-104. Advisory committee and districts

1. There is hereby created an advisory committee to be nominated by the beekeeping industry and composed of seven members to be appointed by the commissioner. The members shall meet with and advise the commissioner concerning the needs of the beekeeping industry and shall assist in formulating rules and regulations pertaining to the administration of this article. The members shall be as follows:
   1. A beekeeper from the area of the Colorado river drainage basin, to be known as district 1;
   2. A beekeeper from the area of the Rio Grande river drainage basin and all of Chaffee county, to be known as district 2;
   3. A beekeeper from the area of the Arkansas river drainage basin, except Chaffee county, to be known as district 3;
   4. A beekeeper from the area of the Platte and Republican rivers drainage basin, to be known as district 4;
   5. The president of the Colorado beekeepers association;
   6. The extension entomologist;
   7. One member who is a beekeeper at large.
2. Members of the advisory committee shall receive no compensation.
3. Repealed.

History. Source: L. 73: P. 205, § 1. C.R.S. 1963: § 7-7-4. L. 86: (3) added, p. 425, § 59, effective March 26. L. 90: (1)(g) and (2) amended and (3) repealed, pp. 1594, 1597, § § 4, 13, effective April 3.

35-25-105. Rules and regulations

1. The commissioner is authorized to adopt rules and regulations pursuant to the provisions of article 4 of title 24, C.R.S., for the administration of this article.
2. The powers and duties of the commissioner under this article may be delegated by the commissioner to employees of the department of agriculture designated by him.

History. Source: L. 73: P. 205, § 1. C.R.S. 1963: § 7-7-5. L. 90: Entire section amended, p. 1595, § 5, effective April 3.

35-25-106. Examination of apiaries

1. The commissioner, when he has reason to suspect disease in any apiary, may examine all reported or suspected apiaries. If any contagious disease is present, he may examine all apiaries in the same locality and ascertain whether or not any contagious disease exists in the apiaries. If satisfied of the existence of any such contagious disease, the commissioner may burn, sterilize, or medically treat said apiary in strict compliance with rules and regulations pertaining thereto, or the commissioner may require the beekeeper to burn, sterilize, or medically treat said apiary.
2. If a dispute arises as to the diagnosis of the disease, a sample shall be taken and mailed to the nearest bee disease and investigation laboratory for positive identification. Should the occasion arise, the commissioner may preserve from destruction diseased colonies for experimental purposes.

History. Source: L. 73: P. 205, § 1. C.R.S. 1963: § 7-7-6. L. 90: (1) amended, p. 1595, § 6, effective April 3.

35-25-107. Inspection of beehives for interstate movement

Any beekeeper or person requesting an inspection of beehives for contagious disease for the purpose of interstate movement shall be liable for all costs of such inspection. The beekeeper or his agent shall accompany and assist the inspector in making the inspection.

History. Source: L. 73: P. 205, § 1. C.R.S. 1963: § 7-7-7. L. 81: IP(1) amended, p. 1704, § 2, effective June 5. L. 83: (1) and (4) amended and (1.1) and (1.3) added, p. 1359, § 2, effective June 1. L. 85: (1) R&RE and (1.1) repealed, pp. 1139, 1140, § § 2, 4, effective May 31. L. 90: Entire section R&RE, p. 1595, § 7, effective April 3.

35-25-108. Beehives equipped with movable combs - certificate - permit

1. Beehives shall be equipped with movable combs.
2. Bees on combs and used beekeeping appliances or equipment entering Colorado must be accompanied by a certificate declaring the apiaries from which the bees, appliances, or equipment originated to be free from contagious diseases. This certificate shall be from a duly authorized inspector of the state of origin.
3. Anyone desiring to move bees on combs or used bee equipment into the state of Colorado shall be required to secure an entry permit from the commissioner. Application for this permit shall be accompanied by a timely certificate of inspection, as defined by the commissioner, issued from the state apiary inspection agency of the state of origin, showing freedom from contagious disease, the number of colonies to be moved, and the county to which the owner or operator desires to move. The owner or operator of the bees or equipment shall notify the commissioner upon arrival in the state.

History. Source: L. 73: P. 206, § 1. C.R.S. 1963: § 7-7-8. L. 90: Entire section amended, p. 1595, § 8, effective April 3.

35-25-109. Labeling of adulterated or artificial products - enforcement. (Repealed)

History. Source: L. 73: P. 206, § 1. C.R.S. 1963: § 7-7-9. L. 75: Entire section R&RE, p. 1347, § 2, effective May 31. L. 77: (3) added, p. 1602, § 1, effective July 1. L. 90: Entire section repealed, p. 1597, § 13, effective April 3.

35-25-110. Authority to enter premises

The commissioner is authorized, during reasonable business hours, to enter upon or into any premises, lands, buildings, or places where bees or beekeeping appliances are kept for carrying out the provisions of this article.

History. Source: L. 73: P. 207, § 1. C.R.S. 1963: § 7-7-10.

35-25-111. Penalties

In addition to civil penalties which may be imposed pursuant to section 35-25-103 (5), any person violating any provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars for the first offense and, for any offense thereafter, is guilty of a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

History. Source: L. 73: P. 207, § 1. C.R.S. 1963: § 7-7-11. L. 75: Entire section amended, p. 1348, § 3, effective May 31. L. 90: Entire section amended, p. 1596, § 9, effective April 3. L. 2002: Entire section amended, p. 1548, § 309, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending this section, see section 1 of chapter 318, Session Laws of Colorado 2002.

35-25-112. Injunctive relief

The commissioner may institute an action to enjoin any violation of this article or any rule or regulation promulgated under this article. A violation of this article or any rule or regulation promulgated pursuant thereto is declared to constitute a public nuisance. Such action for injunction may be maintained notwithstanding the existence of other legal remedies and notwithstanding the pendency or successful completion of a criminal prosecution. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.

History. Source: L. 73: P. 207, § 1. C.R.S. 1963: § 7-7-12. L. 90: Entire section amended, p. 1596, § 10, effective April 3.

Cross references: For abatement of a public nuisance, see part 3 of article 13 of title 16.

35-25-113. Agreements

The commissioner may enter into agreements with any municipal, county, federal, or other state agencies and delegate authority to representatives thereof when such agencies or representatives may assist in carrying out the provisions of this article.

History. Source: L. 73: P. 207, § 1. C.R.S. 1963: § 7-7-13.

35-25-114. Exemption. (Repealed)

History. Source: L. 77: Entire section added, p. 1602, § 2, effective July 1. L. 80: Entire section amended, p. 692, § 2, effective April 13. L. 81: Entire section amended, p. 1704, § 3, effective June 5. L. 83: Entire section repealed, p. 1360, § 3, effective June 1.

35-25-115. Alfalfa leaf-cutter bees - importation - possession - enforcement - penalties. (Repealed)

History. Source: L. 80: Entire section amended, p. 691, § 1, effective April 13. L. 81: (6) amended, p. 1706, § 1, effective May 18.

Editor’s note: Subsection (6) provided for the repeal of this section, effective July 1, 1984. (See L. 81, p. 1706 .)

35-25-116. Bee inspection fund - transfer of moneys to plant health, pest control, and environmental protection cash fund

All fees collected pursuant to this article shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the bee inspection fund, as that fund existed prior to July 1, 2009, shall be transferred to the plant health, pest control, and environmental protection cash fund.

History. Source: L. 85: Entire section added, p. 1140, § 3, effective May 31. L. 86: Entire section amended, p. 1221, § 33, effective May 30. L. 90: Entire section amended, p. 1596, § 11, effective April 3. L. 2009: Entire section amended, (HB 09-1249), ch. 87, p. 318, § 11, effective July 1.

35-25-117. Emergency powers

If, at any time, the commissioner determines the existence of any imminent hazard inimical to the beekeeping industry in this state, the commissioner may take appropriate action, including but not limited to: Inspecting any public or private place; establishing and enforcing quarantines; issuing and enforcing orders and rules for the control and eradication of said hazard; and taking such other action as may seem advisable and not contrary to law as the commissioner is empowered with pursuant to this title. The commissioner is hereby authorized to seek reimbursement from the general assembly for any funds expended in the exercise of these emergency powers.

History. Source: L. 90: Entire section added, p. 1596, § 12, effective April 3. L. 2002: Entire section amended, p. 879, § 10, effective August 7.

35-26-101. Short title

This article shall be known and may be cited as the “Colorado Nursery Act”.

History. Source: L. 71: R&RE, p. 143, § 1. C.R.S. 1963: § 6-15-1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 15 of chapter 6, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume.

35-26-101.5. Legislative declaration

1. The general assembly hereby finds and determines that nursery stock can harbor plant pests and diseases and operate as a disease vector. Unregulated production and shipping of nursery stock presents an unacceptable risk to the state’s agricultural, forestry, and horticultural interests and to the state’s general environmental quality.
2. Therefore, the general assembly hereby declares that it is necessary to ensure that nurseries produce healthy plants and that nursery stock shipped to other nurseries, brokers, or out-of-state customers meets the national nursery stock cleanliness standard.

History. Source: L. 2018: Entire section added, (HB 18-1246), ch. 105, p. 790, § 1, effective August 8.

35-26-102. Definitions

As used in this article 26, unless the context otherwise requires:

1. “Advertisement” means the attempt by publication, dissemination, solicitation, or circulation, visual, oral, or written, to induce directly or indirectly any person to enter into any obligation or to acquire any title or interest in any property. (1.5) (Deleted by amendment, L. 91, p. 151 , § 5, effective July 1, 1991.)

   (1.7) “Body politic” means any agency of this state or of the federal government, or any unit of local government, including any county, city, town, school district, local improvement or service district, or special district, or any other governmental unit having authority under the law to tax or impose assessments, including special assessments.

2. “Botanical name” means that name used in the binomial system of nomenclature consisting of the genus and the species of a particular plant and, if there be one, the variety name of the species.

   (2.5) “Broker” means:

   1. When used as a verb, to negotiate the purchase or sale of any plant product on behalf of another person; or
   2. When used as a noun, a person who negotiates the purchase or sale of any plant product on behalf of another person.
3. “Collected nursery stock” means any nursery stock removed from its original native habitat.
4. “Collector” means any person who collects nursery stock for sale purposes.
5. “Commissioner” means the commissioner of agriculture.
6. “Common name” means the name of any plant which is in common and widest use in the state, to designate the kind and variety of a plant.
7. “Dead or dying condition” means a condition in which a plant is without living tissue, or is weakened to a point that it is unlikely to grow with reasonable vigor when given reasonable care.
8. (Deleted by amendment, L. 91, p. 151 , § 5, effective July 1, 1991.)
9. “Department” means the department of agriculture.

   (9.2) “Distribute” means, for any commercial purpose, to:

   1. Sell or give away, offer to sell or give away, display for sale or as a giveaway, or hold either for sale or to give away; or
   2. Ship, hold for shipment, or deliver or release for shipment.

   (9.3) “Effective control” means, when referring to any pest that is not quarantined pursuant to the “Pest Control Act”, article 4 of this title 35, or that is not quarantined pursuant to any comparable federal quarantine law, eliminating or reducing a plant pest, disease, or weed to the point of an acceptable economic or environmental risk.

   (9.5) “Grown within Colorado” means propagated from seed or cuttings or by budding or grafting in Colorado, or grown as a native stand of trees or shrubs or other stock growing on property owned or leased in Colorado by the nursery who intends to collect and sell such stock.

10. “Insect pests” means the small invertebrate animal in the phylum anthropoda comprising the class insecta which generally have segmented bodies, are six-legged, and are usually winged, such as beetles, bugs, bees, and flies, including a similar class of arthropods whose members are wingless and generally have more than six legs, such as spiders, mites, ticks, centipedes, and wood lice which are injurious to nursery stock.
11. “Landscape contractor” means a person who provides nursery stock for compensation or value as part of a site development or landscaping service.

    (11.5) “National nursery stock cleanliness standard” means a standard for nursery stock that requires that:

    1. The nursery stock is free of quarantine pests and pests of concern; and
    2. Any nonquarantine pests are under effective control.

    (11.6) “Noxious weed” means a species of plant that:

    1. Is, or is liable to be, troublesome, aggressive, intrusive, detrimental, or destructive to agriculture, silviculture, or native species;
    2. Is difficult to control or eradicate; and
    3. The commissioner has identified as a prohibited weed by rule adopted in accordance with the “State Administrative Procedure Act”, article 4 of title 24.
12. “Nursery” means any grounds or premises on or in which nursery stock is propagated, held, or grown for sale purposes.
13. “Nurseryman” means any person owning, leasing, or managing a nursery. All persons engaged in the operation of a nursery are farmers and are engaged in agriculture for all statutory purposes.
14. “Nursery stock” means:
    1. Any hardy plant or herbaceous or woody plant that:
       1. Survives Colorado winters; and
       2. Is grown, collected, or kept for propagation, sale, or distribution, including the following:
          1. A deciduous or evergreen tree;
          2. A shrub;
          3. A woody vine;
          4. Turfgrass sod; and
          5. Ornamental grass;
    2. Any nonhardy plant or plant part to be distributed in another state that requires plant inspection and certification before the plant may be transferred into the state; and
    3. If the commissioner determines that regulating the movement of a plant is necessary to control any insect pest or plant disease, any other plant designated as nursery stock by the commissioner by rule.
15. (Deleted by amendment, L. 91, p. 151 , § 5, effective July 1, 1991.)
16. “Orchard plants” means trees, shrubs, and vines which are grown solely for their fruit or other products.
17. “Person” means any firm, partnership, association, corporation, society, individual, or combination of individuals.

    (17.5) “Pest of concern” means a nonquaratine pest that is not known to occur in the state or that has a limited distribution within the state but that has the potential to negatively impact nursery stock health or pose an unacceptable economic or environmental risk were it to be introduced to or proliferate in the state.

18. “Place of business” means each separate nursery, store, stand, sales ground, lot, or any location from which nursery stock is being sold, offered for sale, or distributed.
19. “Plant diseases” means the pathological condition in nursery stock caused by fungi, bacteria, nematodes, viruses mycoplasmas, or parasitic seed plants.

    (19.5) “Sell” means, for any commercial purpose and with respect to nursery stock, to offer, display, possess, exchange, barter, broker, distribute, or trade.

20. “Stop-sale order” means a written order prohibiting the sale of nursery stock.
21. “Turfgrass sod” means a strip or section of one or more grasses or other plants acceptable for lawn plantings which, when severed from its growing site, contains sufficient plant roots to remain intact, and does not contain weeds in excess of the amounts specified by the commissioner.
22. “Weed” means any plant which grows where not wanted.

History. Source: L. 71: R&RE, p. 143, § 1. C.R.S. 1963: § 6-15-2. L. 83: (1), (11), (19), and (21) amended and (1.5), (1.7), and (22) added, p. 1361, § § 1, 2, effective July 1. L. 91: (1), (1.5), (5), (7), (8), (10), (12), (15), and (20) amended, p. 151, § 5, effective July 1. L. 96: (9.5) added, p. 373, § 1, effective April 17. L. 2018: IP and (14) amended and (2.5), (9.2), (9.3), (11.5), (11.6), (17.5), and (19.5) added, (HB 18-1246), ch. 105, p. 790, § 2, effective August 8.

35-26-103. Inspections

1. 1. Except as otherwise provided in this section, premises in this state on which nursery stock is kept for sale or offered for sale and all areas in this state that are sources of collected nursery stock may be inspected by the commissioner or the commissioner’s authorized agents using a risk-based approach. If any person requests an inspection of crops, plant material, or other articles or premises for pests, the commissioner shall provide such inspection and issue a certificate setting forth the facts of said inspection. Inspections may also be made by the commissioner or the commissioner’s authorized agents at any time deemed appropriate by the commissioner based on information known to the commissioner or based on any complaint received by the commissioner alleging failure to comply with any provision of this article or any rule promulgated pursuant to this article.
   2. Repealed.
2. No person shall sell in this state any nursery stock except from sources available for inspection.
3. The commissioner may promulgate rules establishing minimum standards for the qualification of individuals who are authorized to make inspections as agents of the commissioner under this article and who are not employees of the department. The commissioner may charge an annual fee for qualifying such individuals as inspectors pursuant to this subsection (3). Such fee shall be in an amount sufficient to defray the costs of qualifying inspectors pursuant to this subsection (3).
4. On an annual basis, the commissioner shall make public the results of such inspections in order to inform the public as to the major sale sources of nursery stock found not to be of the quality permitted to be sold, and the location where such nursery stock was offered for sale. Publication of such reports shall be as provided for in sections 35-1-107 (3) and 24-1-136, C.R.S.

History. Source: L. 71: R&RE, p. 145, § 1. C.R.S. 1963: § 6-15-3. L. 73: P. 198, § 5. L. 91: Entire section amended, p. 152, § 6, effective July 1. L. 96: Entire section amended, p. 374, § 3, effective April 17. L. 2002: (1)(a) amended, p. 309, § 1, effective April 18. L. 2018: (1)(b) repealed, (HB 18-1246), ch. 105, p. 792, § 3, effective August 8.

35-26-104. Labeling - rules

1. There shall be securely attached to each item of nursery stock when offered for sale or distributed, or to each bundle or lot when sold as a single lot of the same kind, grade, size, and variety, a label showing:
   1. The correct botanical or accepted common name;
   2. The grade or size of the nursery stock; and
   3. Any other information established by the commissioner by rule adopted in accordance with the “State Administrative Procedure Act”, article 4 of title 24.
2. The grade or size shall meet the specifications established by rules or regulations after public hearing and publication by the commissioner.
3. The labeling required in subsection (1) of this section shall not apply to turfgrass sod. Each and every lot of turfgrass sod sold shall be labeled by stating on the sales contract, invoice, or bill of lading such information as required by the commissioner.

History. Source: L. 71: R&RE, p. 145, § 1. C.R.S. 1963: § 6-15-4. L. 83: (3) added, p. 1362, § 3, effective July 1. L. 2018: (1) amended, (HB 18-1246), ch. 105, p. 792, § 4, effective August 8.

35-26-105. Prohibited acts - removal from sale - advisory alerts

1. A person shall not sell, offer for sale, or distribute:
   1. Nursery stock in a dead or dying condition;
   2. Nursery stock infested or infected with insect pests or plant diseases;
   3. Noxious weeds or nursery stock that is infested with noxious weeds; or
   4. Nursery stock in violation of any other provision of this article 26 or any rules promulgated pursuant to this article 26.
2. The commissioner or his authorized agents shall issue a stop-sale order to any person offering nursery stock for sale in violation of any provision of this article or any rules or regulations promulgated pursuant to this article. Any person receiving a stop-sale order shall remove such stock from sale immediately.
3. Failure to comply with any stop-sale order may result in penalties as set forth in section 35-26-109.
4. If the commissioner makes a finding, after notice and opportunity for a hearing, that substandard plant material is being sold by a nursery outside of Colorado to any nursery in this state, the commissioner may ban any products from said nursery from sale or distribution in Colorado and any further shipments of nursery stock from said nursery may be seized and destroyed. Upon such banning, the commissioner shall issue an alert to all persons registered under this article setting forth the commissioner’s finding and advising registrants that the purchase of plant material from such offending nursery constitutes a violation of this article.

History. Source: L. 71: R&RE, p. 145, § 1. C.R.S. 1963: § 6-15-5. L. 83: (1) and (2) amended, p. 1362, § 4, effective July 1. L. 91: (1)(b) amended and (3) and (4) added, p. 153, § 7, effective July 1. L. 2018: (1) amended, (HB 18-1246), ch. 105, p. 793, § 5, effective August 8.

35-26-106. Registration - plant health, pest control, and environmental protection cash fund - fees - rules

1. A person shall not engage in the business of selling nursery stock in this state, nor shall the person advertise with the intent and purpose of selling nursery stock in this state, without having first obtained a registration issued by the commissioner. The registration expires on December 31 of each year. Application for registration must be submitted on a form prescribed by the commissioner. The commissioner shall, by rule, establish a registration fee for each place of business. The fee must not exceed three hundred dollars. Applicants for a registration who were registered at any time during the calendar year immediately preceding the year for which application is made must apply for a registration by March 1 or pay an amount double the registration fee. A registration is not transferable. All registrants shall inform the commissioner in writing of any change of address prior to the change. All registrants shall meet the requirements of this article 26 and the rules promulgated pursuant to this article 26.
2. Collectors shall produce upon demand written evidence of authorization to have collected any and all nursery stock held or offered for sale. Such evidence of authorization shall provide information as required by rule and regulation promulgated pursuant to this article.
3. A charge for the actual cost incurred in making inspections shall be collected to defray the costs of inspections made pursuant to this article. The commissioner shall, by rule or regulation, establish a minimum charge per inspection, and shall determine the actual cost incurred in making inspections and establish the charge therefor.
4. All fees and charges collected pursuant to this article shall be transmitted to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the Colorado nursery fund, as that fund existed prior to July 1, 2009, shall be transferred to the plant health, pest control, and environmental protection cash fund.

History. Source: L. 71: R&RE, p. 145, § 1. C.R.S. 1963: § 6-15-6. L. 73: P. 197, § 1. L. 83: (1) and (2) amended, p. 1362, § 5, effective July 1. L. 87: Entire section amended, p. 1285, § 1, effective July 1. L. 91: (1) to (3) amended, p. 153, § 8, effective July 1. L. 2009: (4) amended, (HB 09-1249), ch. 87, p. 318, § 12, effective July 1. L. 2018: (1) amended, (HB 18-1246), ch. 105, p. 793, § 6, effective August 8.

35-26-107. Advisory committee - sunset review. (Repealed)

History. Source: L. 71: R&RE, p. 146, § 1. C.R.S. 1963: § 6-15-7. L. 73: P. 197, § 2. L. 86: (3) added, p. 425, § 60, effective March 26. L. 91: (1) and (3)(a) amended, p. 154, § § 9, 10, effective July 1.

Editor’s note: Subsection (3)(a) provided for the repeal of this section, effective July 1, 1996. (See L. 91, p. 154 .)

35-26-108. Access to locations and records - administrative subpoena - complaints and investigations

1. 1. At any time during regular business hours, the commissioner shall have free and unimpeded access upon consent or upon issuing or obtaining an administrative search warrant to all buildings, yards, warehouses, and storage facilities owned or operated by a registrant in which any nursery stock is kept, stored, handled, processed, or transported for the purpose of carrying out any provision of this article or any rule made pursuant to this article.
   2. At any time during regular business hours, the commissioner shall have free and unimpeded access upon consent or upon issuing or obtaining an administrative search warrant to all records required to be kept at any reasonable time and may make copies of such records for the purpose of carrying out any provision of this article or any rule made pursuant to this article.
2. The commissioner, upon his own motion or upon the complaint of any person, may make any and all investigations necessary to ensure compliance with this article.

History. Source: L. 71: R&RE, p. 146, § 1. C.R.S. 1963: § 6-15-8. L. 91: Entire section amended, p. 155, § 11, effective July 1.

35-26-109. Penalties

1. Any person who intentionally violates any provision of this article or the rules or regulations promulgated pursuant to this article commits a class 3 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
2. Any person who violates any provision of this article, or any rule or regulations made pursuant to this article is subject to a civil penalty, as determined by the commissioner. The maximum penalty shall not exceed one thousand dollars per violation.
3. No civil penalty may be imposed unless the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
4. If the commissioner is unable to collect such civil penalty or if any person fails to pay all of the civil penalty or a set portion as determined by the commissioner, the commissioner may bring suit to recover such amount plus costs and attorney fees by action in any court of competent jurisdiction.
5. Before imposing any civil penalty under this section, the commissioner may consider the effect of such penalty on the ability of the person charged to stay in business.
6. (Deleted by amendment, L. 91, p. 155 , § 12, effective July 1, 1991.)

History. Source: L. 71: R&RE, p. 146, § 1. C.R.S. 1963: § 6-15-9. L. 73: P. 197, § 3. L. 83: (2), (5), and (6), amended, p. 1363, § 6, effective July 1. L. 91: Entire section amended, p. 155, § 12, effective July 1. L. 2002: (1) amended, p. 1548, § 310, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (1), see section 1 of chapter 318, Session Laws of Colorado 2002.

35-26-110. Out-of-state nurseries

1. The commissioner shall require out-of-state nurseries selling nursery stock in the state of Colorado to deliver to the commissioner a certified copy of the “state of origin” certificate of inspection of the nursery. This requirement may be satisfied by delivering to the commissioner a list of inspected and certified nurseries from the “state of origin” in lieu of individual certificates of inspection from each nursery. Each shipment of nursery stock entering the state of Colorado shall be accompanied by a certificate of inspection which states that the nursery stock has the appearance of freedom from insect pests and plant diseases.

   (1.5) An out-of-state nursery advertising and selling nursery stock in Colorado and having no duly appointed resident agent in this state upon whom process may be served as provided by law shall be deemed to have appointed the secretary of state as the agent of said nursery upon whom service of process may be had in the event of any suit against said nursery. Service on the secretary of state of any such process shall be made by delivering to and leaving with him or with his deputy, an assistant, or a clerk two copies of such process. The secretary of state shall also require a statement which contains the name and address of the nonresident’s home or home office. After receipt of such process the secretary of state shall forward to the defendant a copy of the process by registered mail, return receipt requested. The person so serving the secretary of state shall immediately send or give to the commissioner a notice of such service and a copy of the process. The secretary of state shall collect at the time of any service of process on him as resident agent a fee which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S.

2. (Deleted by amendment, L. 91, p. 156 , § 13, effective July 1, 1991.)

History. Source: L. 73: P. 198, § 4. C.R.S. 1963: § 6-15-10. L. 83: (1) amended and (1.5) added, p. 1363, § 7, effective July 1. L. 85: (1.5) amended, p. 1365, § 36, effective June 28. L. 91: (1) and (2) amended, p. 156, § 13, effective July 1.

35-26-111. Rules and regulations

The commissioner is hereby authorized and directed to promulgate such rules and regulations as he may deem necessary and proper for the furtherance and enforcement of the provisions of this article. Such rules and regulations shall be promulgated in accordance with applicable provisions of article 4 of title 24, C.R.S.

History. Source: L. 73: P. 198, § 4. C.R.S. 1963: § 6-15-11.

35-26-112. Delegation of duties

The powers and duties vested in the commissioner by this article may be delegated to qualified employees of the department.

History. Source: L. 83: Entire section added, p. 1364, § 8, effective July 1. L. 91: Entire section amended, p. 157, § 14, effective July 1.

35-26-113. Bodies politic

1. All growing fields and all other premises in this state on which nursery stock is being grown or held by bodies politic for the purpose of planting on public or private grounds shall be inspected at least once each year by the commissioner or his authorized agents.
2. A body politic shall not plant nursery stock infested with insect pests or infected by plant diseases on public or private grounds.
3. A body politic shall be subject to the inspection fees set forth in section 35-26-106 (3).

History. Source: L. 83: Entire section added, p. 1364, § 8, effective July 1. L. 91: (1) and (3) amended, p. 157, § 15, effective July 1.

35-26-114. Enforcement

1. After an investigation, the commissioner may, through the attorney general, institute and prosecute the proper proceedings for the enforcement of any of the provisions of this article, or for the recovery of any money due the department, or any penalty provided for in this article, and shall defend in like manner all suits, actions, or proceedings brought against the commissioner or the department.
2. The commissioner may deny, suspend, or revoke a registration if the applicant or holder thereof does not engage in the sale of nursery stock.
3. 1. Whenever the commissioner has reasonable cause to believe a violation of any provision of this article or any rule made pursuant to this article has occurred and immediate enforcement is deemed necessary, he may issue a cease-and-desist order, which may require any person to cease violating any provision of this article or any rule made pursuant to this article. Such cease-and-desist order shall set forth the provisions alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all actions be ceased forthwith.
   2. In the event that any person fails to comply with a cease-and-desist order within twenty-four hours, the commissioner may bring a suit for a temporary restraining order and injunctive relief to prevent any further or continued violation of such order.
   3. No stay of a cease-and-desist order shall be issued before a hearing thereon involving both parties.
   4. Matters brought before a court pursuant to this section shall have preference over other matters on the court’s calendar.
4. The commissioner shall have full authority to administer oaths and take statements, to issue administrative subpoenas requiring the attendance of witnesses before him and the production of all books, memoranda, papers, and other documents, articles, or instruments, and to compel the disclosure by such witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of any witness to obey an administrative subpoena, the commissioner may petition the district court, and, upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey such an order of the court shall be punishable as a contempt of court.
5. Whenever it appears to the commissioner, upon sufficient evidence satisfactory to the commissioner, that any person has engaged in or is about to engage in any act or practice constituting a violation of any provision of this article or of any rule or of any order promulgated under this article, he may apply to any court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article or any rule or order promulgated under this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.
6. Complaints of record made to the commissioner and the results of his investigations may, in the discretion of the commissioner, be closed to public inspection, except as provided by court order, during the investigatory period and until dismissed or until notice of hearing and charges are served on a registrant.
7. The commissioner may deny, revoke, or suspend any registration for any of the following:
   1. If the party has violated any provision of this article or any rules promulgated pursuant to this article;
   2. If the party has had a felony conviction related to the conduct regulated by this article;
   3. If there has been fraud or deception in the procurement or attempted procurement of a registration;
   4. If the party has failed to comply with a lawful order of the commissioner;
   5. If the party has knowingly misrepresented information on his application;
   6. If the party has had an equivalent registration or license revoked or suspended by any authority; and
   7. If the party has forged or otherwise falsified a certificate of inspection.

History. Source: L. 83: Entire section added, p. 1364, § 8, effective July 1. L. 91: Entire section amended, p. 157, § 16, effective July 1.

35-26-115. Termination of function - repeal of article. (Deleted by amendment, L. 1996.)

History. Source: L. 88: Entire section added, p. 933, § 29, effective April 28. L. 91: Entire section amended, p. 159, § 17, effective July 1. L. 96: Entire section amended, p. 374, § 3, effective April 17.

35-27-101. Short title

This article shall be known and may be cited as the “Colorado Seed Act”.

History. Source: L. 93: Entire article R&RE, p. 1000, § 1, effective July 1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

Editor’s note: This article was numbered as article 8 of chapter 6, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1993, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1993, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor’s notes following those sections that were relocated.

35-27-102. Legislative declaration

The general assembly hereby finds and declares that truth in the labeling of seed is of paramount importance to the citizens of Colorado because the distribution and subsequent use of poor quality seed caused by inaccurate or misleading labeling of such seed can result in severe economic hardship due to low crop yields, poor crop quality, and the spread of noxious weed seed. It is the intent of the general assembly in enacting this article to prevent the distribution and use of poor quality seed through the regulation of the labeling, the labelers, and the sellers of seed for propagation in Colorado.

History. Source: L. 93: Entire article R&RE, p. 1000, § 1, effective July 1.

35-27-103. Definitions

As used in this article, unless the context otherwise requires:

1. “Advertisement” means all representations commercial and otherwise, other than labeling, disseminated in any manner or by any means by the seller of seed as such representations relate to such seed.
2. “Bean” means all species of genus phaseolus, vigna, and cicer.
3. “Certified seed” means seed certified by a seed certifying agency pursuant to this article and includes foundation and registered seed.
4. “Certifying agency” means the seed certification service of the Colorado state university authorized by the board of governors of the Colorado state university system or the authorized seed certifying agency of another state.
5. “Commissioner” means the commissioner of agriculture.
6. “Conditioning” means drying, cleaning, scarifying, sizing, or any other operation which could change the purity or germination of seed.
7. “Custom seed conditioner” means any person in Colorado who engages in the business of conditioning seed by either a stationary or portable seed cleaner, if ownership of such seed is retained by the customer.
8. “Department” means the department of agriculture.
9. “Disease of beans” means a bacterial, viral, or fungal disease of beans. The term includes any of the following diseases and any variations or new strains of the following diseases which are recognized as pathogenic or a potential threat to seed bean production:
   1. Anthracnose (collectotrichum lindemuthianum);
   2. Bean bacterial wilt (corynebacterium flaccumfaciens ssp. flaccumfaciens);
   3. Strains of brown spot (pseudomonas syringae pv. syringae);
   4. Common bean blight (xanthomonas campestris pv. phaseoli);
   5. Halo blight (pseudomonas syringae pv. phaseolicola); and
   6. BCMV (bean common mosaic virus).

   (9.5) “Dormant seeds” means viable seeds, other than hard seeds, that fail to germinate when provided the specific germination conditions for the kind of seed in question.

10. “Farmer seed labeler” means any person who labels only seed produced for sale on property owned or rented by such person or such person’s employer in Colorado.
11. “Germination” means the emergence and development from the seed embryo of those essential structures that, for the kind of seed in question, are indicative of the ability to produce a normal plant under favorable conditions.

    (11.5) “Hard seeds” means seeds that remain hard at the end of the prescribed test period because they have not absorbed water due to an impermeable seed coat.

12. “Inert matter” means matter which is not seed, including broken seed, sterile florets, chaff, fungus bodies, and stones, as defined by the commissioner.
13. “Kind” means one or more related species or subspecies which singly or collectively are known by one common name, including corn, oats, alfalfa, timothy, and western wheatgrass.
14. “Labeling” means all labels, tags, and other written, printed, or graphic representations, in any form, accompanying and pertaining to specific seed whether in bulk or in containers and includes invoices; except that labeling does not include advertisements as defined in this section.
15. “Lot” means a definite quantity of seed identified by a lot number or other mark. Every portion or bag of any such lot shall be uniform within recognized tolerances for the factors which appear in the labeling of such lot.
16. “Noxious weed seed” means the seed produced from plants which are especially troublesome and detrimental and which may cause damage or loss to a considerable portion of the land or livestock of a community. Noxious weed seed are divided into two classes: “prohibited noxious weed seed” and “restricted noxious weed seed” and are defined as follows:
    1. “Prohibited noxious weed seed” means the seed of perennial, biennial, and annual weeds which are highly detrimental and especially difficult to control. The presence of prohibited noxious weed seed in seed precludes the sale of seed for propagation. Prohibited noxious weed seed includes the seed of any weed so designated by the commissioner.
    2. “Restricted noxious weed seed” means the seed of weeds which are very objectionable in fields, lawns, and gardens but which can be controlled by good cultural practices. Restricted noxious weed seed includes the seed of any weed so designated by the commissioner.
17. “Origin” means the state or foreign country in which seed is grown.
18. “Person” means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity.
19. “Pesticide” means a substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, substance, or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; except that the term “pesticide” shall not include any substance that is a “new animal drug” as designated by the United States food and drug administration.
20. “Record” means any information which relates to the origin, treatment, germination, purity, kind, and variety of each lot of seed sold in this state. Such information includes seed samples and documents showing declarations, labels, purchases, sales, conditioning, bulking, treatment, handling, storage, analyses, tests, and examinations.
21. “Retail seed dealer” means any person who engages in the business of selling seed at retail in Colorado.
22. “Screenings” means chaff, sterile florets, immature seed, weed seed, inert matter, and any other materials removed in any way from any seed in any kind of cleaning procedure.
23. “Seed” means agricultural, vegetable, ornamental, shrub, or tree seed for propagation. The term “seed” does not include tubers that are planted or used, or intended to be planted or used, as seed potatoes and are thus regulated under the “Colorado Seed Potato Act”, article 27.3 of this title.
24. “Seed labeler” means a person who engages in the business of labeling seed for sale in Colorado and whose name and address appears on the label of such seed.
25. “Tolerance” means:
    1. For “seed”, the allowable deviation, as prescribed in the rules and regulations adopted pursuant to this article, from any figure used on a label including but not limited to those figures used to designate the percentage of any fraction of the lot in question, the percentage germination, or the number of noxious weed seeds present;
    2. For “bean”, in addition to the requirements of paragraph (a) of this subsection (25), the deviation from minimum levels of seed-borne pathogens and the diseases of beans allowed by the commissioner.
26. “Treated” means that the seed has received an application of a substance or that it has been subjected to a procedure for which a claim is made.
27. 1. “Variety” (cultivar) means a division of a kind which is distinct, stable, and uniform.
    2. For purposes of this subsection (27):
       1. “Distinct” means that the variety can be differentiated by one or more identifiable morphological, physiological, or other characteristics from all other varieties publicly known.
       2. “Stable” means that the variety will remain unchanged in its essential and distinctive characteristics and its uniformity when reproduced or reconstituted as required by the different categories of varieties.
       3. “Uniform” means that variations in essential and distinctive characteristics are describable.
28. “Weed seed” means the seed of plants detrimental to agriculture and generally recognized as weeds within this state and includes noxious weed seed.

History. Source: L. 93: Entire article R&RE, p. 1000, § 1, effective July 1. L. 99: (10) amended, p. 188, § 3, effective March 31. L. 2002: (4) amended, p. 1248, § 24, effective August 7. L. 2007: (9.5) and (11.5) added and (11) amended, p. 642, § 1, effective April 26. L. 2010: (23) amended, (SB 10-072), ch. 384, p. 1792, § 3, effective July 1.

Editor’s note: This section is similar to former §§ 35-27-101 and 35-27-102 as they existed prior to 1993.

Cross references: For exceptions to labeling requirements, see §§ 35-27-105 and 35-27-108.

35-27-104. Scope of article

1. This article does not apply to:
   1. Seed not intended for propagation; except that screenings are subject to the requirements of section 35-27-113 (1)(e);
   2. Seed in storage in or consigned to a seed conditioning establishment for conditioning or for sale outside the state; except that:
      1. Disclosure of information concerning the holding, sale, and transportation of such seed shall be provided:
         1. On the labels attached to such seed; or
         2. Upon request; and
      2. All labeling and advertisements made regarding such seed are subject to this article;
   3. Seed sold or consigned to a merchant, if such seed is to be recleaned before it is sold for propagation; except that the seller or consignor of such seed shall be responsible for any advertisements made concerning such seed in the course of the sale of such seed;
   4. Seed of a variety not protected by the federal “Plant Variety Protection Act”, 7 U.S.C. secs. 2321 to 2582, as amended, sold on a grower’s premises and delivered to a purchaser, if such seed is: Grown on such grower’s premises, not delivered by common carrier or by mail, and not commercially advertised in any way; except that such seed shall be subject to the noxious weed provisions of section 35-27-113 (2), and the grower of such seed shall be responsible for any advertisements made concerning such seed in the course of the sale of such seed;
   5. Seed brought into the state by the Colorado agricultural experiment station for experimental purposes or for storage in the USDA-ARS national center for genetic resources preservation;
   6. Any person who produces seed for such person’s own use on property owned or rented by such person or such person’s employer;
   7. Seed held for wholesale transactions; except that such seed shall be subject to the labeling requirements of section 35-27-105;
   8. Seed potatoes as defined in section 35-27.3-103.
2. Any person who acts as a custom seed conditioner, farmer seed labeler, retail seed dealer, or seed labeler in this state shall be subject to this article.

History. Source: L. 93: Entire article R&RE, p. 1004, § 1, effective July 1. L. 99: (1)(d) amended, p. 189, § 4, effective March 31. L. 2007: (1)(e) amended, p. 642, § 2, effective April 26. L. 2010: IP(1) amended and (1)(h) added, (SB 10-072), ch. 384, p. 1793, § 4, effective July 1.

Cross references: For the “Federal Seed Act”, see 7 U.S.C. § 1551 et seq.

35-27-105. Label requirements

1. 1. Except as otherwise provided in this article, every container of seed which is sold, offered or exposed for sale, bartered, or distributed within this state for propagation shall conspicuously bear a legible and plainly written or printed label or tag in English which shall provide all information required by the commissioner. A label shall not bear false or misleading information.
   2. For purposes of this subsection (1), a lot of seed sold at wholesale or at bulk shall be categorized as a sale in a single container.
2. All labels made pursuant to this section shall include arbitration information required pursuant to section 35-27-123.

History. Source: L. 93: Entire article R&RE, p. 1005, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-27-103 as it existed prior to 1993.

35-27-106. Tolerances

1. Tolerances shall be recognized between:
   1. The percentages or rates of occurrence found by analysis, test, or examination; and
   2. The percentages or rates of occurrence prescribed by the commissioner.
2. In prescribing tolerances the commissioner shall use as guides:
   1. The tolerances defined in the “Federal Seed Act”, 7 U.S.C. secs. 1551 to 1610, as amended; and
   2. Rules for testing seed adopted by the association of official seed analysts.

History. Source: L. 93: Entire article R&RE, p. 1005, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-27-104 as it existed prior to 1993.

35-27-107. Sales from bulk lots

1. If seed is sold, offered or exposed for sale, bartered, or distributed in or from a bulk lot, a label required pursuant to section 35-27-105 shall be furnished to each purchaser of such seed; except that such label shall not be required to be furnished for sales otherwise exempted.
2. No label required pursuant to subsection (1) of this section shall be required for bulk lot seed if such seed is:
   1. Sold, offered or exposed for sale, bartered, or distributed in a lot of less than five pounds directly to a consumer; and
   2. Taken from a container in such consumer’s presence.

History. Source: L. 93: Entire article R&RE, p. 1005, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-27-105 as it existed prior to 1993.

35-27-108. Seed shipped into state

1. No seed shall be brought into the state unless such seed:
   1. Has been tested and has passed all such required tests as required by the commissioner pursuant to rule and regulation; and
   2. Is in a container which meets the labeling requirements of section 35-27-105; and
   3. Meets all other requirements of this article.
2. Tests required pursuant to paragraph
   1. of subsection (1) of this section shall be developed by the commissioner through rule and regulation.

History. Source: L. 93: Entire article R&RE, p. 1006, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-27-106 as it existed prior to 1993.

35-27-109. Seed beans - approval

1. 1. For seed beans, the commissioner shall establish tolerances of seed-borne pathogens, inspection procedures and standards, and approval procedures for those seed beans which are found to be within allowable tolerances.
   2. The commissioner may designate those areas of the state in which the provisions of this section shall apply.
2. 1. The commissioner shall establish reasonable fees for inspections performed pursuant to this section.
   2. Fees established pursuant to this subsection (2) shall be:
      1. Sufficient to offset the actual direct and indirect costs incurred by the commissioner in administering the provisions of this section; and
      2. Paid by the person selling, bartering, or distributing seed beans.
3. The commissioner may, by contractual agreement, retain qualified persons to act as agents of the commissioner for the performance of inspections pursuant to subsection (1) of this section.

History. Source: L. 93: Entire article R&RE, p. 1006, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-27-104 as it existed prior to 1993.

35-27-110. Seed records and samples

Each person whose name appears on a label on a seed container as a handler of the seed in such container shall keep complete records as prescribed by the commissioner concerning the origin, sale, shipping, and disposition of such seed and shall keep or arrange to have kept a file sample of such seed for a period of at least two years after final disposition of such seed. All such records and samples shall be accessible for inspection by the commissioner or the commissioner’s agent during customary business hours. Records required pursuant to this section shall be in addition to any record kept pursuant to section 35-27-112.

History. Source: L. 93: Entire article R&RE, p. 1006, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-27-112 as it existed prior to 1993.

35-27-111. Registration of custom seed conditioners, farmer seed labelers, retail seed dealers, and seed labelers - form - fees - renewal - rules

1. After January 1, 1994, no person shall act as a custom seed conditioner, farmer seed labeler, retail seed dealer, or seed labeler in this state, except as provided in this article, if such person is not registered with the department.
2. 1. A person may register as a custom seed conditioner, farmer seed labeler, retail seed dealer, or seed labeler by submitting information on the form and with the registration fee prescribed by the commissioner.
   2. 1. Each registration completed pursuant to this section is effective for up to one year, subject to a renewal schedule established by the commissioner by rule.
      2. (Deleted by amendment, L. 2020.)
   3. A registrant shall report any change in the information provided in such registrant’s registration form or in any report submitted to the department pursuant to this article within fifteen days of such change in the manner prescribed by the commissioner.
3. The following persons shall be exempt from the provisions of subsections (1) and (2) of this section:
   1. Any person registered as a custom seed conditioner, farmer seed labeler, or seed labeler shall not be required to register as a retail seed dealer to sell seed at retail in Colorado;
   2. Any person registered as a seed labeler shall not be required to register as a custom seed conditioner in Colorado;
   3. Any person registered as a farmer seed labeler shall not be required to register as a custom seed conditioner if such person is only cleaning or conditioning such person’s own seed; and
   4. Any person acting as a retail seed dealer selling only prepackaged seed in containers of one pound or less shall not be required to register as a retail seed dealer if the seed labeler supplying such prepackaged seed is properly registered.
4. 1. Subject to modification by rule pursuant to subsection (4)(b) of this section, the registration fee for each registrant is as follows:
      1. For custom seed conditioners and seed labelers, five hundred nineteen dollars;
      2. For farmer seed labelers and retail seed dealers, one hundred thirty dollars; and
      3. For retail seed dealers for each separate location, forty-three dollars.
   2. The commissioner may adjust registration fees by rule; except that registration fees for:
      1. Custom seed conditioners and seed labelers must not exceed seven hundred dollars; and
      2. Farmer seed labelers and retail seed dealers must not exceed two hundred dollars.
   3. The commissioner shall, by rule, establish fees for each additional separate registration location according to the class of registrant; except that the fee for:
      1. Custom seed conditioners and seed labelers must not exceed two hundred dollars for each additional separate location; and
      2. Farmer seed labelers and retail seed dealers must not exceed two hundred dollars for each additional separate location.
5. 1. Any person registered pursuant to this article may renew such person’s registration within one year of its expiration. No registration shall be renewed if it is not renewed within one year of expiration.
   2. A registration may be renewed by a registrant by submitting a completed registration renewal form and the requisite renewal fee before such registrant’s current registration expires. Such renewal forms and fees shall be prescribed by the commissioner.
   3. If a registrant does not complete the renewal process in compliance with paragraph (b) of this subsection (5), such registrant shall be required to pay a fee of an amount double the prescribed renewal fee.
   4. No renewal shall be effective until the requisite fee is received by the department.

History. Source: L. 93: Entire article R&RE, p. 1007, § 1, effective July 1. L. 99: (2)(b) amended, p. 189, § 5, effective March 31. L. 2020: (2)(b) and (4) amended, (HB 20-1184), ch. 145, p. 629, § 3, effective June 29.

35-27-112. Record-keeping requirements

Every person acting as a custom seed conditioner, farmer seed labeler, retail seed dealer, or seed labeler in this state registered pursuant to this article shall keep and maintain certain records. Records shall be maintained as specified by the commissioner for a period of two years at the registrant’s address. Records required pursuant to this section shall be in addition to any record kept pursuant to section 35-27-110.

History. Source: L. 93: Entire article R&RE, p. 1008, § 1, effective July 1.

35-27-113. Prohibitions

1. It is unlawful and a violation of this article for any person to sell, offer or expose for sale, barter, or distribute any seed within this state, if such seed:
   1. Has not been tested to determine the percentage of germination of such seed within the previous thirteen months, except for certain cool season grasses as determined by the commissioner by rule, if such seed has not been tested within the previous sixteen months, and except that, for seed stored in hermetically sealed containers, if such seed has not been tested within the previous twenty-four months. For labeling purposes, a tetrazolium test may not be used in place of a germination test except as specifically authorized by the commissioner by rule.
   2. Has been treated with a material which is poisonous to humans or livestock unless there is a conspicuous warning in the labeling which gives the commonly accepted or abbreviated chemical name of the poisonous substance;
   3. Is not labeled in accordance with this article;
   4. Is or has been the subject of false or misleading advertisements or statements by the person, or such person’s agent, who is selling, exposing or offering for sale, bartering, or distributing such seed;
   5. Is sold in the form of screenings, but is not labeled and invoiced as “screenings for processing, not for seeding”;
   6. Is officially labeled or advertised as certified or registered, and if such seed has not been produced, conditioned, and packaged in conformity with the standards of purity as to kind and variety in compliance with the rules and regulations of the certifying agency. For purposes of this paragraph (f), labeling or advertising guarantees that seed is certified if such labeling or advertising uses the word “certified”, “foundation”, or “registered” in any manner.
   7. 1. Is sold by a variety name but is not certified by an official seed certifying agency if such seed is of a variety for which a certificate or application for certificate of plant variety protection under the federal “Plant Variety Protection Act”, 7 U.S.C. secs. 2321 to 2582, as amended, requires sale only as a class of certified seed.
      2. Notwithstanding subparagraph (I) of this paragraph (g), seed from a certified lot may be labeled as to variety name when used in a mixture by, or with the approval of, the owner of the variety.
   8. Is sold by a variety name when such seed is of a variety for which a certificate or application for certificate of plant variety protection under the federal “Plant Variety Protection Act”, 7 U.S.C. secs. 2321 to 2582, as amended, has been granted or for which an application for a certificate of plant variety protection has been sought.
2. 1. It is a civil violation of this article for any person to sell, offer or expose for sale, barter, or distribute any seed within this state if such seed contains:
      1. More than two percent of weed seed by weight or such other standard established by the commissioner;
      2. Prohibited noxious weed seed; or
      3. 1. More restricted noxious weed seed per pound than the amount declared on the label attached to the container of such seed, if the amount declared meets the standards established by the commissioner; or
         2. More restricted noxious weed seed per pound than the amount allowed by the standards established by the commissioner.
   2. Any person who violates paragraph (a) of this subsection (2) shall be subject to a civil penalty pursuant to section 35-27-118.
3. It is unlawful and a violation of this article for any person within this state to:
   1. Detach, alter, deface, or destroy any label or tag completed pursuant to section 35-27-105, if such person is not the ultimate consumer;
   2. Alter or substitute seed or other material in a manner that may defeat the purposes of this article;
   3. Disseminate any false or misleading advertisement concerning a specific lot of seed in any manner or by any means;
   4. Intentionally hinder or obstruct in any way any authorized person in the performance of such person’s official duties as such duties pertain to this article;
   5. Perform, or hold oneself out as being authorized to perform, any of the acts for which registration is required without registering pursuant to section 35-27-111;
   6. Solicit, advertise, or offer to perform any of the acts for which registration is required without being registered;
   7. Refuse or fail to comply with a cease-and-desist order issued pursuant to section 35-27-116;
   8. Refuse or fail to comply with the provisions of this article;
   9. Make false, misleading, deceptive, or fraudulent advertisements concerning a specific lot of seed;
   10. Impersonate any state, county, city and county, or municipal official or inspector authorized pursuant to this article;
   11. Refuse or fail to comply with any rules or regulations adopted by the commissioner pursuant to this article or to any lawful order issued by the commissioner.
4. It is unlawful and a violation of this article for any person to sell, offer or expose for sale, barter, or distribute, for other than propagation purposes, within the state, any seed that has been treated unless it is sold separately from untreated seed or grain and is accompanied by an affidavit, certificate, label, or tag stating that the seed has been chemically treated and cannot be used for food, feed, or oil purposes.
5. It is unlawful and a violation of this article for any person acting as a custom seed conditioner, farmer seed labeler, retail seed dealer, or seed labeler to:
   1. Make false or misleading representations or statements of fact in any application, record, or report submitted to the department pursuant to this article;
   2. Fail to maintain or submit any records or reports required by this article;
   3. Permit the use of a registration by any person other than the registrant.
6. A person commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S., when such person:
   1. Sells, offers or exposes for sale, barters, or distributes within the state:
      1. Any seed beans which have not been approved in accordance with section 35-27-109;
      2. Any seed subject to the provisions of this article if such person fails to comply with or violates the provisions of this article;
   2. 1. Removes or disposes of any detained or embargoed seed without prior permission from the commissioner or a court of competent jurisdiction or removes or alters any labeling on such seed.
      2. Any person violating this paragraph (b) may be subject to civil penalties assessed in accordance with section 35-27-118.
7. The failure by any person to comply with the provisions of subsection (3)(e), (3)(f), or (3)(i) of this section is a deceptive trade practice and is subject to the provisions of the “Colorado Consumer Protection Act”, article 1 of title 6, C.R.S.
8. It is the duty of the several district attorneys of the state to prosecute all persons charged with the violation of any of the provisions of this article. It is the duty of the attorney general to advise the commissioner in all legal matters and to represent the commissioner or the commissioner’s agents in all actions brought by or against the commissioner or the commissioner’s agents.

History. Source: L. 93: Entire article R&RE, p. 1008, § 1, effective July 1. L. 99: (1)(g) and (1)(h) amended, p. 189, § 6, effective March 31. L. 2002: IP(6) amended, p. 1548, § 311, effective October 1. L. 2007: (1)(a) and (1)(g) amended, p. 643, § 3, effective April 26.

Editor’s note: This section is similar to former § 35-27-107 as it existed prior to 1993.

Cross references: For the legislative declaration contained in the 2002 act amending the introductory portion to subsection (6), see section 1 of chapter 318, Session Laws of Colorado 2002.

35-27-114. Powers and duties of commissioner

1. In addition to any other duties in this article, the commissioner shall:
   1. Administer and enforce the provisions of this article;
   2. Adopt rules and regulations necessary for the administration and enforcement of this article including but not limited to rules and regulations which:
      1. Set forth the methods to inspect, sample, analyze, and test seed, including defining the tolerances to be followed during such processes pursuant to section 35-27-106;
      2. Amend the lists of prohibited and restricted noxious weed seed;
      3. Establish procedures and standards including defining allowable tolerances to be used for the inspection and approval of seed beans that are within allowable tolerances pursuant to section 35-27-109;
      4. Establish standards for the sale of any seed including but not limited to standards for the acceptable content of pathogens, biotic contaminant, insects, plant pests, and endophytes in such seeds;
      5. Establish procedures and standards to embargo seed pursuant to section 35-27-119;
      6. Establish procedures for the reinstatement of any registration authorized pursuant to this article;
      7. Enforce any disciplinary actions authorized pursuant to this article including but not limited to letters of admonition or the denial, suspension, or revocation of any registration;
      8. Establish the amounts of the registration fees pursuant to section 35-27-111;
   3. Promptly notify any person who transported, sold, bartered, or distributed the seed or offered or exposed the seed for sale which does not test in compliance with the provisions of this article;
   4. Inspect, sample, analyze, and test seed pursuant to this article.
2. In addition to any other powers conferred in this article, the commissioner may:
   1. Inspect, sample, analyze, and test seed pursuant to paragraph (d) of subsection (1) of this section at such time and place and to such extent as the commissioner deems necessary to determine compliance with this article;
   2. Appoint such qualified employees of the department as necessary to carry out the provisions of this article;
   3. Cooperate with the United States department of agriculture to enforce federal seed law;
   4. 1. Conduct any hearings required by this article pursuant to article 4 of title 24, C.R.S.; or
      2. Repealed.
      3. Subject to appropriations made to the department, employ administrative law judges on a full- or part-time basis to conduct such hearings;
   5. Conduct investigations pursuant to section 35-27-115.
   6. Repealed.

History. Source: L. 93: Entire article R&RE, p. 1011, § 1, effective July 1. L. 2007: (2)(d)(II) and (2)(f) repealed, p. 643, § 4, effective April 26.

Editor’s note: This section is similar to former § 35-27-109 as it existed prior to 1993.

35-27-115. Inspections - access - investigations - subpoena

1. The commissioner, upon the commissioner’s own motion or upon the complaint of any person, may make an investigation necessary to determine compliance with this article or to investigate a complaint for arbitration.
2. 1. For inspection purposes pursuant to subsection (1) of this section, the commissioner shall have free and unimpeded access during regular business hours, either upon consent of the owner or upon obtaining an administrative search warrant, to:
      1. Enter any building, yard, warehouse, or storage facilities in which seed or any other related material is kept, used, stored, handled, conditioned, disposed of, or transported; and
      2. Inspect any records required to be kept pursuant to this article.
   2. The commissioner is authorized to make copies of any record inspected pursuant to subparagraph (II) of paragraph (a) of this subsection (2).
3. 1. The commissioner has full authority to administer oaths, take statements, issue subpoenas to compel the appearance of witnesses before the commissioner, issue subpoenas duces tecum for the production of any books, memoranda, papers, or other documents, articles, or instruments, and compel disclosure by witnesses of all facts known to such witnesses relative to any matter under investigation.
   2. Upon failure or refusal of any person to obey any subpoena issued pursuant to paragraph (a) of this subsection (3), the commissioner may petition the district court to enter an order compelling such person to comply with the subpoena.
   3. Failure to obey an order of the court entered pursuant to paragraph (b) of this subsection (3) is contempt of court.
4. Complaints of record made to the commissioner and the results of the commissioner’s investigations shall be closed to public inspection, except to the person in interest as defined in section 24-72-202 (4), C.R.S., or pursuant to court order, during the investigatory period and until dismissed or notice of hearing and charges are served.

History. Source: L. 93: Entire article R&RE, p. 1013, § 1, effective July 1. L. 2007: (1) amended, p. 643, § 5, effective April 26.

Editor’s note: This section is similar to former § 35-27-109 as it existed prior to 1993.

35-27-116. Enforcement

1. The commissioner, pursuant to the provisions of the “State Administrative Procedure Act”, article 4 of title 24, C.R.S., shall enforce the provisions of this article. After an investigation, the commissioner may, through the attorney general, enforce any of the provisions of this article, including recovering any money due the department or any penalty assessed pursuant to this article, and defend any suit or action brought against the commissioner or the department under this article.
2. 1. If the commissioner has reasonable cause to believe a violation of this article is occurring and determines that immediate action is necessary, the commissioner may issue a cease-and-desist order. Such cease-and-desist order shall be issued to the alleged violator and shall set forth the alleged violation, the facts which constitute such violation, and an order that all such violative conduct immediately cease.
   2. If a person fails to comply with a cease-and-desist order within twenty-four hours after being served with such order, the commissioner may bring a suit for a temporary restraining order and injunctive relief to prevent any further violation of such order.
   3. No stay of a cease-and-desist order shall be issued before a hearing has been held at which both parties have had an opportunity to appear.
   4. Matters brought before a court pursuant to this section shall have preference over other matters on the calendar of the court.
3. 1. If the commissioner determines that a person has engaged in or is about to engage in any act or practice violating any provision of this article, any rule or regulation, or any order issued under this article, the commissioner may apply to a court of competent jurisdiction to temporarily or permanently restrain such person or enjoin the violative practice.
   2. In any action taken pursuant to paragraph (a) of this subsection (3), the court shall not require the commissioner to:
      1. Plead or prove irreparable injury or inadequacy of a remedy at law; or
      2. Post a bond.
4. 1. Any lot of seed which is sold, offered or exposed for sale, bartered, or distributed in violation of this article shall be subject to embargo on complaint of the commissioner to a court of competent jurisdiction for the area in which such lot of seed is located.
   2. If the court finds, pursuant to paragraph (a) of this subsection (4), seed to be in violation of this article and orders the embargo and condemnation of such seed, such seed shall be, pursuant to court order, conditioned, denatured, destroyed, relabeled, or otherwise disposed of in a manner consistent with the quality of such seed.

History. Source: L. 93: Entire article R&RE, p. 1014, § 1, effective July 1.

Editor’s note: This section is similar to former §§ 35-27-110, 35-27-111, and 35-27-116 as they existed prior to 1993.

35-27-117. Disciplinary actions - denial of registration

1. The commissioner, pursuant to the provisions of article 4 of title 24, C.R.S., may issue letters of admonition or deny, suspend, refuse to renew, or revoke any registration authorized under this article if the registrant:
   1. Refuses or fails to comply with any provision of this article, any rule or regulation adopted under this article, or any lawful order of the commissioner;
   2. Is convicted of a felony for an offense related to the conduct regulated by this article;
   3. Has a registration or license of equivalent status denied, revoked, or suspended by any registering or licensing authority of any state or foreign country;
   4. Refuses to provide the commissioner with reasonable, complete, and accurate information regarding such person’s business, if requested to do so by the commissioner; or
   5. Falsifies any information requested by the commissioner.
2. In any proceeding held under this section, the commissioner may accept as prima facie evidence of grounds for disciplinary action any disciplinary action taken against a registrant in another jurisdiction, either foreign or domestic, if the violation which prompted the disciplinary action in that jurisdiction would be grounds for disciplinary action under this section.
3. 1. All disciplinary actions taken by the commissioner pursuant to this article shall be deemed final for purposes of judicial review.
   2. Any person aggrieved by any disciplinary action taken by the commissioner shall appeal to the Colorado court of appeals.
4. No registrant whose registration has been revoked may apply or reapply for registration under this article within two years after the date of such revocation.

History. Source: L. 93: Entire article R&RE, p. 1015, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-27-109 as it existed prior to 1993.

35-27-118. Civil penalties

1. 1. Any person who violates any provision of this article or any rule or regulation adopted pursuant to this article is subject to a civil penalty, as determined by the commissioner.
   2. 1. Before imposing any civil penalty, the commissioner shall consider the severity of the violation, the amount of harm caused by such violation, the presence or absence of a pattern of similar violations by the registrant, the effect of the proposed penalty on the ability of the registrant to continue to conduct business, and any other factors deemed relevant.
      2. The commissioner may request advice from the arbitration council in assessing a fine pursuant to this section.
   3. The maximum penalty imposed by the commissioner shall not exceed two thousand five hundred dollars per violation.
2. No civil penalty shall be imposed unless the person charged is given notice and an opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
3. If the commissioner is unable to collect a civil penalty or if any person fails to pay all or a set portion of such civil penalty, the commissioner is authorized to retain the attorney general pursuant to section 35-27-116 to bring suit to recover such penalty. In any action brought pursuant to this section the commissioner shall be entitled to recover costs and reasonable attorney fees.

History. Source: L. 93: Entire article R&RE, p. 1015, § 1, effective July 1.

Editor’s note: This section is similar to former §§ 35-27-114 and 35-27-115 as they existed prior to 1993.

35-27-119. Embargo

1. 1. This section shall apply if the commissioner finds or has reasonable cause to believe that any seed is:
      1. 1. Adulterated or misbranded; or
         2. Not labeled pursuant to this article; and
      2. 1. In violation of any provision of this article or any rule or regulation adopted pursuant to this article;
         2. From an unregistered seed labeler;
         3. For sale or has been sold by an unregistered retail seed dealer; or
         4. Has been distributed by an unregistered custom seed conditioner.
   2. The commissioner shall conduct an investigation to determine if a violation of paragraph (a) of this subsection (1) has occurred.
2. If paragraph
   1. of subsection (1) of this section applies, the commissioner shall affix to the seed in question labeling to give notice that:

      (a) The seed violates this article; and

   2. The seed is embargoed; and
   3. No person may remove or dispose of such seed by sale or otherwise until permission for removal or disposal is given by the commissioner or a court of competent jurisdiction.
3. If the commissioner determines that embargoed seed is not adulterated or mislabeled, the commissioner shall remove the labeling attached pursuant to subsection (2) of this section.
4. The owner of seed embargoed under this section may correct any violation found by the commissioner within thirty days after the embargo of such seed. If the violation is not corrected within thirty days, the commissioner may petition a court of competent jurisdiction to condemn such seed.
5. 1. If a court finds that embargoed seed is in violation of this article, such seed shall, after entry of such court’s decree, be destroyed at the expense of the owner, claimant, or custodian thereof, under the supervision of the commissioner, and all court costs, attorney fees, storage fees, and other reasonable and proper expenses shall be assessed against the owner, claimant, or custodian of such seed.
   2. If adulteration or mislabeling of embargoed seed may be corrected by proper conditioning or labeling, the court, after entry of such court’s decree and if costs, attorney fees, storage fees, and expenses are paid and a good and sufficient bond is secured by the owner, claimant, or custodian of such seed, may order that such seed be delivered to the owner, claimant, or custodian for corrective labeling or conditioning. Any such corrective labeling or conditioning shall be conducted under the supervision of the commissioner. The expense of such supervision shall be paid by such owner, claimant, or custodian. The seed shall be returned to its owner, claimant, or custodian when the seed no longer violates this article and the expenses of such supervision have been paid. The commissioner shall inform the court of compliance by the owner, claimant, or custodian of the seed.

History. Source: L. 93: Entire article R&RE, p. 1016, § 1, effective July 1.

35-27-120. Reports - bulletins

Except as provided for in section 35-27-115 (4), the commissioner may publish bulletins or press reports setting forth results of any examination, analysis, or test conducted pursuant to this article. Bulletins may include the names of persons who have had seed lots examined, analyzed, or tested. The commissioner may also publish bulletins or press reports which set forth information on seed. Any such report or publications intended for circulation outside the executive branch shall be published and circulated in accordance with the provisions of section 24-1-136, C.R.S.

History. Source: L. 93: Entire article R&RE, p. 1017, § 1, effective July 1.

Editor’s note: This section is similar to former § 35-27-113 as it existed prior to 1993.

35-27-121. Advisory committee - repeal. (Repealed)

History. Source: L. 93: Entire article R&RE, p. 1018, § 1, effective July 1. L. 99: Entire section repealed, p. 190, § 7, effective March 31.

35-27-122. Arbitration council - procedures

1. 1. The commissioner shall appoint an arbitration council for each case composed of three members. The following shall each recommend one member:
      1. (Deleted by amendment, L. 2007, p. 643 , § 6, effective April 26, 2007.)
      2. The dean of the college of agriculture, Colorado state university;
      3. The president of the Colorado seedsmen’s association; and
      4. The president of any organization of farmers in the state as the commissioner determines to be appropriate.
      5. (Deleted by amendment, L. 2007, p. 643 , § 6, effective April 26, 2007.)
   2. (Deleted by amendment, L. 2007, p. 643, § 6, effective April 26, 2007.)
   3. The council shall elect a chair from its membership. The chair shall conduct the deliberations of the council and shall direct all of its other activities. The commissioner shall serve as staff to the council and shall keep accurate records of all such deliberations and shall perform such other duties for the council as the chair directs.
   4. The council shall conduct the arbitration for the case.
2. 1. A buyer of seed shall request arbitration by filing a verified complaint with the commissioner together with a filing fee of ten dollars; except that the commissioner by rule or as otherwise provided by law may reduce the amount of the fee if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of the fee is credited. After the uncommitted reserves of the fund are sufficiently reduced, the commissioner by rule or as otherwise provided by law may increase the amount of the fee as provided in section 24-75-402 (4), C.R.S. The commissioner shall serve a copy of the complaint upon the seller of such seed by certified mail or personal service.
   2. Within five working days after receipt of a copy of the complaint, the seller shall file a verified answer to the complaint with the commissioner, who shall serve a copy of the answer upon the buyer by certified mail.
   3. The commissioner shall investigate the allegations in the complaint. In conducting such investigation, the commissioner may employ the services of any expert that he or she deems appropriate. Upon completion of the investigation, the commissioner shall refer the complaint to the council along with a report of the results of the investigation.
   4. Upon referral of a complaint for investigation, the council shall conduct an arbitration hearing in accordance with the uniform arbitration act, part 2 of article 22 of title 13, C.R.S., and shall report its findings and recommendations to the commissioner in an arbitration report. Such arbitration report shall be filed with the commissioner within sixty days after the conclusion of the arbitration hearing or a later date if the parties agree.
   5. The arbitration report of the council shall include findings of fact, conclusions of law, and recommendations as to costs, if any, including but not limited to costs of any investigation conducted by the commissioner.
   6. In the course of his or her investigation, the commissioner may:
      1. Examine the buyer, the seller, and any other person who may have relevant information;
      2. Grow a representative sample of the seed through the facilities of Colorado state university to production; and
      3. Conduct any other investigative activities that he or she deems necessary to obtain information relevant to the allegations in the complaint pursuant to his or her authority in section 35-27-115 .
   7. (Deleted by amendment, L. 2007, p. 643 , § 6, effective April 26, 2007.)
   8. The members of the council shall receive no compensation for the performance of their duties but shall be reimbursed for actual and necessary expenses.
   9. After the council has filed its arbitration report with the commissioner, the commissioner shall promptly transmit such arbitration report by certified mail to all parties.

History. Source: L. 93: Entire article R&RE, p. 1018, § 1, effective July 1. L. 98: (2)(a) amended, p. 1342, § 66, effective June 1. L. 2007: IP(1)(a), (1)(a)(I), (1)(a)(V), (1)(b), (1)(c), (1)(d), and (2) amended, p. 643, § 6, effective April 26.

35-27-123. Requirement and effect of arbitration

1. 1. If a buyer of seed suffers damage because such seed does not produce or perform in conformance with the labeling or warranty or because of negligence by the seller, the buyer shall submit such buyer’s claim to arbitration pursuant to this section and section 35-27-122. Such submittal shall be a prerequisite to such buyer’s right to maintain any legal action against the seller of such seed. Any statute of limitations shall be tolled until ten days after the filing of the arbitration report.
   2. No claim may be asserted as a counterclaim or defense in any action brought pursuant to paragraph (a) of this subsection (1) by a seller against a buyer, if the buyer has not submitted such claim to arbitration. After the buyer files a written notice of intention to assert a claim as a counterclaim or defense in such action, accompanied by a copy of the buyer’s complaint filed under section 35-27-122 (2)(a), the statute of limitations shall be tolled for such claim until ten days after the filing of the arbitration report pursuant to section 35-27-122 (2)(d).
2. 1. is not included.
   2. A notice in the following form or equivalent language shall be sufficient to comply with paragraph (a) of this subsection (2):

      NOTICE OF REQUIRED ARBITRATION

      UNDER THE “COLORADO SEED ACT”, ARTICLE 27 OF TITLE 35, COLORADO REVISED STATUTES, ARBITRATION IS REQUIRED AS A PREREQUISITE TO CERTAIN LEGAL ACTIONS, COUNTERCLAIMS, OR DEFENSES AGAINST A SELLER OF SEED. INFORMATION ABOUT THIS REQUIREMENT MAY BE OBTAINED FROM THE COLORADO COMMISSIONER OF AGRICULTURE.

3. 1. An arbitration report filed pursuant to section 35-27-122 (2)(d) shall be binding upon all parties to the extent agreed upon in any contract governing the sale which was the subject of the arbitration.
   2. In the absence of an agreement to be bound by arbitration, a buyer may bring legal action against a seller or assert such claim as a counterclaim or defense in any action brought by the seller at any time after the arbitration report has been filed.
   3. During litigation involving a complaint which has been arbitrated pursuant to this section, any party who was subject to such arbitration may introduce the arbitration report as evidence of the facts found in the report if the party against whom the report is offered was also subject to the arbitration. The court may give such weight to the council’s findings and conclusions of law and recommendations as to damages and costs as the court sees fit based upon all the evidence before the court. The court may also take into account any finding of the arbitration council of any failure of any party to cooperate in such arbitration proceedings, including any finding as to the effect of delay in filing the arbitration claim or answer upon the ability of the arbitration council to determine the facts of the case.

History. Source: L. 93: Entire article R&RE, p. 1020, § 1, effective July 1.

35-27-124. Fees credited to plant health, pest control, and environmental protection cash fund

All fees and civil fines collected pursuant to this article 27 shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3. The fees and fines imposed by this article 27 supplement any general fund appropriation appropriated for the purposes of this article 27.

History. Source: L. 93: Entire article R&RE, p. 1021, § 1, effective July 1. L. 2009: Entire section amended, (HB 09-1249), ch. 87, p. 319, § 13, effective July 1. L. 2020: Entire section amended, (HB 20-1184), ch. 145, p. 630, § 4, effective June 29.

35-27-125. Repeal of article - termination of functions

This article 27 is repealed, effective September 1, 2031. Before the repeal, the registration functions of the commissioner are scheduled for review in accordance with section 24-34-104.

History. Source: L. 93: Entire article R&RE, p. 1021, § 1, effective July 1. L. 99: Entire section amended, p. 190, § 8, effective March 31. L. 2009: Entire section amended, (SB 09-116), ch. 62, p. 220, § 1, effective July 1. L. 2020: Entire section amended, (HB 20-1184), ch. 145, p. 628, § 2, effective June 29.

Editor’s note: This section was originally numbered as 35-27-127 in Senate Bill 93-017 but has been renumbered on revision for ease of location.

35-27.3-101. Short title

This article shall be known and may be cited as the “Colorado Seed Potato Act”.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1793, § 5, effective July 1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-27.3-102. Legislative declaration

The general assembly hereby finds and declares that the purpose of this article is to control and minimize the spread of contagious community diseases by reducing the overall inoculum pool present in potato crops. This article is further intended to comply with seed potato standards set forth in the state national harmonization program.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1793, § 5, effective July 1.

35-27.3-103. Definitions

As used in this article, unless the context otherwise requires:

1. “Advisory committee” means the seed potato advisory committee created in section 35-27.3-107.
2. “Certified” means certified by a certifying authority as meeting all applicable laws and rules for certification of seed potatoes.
3. “Certifying authority” means the potato certification service of Colorado state university or the authorized seed potato certifying agency of another state, territory, or country.
4. “Commissioner” means the commissioner of agriculture.
5. “Community disease” means a disease or pest that can move from field to field during the potato growing season and is not confined to any single potato grower’s operation. The term includes late blight and potato virus Y.
6. “Cultivar” means unique variety.
7. “Department” means the department of agriculture.
8. “Distribute” means to offer for sale, sell, barter, deliver, supply, furnish, or otherwise provide seed potatoes.
9. “Generation” means one full seasonal growth cycle, including planting, growing, harvesting, and storing.
10. “Hundredweight” means a unit of weight equal to one hundred pounds.
11. “Official control”, with respect to a crop of potatoes, means that the seed potatoes used to produce the crop have been derived from certified seed, qualified seed, or tested, documented sources and found to be within the legal limits for all diseases and pests of concern.
12. “Parent” means one prior generation removed.
13. “Person” means any individual, partnership, association, corporation, agency, or organized group of persons.
14. “Progeny” means the offspring or daughter tubers of a potato plant.
15. “Qualified”, with respect to seed potatoes, means that the seed potatoes are derived from certified seed potatoes, have been inspected by a certifying authority and meet all applicable laws and rules for seed potato certification including official disease control standards, and are thus eligible for planting as seed.
16. “Quarantine” means a quarantine imposed by the commissioner pursuant to section 35-4-110.
17. “Seed potatoes” means vegetatively propagated tubers used or intended to be used for potato production.
18. “State national harmonization program” means the state national harmonization program for seed potatoes developed by the plant protection and quarantine program of the animal and plant health inspection service in the United States department of agriculture.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1793, § 5, effective July 1.

35-27.3-104. Distribution of seed potatoes - rules

1. All seed potatoes distributed by any person in lots that are sufficient to plant one or more acres in Colorado as determined by the commissioner by rule shall be certified by a certifying authority.
2. All lots of seed potatoes subject to subsection (1) of this section shall, at the time of distribution, be accompanied by the following documents:
   1. An official tag or bulk certificate indicating their status as certified seed potatoes;
   2. A certificate of shipping point inspection;
   3. A North American plant health certificate issued by the certifying authority for seed potatoes imported from outside Colorado; and
   4. Any other documentation necessary to provide the information required by subsection (3) of this section.
3. The documents described in subsection (2) of this section shall provide the following:
   1. A description of the grade of the seed potatoes;
   2. The findings of field inspections and postharvest inspections conducted on each lot of seed potatoes, including the name and amount of any diseases observed;
   3. The generation of seed potatoes; and
   4. Evidence that the seed potatoes were tagged, and, if imported from outside Colorado, packed and sealed, under the certification standards of the state, territory, or country in which they were grown.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1794, § 5, effective July 1.

35-27.3-105. Minimum standards for planting seed potatoes - scope - qualified seed potatoes - rules

1. 1. Except as otherwise permitted under this section, no seed potatoes in lots that are sufficient to plant one or more acres as determined by the commissioner by rule shall be planted unless the potatoes have been certified.
   2. Seed potatoes imported to Colorado shall meet the minimum standards for certified seed set forth in the state national harmonization program and in any active applicable quarantine.
2. 1. A potato grower in Colorado shall be allowed to plant uncertified potatoes if:
      1. The potatoes were grown and stored as part of that grower’s farming operations; and
      2. The uncertified potatoes are no more than one generation from certified parent potatoes or qualified parent potatoes.
   2. A potato grower who plants uncertified potatoes pursuant to paragraph (a) of this subsection (2) may plant progeny from that seed in additional years if, in each additional year, the grower submits the seed stock to the certifying authority of Colorado for testing and the certifying authority of Colorado approves the seed stock for planting. The certifying authority of Colorado shall approve the seed stock if it meets the standards for such stock as established by the commissioner by rule.
3. In any year that the commissioner, after consulting with the advisory committee, determines that there is an insufficient volume of any cultivar of certified seed potatoes and seed potatoes meeting the requirements of subsection (2) of this section, potato growers may apply to the advisory committee for permission to plant uncertified seed potatoes. Upon recommendation from the advisory committee, the commissioner may grant applying growers permission to plant uncertified Colorado-grown seed potatoes. Any such permission shall be valid for only that growing season. In no event shall any seed potatoes be planted when bacterial ring rot, late blight, or an unacceptable level of community diseases is present in the seed potatoes.
4. Repealed.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1795, § 5, effective July 1. L. 2019: (4) repealed, (SB 19-147), ch. 100, p. 363, § 2, effective August 2.

35-27.3-106. Record-keeping requirements - annual record reviews

1. Each person growing potatoes in this state in lots of one acre or greater shall keep and maintain records, by cultivar and by field, of the hundredweight of potato cultivar or cultivars planted per field. The records shall contain the information required for an independent records review conducted pursuant to paragraph (b) of subsection (2) of this section. Growers shall maintain the records for a period of at least two years at the grower’s business address.
2. 1. The commissioner shall select a qualified department employee to perform a records review on at least ten percent of potato growers subject to this article 27.3 once every seed potato crop cycle. The commissioner shall determine a method for the annual random selection of growers. The area committee for area no. 2, established in the marketing order regulating the handling of potatoes grown in the state of Colorado, as amended, issued pursuant to the “Colorado Agricultural Marketing Act of 1939”, article 28 of this title 35, shall pay the actual costs of such records reviews.
   2. A records review performed pursuant to this section shall verify records that trace back the grower’s potatoes, including records that evidence the following:
      1. Acreage planted by cultivar; and
      2. Hundredweight and source of the seed used to plant the acreage, with verifiable documents related to:
         1. For seed potatoes purchased, the documents described in section 35-27.3-104 (2) and (3); or
         2. For seed potatoes planted pursuant to section 35-27.3-105 (2), the testing history and seed potatoes used to replant the grower’s own operations.
3. Repealed.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1796, § 5, effective July 1. L. 2019: (2)(a) amended and (3) repealed, (SB 19-147), ch. 100, p. 364, § 3, effective August 2.

35-27.3-107. Advisory committee - created - members - terms - duties

1. 1. There is hereby created the seed potato advisory committee.
   2. 1. The advisory committee consists of nine members appointed by the commissioner as follows:
         1. Four potato growers who do not grow seed potatoes and whose operations are located in area no. 2, established in the marketing order regulating the handling of potatoes grown in the state of Colorado, as amended, issued pursuant to the “Colorado Agricultural Marketing Act of 1939”, article 28 of this title;
         2. One potato grower who does not grow seed potatoes and whose operation is located in area no. 3, established in the marketing order regulating the handling of potatoes grown in the state of Colorado, as amended, issued pursuant to the “Colorado Agricultural Marketing Act of 1939”, article 28 of this title;
         3. Two members of the Colorado Certified Potato Growers Association, or its successor organization;
         4. One person employed by Colorado state university; and
         5. One potato grower who does not grow seed potatoes and whose operation is located in area no. 1, area no. 2, or area no. 3, but with a preference for area no. 1, as each of these areas are established in the marketing order regulating the handling of potatoes grown in Colorado, as amended, issued under the “Colorado Agricultural Marketing Act of 1939”, article 28 of this title 35.
      2. Whenever possible, the advisory committee member appointed under subsection (1)(b)(I)(D) of this section must have knowledge of or experience with seed potatoes.
2. 1. Except as provided in subsection (2)(c) of this section, members appointed to the advisory committee shall serve for terms of three years. Members may be appointed for an unlimited number of terms; except that no member shall serve more than two terms consecutively.
   2. Repealed.
   3. In the event of a vacancy on the advisory committee prior to the completion of a member’s full term, the commissioner shall appoint a person to complete the remainder of that term. The person so appointed shall represent the same group as the member he or she is replacing, as set forth in paragraph (b) of subsection (1) of this section.
3. The members shall receive no compensation or reimbursement from the state of Colorado or the department for any expenses incurred in the exercise of their duties.
4. The advisory committee shall advise the commissioner in establishing rules under this article 27.3, assist in the determination of availability of potatoes, recommend whether to grant permission to plant uncertified seed potatoes, and consult with the commissioner regarding the administration and enforcement of this article 27.3.
5. Repealed.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1797, § 5, effective July 1. L. 2019: IP(1)(b)(I), (1)(b)(I)(C), (1)(b)(I)(E), (1)(b)(II), and (2)(a) amended and (2)(b) and (5) repealed, (SB 19-148), ch. 101, p. 366, § 2, effective August 2; (4) amended, (SB 19-147), ch. 100, p. 364, § 4, effective August 2.

35-27.3-108. Powers and duties of the commissioner - rules

1. In addition to any other duties in this article 27.3, the commissioner shall:
   1. Administer and enforce this article;
   2. Adopt rules necessary for the administration and enforcement of this article 27.3, including rules that:
      1. Establish requirements for compliance verification, testing, sampling, and inspection;
      2. Specify quality or disease standards for potatoes;
      3. Allow for the random selection of ten percent of potato growers subject to the annual records review required under section 35-27.3-106 (2);
      4. Set standards for uncertified seed potato stock that may be planted pursuant to section 35-27.3-105 (2)(b);
      5. Establish methods for determining that bacterial ring rot or an unacceptable level of community diseases is not present in seed potatoes planted under section 35-27.3-105 (3);
      6. Designate the type of records that must be kept by growers; and
      7. Set a schedule of fees for services performed by the department, which fees must be billed to the committee for area no. 2, established in the marketing order regulating the handling of potatoes grown in the state of Colorado, as amended, issued pursuant to the “Colorado Agricultural Marketing Act of 1939”, article 28 of this title 35.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1798, § 5, effective July 1. L. 2019: IP(1), IP(1)(b), and (1)(b)(VII) amended, (SB 19-147), ch. 100, p. 364, § 5, effective August 2.

35-27.3-109. Inspections - access - investigations - subpoenas

1. The commissioner, upon the commissioner’s own motion or upon the recommendation of an independent auditor pursuant to section 35-27.3-106 (2), may make an investigation necessary to determine compliance with this article.
2. 1. For inspection purposes pursuant to subsection (1) of this section, the commissioner shall have free and unimpeded access during regular business hours, either upon consent of the owner or upon obtaining an administrative search warrant, to inspect any records required to be kept pursuant to this article.
   2. The commissioner may make copies of any records inspected pursuant to paragraph (a) of this subsection (2).
3. 1. The commissioner has full authority to administer oaths; take statements; issue subpoenas to compel the appearance of witnesses before the commissioner; issue subpoenas for the production of any books, memoranda, papers, or other documents, articles, or instruments; and compel disclosure by witnesses of all facts known to such witnesses relative to any matter under investigation.
   2. Upon failure or refusal of any person to obey a subpoena issued pursuant to paragraph (a) of this subsection (3), the commissioner may petition the district court to enter an order compelling such person to comply with the subpoena.
   3. Failure to obey an order of the court entered pursuant to paragraph (b) of this subsection (3) may be punishable as contempt of court.
4. Complaints of record made to the commissioner and the results of the commissioner’s investigations shall be closed to public inspection, except to the person in interest as defined in section 24-72-202 (4), C.R.S., or pursuant to court order, during the investigatory period and until dismissed or notice of hearing and charges are served.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1799, § 5, effective July 1.

35-27.3-110. Violations - civil penalties

1. 1. Except as otherwise provided in this section, the commissioner may impose a civil penalty on a person who violates this article 27.3 or a rule adopted under this article 27.3.
   2. Any person who plants or distributes potatoes in violation of this article or any rule adopted pursuant to this article is subject to a civil penalty, as determined by the commissioner. The penalty imposed by the commissioner shall be at least twenty dollars per acre but shall not exceed one hundred dollars per acre per violation.
   3. Any person who fails to maintain complete and accurate records pursuant to section 35-27.3-106 or rules promulgated pursuant to section 35-27.3-108 (1)(b)(VII) is subject to a civil penalty of at least five hundred dollars but no more than one thousand dollars, as determined by the commissioner.
2. No civil penalty shall be imposed unless the person charged is given notice and an opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
3. If the commissioner is unable to collect a civil penalty or if any person fails to pay all or a set portion of such civil penalty, the commissioner may bring suit in any court of competent jurisdiction to recover the penalty plus costs and attorney fees.
4. Moneys collected from any civil penalty imposed under this article shall be paid to the state treasurer, who shall credit the same to the seed potato cash fund created in section 35-27.3-111.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1799, § 5, effective July 1. L. 2019: (1)(a) amended, (SB 19-147), ch. 100, p. 364, § 6, effective August 2.

35-27.3-111. Seed potato cash fund - created

All fees and civil fines collected pursuant to this article shall be transmitted to the state treasurer, who shall credit the same to the seed potato cash fund, which fund is hereby created. All moneys credited to the fund and all interest earned on the investment of moneys in the fund shall remain in the fund and shall not be transferred or credited to the general fund or to any other fund except as directed by the general assembly acting by bill. In addition to any appropriation from the general fund, the general assembly shall make annual appropriations from the seed potato cash fund to the department to carry out the purposes of this article.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1800, § 5, effective July 1.

35-27.3-112. Repeal of article - termination of functions

This article 27.3 is repealed, effective September 1, 2028. Before the repeal, the certification functions of the commissioner are scheduled for review in accordance with section 24-34-104.

History. Source: L. 2010: Entire article added, (SB 10-072), ch. 384, p. 1800, § 5, effective July 1. L. 2019: Entire section amended, (SB 19-147), ch. 100, p. 365, § 7, effective August 2.

35-27.5-101. Short title

This article shall be known and may be cited as the “Weed Free Forage Crop Certification Act”.

History. Source: L. 93: Entire article added, p. 2035, § 1, effective June 9.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-27.5-102. Definitions

As used in this article, unless the context otherwise requires:

1. “Authorized inspector” means a person qualified to identify noxious weeds according to standards adopted by the commissioner pursuant to section 35-27.5-103.
2. Repealed.
3. “Commissioner” means the commissioner of agriculture.
4. “Crop” means any agricultural forage crop product whether cultivated or not cultivated, irrigated or nonirrigated, planted or naturally occurring.
5. “Department” means the department of agriculture.
6. “Noxious weeds” means those weeds, including any weed seed or propagative plant parts, designated by the commissioner as noxious and which are prohibited pursuant to section 35-27.5-103.
7. “Person” means any association, corporation, firm, individual or combination of individuals, partnership, or society.
8. “Qualified employee” means an employee of the department designated as qualified who is trained to identify noxious weeds in accordance with standards adopted by the commissioner pursuant to section 35-27.5-103.
9. “Weed free” means any crop certified as free of noxious weeds by the commissioner pursuant to this article.
10. “Weed free certification” means crops inspected and certified as free of noxious weeds by the commissioner pursuant to this article.

History. Source: L. 93: Entire article added, p. 2035, § 1, effective June 9. L. 94: (2) repealed, p. 1645, § 76, effective May 31.

35-27.5-103. Rules and regulations

1. The commissioner shall adopt reasonable and necessary rules and regulations to carry out the provisions of this article in compliance with section 24-4-103, C.R.S., and subject to the requirements of section 35-27.5-107.
2. Rules and regulations adopted pursuant to subsection (1) of this section shall include but shall not be limited to rules and regulations concerning the following:
   1. Designation of weeds as noxious and prohibited;
   2. Procedures for certification of weed free crops;
   3. Qualification standards for persons seeking designation as authorized inspectors or as qualified employees;
   4. Crop inspection procedures;
   5. Treatment procedures for the eradication of viable noxious weeds from crops; and
   6. Procedures for identifying and tracking certified weed free crops.

History. Source: L. 93: Entire article added, p. 2036, § 1, effective June 9.

35-27.5-104. Delegation of duties - cooperative agreements

1. 1. The commissioner may delegate any powers vested in the commissioner pursuant to this article to qualified employees of the department who are designated as qualified employees pursuant to standards adopted in accordance with section 35-27.5-103.
   2. The commissioner may delegate any powers vested in the commissioner pursuant to this article that are related to the duties of authorized inspectors to persons who are designated as authorized inspectors pursuant to standards adopted in accordance with section 35-27.5-103.
2. The commissioner may enter into cooperative agreements with Colorado state university for the purpose of training authorized employees and qualified inspectors in the identification of those plants designated as noxious weeds by the commissioner pursuant to section 35-27.5-103.
3. For purposes of carrying out the provisions of this article and subject to any other law of this state, the commissioner may accept grants-in-aid from any agency of the federal government and may cooperate and enter into agreements with any federal agency, any agency of any other state, and any agency of this state or its political subdivisions.

History. Source: L. 93: Entire article added, p. 2036, § 1, effective June 9.

35-27.5-105. Administration and enforcement

1. The commissioner shall administer and enforce the provisions of this article.
2. Upon the motion of the commissioner or upon the motion of any other person, the commissioner may make any investigations necessary to ensure compliance with or determine whether there has been a violation of this article.
3. The commissioner shall have reasonable access during regular business hours to all pertinent documents concerning any person who has requested that a crop be inspected for purposes of certification of such crop or who has had a crop certified as weed free.
4. 1. The commissioner may, after notice and a hearing in compliance with the provisions of article 4 of title 24, C.R.S., resulting in a finding of a violation of this article or any rule or regulation promulgated pursuant to this article, rescind any weed free certification of a crop.
   2. For purposes of paragraph (a) of this subsection (4), any action taken by the commissioner following a hearing shall be deemed final.
   3. A person aggrieved by a final decision made by the commissioner pursuant to this subsection (4) may appeal such decision to the Colorado court of appeals pursuant to section 24-4-106 (11), C.R.S.
   4. The commissioner may employ administrative law judges appointed pursuant to part 10 of article 30 of title 24, C.R.S., to conduct hearings.

History. Source: L. 93: Entire article added, p. 2037, § 1, effective June 9.

35-27.5-106. Inspections

1. Any crop for which weed free certification is sought shall be inspected in the field of origin and such inspection shall include an inspection of any ditches, fence rows, roads, easements, rights-of-way, and buffer zones, as applicable, surrounding such field of origin.
2. Crops which contain any weeds which have been designated as noxious pursuant to section 35-27.5-103, may be certified if certain conditions established pursuant to section 35-27.5-103 are met.

History. Source: L. 93: Entire article added, p. 2038, § 1, effective June 9.

35-27.5-107. Penalties

Any person who intentionally violates any provision of this article or the rules or regulations promulgated pursuant to section 35-27.5-103 commits a class 3 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

History. Source: L. 93: Entire article added, p. 2038, § 1, effective June 9. L. 2002: Entire section amended, p. 1548, § 312, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending this section, see section 1 of chapter 318, Session Laws of Colorado 2002.

35-27.5-108. Colorado weed free crop certification fund - transfer of moneys to plant health, pest control, and environmental protection cash fund - fees

1. The commissioner shall set fees for the certification of weed free crops pursuant to this article in amounts adequate to cover all costs, direct and indirect, of the department in the administration and enforcement of this article.
2. All fees collected pursuant to this article shall be transmitted to the state treasurer, who shall credit such fees to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the Colorado weed free crop certification fund, as that fund existed prior to July 1, 2009, shall be transferred to the plant health, pest control, and environmental protection cash fund.

History. Source: L. 93: Entire article added, p. 2038, § 1, effective June 9. L. 2009: (2) amended, (HB 09-1249), ch. 87, p. 319, § 14, effective July 1.

35-28-101. Short title

This article shall be known and may be cited as the “Colorado Agricultural Marketing Act of 1939”.

History. Source: L. 39: P. 193, § 1. CSA: C. 106, § 46. CRS 53: § 7-3-1. C.R.S. 1963: § 7-3-1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-28-102. Legislative declaration

1. It is declared that the marketing of agricultural commodities in Colorado, in excess of reasonable and normal market demand therefor; disorderly marketing of such commodities; improper preparation for market and lack of uniform grading and classification of agricultural commodities; unfair methods of competition in the marketing of such commodities; and the inability of individual producers to develop new and larger markets for Colorado grown agricultural commodities, result in an unreasonable and unnecessary economic waste of the agricultural wealth of this state. Such conditions and the accompanying waste jeopardize the future continued production of adequate food supplies for the people of this and other states, and prevent agricultural producers from obtaining a fair return from their labor, their farms, and the agricultural commodities which they produce. As a consequence, the purchasing power of such producers has been in the past, and may continue to be in the future, unless such conditions are remedied, low in relation to that of persons engaged in other gainful occupations. Colorado agricultural producers are thereby prevented from maintaining a proper standard of living and from contributing their fair share to the support of the necessary governmental and educational functions, thus tending to increase unfairly the tax burdens of other citizens of this state.
2. These conditions vitally concern the health, peace, safety, and general welfare of the people of this state. It is declared to be the policy of this state to aid agricultural producers in preventing economic waste in the marketing of their agricultural commodities, to develop more efficient and equitable methods in the marketing of agricultural commodities, and to aid agricultural producers in restoring and maintaining their purchasing power at a more adequate, equitable, and reasonable level.
3. The marketing of agricultural commodities is declared to be affected with a public interest. The provisions of this article are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.

History. Source: L. 39: P. 193, § 2. CSA: C. 106, § 47. CRS 53: § 7-3-2. L. 55: P. 146, § 1. C.R.S. 1963: § 7-3-2. L. 69: P. 111, § 1.

35-28-103. Purposes of article

1. The purposes of this article are:
   1. To enable agricultural producers of this state, with the aid of the state, more effectively to correlate the marketing of their agricultural commodities with market demands therefor;
   2. To establish orderly marketing of agricultural commodities;
   3. To provide for uniform grading and proper preparation of agricultural commodities for market;
   4. To provide methods and means for the development of new and larger markets for agricultural commodities produced in Colorado;
   5. To eliminate or reduce unfair competition and economic waste in the marketing of agricultural commodities;
   6. To restore and maintain adequate purchasing power for the agricultural producers of this state.

History. Source: L. 39: P. 194, § 3. CSA: C. 106, § 48. CRS 53: § 7-3-3. L. 55: P. 147, § 2. C.R.S. 1963: § 7-3-3. L. 69: P. 112, § 2.

35-28-104. Definitions

As used in this article 28, unless the context otherwise requires:

1. 1. “Agricultural commodity” means any agricultural, horticultural, floricultural, viticultural, and vegetable products, livestock and livestock products, wheat, hay, corn, millet, bees and honey, poultry and poultry products, and milk and milk products, either in their natural state or as processed, including any marketable agricultural product, but does not include sugar beets, timber and timber products, oats, malting barley, barley, hops, rice, milo, and other feed grains. These exceptions are the sole exemptions, irrespective of any other exemptions provided by law, and particularly as set forth in section 35-28-122.
   2. Nothing in paragraph (a) of this subsection (1), as amended by House Bill 05-1180, as enacted at the first regular session of the sixty-fifth general assembly, shall be construed as changing the property tax classification of property owned by a floricultural operation.
2. “Commissioner” means the commissioner of agriculture or his duly authorized representative.
3. “Distributor” means any person engaged in the operation of selling, offering for sale, marketing, or distributing an agricultural commodity which he has produced, purchased, or acquired from a producer, handler, or other distributor, or which he is marketing in behalf of a producer, handler, or other distributor, whether as owner, agent, employee, broker, or otherwise, but shall not include a retailer as defined in this section except a retailer who purchases or acquires from, or handles on behalf of any producer, handler, or other distributor an agricultural commodity not theretofore subject to regulation by the marketing order covering such commodity.
4. “Grade” means the official United States or Colorado terminology applied to agricultural commodities as determined by the presence or absence of certain quality and other factors.
5. “Handler” means any person engaged in the operation of purchasing, packing, grading, selling, offering for sale, or marketing any marketable agricultural product; or any person who, as the producer, owner, agent, or otherwise, ships or causes an agricultural product to be shipped; or any governmental entity that obtains from a producer any interest in an agricultural commodity covered by a marketing agreement or order in connection with a governmental agricultural commodity program. The commissioner shall have the power to determine or specify who is a “handler” with respect to an agricultural commodity under a marketing agreement or order.
6. “Marketable agricultural product” is a product which meets the requirements for regulation under any marketing order, marketing agreement, or regulation in effect in the area in which the same is produced, handled, or distributed.
7. “Marketing agreement” means a voluntary agreement between producers, handlers, processors, or distributors and the commissioner of agriculture in which the producers, handlers, processors, or distributors who sign such agreement agree to follow certain rules set forth by the agreement.
8. “Marketing order” means an order issued by the commissioner of agriculture pursuant to this article, prescribing rules and regulations governing the processing, distributing, sale of, or handling in any manner of any agricultural commodity in Colorado during any specified period or periods.
9. “Person” means an individual, firm, corporation, association, or any other business unit.
10. “Processor” means any person engaged in the operation of producing for processing, or in the operation of receiving, grading, packing, canning, fermenting, distilling, extracting, preserving, grinding, crushing, or changing the form of an agricultural product for the purpose of marketing such commodity, but shall not include a person engaged in manufacturing from an agricultural commodity, so changed in form, another and different product.
11. “Producer” means any person engaged within this state in the business of producing, or causing to be produced for market, any agricultural commodity.
12. “Product” means an agricultural commodity which has been placed in condition for sale or distribution.
13. “Retailer” means any person who purchases or acquires any agricultural commodity for resale at retail to the general public at a fixed business location in the state for consumption off such premises, but such person shall also be included within the definition of distributor, as set forth in this section, to the extent that he engages in the business of a distributor as defined in this section.
14. “To distribute” means to engage in the business of a distributor as defined in this section.
15. “To handle” means to engage in the business of a handler as defined in this section.
16. “To process” means to engage in the business of a processor as defined in this section.
17. “Unfair competition” means the use of unfair methods of competition and unfair or deceptive practices in business for the purpose of, or having the natural and probable effect of, eliminating or injuring competition, and shall include, but not be limited to: Sales below cost, except those made in good faith to meet a legal price of a competitor; discriminatory pricing; discriminatory discounting and rebating, either direct or indirect; unreasonable extensions of credit; subsidizing of customers; misleading labeling or advertising; and solicitation by misleading or false statements.

History. Source: L. 39: P. 195, § 4. CSA: C. 106, § 49. L. 51: P. 559, § 1. L. 53: P. 116, § 1. CRS 53: § 7-3-4. L. 55: Pp. 147, 148, § § 3, 4. L. 57: P. 133, § 1. L. 58: P. 101, § 1. L. 63: P. 161, § 1. C.R.S. 1963: § 7-3-4. L. 69: P. 112, § 3. L. 70: P. 116, § § 1, 2. L. 79: (1) amended, p. 1324, § 1, effective May 31. L. 94: (1) amended, p. 327, § 12, effective March 1, 1995. L. 2001: (5) amended, p. 3, § 1, effective August 8. L. 2005: (1) amended, p. 351, § 11, effective August 8. L. 2018: IP and (1)(a) amended, (SB 18-188), ch. 149, p. 940, § 1, effective August 8.

35-28-105. Administration of article

1. The commissioner of agriculture shall administer and enforce the provisions of this article and shall have all of the administrative powers conferred upon the head of a department of the state. In order to effectuate the declared purposes of this article, the commissioner of agriculture is authorized to issue, administer, and enforce the provisions of marketing orders.
2. Whenever the commissioner has reason to believe that the issuance of a marketing order will tend to effectuate the declared policy of this article with respect to any agricultural commodity, either upon his own motion or upon application of any producer or handler of such commodity, he shall give due notice of and an opportunity for a public hearing upon a proposed marketing order.
3. Due notice of any hearing called for such purpose shall be given to all persons, who may be directly affected by any action of the commissioner pursuant to the provisions of this article, and whose names appear upon lists to be filed by such agricultural industry with the commissioner. Such hearing shall be open to the public. All testimony shall be received under oath and a full and complete record of all proceedings at any such hearing shall be made and filed by the commissioner at his office.
4. In order to effectuate the declared policy of this article, the commissioner has the power, after due notice and opportunity for hearing, to enter into marketing agreements with processors, distributors, handlers, producers, and others engaged in the handling of any agricultural commodity, regulating the preparation, sale, and handling of such agricultural commodity, which said marketing agreement shall be binding upon the signatories thereto exclusively. The execution of such marketing agreement shall in no matter affect the issuance, administration, or enforcement of any marketing order provided for in this article. The commissioner may issue such marketing order without executing a marketing agreement or may execute a marketing agreement without issuing a marketing order covering the same commodity. The commissioner, in his discretion, may hold a concurrent hearing upon a proposed marketing agreement and a proposed marketing order in the manner provided for giving due notice and opportunity for hearing for a marketing order as provided in this article.

History. Source: L. 39: P. 196, § 5. CSA: C. 106, § 50. L. 53: P. 116, § 2. CRS 53: § 7-3-5. L. 55: P. 148, § 5. C.R.S. 1963: § 7-3-5. L. 69: P. 113, § 4.

35-28-106. Marketing order issued - when

1. After such notice and hearing the commissioner may issue a marketing order if he finds and sets forth in such marketing order that such order will tend to:
   1. Reestablish or maintain prices received by producers for such agricultural commodity at a level which will give to such commodity a purchasing power, with respect to the articles and services which farmers commonly buy, equivalent to the purchasing power of such commodity in the base period. The base period shall be such period in which the commissioner finds that the volume of production of such commodity was adequate to supply the requirements of consumers thereof and the net returns to producers thereof were sufficient to provide an adequate standard of living to the farm operator and his family.
   2. Approach such equality of purchasing power at as rapid a rate as is feasible in view of the market demand for such commodity;
   3. Prevent the unreasonable or unnecessary waste of agricultural wealth because of improper preparation of such agricultural commodity for market, lack of uniform grading and inspection, or excessive shipments to markets;
   4. Protect the interests of consumers of such commodity, by exercising the powers of this article only to such extent as is necessary to effectuate the declared purposes of this article;
   5. Eliminate unfair competition.
2. In making the findings set forth in subsection (1) of this section, the commissioner shall take into consideration all facts available to him with respect to the following economic factors:
   1. The quantity of such agricultural commodity available for distribution;
   2. The quantity of such agricultural commodity normally required by consumers;
   3. The cost of producing, processing, distributing, and marketing such agricultural commodity as determined by available statistics and surveys;
   4. The purchasing power of consumers as indicated by reports and indices;
   5. The level of prices of commodities, services, and articles which the farmers commonly buy;
   6. The level of prices of other commodities which compete with or are utilized as substitutes for such agricultural commodity.

History. Source: L. 39: P. 197, § 6. CSA: C. 106, § 51. CRS 53: § 7-3-6. L. 55: P. 148, § 6. C.R.S. 1963: § 7-3-6. L. 69: Pp. 113, 114, § § 5, 6.

35-28-107. Board of control

1. Any marketing order pursuant to this article shall provide for the establishment of a board of control to administer such order in accordance with its terms and provisions. The members of the board shall be appointed by the commissioner from nominations submitted by the industry and shall hold office until the expiration of their term or until such appointment is withdrawn by the commissioner for cause. All nominations for board members submitted by the industry affected by the marketing order affecting wheat shall be submitted to the commissioner prior to the beginning of the fiscal year for such industry established pursuant to section 35-28-113 (4) or by rule. If the marketing order affects directly only producers of a particular commodity, the members of the board shall be producers. If the marketing order affects directly only handlers of a particular commodity, the members of the board shall be handlers. If the marketing order affects directly both producers and handlers of a particular commodity such board shall be composed of both producers and handlers. The number of producers or handlers upon any such board shall be such number of producers or handlers as the commissioner finds is necessary to properly administer such order.
2. No member of any such board shall receive a salary but each shall be entitled to his actual expenses incurred while engaged in performing his duties authorized in this article. The commissioner may authorize such board to employ necessary personnel, including an attorney approved by the attorney general, fix their compensation and terms of employment, and to incur such expenses, to be paid by the commissioner from moneys collected as provided in sections 35-28-113 and 35-28-114, as the commissioner may deem necessary and proper to enable such board properly to perform such of its duties as are authorized in this article. The duties of any such board shall be administrative only and may include only the following:
   1. Subject to the approval of the commissioner to administer such marketing agreement or order;
   2. To recommend to the commissioner administrative rules and regulations relating to the marketing agreement or order;
   3. To receive and report to the commissioner complaints of violations of the marketing agreement or order;
   4. To recommend to the commissioner amendments to the marketing agreement or order;
   5. To submit to the commissioner for his approval an estimated budget of expense necessary for the operation of any marketing agreement or order established by authority of this article and also to submit for approval a method of assessing and collecting such funds, as the commissioner may find necessary for the administration of such marketing agreement or order;
   6. To assist the commissioner in the collection of such necessary information and data as the commissioner may deem necessary to the proper administration of this article;
   7. To cooperate with colleges and universities, other research institutions, or groups for the purpose of seeking methods of greater utilization of wheat and wheat products.

History. Source: L. 39: P. 198, § 7. L. 41: P. 90, § 1. CSA: C. 106, § 52. CRS 53: § 7-3-7. C.R.S. 1963: § 7-3-7. L. 77: (2)(g) added, p. 1606, § 1, effective June 2. L. 92: (1) amended, p. 164, § 1, effective March 16.

35-28-108. Contents of marketing order

1. In accordance with the provisions, restrictions, and limitations set forth in this article, any marketing agreement or order issued by the commissioner pursuant to this article may contain any of the following provisions for regulating, within this state, the handling, sale, and operations of processing or distributing by producers, handlers, or distributors of any agricultural commodity, but no others:
   1. Provisions for determining the existence and extent of the surplus of any agricultural commodity, or of any grade, size, species, or other classification or quality thereof, for the control and disposition of such surplus, and for equalizing the burden of such surplus elimination or control among the producers, processors, distributors, or other handlers affected;
   2. Provisions for limiting the total quantity of any agricultural commodity, or of any grade, size, species, or other classification, or quality or portions or combinations thereof, which may be processed, distributed, or otherwise handled by any persons engaged in such processing, distributing, or handling during any specified period. The total quantity of any such commodity so regulated and permitted to be processed, distributed, or otherwise handled shall not be less than the quantity which the commissioner finds is reasonably necessary to supply the market demand of consumers for such commodity.
   3. Provisions for allotting the quantity of any agricultural commodity, or of any grade, size, species, or other classification, or quality thereof, which each handler may purchase or acquire from or handle on behalf of any producers thereof during any specified period under a uniform rule, applicable to all handlers so regulated, based upon the amounts produced or sold by such producers in a prior period which the commissioner finds to be representative, or upon the current season’s production or sales of such products, or both, to the end that the total quantity of such commodity, or of any grade, size, species, or other classification, or quality or portions or combinations thereof, so purchased or handled shall be apportioned equitably among the producers thereof;
   4. Provisions for allotting the quantity of any agricultural commodity, or of any grade, size, species, or other classification, or quality or portions or combinations thereof, which each handler may process, distribute, or handle under a uniform rule, applicable to all handlers so regulated, based upon quantities of such commodity or of any grades, size, species, or other classification, or quality thereof, of the current season’s crop which each such handler has available for such processing, distribution, or handling, or upon the quantities of such commodity or of any grade, size, species, or other classification, or quality thereof, so processed, distributed, or handled by each such handler in a prior period which the commissioner finds to be representative, or based upon both, to the end that the total quantity of such commodity, or any grade, size, species, or other classification, or portion or combinations or quality thereof, processed, distributed, or handled during any specified period shall be equitably apportioned among all such handlers thereof;
   5. Provisions regulating the period during which any agricultural commodity, or any grade, size, species, or classification, or quality or portions or combinations of such commodity, may be processed, distributed, or otherwise marketed;
   6. Provisions for the establishment of surplus or reserve pools of any agricultural commodity, or of the representative value of such commodity, or of any grade, size, species, or other classification, or quality, or portions, or combination thereof, and providing for the sale of such surplus commodity and the equitable distribution, among the persons interested therein, of the net returns derived from the sale of such commodity or such commodity or such distribution of the representative value of such commodity;
   7. Provisions for the establishment of uniform grading and inspection of any agricultural commodity delivered by producers to handlers, processors, distributors, or others engaging in the handling, processing, or distributing thereof and for the establishment of grading standards of quality, condition, size, or pack for any agricultural commodity, and the inspection and grading of such commodity in accordance with such grading standards so established. Such grading standards for any such commodity shall not be established below any minimum standards now prescribed by law for such commodity. All inspections made necessary by such provisions shall be performed by the federal-state inspection service or by such other agent as designated by the commissioner.
   8. Provisions for the establishment of plans for advertising and sales promotion to create new or larger markets for agricultural commodities grown in the state of Colorado. The commissioner is authorized to prepare, issue, administer, and enforce plans for promoting the sale of any agricultural commodity. Any such plan shall be directed toward increasing the sale of such commodity without reference to a particular brand or trade name. No advertising or sales promotion program shall be issued by the commissioner which makes use of false or unwarranted claims on behalf of any such product, or disparages the quality, value, sale, or use of any other agricultural commodity.
   9. Provisions for price posting; but any grade, size, species, or other classification, quality, portion, or combinations thereof of any marketable agricultural product shall be sold by producers, handlers, or distributors thereof only at prices filed by such producers, handlers, or distributors in the manner provided for in such order;
   10. Provisions for requiring the labeling, marking, or branding of any agricultural commodity to be in conformity with the regulations specified in any marketing agreement or order issued under authority of this article;
   11. Provisions for establishing convenient stations for inspection, weighing, and receiving payment for any agricultural commodities sold or delivered by producers or distributors in conformity with any marketing agreement or order issued under authority of this article, and providing for the collection of expenses of operating such stations;
   12. Provisions allowing a board of control to cooperate with any other state or federal agency whose activities may be deemed beneficial to the purposes of this article;
   13. Provisions for requiring the packaging of any agricultural commodity to be in containers, and setting standards for such containers, or pack thereof, in conformity with the regulations or authority contained in any marketing agreement or order issued, adopted, or promulgated under the authority of this article;
   14. Provisions for the establishment of programs in the field of research for the improvement of production, control of insects or disease, harvesting, storing, transporting, marketing, handling, processing, or any other phase of research work which would benefit any agricultural commodity produced in Colorado;
   15. Provisions for establishing processing plants or necessary arrangements with persons or companies for the processing of agricultural products, which processing would tend to effectuate the purposes of the article;
   16. Provisions establishing methods whereby agricultural commodities and products other than marketable products may be disposed of and prohibiting dispositions thereof except as so provided;
   17. Provisions for the limitation and prevention of unfair methods of competition in the marketing of agricultural products.
2. Notwithstanding any other provisions of law, whenever a marketing order issued by the commissioner pursuant to this article contains any terms or conditions regulating the handling, processing, or distribution of any agricultural commodity that may be marketed in the area covered by such order, the importation into the area of any such commodity shall be prohibited unless the handler, processor, or distributor of such commodity complies with such terms and conditions.

History. Source: L. 39: P. 198, § 7. L. 41: P. 90, § 1. CSA: C. 106, § 52. L. 53: P. 116, § 3. CRS 53: § 7-3-8. L. 55: Pp. 148-150, § § 7, 8. L. 63: P. 164, § 2. C.R.S. 1963: § 7-3-8. L. 69: P. 114, § 7.

35-28-109. When marketing order effective

1. No marketing agreement or amendments thereto, directly affecting handlers, issued pursuant to this article, shall become effective unless and until the commissioner finds that such agreement has been assented to in writing by the handlers engaged in the operation covered by the marketing agreement who handle not less than fifty percent of the volume of the commodity covered thereby which is processed or distributed within the area defined in such agreement and by not less than fifty percent of the number of such handlers engaged in the operation covered by such agreement.
2. 1. shall not apply to marketing orders which contain provisions for refunds of assessments as provided in section 35-28-113.5.
   2. Except as provided in section 35-28-113 (3) and notwithstanding paragraph (a) of this subsection (2), no marketing order or amendments thereto directly affecting producers of wheat shall become effective unless or until the commissioner determines that the issuance of such order is approved and favored by at least two-thirds of the producers of wheat who participated in a referendum. For purposes of this provision, a “producer of wheat” means a person who harvested or intends to harvest in any manner in excess of fifteen acres of wheat and who is entitled to share in the proceeds of such wheat crop as owner-operator, cash tenant, standing rent or fixed rent tenant, landlord of a share tenant, share tenant, or sharecropper in the calendar year determined by the commissioner to be representative for purposes of voting approval. Wheat acreage placed in the federal soil bank program shall be regarded as wheat acreage for this purpose.
   3. Repealed.
3. Any order issued pursuant to this section shall become effective in the event that, notwithstanding the refusal or failure of handlers of more than fifty percent of the volume of the commodity or product thereof covered by such order which is produced or marketed within the production or marketing area defined in such order to sign a marketing agreement relating to such commodity or product thereof, on which a hearing has been held, the commissioner of agriculture, with the approval of the governor, determines:
   1. That the refusal or failure to sign a marketing agreement, by the handlers of more than fifty percent of the volume of the commodity or product thereof specified therein which is produced or marketed within the production or marketing area specified therein, tends to prevent the effectuation of the declared policy of this article with respect to such commodity or product; and
   2. That the issuance of such order is the only practical means of advancing the interests of the producers of such commodity pursuant to the declared policy, and is approved or favored by at least two-thirds of the producers who participated in a referendum on the question of its approval and who, during a representative period determined by the commissioner, have been engaged, within the production area specified in such marketing agreement or order, in the production for market of the commodity specified therein, or who, during such representative period, have been engaged in the marketing area specified in such marketing agreement or order; and by producers who, during such representative period, have produced for market at least two-thirds of the volume voted of such commodity produced for market within the production area specified in such marketing agreement or order, or who, during such representative period, have produced at least two-thirds of the volume voted of such commodity sold within the marketing area specified in such marketing agreement or order.
   3. Notwithstanding paragraph (b) of this subsection (3), approval of a marketing order affecting wheat must be approved or favored by at least two-thirds of the producers of wheat who participated in a referendum on the question of its approval. For purposes of this paragraph (c), a “producer of wheat” means a person who harvested or intends to harvest in any manner in excess of fifteen acres of wheat and who is entitled to share in the proceeds of such wheat crop as owner-operator, cash tenant, standing rent or fixed rent tenant, landlord of a share tenant, share tenant, or sharecropper in the calendar year for purposes of voting approval. Wheat acreage placed in the federal soil bank program shall be regarded as wheat acreage for this purpose.
4. In finding whether such order is assented to pursuant to the provisions of this article, the commissioner may consider the expression of any nonprofit agricultural cooperative marketing association which is authorized by its members to so express the approval or disapproval of the producers who are members of, or stockholders in, such nonprofit agricultural cooperative marketing association.

History. Source: L. 39: P. 201, § 8. CSA: C. 106, § 53. L. 51: Pp. 559, 560, § § 2, 3. CRS 53: § 7-3-9. L. 57: P. 133, § 2. L. 58: Pp. 101-103, § § 2, 3. L. 59: P. 185, § § 1, 2. C.R.S. 1963: § 7-3-9. L. 77: (2)(c) added, p. 1606, § 2, effective June 2. L. 87: (2)(a) amended, p. 1288, § 2, effective April 6. L. 88: (2)(b) amended, p. 1222, § 1, effective April 13. L. 96: (2)(c) repealed, p. 1217, § 8, effective August 7.

Cross references: For the legislative declaration contained in the 1996 act repealing subsection (2)(c), see section 1 of chapter 237, Session Laws of Colorado 1996.

35-28-110. Orders regulating processing

Subject to the provisions, restrictions, and limitations imposed in this article, the commissioner may issue marketing orders regulating within this state the processing, distributing, or handling in any manner of agricultural commodities by all persons engaged in such processing, distributing, or handling of such commodities.

History. Source: L. 39: P. 201, § 8. CSA: C. 106, § 53. L. 51: Pp. 559, 560, § § 2, 3. CRS 53: § 7-3-10. L. 55: P. 150, § 9. C.R.S. 1963: § 7-3-10.

35-28-111. Termination of marketing order

The commissioner shall suspend, amend, or terminate any marketing order, or any provision of any marketing order, whenever he finds that such provision or order does not tend to effectuate the declared purposes of this article within the standards and subject to the limitations and restrictions imposed in this article, but such suspension or termination shall not be effective until the expiration of the current marketing season. If the commissioner finds that the termination of any marketing order is requested in writing by more than fifty percent of the producers, who are engaged within the designated production area in the production for market of the commodity specified in such marketing order, or who produce for market more than fifty percent of the volume of such commodity produced within the designated production area for market, the commissioner shall terminate or suspend for a specified period such marketing order or provision thereof, but such termination shall be effective only if announced on or before such date, as may be specified in such order.

History. Source: L. 39: P. 201, § 8. CSA: C. 106, § 53. CRS 53: § 7-3-11. C.R.S. 1963: § 7-3-11.

35-28-112. Notice of marketing order issuance, suspension, amendment, or termination

Upon the issuance, suspension, amendment, or termination of a marketing order, public announcement of the issuance, suspension, amendment, or termination must be made in the manner and at the time required by the commissioner. An order, suspension, amendment, or termination will be effective five days after the date of the public announcement. The commissioner shall mail a copy of the notice of the order issuance, suspension, amendment, or termination to all persons directly affected by the terms of the order, suspension, amendment, or termination, whose names and addresses may be on file in the office of the commissioner and to every person who files in the office of the commissioner a written request for such notice.

History. Source: L. 39: P. 201, § 8. CSA: C. 106, § 53. CRS 53: § 7-3-12. C.R.S. 1963: § 7-3-12. L. 2018: Entire section amended, (SB 18-188), ch. 149, p. 940, § 2, effective August 8.

35-28-113. Budgeting and collection of fees

1. For the purpose of providing funds to defray necessary expenses, the board of control shall prepare a budget for the administration and operating costs and expenses, including advertising and sales promotion when same are requested in any marketing agreement or order executed under this article, which budget shall be approved by the commissioner. The collection of such necessary fees and the times and conditions of payment, in no case to exceed five percent of the gross dollar volume of such sales, or five percent of the gross dollar volume of purchases or amounts handled, distributed, or processed, shall become a part of any marketing order upon adoption as provided in this article.
2. Every person engaged in the production, processing, distributing, or handling of any marketable agricultural product produced, sold, or marketed in this state and directly affected by any marketing order issued pursuant to this article for such commodity shall pay, or collect and pay, to the commissioner at such time and in such manner as prescribed by the order as adopted an assessment covering the budget provided by this article, which assessment shall be the percentage of the gross dollar volume or amount per unit of such sales, or percentage of the gross dollar volume of purchases or amounts handled, distributed, or processed, of any commodity affected by such marketing order, as is necessary to defray the expenses of the enforcement of this article, but in no case to exceed five percent of the gross dollar volume.
3. Except as provided in section 35-28-113.5, whenever the board of control deems it necessary to raise the amount collected under the provisions of this section for a marketing order involving wheat, the commissioner shall ask for approval of the raise by a referendum on the question of the raise, which must be favored and approved by at least two-thirds of the producers who participate in the referendum.
4. The fiscal year for the marketing order issued pursuant to section 35-28-106 affecting wheat shall be the period so established by the commissioner by rule and regulation after consideration of recommendations by the board of control of such order.
5. 1. Notwithstanding any other provision of this article, if requested by a board of control affecting wheat, corn, or dry edible beans, the commissioner may amend a marketing order as described in this article to require the first handler of such commodity or product in this state to pay, or collect and pay, to the commissioner an assessment at such time and in such manner as shall be prescribed by the commissioner if the commissioner, with the approval of the governor, determines that:
      1. Wheat, corn, or dry edible beans produced in another state and shipped into this state for sale or distribution tends to prevent the effectuation of the declared policy of this article with respect to such commodity or product produced in this state; and
      2. The effectuation of the declared policy of this article would be furthered by collection of assessments on such commodity or product shipped into this state.
   2. Any assessment authorized pursuant to this subsection (5) shall be equivalent to the assessment required by the provisions of the marketing order.

History. Source: L. 39: P. 203, § 9. CSA: C. 106, § 54. CRS 53: § 7-3-13. L. 55: P. 150, § 10. C.R.S. 1963: § 7-3-13. L. 73: P. 199, § 1. L. 77: (3) added, p. 1606, § 3, effective June 2. L. 79: (3) amended, p. 1324, § 2, effective May 31. L. 88: (3) amended, p. 1222, § 2, effective April 13. L. 92: (4) added, p. 164, § 2, effective March 16. L. 2001: (1) and (2) amended and (5) added, p. 3, § 2, effective August 8.

35-28-113.5. Refunds of assessments - request by producer

1. Marketing orders issued after July 1, 1987, as well as amendments to such marketing orders and amendments to marketing orders in existence prior to July 1, 1987, which marketing orders and amendments are issued pursuant to the provisions of this article and which directly affect producers, may contain provisions for refunds of assessments or for refunds of portions of assessments. Any marketing order or amendment which contains such a provision shall not become effective unless and until the commissioner determines that the issuance of such order is approved and favored by at least a simple majority of the producers who participated in a referendum on the question of its approval and who, during such representative period, have produced for market the commodities specified therein in commercial quantities within the production area specified in such marketing agreement or order. Only the assessment or assessment raise or raises approved by a simple majority of the producers as provided in this subsection (1) or that portion of the assessment or assessment raise which is actually levied by the commissioner shall be subject to the provisions of this section.
2. A producer may request a refund of assessments or a refund of a portion of assessments within thirty days after payment of such assessments. The commissioner shall promulgate such rules and regulations as are necessary for the implementation of this section.

History. Source: L. 87: Entire section added, p. 1288, § 1, effective April 6. L. 88: Entire section amended, p. 1222, § 3, effective April 13.

35-28-114. Disposition of funds

1. Any moneys collected by the commissioner pursuant to this article shall be deposited in a bank or other depository approved by the state treasurer, allocated to each marketing order under which they are collected, and disbursed by the commissioner only for the necessary expenses incurred by the board of control and the commissioner and approved by the commissioner with respect to each such separate marketing order. Funds so collected shall be deposited and disbursed in conformity with appropriate rules and regulations prescribed by the commissioner. All such expenditures by the commissioner shall be audited at least annually and a copy of such audit shall be delivered within thirty days after the completion thereof to the governor and the commissioner of agriculture.
2. Any moneys remaining in such fund, allocable to any particular agricultural commodity affected by a marketing order, at the discretion of the commissioner, may be refunded at the close of any marketing season, upon a pro rata basis, to all persons from whom assessments were collected, or such portion of such moneys as may be recommended by the board of control and approved by the commissioner may be carried over into the next succeeding marketing season whenever the commissioner finds that such moneys may be required to assist in defraying the cost of operating such marketing order in such succeeding season. Upon termination by the commissioner of any marketing order, any moneys remaining, and not required by the commissioner to defray the expenses of such marketing order, shall be returned by the commissioner, upon a pro rata basis, to all persons from whom assessments were collected. If the commissioner finds that the amounts so returnable are so small as to make impractical the computation and remitting of such pro rata refund to such persons, the commissioner may use the moneys in such fund to defray the expenses incurred by him in the formulation, issuance, administration, or enforcement of any subsequent marketing order for such commodity.

History. Source: L. 39: P. 203, § 9. CSA: C. 106, § 54. L. 51: P. 560, § 4. CRS 53: § 7-3-14. C.R.S. 1963: § 7-3-14.

35-28-115. Limitation of marketing orders

1. Marketing orders issued by the commissioner under this article may be limited in their application by prescribing the marketing areas or portions of the state in which a particular order shall be effective. No marketing order shall be issued by the commissioner unless it embraces all persons of a like class in a given area who are engaged in a specific and distinctive agricultural industry or trade within this state.
2. Within the terms of this article, production or marketing areas as to peaches shall be classified as early maturing, which shall be at altitudes of less than five thousand feet, and late maturing, which shall be at altitudes of more than five thousand feet, and such areas shall be separate and distinct classes for all purposes under this article insofar as peaches are concerned.

History. Source: L. 39: P. 205, § 10. CSA: C. 106, § 55. CRS 53: § 7-3-15. C.R.S. 1963: § 7-3-15.

35-28-116. Administration and enforcement

1. The commissioner of agriculture shall be responsible for the administration and enforcement of this article.
2. Every person who violates any provision of this article or any provision of any marketing order duly issued by the commissioner under this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for not less than ten days nor more than six months, or by both such fine and imprisonment. Each day during which any such violations continue constitutes a separate offense.
3. Upon the filing of a verified complaint charging violation of any provisions of this article or of any provision of any marketing order issued by the commissioner under this article, and prior to the institution of any court proceeding authorized in this section, the commissioner in his discretion may refer the matter to the attorney general or any district attorney of this state for action pursuant to the provisions of this article or call a hearing to consider the charges set forth in such verified complaint. In such case, the commissioner shall cause a copy of such complaint, together with a notice of the time and place of hearing of such complaint, to be served personally, or by mail, upon the person named as respondent therein. Such service shall be made at least three days before said hearing date. The hearing shall be held in the city or town in which is situated the principal place of business of the respondent, or in which the violation complained of is alleged to have occurred, or in the nearest office of the department of agriculture, at the discretion of the commissioner. At the time and place designated for such hearing, the commissioner or his agents shall hear the parties to said complaint and shall enter in the office of the commissioner at Denver his findings based upon facts established at such hearing.
4. If the commissioner finds that no violation has occurred he shall forthwith dismiss such complaint and notify the parties to such complaint.
5. If the commissioner finds that a violation has occurred he shall so enter his findings and notify the parties to such complaint. Should the respondent thereafter fail, neglect, or refuse to desist from such violation, within the time specified by the commissioner, the commissioner may thereupon file a complaint against such respondent in a court of competent jurisdiction as set forth in this section.
6. Each district attorney of this state may upon his own initiative and shall upon any complaint of any person, if, after investigation he believes a violation has occurred, bring a criminal action in the proper court in his district in the name of the people of this state in any court of competent jurisdiction in the state of Colorado against any person violating any provision of this article or of any marketing order duly issued by the commissioner under this article.
7. 1. Any person who violates any provision of this article or of any marketing order or rule adopted pursuant to this article is subject to a civil penalty as determined by a court of competent jurisdiction or by the commissioner. The penalty shall not exceed one thousand dollars per violation; except that such penalty may be doubled if it is determined, after notice and an opportunity for hearing, that the person has violated the provision, marketing order, or rule on at least one prior occasion occurring after March 23, 1995.
   2. No civil penalty may be imposed by the commissioner unless the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
   3. If the commissioner is unable to collect the civil penalty, or if any person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may bring suit to recover such amount plus costs and attorney fees by action in any court of competent jurisdiction.
   4. Before imposing any civil penalty, the court or the commissioner may consider the effect of such penalty on the person charged.
   5. All penalties collected pursuant to this section shall be transmitted to the general fund.
8. 1. The commissioner shall enforce the provisions of this article.
   2. Whenever the commissioner has reasonable cause to believe a violation of any provision of this article or any marketing order or rule issued pursuant to this article has occurred and immediate enforcement is deemed necessary, the commissioner may issue an order requiring any person to cease and desist from such violation. Such cease-and-desist order shall set forth the provisions alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all actions cease immediately. At any time after service of the order to cease and desist, the person may request a prompt hearing to determine whether or not such violation has occurred. Such hearing shall be conducted pursuant to the provisions of article 4 of title 24, C.R.S., and shall be determined promptly.
   3. Whenever the commissioner possesses evidence satisfactory to the commissioner that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this article or of any marketing order or rule issued under this article, the commissioner may apply to a court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article or any marketing order, rule, or order under this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.
9. The judgment, if in favor of the plaintiff, shall provide that the defendant pay to the plaintiff reasonable costs of such suit including attorney’s fees incurred by an advisory board in the prosecution of such action.
10. Any such action may be commenced either in the county where defendant resides or where any act or omission or part thereof complained thereof occurred.
11. The penalties and remedies prescribed in this article with respect to any violation mentioned in this article shall be concurrent and alternative, and neither singly nor combined shall the same be exclusive and either singly or combined the same shall be cumulative with any other civil, criminal, or administrative rights, remedies, forfeitures, or penalties provided or allowed by law with respect to any such violation.
12. Any handler or processor located outside of this state who processes products which are marketed or distributed in this state on a continuing basis, whether directly or indirectly, shall be considered to be engaged in the transaction of business within this state and shall be subject to the jurisdiction of the courts of this state pursuant to the provisions of section 13-1-124, C.R.S. Any action to enforce any provision of this article or any marketing order issued pursuant to this article against such out-of-state handler or processor by the commissioner shall be considered to have arisen from the transaction of business in this state and shall subject the handler or processor to the jurisdiction of the courts of this state.

History. Source: L. 39: P. 205, § 11. CSA: C. 106, § 56. CRS 53: § 7-3-16. C.R.S. 1963: § 7-3-16. L. 73: P. 200, § 1. L. 95: (7) and (8) amended, p. 65, § 1, effective March 23. L. 2004: (7)(a), (8)(b), and (8)(c) amended, p. 65, § 1, effective March 8.

Editor’s note: Section 2 of chapter 19, Session Laws of Colorado 2004, provides that the act amending subsections (7)(a), (8)(b), and (8)(c) applies to marketing orders issued before, on, or after March 8, 2004.

35-28-117. Assessment a personal debt

Any assessment levied in such specified amount as may be determined by the commissioner pursuant to the provisions of section 35-28-113 shall constitute a personal debt of every person so assessed and shall be due and payable to the commissioner when payment is called for by the commissioner. In the event of failure of such person to pay any such assessment upon the date determined by the commissioner, the commissioner may file a complaint against such person in a state court of competent jurisdiction for the collection thereof, as provided in section 35-28-116.

History. Source: L. 39: P. 207, § 12. CSA: C. 106, § 57. CRS 53: § 7-3-17. C.R.S. 1963: § 7-3-17.

35-28-118. No personal liability

The members of any such board of control, including employees of such board, shall not be held responsible individually in any way whatsoever to any producer, processor, distributor, or other handler or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of such board. The liability of the members of such board shall be several and not joint and no member shall be liable for the default of any other member.

History. Source: L. 39: P. 207, § 13. CSA: C. 106, § 58. CRS 53: § 7-3-18. C.R.S. 1963: § 7-3-18.

35-28-119. Records - information - hearings

1. The commissioner may require all processors or distributors subject to the provisions of any marketing order issued pursuant to this article to maintain books and records reflecting their operations under said marketing order, and to furnish to the commissioner or his duly authorized or designated representatives such information as may be from time to time requested by them relating to operations under said marketing order, and to permit the inspection by said commissioner, or his duly authorized or designated representatives, of such portions of such books and records as relate to operations under said marketing order.
2. Information obtained by any person under this article shall be confidential and shall not be by him disclosed to any other person save to a person with like right to obtain the same, or any attorney employed to give legal advice thereupon, or by court order.
3. To carry out the purposes of this article, the commissioner may hold hearings, take testimony, administer oaths, subpoena witnesses, and issue subpoenas for the production of books, records, or documents of any kind. Upon failure or refusal of any witness to obey any subpoena, the commissioner may petition the district court, and upon proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey the order of court shall be punishable as a contempt of court.
4. No person shall be excused from attending and testifying or from producing documentary evidence before the commissioner in obedience to the subpoena of the commissioner on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture; but no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may be so required to testify or produce evidence, documentary or otherwise, before the commissioner in obedience to a subpoena issued by him; except that no natural person so testifying shall be exempt from prosecution and punishment for perjury in the first degree committed in so testifying.

History. Source: L. 39: P. 207, § 14. CSA: C. 106, § 59. CRS 53: § 7-3-19. C.R.S. 1963: § 7-3-19. L. 72: P. 554, § 1.

Cross references: For perjury in the first degree, see § 18-8-502.

35-28-120. Deposit to defray expenses

1. Prior to the issuance of any marketing order by the commissioner, he may require the applicants therefor to deposit with him such amount as the commissioner may deem necessary to defray the expenses of preparing and making effective such marketing order. Such funds shall be received, deposited, and disbursed by the commissioner in accordance with the provisions as set forth in section 35-28-114.
2. The commissioner may reimburse the applicant in the amount of any such deposit from any funds received by the commissioner pursuant to the provisions of section 35-28-114.

History. Source: L. 39: P. 208, § 15. CSA: C. 106, § 60. CRS 53: § 7-3-20. C.R.S. 1963: § 7-3-20.

35-28-121. General provisions

1. In the event the commissioner finds that it tends to effectuate the declared purposes of this article within the standards prescribed in this article, the commissioner may issue a marketing order, applicable to the marketing of any agricultural commodity containing like terms, provisions, methods, and procedures as any license or order regulating the marketing of such commodity issued by the secretary of agriculture of the United States pursuant to the provisions of any law or laws of the United States. In selecting the members of any board or other advisory agency under such marketing order, the commissioner shall utilize, insofar as practicable, the same persons as those serving in a similar capacity under such federal license or order, so as to avoid duplicating or conflicting personnel.
2. The commissioner is authorized to confer with and cooperate with the legally constituted authorities of other states and of the United States, for the purpose of obtaining uniformity in the administration of federal and state marketing regulations, licenses, or orders. Said commissioner is authorized to conduct joint hearings and issue joint or concurrent marketing orders for the purposes and within the standards set forth in this article, and he may exercise any administrative authority prescribed by this article to effect such uniformity of administration and regulation.
3. Nothing in this article applies to any order, rule, or regulation issued or issuable by the public utilities commission with respect to the operation of common carriers.
4. In any civil or criminal action or proceeding for violation of any rule of statutory or common law against monopolies or combinations in restraint of trade, proof that the act complained of was done in compliance with the provisions of this article or a marketing order issued under this article and in furtherance of the purposes and provisions of this article shall be a complete defense to such action or proceeding.

History. Source: L. 39: P. 208, § 16. CSA: C. 106, § 61. L. 53: P. 118, § 4. CRS 53: § 7-3-21. L. 55: P. 151, § 11. L. 61: P. 167, § 1. L. 62: P. 124, § 1. L. 63: P. 165, § 1. C.R.S. 1963: § 7-3-21.

35-28-122. Application of article

The provisions of this article shall not be applicable to retailers of agricultural commodities except to the extent that any retailer also engaged in the processing or distribution of agricultural commodities as defined in this article; but all persons acting as producers, handlers, processors, or distributors shall conform with all the provisions of any applicable marketing order, marketing agreement, or regulations issued pursuant to this law before shipping or causing to be shipped any agricultural commodity.

History. Source: L. 39: P. 209, § 17. CSA: C. 106, § 62. CRS 53: § 7-3-22. L. 55: P. 151, § 12. C.R.S. 1963: § 7-3-22. L. 69: P. 115, § 8.

35-28-123. Other laws superseded

It is the legislative intent that the provisions of this article shall control, to the exclusion of any general law of this state in conflict therewith, and specifically shall supersede the provisions of article 23 of this title, if said article is in conflict herewith.

History. Source: L. 39: P. 209, § 18. CSA: C. 106, § 63. CRS 53: § 7-3-23. C.R.S. 1963: § 7-3-23.

35-28-124. Agricultural commodities - preferences - promotion - task force - legislative declaration - repeal. (Repealed)

History. Source: L. 2004: Entire section added, p. 1733, § 1, effective June 4.

Editor’s note: Subsection (5) provided for the repeal of this section, effective May 1, 2005. (See L. 2004, p. 1733 .)

35-29-101. Legislative declaration

The purposes of this article are to provide a means whereby the general public purchasing certain Colorado agricultural products may be assured of the quality and grade of such products; to assure Colorado producers a better return from the sale of higher quality products; to establish a method of labeling and identification of such Colorado products so that purchasers may easily recognize them; to set up standards for quality, condition, packaging, and distribution of Colorado agricultural products so that the highest quality will be maintained until the product reaches the consumer; and to extend in every practicable way the production and sale of higher quality Colorado-produced agricultural products.

History. Source: L. 61: P. 173, § 1. CRS 53: § 7-18-1. C.R.S. 1963: § 7-16-1.

Cross references: For authority of boards of county commissioners to conduct agricultural research, see article 24 of title 30.

35-29-102. Definitions

As used in this article, unless the context otherwise requires:

1. “Colorado agricultural products” means any agricultural, horticultural, viticultural, or vegetable products or poultry or poultry products grown or produced in the state of Colorado.
2. “Commissioner” means the commissioner of agriculture.
3. “Consumer” means any person who buys Colorado agricultural products for personal use and not for resale.
4. “Container” means any box, carton, crate, bag, wrap, or other process or device used to hold and protect Colorado agricultural products. “Subcontainer” means any container being used within another container.
5. “Deceptive arrangement” or “deceptive display” means any bulk lot, arrangement, or display of products which has in the exposed surface products which are in quality, size, condition, or any other respect so superior to those which are concealed as to materially misrepresent the bulk lot, arrangement, or display.
6. “Deceptive pack” means any container or subcontainer which has in the outer layer or any exposed surface any products which are in quality, size, condition, or any other respect so superior to those in the interior of the container or subcontainer or in the unexposed portion as to materially misrepresent the contents.
7. “Department” means the department of agriculture.
8. “Distributor” means any person selling, marketing, or distributing Colorado agricultural products.
9. “Packer” means any person engaged in processing, packing, or preparing Colorado agricultural products for market.
10. “Person” means any individual, firm, association, corporation, or partnership.
11. “Producer” means any person engaged within this state in the business of producing or causing to be produced for market any agricultural commodity.
12. “Retailer” means any person buying Colorado agricultural products from producers, packers, or distributors and selling to consumers.
13. “Seal of quality” means the design approved by the commissioner, as provided in section 35-29-103 (2), as the Colorado “seal of quality” and which, when imprinted or affixed on labels, packages, or products or used in advertising or in any manner, shall signify the standards of quality provided in section 35-29-104.

History. Source: L. 61: P. 173, § 2. CRS 53: § 7-18-2. C.R.S. 1963: § 7-16-2.

35-29-103. Administration - seal of quality

1. The commissioner and the representatives of the department under the direction of the commissioner shall administer and enforce this article; and, in such administration, the commissioner has and may exercise any or all the administrative powers conferred upon him as head of the department.
2. 1. The commissioner shall produce or cause to be produced a suitable design or drawing, which shall be known as the Colorado seal of quality, to be used in the marketing of Colorado agricultural products.
   2. The title to the seal of quality shall at all times remain in and be reserved to the department of agriculture.
   3. The seal of quality, or any reproduction, copy, or facsimile thereof, may not be used in any advertising, display, labeling, or identification without prior written permission from the department.
3. When any producer, packer, distributor, or retailer has complied with the provisions of this article and the regulations pursuant thereto, he shall be permitted to use the seal of quality in advertising, labeling, or marketing his product.
4. The seal of quality may not be used on any agricultural product unless such product was produced in the state of Colorado.

History. Source: L. 61: P. 174, § 3. CRS 53: § 7-18-3. C.R.S. 1963: § 7-16-3.

35-29-104. Standards of quality

1. The department shall establish minimum standards of quality for all agricultural products to be marketed under the seal of quality.
2. The quality standards may be changed from time to time by the department, but any producer, packer, distributor, or retailer affected by the changes shall be notified by the department at least thirty days prior to the effective date of the changes in standards.
3. The seal of quality shall not be used in the marketing of any agricultural product which does not meet the minimum standards established by the department.
4. The commissioner shall prescribe methods and procedures of sampling, inspecting, and grading Colorado agricultural products.
5. Inspectors or representatives of the department shall use such methods and procedures in sampling, checking, and inspecting products to determine the grade, quality, or condition of the product being marketed under the seal of quality.
6. Any product being marketed under the seal of quality which does not meet the standards of quality established by the department shall be immediately removed from sale until the seal of quality has been removed from the product, label, or container. The department shall be the authority in making the decision to remove the product from sale. Any person refusing or failing to remove the seal of quality from a product, label, or container after being notified by the department shall be deemed in violation of this article.