ADMINISTRATION
ARTICLE 1 DEPARTMENT OF AGRICULTURE
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.
Section
35-1-101. Short title.
This article shall be known and may be cited as the "State Department of Agriculture Act of 1949".
Source: L. 49: p. 185, § 1. CSA: C. 5, § 13(3). CRS 53: § 6-1-1. C.R.S. 1963: § 6-1-1.
35-1-102. Definitions.
As used in this article, unless the context otherwise requires:
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"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(1.5) Repealed.
- "Commission" means the state agricultural commission.
- "Commissioner" means the commissioner of agriculture.
- "Department" means the department of agriculture.
- "Division" means a primary subdivision of the department whose administrative head is directly responsible to the head of the department.
- "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.
- "Section" means a subdivision of a division whose administrative head is directly responsible to the head of the division.
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.
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 - repeal.
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The department has and shall exercise the following functions, powers, and duties:
- 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;
- 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;
- To make investigations, conduct hearings, and make recommendations concerning all matters as related to the powers, duties, and functions as provided in this article;
- 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;
- 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;
- 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;
- To extend in every practicable way the distribution and sale of Colorado agricultural products throughout the markets of the world;
- 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;
- 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;
- 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;
- To act as adviser to producers and distributors, when requested, and to assist them in the economical and efficient distribution of their agricultural product;
- To foster and encourage cooperation between producers and distributors in the interest of the general public;
- 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;
- 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;
- 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;
- 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;
- Repealed.
- Repealed.
- Repealed.
- Repealed.
- Repealed.
- To license and inspect locker plants and enforce standards of construction and operation;
- To offer and award suitable premiums on livestock at the national western stock show;
- To take charge of the exhibition of Colorado agricultural products at international or national expositions;
- 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;
- 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;
- Repealed.
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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;
- Such other and additional functions, powers, and duties as may be provided by law;
- 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.
- 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.
- Repealed.
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(I) To implement voluntary soil health programs.
(II) No later than January 31 of each year, the department shall prepare and make available to the public a report on its official website that must contain the following information for the previous year:
- An accounting of all money received and spent for the purpose enumerated in subsection (1)(ff)(I) of this section; and
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A description of activities undertaken, including the number and type of grant-funded projects and the educational and stakeholder engagement activities.
(III) Notwithstanding section 24-1-136 (11)(a)(I):
(A) No later than January 31 of each year, the department shall submit the report prepared in accordance with subsection (1)(ff)(II) of this section to the agriculture and natural resources committee of the senate and the agriculture, livestock, and water committee of the house of representatives, or any successor committees; and
(B) The department shall annually report on its activities under this subsection (1)(ff) at the hearing required by the "State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act", part 2 of article 7 of title 2.
(IV) This subsection (1)(ff) is repealed, effective December 31, 2022.
- 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.
- 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.
- 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.
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. L. 2021: (1)(ff) added, (SB 21-235), ch. 232, p. 1228, § 2, effective June 15.
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; for the "Federal Seed Act", see 7 U.S.C. § 1551 et seq.
(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. For the legislative declaration in SB 21-235, see section 1 of chapter 232, Session Laws of Colorado 2021.
35-1-104.5. Agricultural workforce development program - legislative declaration - creation - rules - repeal.
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The general assembly finds and declares that:
- 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.
- 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.
- Internships are a recognized way to build a talent pipeline and career pathway to align education, training, and work-based learning; and
- By offering incentives to agricultural businesses to create internships, there will be more opportunities for students to obtain work experience in agriculture.
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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:
- 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;
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The criteria for an internship to qualify under the program, including the following:
- The internship must provide an intern at least one hundred thirty hours of work experience; and
- The internship cannot exceed six months in duration per intern;
- 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;
- The process and timetable for selecting qualified businesses and qualified interns;
- The accounting requirements for tracking internship costs; and
- The process for a business to seek reimbursement.
- 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.
- This section is repealed, effective July 1, 2024.
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.
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- 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.
- 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.
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For the purposes of representation on the state agricultural commission, this state is divided into four agricultural districts as follows:
- The city and county of Denver and the counties of Adams, Arapahoe, Douglas, and Jefferson shall constitute the first district.
- 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.
- 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.
- 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.
- 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.
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.
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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:
- 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;
- 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;
- To advise and make recommendations to the governor and the general assembly on matters pertaining to agriculture within this state;
- 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.;
- To furnish the commissioner with advice on any agricultural or livestock problem with which he may be confronted;
- 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;
- 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;
- 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.
- 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;
- If not already required by law, to require and fix the bonds of such employees of the department as may be deemed necessary;
- 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;
- 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;
- 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;
- 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;
- 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).
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- 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.
- 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.
- (Deleted by amendment, L. 2007, p. 1902 , § 1, effective July 1, 2007.)
- 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.
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.
- There is hereby created in the state treasury the plant health, pest control, and environmental protection cash fund.
- 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.
- 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.
- All interest derived from the deposit and investment of money 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 money in the fund shall remain in the fund and shall not be credited or transferred to the general fund or any other fund; except that the state treasurer shall transfer any unexpended and unencumbered money that is requested by the commissioner to be transferred from the plant health, pest control, and environmental protection cash fund to the emergency invasive-pest response fund created in section 35-1-106.4.
- 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.
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. L. 2021: (4) amended, (HB 21-1045), ch. 160, p. 910, § 1, effective September 7.
35-1-106.4. Emergency invasive-pest response fund.
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The emergency invasive-pest response fund, referred to in this section as the "fund", is hereby created in the state treasury. The fund consists of:
- Money transferred to the fund in accordance with section 35-1-106.3 (4);
- Money from remuneration authorized in section 35-4-118;
- Gifts, grants, and donations received under subsection (4) of this section; and
- Any other money that the general assembly may appropriate or transfer to the fund.
- The state treasurer shall credit all interest and income derived from the deposit and investment of money in the fund to the fund.
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Subject to annual appropriation by the general assembly, the commissioner may expend money from the fund to:
- Implement sections 35-4-118 and 35-4-119; and
- Implement emergency measures to control or eradicate invasive pests.
- The commissioner may seek, accept, and expend gifts, grants, or donations from private or public sources for the purposes of this section.
- The department shall report annually the amount and source of money received under this section in the prior fiscal year at the hearing required by the "State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act", part 2 of article 7 of title 2.
Source: L. 2021: Entire section added, (HB 21-1045), ch. 160, p. 910, § 2, effective September 7.
35-1-106.5. Inspection and consumer services cash fund - creation.
- 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.
- 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.
- (Deleted by amendment, L. 2007, p. 1902 , § 2, effective July 1, 2007.)
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: Amendments to subsection (1) by HB 20-1211 and HB 20-1213 were harmonized.
35-1-106.7. Conservation district grant fund - repeal.
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There is hereby created in the state treasury the conservation district grant fund. The fund consists of money appropriated to the fund pursuant to section 39-29-109.3 (1)(g)(III). Money in the fund is specifically and continuously appropriated to the
department. The department shall grant money in the fund to conservation districts for the purpose of implementing and maintaining soil and water conservation efforts. All money credited to the fund and all interest earned
on the investment of money in the fund is part of the fund and shall not be transferred or credited to the general fund or to any other fund.
(1.5) Repealed.
- This section is repealed, effective December 31, 2022.
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. L. 2021: (1) amended, (SB 21-281), ch. 255, p. 1502, § 13, effective June 18.
Editor's note: Subsection (1.5)(b) provided for the repeal of subsection (1.5), effective August 1, 2018. (See L. 2018, p. 1309 .)
Cross references: For the legislative declaration in SB 21-281, see section 1 of chapter 255, Session Laws of Colorado 2021.
35-1-106.8. Biological pest control cash fund - transfer of moneys to plant health, pest control, and environmental protection cash fund.
- 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.
- (Deleted by amendment, L. 2009, (HB 09-1249), ch. 87, p. 315, § 2, effective July 1, 2009.)
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.
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.
- 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.
- 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.
- 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.
- 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.
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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:
- The establishment of classifications and subclassifications for any license authorized under said articles; and
- 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.
- 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.
- 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.
- Repealed.
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.
35-1-107.5. Relief program for agricultural events organizations - created - definitions - report - repeal.
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Definitions. As used in this section, unless the context otherwise requires:
- "Agricultural events organization" means a nonprofit or for-profit organization that conducts one or more agricultural events in the state.
- "COVID-19" means the coronavirus disease caused by the severe acute respiratory syndrome coronavirus 2, also known as SARS-CoV-2.
- "Program" means the agricultural events relief program created in subsection (2) of this section.
- Agricultural events relief program. The agricultural events relief program is hereby created within the department. The commissioner shall administer or contract with a third party to administer a relief program to provide relief payments to agricultural events organizations that meet eligibility criteria developed by the commissioner. When determining eligibility for and the size of a relief payment, the commissioner or third-party contractor shall consider the type of agricultural events organization that is applying for a relief payment, the impact of the COVID-19 pandemic on the agricultural events organization's agricultural events or business model, the size of the organization, and the availability of and the organization's access to other COVID-19 relief or grant funding. The commissioner or third-party contractor shall prioritize awarding grants to local county fairs before awarding grants to other agricultural events organizations.
- Funding. For the 2020-21 state fiscal year, the general assembly shall appropriate two million dollars from the general fund to the department for allocation to the commissioner for the program. The commissioner may use the money, not to exceed one hundred thousand dollars, appropriated in accordance with this section for the costs of administering or contracting with a third party to administer the program.
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Report.
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The commissioner shall submit a report:
- To the governor; and
- At the hearing required by the "State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act", part 2 of article 7 of title 2.
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The report required by this subsection (4) must detail how the money was allocated through the program, including:
- The list of relief payment recipients with the amount allocated to each recipient;
- The types of agricultural events organizations that received relief payments; and
- Any other information deemed pertinent by the commissioner.
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The commissioner shall submit a report:
- Repeal. This section is repealed, effective December 31, 2022.
Source: L. 2021: Entire section added, (HB 21-1262), ch. 373, p. 2467, § 1, effective June 29.
35-1-107.7. Support for national western stock show - administration by commissioner - report - repeal.
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- For the 2020-21 state fiscal year, the general assembly shall appropriate three million five hundred thousand dollars from the general fund to the department for allocation to the commissioner for use in supporting or aiding the national western stock show event. At the end of the 2020-21 state fiscal year, any money not expended or encumbered from the appropriation remains available for expenditure in the 2021-22 fiscal year without further appropriation.
- For the 2020-21 state fiscal year, the general assembly shall appropriate twenty-five million dollars from the general fund to the department for allocation to the commissioner for aiding the national western stock show event in constructing the national western stock show's campus. At the end of the 2020-21 state fiscal year, any money not expended or encumbered from the appropriation remains available for expenditure in the 2021-22 fiscal year without further appropriation.
-
-
The commissioner shall submit a report:
- To the governor; and
- At the hearing required by the "State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act", part 2 of article 7 of title 2.
- The report required by this subsection (2) must detail how the money was allocated to provide support for and construction aid for the national western stock show.
-
The commissioner shall submit a report:
- This section is repealed, effective December 31, 2022.
Source: L. 2021: Entire section added, (HB 21-1262), ch. 373, p. 2467, § 1, effective June 29.
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.
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.
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.
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.
- 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.
- 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.
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)
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.
- 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.
- 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.
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- 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.
- The appropriate rule-making body of the department is authorized to promulgate rules to implement the provisions of this section.
- 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.
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.
35-1-114. Agricultural drought and climate resilience office - creation - rules - definition.
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Legislative declaration. The general assembly hereby:
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Finds that:
- Severe droughts, as well as unaddressed water demands associated with urban growth, will add pressure to Colorado's already strained water supply in all of Colorado's watersheds;
- More frequent and severe droughts will add pressure to Colorado's already strained water supply; and
- A strong, prosperous, diverse, and resilient agricultural sector is fundamental to the fabric of Colorado;
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Determines that:
- Colorado's agricultural producers are stewards of our lands, waters, and ecosystems, but they cannot shoulder the burden of water scarcity without addressing water-saving measures being implemented and sustained in urban areas; and
- Colorado's agricultural sector is a leader in implementing practices that build resiliency, conserve our water supplies, provide an economic base for rural communities, and enhance our environment; and
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Declares that:
- Creating the agricultural drought and climate resilience office will support and elevate producers in their resiliency efforts through nonregulatory, voluntary, and incentive-based programs without negatively impacting the overall rural economic viability of agricultural operations and rural communities; and
- The agricultural drought and climate resilience office can best address and mitigate agricultural climate-related issues on a wide scale by providing support to and assisting bona fide agricultural producers in implementing practices that minimize the impacts of climate change.
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Finds that:
- Office created. There is hereby created in the department the agricultural drought and climate resilience office, referred to in this section as the "office". The office may provide voluntary technical assistance, nonregulatory programs, and incentives that increase the ability to anticipate, prepare for, mitigate, adapt to, and respond to hazardous events, trends, or disturbances related to drought or the climate. The office shall advise the commissioner, the Colorado agricultural value-added development board created in section 35-75-203, other state agencies, and the governor on the impact to agriculture of drought and climate policies and programs. The commissioner shall appoint the head of the office.
-
Rules. The commissioner may promulgate rules necessary for the administration of the office's assistance, programs, and incentives, including grants. Before promulgating the rules, the commissioner shall convene a stakeholder group, including representatives
of organizations whose membership consists of agricultural producers engaged in the production of the top ten agricultural commodities produced in Colorado and members of the state conservation board created in section 35-70-103
(1)(a). The stakeholder group shall advise the commissioner as to the needs of the agriculture industry to respond to and mitigate the impacts of climate change on agricultural production. For the purpose of this section, "bona
fide agricultural producer" means an agricultural producer that receives a majority of the producer's annual income from agriculture, an agricultural producer that spends more than one thousand forty hours per year engaged
in agricultural production, or a Colorado business that processes agricultural products. Except for a program or support administered by the office to address immediate needs as a result of disaster, including wildfire and
drought, or a program that was in existence on January 1, 2021:
- A program administered by the office must be designed to benefit bona fide agricultural producers actively engaged in agriculture. Grants awarded by the office must pay for implementation of practices to address and mitigate the impacts of climate change or drought or to provide direct adaptation support for impacted agricultural communities, including mental health resources, conflict resolution assistance, and risk-management guidance. A grant award may pay no more than five percent of administrative expenses incurred by a bona fide agricultural producer to implement the practices.
- The department shall, at least thirty days before opening the grant application process, make available on its website information related to the grant program available to bone fide agricultural producers;
- A grant authorized pursuant to this section must receive final approval by the commission before a final award can be issued; and
- The department shall post on its website all applications for grant awards. Within fifteen days after awarding a grant, the department shall post on its website the name of the individual or entity receiving a grant, the amount of the grant awarded, the project or projects to be funded by the grant, and the duration of the grant award.
Source: L. 2021: Entire section added, (HB 21-1242), ch. 332, p. 2143, § 1, effective June 24.
35-1-115. Agriculture and drought resilience - cash fund - legislative declaration - repeal.
-
The general assembly hereby:
-
Finds that:
- In 2020, all of Colorado was in drought;
- Major drivers of the severe drought in 2020 include an essentially absent monsoon season, increased soil moisture deficits, record-high temperatures, and extreme evaporative demands from winds, low humidity, and high temperatures; and
- A warm spring, dry summer, and critically hot autumn with a complete lack of monsoonal moisture contributed to 2020's record-breaking fires;
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Determines that:
- Multi-year or compounding hazards, such as the 2018 drought, 2019 freeze, 2020 drought, and wildfires, take deep economic and ecological tolls on Colorado's agriculture;
- Climate outlooks for 2021 indicate drought conditions are expected to continue;
- More than one hundred studies published since 2013 show strong consensus that climate change promotes the weather conditions on which wildfires depend, enhancing their likelihood and increasing their severity; and
- By 2050, drought may cost Colorado an additional five hundred eleven million dollars in expected annual damages to agriculture; and
- Declares that supporting agricultural drought and climate resilience is essential to a strong and prosperous future for agriculture in Colorado.
-
Finds that:
-
- The agriculture and drought resiliency fund, referred to in this section as the "fund", is hereby created in the state treasury. The fund consists of money credited to the fund pursuant to subsection (2)(b) of this section and any other money that the general assembly may appropriate or transfer to the fund. The state treasurer shall credit all interest and income derived from the deposit and investment of money in the fund to the fund.
- Within three days after June 15, 2021, the state treasurer shall transfer three million dollars from the general fund to the fund.
-
- The department shall collaborate and coordinate as necessary with the department of natural resources, the Colorado water conservation board, and the governor's agricultural impact task force to identify the most effective and efficient uses of the money in the fund.
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Subject to annual appropriation by the general assembly, the department shall use the money in the fund to engage in activities that promote the ability of the state to anticipate, prepare for, mitigate, adapt to, or respond to any event, trend, or climatological
disturbance related to drought or climate, including:
- Providing money for agricultural water projects, including matching funds for state or federal grants;
- Supporting recovery of grazing lands following wildfire devastation exacerbated by drought conditions; or
- Providing to producers, as defined by the federal department of agriculture, technical assistance to help prepare and plan for future or persistent drought conditions.
- Notwithstanding any other provision of law, by July 1, 2021, the department shall distribute fifteen thousand dollars from the fund to each conservation district formed pursuant to article 70 of this title 35.
- The department shall include updates regarding its activities undertaken pursuant to this section, including expenditures from the fund, in its departmental presentation to legislative committees of reference pursuant to section 2-7-203.
- This section is repealed, effective September 1, 2022.
Source: L. 2021: Entire section added, (SB 21-234), ch. 235, p. 1236, § 1, effective June 15.
ARTICLE 1.2 COLORADO AGRICULTURAL FUTURE LOAN PROGRAM
Section
35-1.2-101. Short title.
The short title of this article 1.2 is the "Colorado Agricultural Future Loan Program Act".
Source: L. 2021: Entire article added, (SB 21-248), ch. 374, p. 2471, § 1, effective June 29.
35-1.2-102. Definitions - repeal.
As used in this article 1.2, unless the context otherwise requires:
- "Agricultural processing" means the transforming, packaging, sorting, storage, or grading of Colorado livestock, livestock products, agricultural commodities, plants, or plant products.
- "Agriculture" has the same meaning as set forth in section 35-1-102 (1).
- "Commissioner" means the commissioner of agriculture.
- "Department" means the department of agriculture created in section 35-1-103.
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"Eligible business" means a business that:
- Earns a majority of its revenue from agricultural processing; and
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In the judgment of the department:
- Has managers and employees who possess sufficient education, training, and experience to operate the business; and
- Provides an economic benefit to Colorado farmers or ranchers.
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"Eligible farmer or rancher" means an individual who:
- Is at least eighteen years of age;
- Is a resident of Colorado;
- Is an owner or operator in fact of a farm or ranch; and
-
In the judgment of the department:
- Possesses sufficient education, training, and experience to operate the farm or ranch; and
- Possesses or has access to sufficient working capital, farm machinery, livestock, or land to operate the farm or ranch.
- "Farm-to-market infrastructure grant" means a grant of money from the fund, which money is used for agricultural processing.
-
- "Farm-to-market infrastructure loan" means a loan from the loan program, which loan is used for the purpose of agricultural processing.
- This subsection (8) is repealed, effective January 2, 2023.
- "Financial entity" means a bank, nondeposit community development financial institution, business development corporation, or other entity with agricultural lending experience and with which the department contracts to help administer the loan program.
- "Fund" means the Colorado agricultural future loan program cash fund created in section 35-1.2-105.
- "Livestock" has the same meaning as set forth in section 35-1-102 (6).
- "Loan program" means the Colorado agricultural future loan program created in section 35-1.2-103.
Source: L. 2021: Entire article added, (SB 21-248), ch. 374, p. 2471, § 1, effective June 29.
35-1.2-103. Colorado agricultural future loan program - created - application - criteria - awards - rules - repeal.
- There is hereby created in the department the Colorado agricultural future loan program to provide loans as described in this section. The department shall administer the loan program. Nothing in this article 1.2 may be construed as permitting the department to engage in any direct lending activities.
-
-
- Beginning on or before January 1, 2022, and until January 1, 2025, the department may distribute money from the fund to financial entities to make farm-to-market infrastructure loans from the loan program to applicants who satisfy the requirements established by rules promulgated by the commissioner pursuant to subsection (7) of this section. (2) (a) (I) Beginning on or before January 1, 2022, and until January 1, 2025, the department may distribute money from the fund to financial entities to make farm-to-market infrastructure loans from the loan program to applicants who satisfy the requirements established by rules promulgated by the commissioner pursuant to subsection (7) of this section.
- This subsection (2)(a) is repealed, effective January 2, 2025.
- Beginning on or before January 1, 2022, the department may award farm-to-market infrastructure grants directly to eligible farmers or ranchers and eligible businesses that satisfy the requirements established by rules promulgated by the commissioner pursuant to subsection (7) of this section.
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In administering the loan program, the department, to the extent practicable, shall attempt to award or distribute:
-
- A total of at least five million dollars but no more than ten million dollars in the form of farm-to-market infrastructure loans or farm-to-market infrastructure grants by June 30, 2022.
- This subsection (3)(a) is repealed, effective July 1, 2022.
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- A total of at least ten million dollars but no more than twenty million dollars in the form of low-interest loans to eligible farmers or ranchers and eligible businesses by December 31, 2022.
- This subsection (3)(b) is repealed, effective January 1, 2023.
-
- When the department contracts with one or more financial entities pursuant to this section, the department shall promptly notify the agriculture and natural resources committee of the senate and the agriculture, livestock, and water committee of the house of representatives, or any successor committees, of such contract.
- To receive a loan or grant, an applicant must submit an application to the department in the form established by the commissioner pursuant to subsection (7)(c)(I) of this section.
- The department shall review applications received pursuant to this section. In awarding grants and distributing money to financial entities for awarding loans, the department shall consider any criteria established pursuant to rules promulgated by the commissioner pursuant to subsection (7) of this section.
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Pursuant to article 4 of title 24, the commissioner shall promulgate such rules as are required in this article 1.2 and such additional rules as may be necessary to implement the loan program. At a minimum, the rules must:
- Require the department to accept applications from applicants at all times during the year; except that the department may be required to accept written applications only during regular office hours;
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On and after January 1, 2023, to the extent practicable, prioritize the provision of loans to eligible farmers or ranchers who apply for loans or grants from the loan program and who:
- Have owned or operated a farm or ranch for less than ten years; or
- Represent a population that is underserved or underrepresented in Colorado agriculture; and
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Specify:
- The form of the loan program application;
- The time frames for distributing loan money;
- Criteria for the department to use in considering applications and awarding loans;
- The maximum amount of a loan from the loan program;
- Interest rates on loans;
- Repayment terms of loans; and
-
Permissible uses of money awarded as low-interest loans to eligible farmers or ranchers and eligible businesses, which uses may include:
- The acquisition of property and equipment;
- Paying costs associated with purchasing breeding livestock;
- Value-added improvements to real or personal property on a farm or ranch;
- Operating expenses;
- Conservation projects; and
- Such other uses as the commissioner may identify.
Source: L. 2021: Entire article added, (SB 21-248), ch. 374, p. 2473, § 1, effective June 29.
35-1.2-104. Report.
Notwithstanding section 24-1-136 (11)(a)(I), on or before December 15, 2021, and on or before December 15 each year thereafter, the department shall submit a summarized report to the agriculture and natural resources committee of the senate and the agriculture, livestock, and water committee of the house of representatives, or any successor committees, concerning the loan program.
Source: L. 2021: Entire article added, (SB 21-248), ch. 374, p. 2475, § 1, effective June 29.
35-1.2-105. Colorado agricultural future loan program cash fund - created.
-
The Colorado agricultural future loan program cash fund is hereby created in the state treasury. The fund consists of:
- Money credited to the fund pursuant to section 35-1.2-106;
- Money received as loan payments on loans issued from the loan program, including interest; and
- Any other money that the general assembly may appropriate or transfer to the fund.
- The state treasurer shall credit all interest and income derived from the deposit and investment of money in the fund to the fund.
- Any unexpended and unencumbered money remaining in the fund at the end of a fiscal year remains in the fund.
- The money in the fund is continuously appropriated to the department to expend for the purposes of this article 1.2.
Source: L. 2021: Entire article added, (SB 21-248), ch. 374, p. 2475, § 1, effective June 29.
35-1.2-106. Funding for loan program - repeal.
- Within three days after June 29, 2021, the state treasurer shall transfer thirty million dollars from the general fund to the fund for the implementation and administration of the loan program.
-
- The department may use up to one and one-half percent of the money transferred pursuant to subsection (1) of this section to set up the loan program.
- This subsection (2) is repealed, effective January 1, 2022.
- Beginning with the 2021-22 state fiscal year, the department may annually use up to one and one-half percent of the money transferred pursuant to subsection (1) of this section to pay the direct and indirect costs that the department incurs in administering the loan program; except that nothing in this subsection (3) may be construed as limiting the amount that the department may provide to a financial entity as compensation for making loans pursuant to a contract described in section 35-1.2-103 (4).
Source: L. 2021: Entire article added, (SB 21-248), ch. 374, p. 2475, § 1, effective June 29.
ARTICLE 1.5 PREEMPTION
Section
35-1.5-101. Scope of article.
-
Nothing in this article shall be construed to limit the authority of a local government to:
- 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;
- 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;
- Implement a cooperative agreement with any federal or state agency;
- Regulate the use of agricultural chemicals on property in which the local government has a fee simple absolute ownership interest;
- Issue local occupational licenses.
- 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.
Source: L. 94: Entire article added, p. 923, § 1, effective April 28.
35-1.5-102. Definitions.
As used in this article, unless the context otherwise requires:
- "Adjuvant" means a material added to an agrichemical solution to improve performance.
- "Agricultural chemical" means any device, plant nutrient, animal nutrient, or adjuvant and any treated, altered, or engineered plant or animal material.
- "Animal nutrient" means any feed subject to article 60 of this title and any material for the maintenance, growth, or production of animals.
- "Device" means a device as defined in section 35-9-103 (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.
-
"Plant nutrient" means:
- (Deleted by amendment, L. 2008, p. 1625 , § 2, effective August 5, 2008.)
- A plant amendment as defined in section 35-12-103 (24);
- A plant nutrient as defined in section 35-12-103 (25);
- A soil conditioner as defined in section 35-12-103 (29);
- Anhydrous ammonia as defined in section 35-13-102 (1) ;
- A commercial fertilizer as defined in section 35-12-103 (3) ;
- Treated or untreated manure;
- Water runoff from a confined animal feeding operation that is captured and then applied to a field; and
- A plant growth regulator.
- "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.
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.
-
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:
- The name of the product, name and address of the manufacturer, and applicable registration numbers;
- 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;
- Warnings and precautionary statements, hazards to humans, children, domestic animals, or the environment, physical or chemical hazards, or statements of practical treatment; or
- Record-keeping requirements.
Source: L. 94: Entire article added, p. 923, § 1, effective April 28.
ARTICLE 2 AGRICULTURAL STATISTICS
Section
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.
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.
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.
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.
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.
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.
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.
[ Editor's note: This version of this section is effective until March 1, 2022. ] 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.
35-2-106. Reports confidential.
[ Editor's note: This version of this section is effective March 1, 2022. ] 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 2. Any officer or employee of the state agricultural commission disclosing such information commits a petty offense.
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. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3276, § 615, effective March 1, 2022.
Editor's note: Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
ANNOTATION
Law reviews. For article, "Necessity for Exceptions to Instructions in Colorado", see 1 Rocky Mt. L. Rev. 102 (1929).
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.
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)
Source: L. 2019: Entire section added, (HB 19-1247), ch. 375, p. 3399, § 1, effective August 2.
Editor's note: Subsection (5) provided for the repeal of this section, effective July 1, 2020. (See L. 2019, p. 3399 .)
ARTICLE 3 CONSERVATION AND ADJUSTMENT LAW
Section
35-3-101. Short title.
This article shall be known and may be cited as the "Colorado Agricultural Conservation and Adjustment Act".
Source: L. 37: p. 257, § 1. CSA: C. 5, § 61. CRS 53: § 6-3-1. C.R.S. 1963: § 6-3-1.
35-3-102. Legislative declaration.
-
It is recognized and declared:
- 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;
- 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;
- 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;
- 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.
-
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:
- The powers conferred in this article shall be used to assist voluntary action calculated to effectuate such purposes.
- 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.
- 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.
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:
- "Other states of the United States" includes Puerto Rico.
- "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.
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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The department shall provide for such investigations as it finds to be necessary for the formulation and administration of such plans.
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.
- 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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
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.
-
The department by regulations shall provide:
- 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;
- 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.
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)
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.
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.
ARTICLE 3.5 NUISANCE LIABILITY OF AGRICULTURAL OPERATIONS
Section
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.
Source: L. 81: Entire article added, p. 1694, § 1, effective July 1. L. 96: Entire section amended, p. 675, § 1, effective May 2.
35-3.5-102. Agricultural operation deemed not nuisance - state agricultural commission - attorney fees - exceptions.
-
- 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.
-
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:
- Change in ownership;
- Nonpermanent cessation or interruption of farming;
- Participation in any government sponsored agricultural program;
- Employment of new technology; or
- Change in the type of agricultural product produced.
-
-
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:
(I) Was established prior to the commencement of the use of the area surrounding such agricultural operation for nonagricultural activities;
(II) Employs methods or practices that are commonly or reasonably associated with agricultural production; and
(III) Is not operating negligently.
- 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.
-
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:
- 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.
- As used in this article, "agricultural operation" has the same meaning as "agriculture", as defined in section 35-1-102 (1).
- 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.
- 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.
- 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.
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.
ANNOTATION
The mere fact that an operator moves an agricultural sprinkler on a county road does not establish a public nuisance. Moreover, even if the use of the agricultural sprinkler constituted a public nuisance, the county is empowered only to abate the nuisance to the extent reasonably necessary and, because of state policy in support of the use of implements of husbandry, an absolute prohibition on the movement of agricultural sprinklers on a county road is unreasonable. Bd. of County Comm'rs of Logan County v. Vandemoer, 205 P.3d 423 (Colo. App. 2008).
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.
Source: L. 81: Entire article added, p. 1695, § 1, effective July 1.
PEST AND WEED CONTROL
ARTICLE 4 PEST CONTROL
Section
35-4-101. Short title.
This article shall be known and may be cited as the "Pest Control Act".
Source: L. 37: p. 643, § 2. CSA: C. 80, § 44. CRS 53: § 6-10-1. C.R.S. 1963: § 6-10-1.
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.
Source: L. 2007: Entire section added, p. 925, § 1, effective July 1.
35-4-102. Definitions.
As used in this article 4, unless the context otherwise requires:
- "Board of county commissioners" means the public officials duly elected to that public office or their designated agents.
- "Commission" means the state agricultural commission created in section 35-1-105.
- "Commissioner" means the commissioner of agriculture or the commissioner's designated agents.
- "County pest inspector" means any qualified employee of a board of county commissioners employed under this article 4.
- "Department" means the department of agriculture.
- "Eradicate" means the complete elimination of a pest and its parts capable of reproduction based on its absence.
- "Insect pests" means any of the small invertebrate animals in the phylum arthropoda that are injurious to plants and animals.
- "Joint phytosanitary program" means a federal program designed to recognize a state official control program to eradicate or contain a plant pest that is not regulated by the lead federal agency and affords equivalent protection at ports of entry for the same pest if the states where it is destined are under official control.
- "Local government" means a county, municipality, city and county, or pest control district.
- "Official control" means official actions taken by a plant pest regulatory agency to eradicate or suppress a plant pest with the goal of eliminating isolated plant pest infestations.
- "Permit" means a document prepared by the commissioner that authorizes the movement of regulated articles that cannot meet official quarantine requirements to a specified destination for specialized handling, utilization, or processing or for treatment.
- "Person" means any individual, partnership, association, corporation, or organized group of persons, whether incorporated or not.
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- "Pests" means organisms that cause harm to agriculture or natural lands.
- "Pests" includes insect pests, plant 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 does not include noxious weeds.
- "Plant diseases" means the pathological conditions in plants caused by fungi, bacteria, viruses, nematodes, mycoplasmas, or parasitic seed plants.
- "Plant pest" means any living stage of a pest that can, directly or indirectly, cause disease in, spoilage of, or damage to plants, plant parts, or processed plant materials.
- "Plant product" means unmanufactured material of plant origin that, by the product's nature, may create a risk for the introduction and spread of pests.
- "Public nuisance" means a plant, plant product, conveyance, premises, or regulated article that harbors, is infested or infected with, is liable to spread, or is exposed to a plant pest, communicable or infectious disease, weed, or arthropod that may cause damage or harm to, or whose eradication, treatment, or control may benefit, persons, industries, or communities within the state, regardless of whether it may damage or harm the public generally.
- "Quarantine" means the official confinement of regulated articles for, regulated pests for, or organisms for inspection, testing, treatment, observation, or research.
- "Regulated article" means any of the following that could harbor pests: An organism, a material, a tangible object, or a substance.
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"Regulated nonquarantine pest" means a pest that is:
- Present in Colorado; and
- Under a mandated control program due to specific local circumstances, notwithstanding that the pest may be widely distributed in the United States.
- "Regulated pest" means a quarantine pest or a regulated nonquarantine pest designated by federal or state plant protection officials.
- "Weed" means any destructive or troublesome plant when found to be of sufficient economic importance to threaten the public welfare or affect natural resources.
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. L. 2021: Entire section amended, (HB 21-1045), ch. 160, p. 911, § 4, effective September 7.
Cross references: For control of rodents, jackrabbits, and predatory animals, see article 7 of this title.
35-4-103. Administration.
- 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.
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- 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.
- 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.
- 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.
- 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.
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.
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.
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.
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.
ANNOTATION
Court may not substitute its judgment for that of department concerning the qualifications of county pest inspectors, nor interfere with its discretion in determining the qualifications of an appointee to such position. Gillette v. People ex rel. Rice, 86 Colo. 185, 279 P. 40 (1929).
But mandamus will lie to compel issuance of license arbitrarily withheld. If an appointee is, in the opinion of the department, competent and qualified to perform the duties of the office, and a license is arbitrarily withheld, mandamus will lie to compel its issuance. Gillette v. People ex rel. Rice, 86 Colo. 185, 279 P. 40 (1929).
35-4-107. Inspections - notice - treatment - collection of costs.
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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:
- The landowner or occupant has requested an inspection;
- A neighboring landowner or occupant has reported a suspected pest infestation or infection and requested an inspection; or
- 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.
- 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.
- 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.
- 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.
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Within ten days after receipt of notification of a pest infestation or infection, the landowner or occupant:
- Shall comply with the terms of the notification;
- Shall acknowledge the terms of the notification and submit an acceptable plan and schedule for the completion of a plan for compliance; or
- 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.
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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:
- 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.
- 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.
- 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.
- 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.
- 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.
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.
- 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.
- 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.
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.
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.
- 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.
- 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.
- 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.
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.
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The commissioner shall notify the governor of the necessity for declaring a quarantine emergency if all of the following conditions are met:
- The commissioner has declared a quarantine pursuant to section 35-4-110 (1) or (2) or both.
- The commissioner has determined that the pest which is the subject of the quarantine is being or may be spread.
- 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.
- 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.
- 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.
- (Deleted by amendment, L. 96, p. 321 , § 4, effective April 16, 1996.)
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.
- 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.
- 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.
- 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.
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.
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.
- 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.
- 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.
- 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.
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.
Source: L. 85: Entire section added, p. 1135, § 12, effective May 16.
35-4-114. Penalties.
[ Editor's note: This version of this section is effective until March 1, 2022. ] 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.
35-4-114. Penalties.
[ Editor's note: This version of this section is effective March 1, 2022. ] Except for sections 35-4-107 and 35-4-110.5, any person who violates any of the provisions of this article 4 commits a civil infraction. 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 4 shall be cause for revocation of any certificate, permit, or appointment issued under this article 4.
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. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3276, § 616, effective March 1, 2022.
Editor's note: Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
Cross references: For certificates issued by the department of agriculture pursuant to this article, see § 35-4-111.
35-4-114.5. Civil penalties.
- 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.
- 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.
- 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.
- Before imposing any civil penalty, the commissioner may consider the financial hardship such penalty may cause to the business of the person charged.
- Any civil penalty recovered pursuant to this section shall be credited to the general fund.
Source: L. 96: Entire section added, p. 322, § 7, effective April 16.
35-4-115. Reports. (Repealed)
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.
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.
Source: L. 2013: Entire section added, (HB 13-1250), ch. 240, p. 1167, § 3, effective August 7.
35-4-118. Voluntary agreements to provide pest services.
The commissioner may enter into an agreement with any person to or local government to provide pest control services, including eradication or treatment, authorized by this article 4. The department may provide pest control services directly or through a local government and may require remuneration for providing pest control services. The commissioner shall transfer any money received under this section to the state treasurer, who shall deposit the money in the emergency invasive-pest response fund created in section 35-1-106.4.
Source: L. 2021: Entire section added, (HB 21-1045), ch. 160, p. 913, § 5, effective September 7.
35-4-119. Joint phytosanitary program.
The commissioner may work cooperatively with the United States secretary of agriculture, or the secretary's designee, to implement a joint phytosanitary program if the program would economically or environmentally assist with mitigating or eradicating the spread of a regulated nonquarantine pest.
Source: L. 2021: Entire section added, (HB 21-1045), ch. 160, p. 913, § 5, effective September 7.
35-4-120. Quarantine of nonregulated pests.
The commissioner may quarantine a regulated article if the regulated article may harbor a regulated pest that has an economically unacceptable impact, as determined by the commissioner, and if the measures to control the pest may achieve an acceptable level of official control.
Source: L. 2021: Entire section added, (HB 21-1045), ch. 160, p. 913, § 5, effective September 7.
35-4-121. Emergency control and eradication of invasive pests.
- If the commissioner determines that a public nuisance creates an unacceptable risk of spreading a pest, the commissioner may coordinate with industry to, support local governments to, and make grants to take emergency action to quarantine, control, or eradicate an invasive pest.
- A board of county commissioners may declare a pest to be a public nuisance and require its control or eradication.
Source: L. 2021: Entire section added, (HB 21-1045), ch. 160, p. 914, § 5, effective September 7.
ARTICLE 4.5 PEST CONTROL COMPACT
35-4.5-101 and 35-4.5-102. (Repealed)
Source: L. 2015: Entire article repealed, (SB 15-021), ch. 20, p. 50, § 1, effective August 5.
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.
ARTICLE 5 PEST CONTROL DISTRICTS
Section
35-5-101. Definitions.
As used in this article, unless the context otherwise requires:
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"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.
- "County" includes a city and county.
- "District" means an area as provided for in section 35-5-104.
- "District advisory committee" means the committee appointed as provided in section 35-5-105.
- "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.
- "Inspector" means a county pest inspector.
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"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.
- "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.
- "Person" includes person, firm, corporation, or association.
- "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.
- "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.
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"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.
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.
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.
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.
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.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
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.
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.
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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
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- 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.
- 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.
- 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.
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.
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.
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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
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.
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.
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).
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.
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.
- 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.
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In directing that emergency measures be taken, the governor is hereby authorized to:
- Utilize equipment, supplies, facilities, personnel, and other like available resources belonging to the state of Colorado in possession of any state agency;
- Enter into contracts for the acquisition, rental, or hire of equipment, services, materials, and supplies;
- Accept assistance, services, and facilities tendered by federal and local governmental units or private agencies;
- Accept on behalf of the state the provisions and benefits of acts of congress designated to provide for assisting states.
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.
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)
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.
- 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.
- 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.
- 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.
- 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.
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.
Source: L. 75: Entire section added, p. 1344, § 1, effective May 30.
35-5-122. Costs of control operations.
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The costs of grasshopper or range caterpillar control operations shall be borne as follows:
- 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.
- 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.
- One-third of the costs shall be paid from the governor's agricultural emergency and disaster fund.
- 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.
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.
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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:
- Payment of costs by landowners and lessees, APHIS, and the governor's agricultural emergency and disaster fund;
- 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;
- Methods and materials of control to be used in grasshopper and range caterpillar control operations;
- Protection of the environment, businesses, and industries located in grasshopper and range caterpillar control districts.
- 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.
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)
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.
- 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.
- 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.
- If other law has requirements applicable to special types of intergovernmental contracts or cooperative agreements, such law shall control.
Source: L. 2003: Entire section added, p. 847, § 1, effective April 7.
ARTICLE 5.5 COLORADO NOXIOUS WEED ACT
Section
35-5.5-101. Short title.
This article shall be known and may be cited as the "Colorado Noxious Weed Act".
Source: L. 90: Entire article added, p. 1549, § 1, effective July 1. L. 96: Entire section amended, p. 763, § 3, effective May 23.
35-5.5-102. Legislative declaration - rule of construction.
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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:
- 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;
- 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;
- 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;
- 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
- 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.
- 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.
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:
- (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
- "Alien plant" means a plant species that is not indigenous to the state of Colorado.
- (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
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"Commissioner" means the commissioner of the department of agriculture or his or her designee.
(4.5) "Department" means the department of agriculture.
- "District" means a local governing body's geographic description of a land area where noxious weeds are to be managed.
- (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
- "Federal agency" means each agency, bureau, or department of the federal government responsible for administering or managing federal land.
- "Federal land manager" means the federal agency having jurisdiction over any federal lands affected by the provisions of this article.
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"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:
- "Biological management", which means the use of an organism to disrupt the growth of noxious weeds.
- "Chemical management", which means the use of herbicides or plant growth regulators to disrupt the growth of noxious weeds.
- "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.
- "Mechanical management", which means methodologies or management practices that physically disrupt plant growth, including tilling, mowing, burning, flooding, mulching, hand-pulling, hoeing, and grazing.
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"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.
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"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:
- "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.
- "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.
- "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.
- "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.
- "Management plan" means the noxious weed management plan developed by any person or the local advisory board using integrated management.
- (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
- "Municipality" has the meaning set forth in section 31-1-101 (6), C.R.S.
- "Native plant" means a plant species that is indigenous to the state of Colorado.
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"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:
- Aggressively invades or is detrimental to economic crops or native plant communities;
- Is poisonous to livestock;
- Is a carrier of detrimental insects, diseases, or parasites;
- 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.
- "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.
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"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.
- (Deleted by amendment, L. 96, p. 764 , § 5, effective May 23, 1996.)
- "Weed" means any undesirable plant.
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.
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.
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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:
- Research sanctioned by a state or federal agency or an accredited university or college;
- Activities specifically permitted by the commissioner;
- 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.;
- 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
- Noxious weed management activities that are part of activities conducted on disturbed lands pursuant to section 34-60-106 (12), C.R.S.
- 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.
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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:
- 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.
Source: L. 2003: Entire section added, p. 2417, § 3, effective August 6.
35-5.5-105. Noxious weed management - powers of county commissioners.
- 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.
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- 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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
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Local advisory boards shall have the power and duty to:
- 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.
- Declare noxious weeds and any state noxious weeds designated by rule to be subject to integrated management;
- 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.
- 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.
- 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.
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.
- 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.
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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:
- "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;
- "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;
- "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.
- 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 (a) 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) (a) 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.
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Such rules shall include:
- 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;
- The criteria used to evaluate such petitions; and
- Time frames in which the commissioner shall grant or deny such petitions.
- 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).
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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:
- 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.
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.
- 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.
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Duties of commissioner.
- The commissioner may enforce the provisions of this section as necessary to ensure the cooperation of local governing bodies and affected landowners.
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The commissioner shall provide:
- 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.
- 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.
- 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.
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Duties of local governing bodies.
- 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.
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In addition to the existing powers and duties of a local governing body provided in this article a local governing body shall:
- 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;
- 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;
- Provide the commissioner with assistance in disseminating financial resources to affected landowners and mapping data pursuant to rules promulgated by the commissioner; and
- Determine the cost of eradication to be borne by affected landowners.
- 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).
- 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.
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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:
- The affected landowner or occupant has requested the inspection;
- A neighboring landowner or occupant has reported a suspected noxious weed infestation and requested an inspection; or
- 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.
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- 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.
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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:
- 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;
- The affected landowner has failed to respond or the landowner or occupant has denied access to the inspector; and
- A general description of the location of the affected land.
- 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.
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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:
- 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.
- 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.
- 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.
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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:
(I) 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
(II) Do one of the following:
- 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.
- 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.
- 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.
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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:
- 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.
- 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.
- 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.
- 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.
- 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).
- For the purposes of this section, an "occupant" shall not include the owner of an easement or right-of-way.
Source: L. 2003: Entire section added, p. 2417, § 3, effective August 6.
35-5.5-108.7. State noxious weed advisory committee - repeal.
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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) (a) (I) 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:
- At least one member represents private and public landowners or land managers;
- At least two members represent weed management professionals from the federal, state, or local levels;
- At least one member represents public or private weed scientists;
- At least two members represent local governing bodies;
- Four members must be agricultural producers, as defined in section 35-1-102; and
- At least three members represent knowledgeable resource specialists or industries, including environmental organizations.
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The remaining two members are:
- One nonvoting member who is appointed by the Colorado department of transportation with the approval of the commissioner; and
- One nonvoting member who is appointed by the department of natural resources with the approval of the commissioner.
- 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.
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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) (a) (I) 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:
- 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.
- 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.
- The commissioner may remove any member of the state advisory committee for misconduct, incompetence, or neglect of duty.
- A quorum of the state advisory committee shall elect or appoint annually a chairman and a vice-chairman.
- A quorum of the state advisory committee shall be a majority of the members appointed to the state advisory committee.
- The state advisory committee shall meet at least quarterly.
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The state advisory committee shall make recommendations to the commissioner concerning the:
- Designation of state noxious weeds;
- Classification of state noxious weeds;
- Development and implementation of state weed management plans;
- Prescribed techniques for eradication, containment, and suppression of state noxious weeds; and
- Management of noxious weeds on surface waters and public lands.
- Recommendations of the state advisory committee shall be made by a majority vote of the members of the state advisory committee.
- 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.
- 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.
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.
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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:
- The landowner or occupant has requested an inspection;
- A neighboring landowner or occupant has reported a suspected noxious weed infestation and requested an inspection; or
- 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.
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- 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.
- 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.
- 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.
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Within a reasonable time after receipt of notification, which at no time shall exceed ten days, the landowner or occupant shall either:
- Comply with the terms of the notification;
- Acknowledge the terms of the notification and submit an acceptable plan and schedule for the completion of the plan for compliance; or
- Request an arbitration panel to determine the final management plan.
- 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.
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Within a reasonable time after receipt of notification, which at no time shall exceed ten days, the landowner or occupant shall either:
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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:
- 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
- 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.
- 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.
- 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.
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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:
- 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.
- 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.
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.
- 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.
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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:
- Comply with the terms of the notification;
- Acknowledge the terms of the notification and submit an acceptable plan and schedule for the completion of the plan for compliance;
- Request an arbitration panel to determine the final management plan.
- 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.
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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:
- 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.
- 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.
- 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.
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.
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.
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.
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)
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.
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.
Source: L. 96: Entire section added, p. 773, § 17, effective May 23.
35-5.5-116. Noxious weed management fund - creation - allocation of funds.
- 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.
- 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.
- 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.
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The department may expend moneys for the following purposes:
- Noxious weed management programs with local weed control districts, if expenses are shared with such districts;
- 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;
- Administrative expenses incurred by the department;
- Any project the agricultural commission determines will significantly contribute to the management of noxious weeds within the state;
- 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;
- 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.
- 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.
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.
- There shall be designated in the department of agriculture a state weed coordinator, who shall be under contract with or appointed by the commissioner.
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The state weed coordinator shall:
- Develop a recommended management plan for the integrated management of designated noxious weeds within state-owned lands;
- Facilitate cooperation between federal, state, and local land managers in the formation of a memorandum of understanding;
- Provide guidance and coordination for local governmental weed managers.
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.
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- 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.
- 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.
- 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.
- 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.
- 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.
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.
Source: L. 96: Entire section added, p. 773, § 17, effective May 23.
ARTICLE 6 PEST AND PLANT QUARANTINE
35-6-101 to 35-6-108. (Repealed)
Source: L. 85: Entire article repealed, p. 1135, § 15, effective May 16.
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.
ARTICLE 7 RODENTS AND PREDATORY ANIMALS - CONTROL
Section
PART 1 RODENT CONTROL
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.
Source: L. 27: p. 616, § 1. CSA: C. 5, § 44. CRS 53: § 6-7-1. C.R.S. 1963: § 6-7-1.
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.
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.
- 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.
- 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
- 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.
- 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.
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.
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.
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.
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.
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.
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.
PART 2 RODENTS AND PREDATORY ANIMALS
35-7-201. Control and eradication of rodents.
- 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.
- 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.
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.
35-7-202. Control and eradication of predatory animals.
- 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.
- 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.
- 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.
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.
-
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:
- Transporting destructive rodent pests through a county without releasing such destructive rodent pests; or
- 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
- Keeping destructive rodent pests indoors or in cages or similar enclosures as pets; or
- Releasing destructive rodent pests into the county in which such destructive rodent pests were originally taken into captivity.
- 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.
-
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:
- 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
- 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.
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.
ARTICLE 8 WEEDS
35-8-101 to 35-8-107. (Repealed)
Source: L. 77: Entire article repealed, p. 293, § 10, effective May 26.
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.
ARTICLE 9 PESTICIDE ACT
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.
Section
35-9-101. Short title.
This article shall be known and may be cited as the "Pesticide Act".
Source: L. 90: Entire article R&RE, p. 1559, § 1, effective June 7.
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.
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:
-
"Active ingredient" means:
- 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;
- 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;
- In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant; and
- In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissue.
-
"Adulterated" refers to:
- Any pesticide whose strength or purity deviates from the professed strength or purity stated on its labeling or under which it is sold; or
- Any pesticide whose components or their relative proportions differ from those stated on its labeling; or
- Any substance which has been substituted wholly or in part for a pesticide; or
- Any pesticide from which any valuable constituent has been wholly or partly abstracted; or
- Any pesticide in which any contaminant is present in an amount which is determined by the commissioner to be a hazard.
- "Commissioner" means the commissioner of agriculture.
- "Dealer" means any person who distributes to any other person any restricted-use pesticide.
- "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.
- "Distribute" means to advertise, offer for sale, hold for sale, sell, barter, or supply in any fashion any pesticide in this state.
- "EPA" means the environmental protection agency.
- "Inert ingredient" means an ingredient which is not active.
- "Limited-use pesticide" refers to any pesticide so designated by the commissioner.
- "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.
-
"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.
- "Restricted-use pesticide" means any pesticide designated as a restricted-use pesticide by the commissioner or the administrator of the environmental protection agency.
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.
-
The provisions of this article shall not apply to:
- 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;
- 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
- 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.
- 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.
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.
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.
- 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.
- 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".
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.
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Each applicant for registration of a pesticide shall file with the commissioner, in the form and manner the commissioner shall designate:
- 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;
- The name of the pesticide;
- 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;
- 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;
- 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;
- 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
- Any other information required by the commissioner.
- Each applicant shall pay, at the time the application is submitted, an annual application fee in an amount to be determined by the commissioner.
- Repealed.
-
- Repealed.
- On and after January 1, 2011, registration of a pesticide shall expire each year on a date specified by the commissioner by rule.
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:
- This section is similar to former § 35-9-104 as it existed prior to 1990.
- 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.
- 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.
- 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.
- 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.
-
The commissioner shall consider the following criteria to determine if a pesticide qualifies for registration:
- Its composition is such as to warrant the proposed claims for it;
- When used in accordance with generally accepted practices, it will not cause unacceptable, adverse effects on the environment;
- 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.
-
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:
- The pesticide shall be purchased, possessed, or used only under permit of the commissioner;
- The pesticide shall be purchased, possessed, or used only under the supervision of the commissioner; and
- The permittee shall maintain records as to the use of such pesticide in the form and manner the commissioner shall designate.
-
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:
- The pesticide or its labeling or packaging does not comply with the provisions of this article or any rules or regulations adopted thereunder; or
- The pesticide registration has been canceled or suspended by the EPA.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
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.
- 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.
- The commissioner shall designate the classes of devices which are subject to this article.
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.
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Each applicant for registration of a device shall file with the commissioner, in the form and manner he shall designate:
- The name and address of the applicant and, if different, the name and address of the person whose name will appear on the device;
- The name of the device;
- 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;
- 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
- Any other information required by the commissioner.
- Each applicant shall pay, at the time the application is submitted, an annual application fee in an amount to be determined by the commissioner.
- Repealed.
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- Repealed.
- On and after January 1, 2011, registration of a device shall expire each year on a date specified by the commissioner by rule.
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:
- This section is similar to former § 35-9-104 as it existed prior to 1990.
- 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.
- 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.
- 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.
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The commissioner may require the applicant to submit any additional information he deems necessary, including, but not limited to:
- 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
- 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.
- 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).
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.
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The term "misbranded" shall apply:
- 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;
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To any pesticide:
- If it is an imitation of or is offered for sale under the name of another pesticide;
- 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;
- 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;
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If the label does not bear:
- The name and address of the manufacturer, registrant, or person for whom manufactured;
- The name, brand, or trademark under which the pesticide is sold;
- 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;
- 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;
- The weight or measure of the content, subject to the provisions of article 14 of this title; and
- Any registration number or establishment number issued by the EPA;
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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:
- The skull and crossbones;
- The word "poison" prominently in red on a background of distinctly contrasting color; and
- A statement of a practical treatment in case of poisoning by the pesticide;
- 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.
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.
- 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.
- Each business location, including branch offices, and each business name must be licensed.
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.
- 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.
- Each applicant for a pesticide dealer license shall pay a fee in an amount determined by the commissioner.
- Each pesticide dealer license shall expire on January 1 of each year.
- 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.
Source: L. 90: Entire article R&RE, p. 1566, § 1, effective June 7.
35-9-116. Renewal of pesticide dealer license.
- 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.
- 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.
- 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.
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.
- Licensed pesticide dealers shall keep records of designated sales in the form and manner designated by the commissioner.
- 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.
- Licensees shall submit such additional reports as may be required by the commissioner.
- Refillers shall keep and maintain records in the form and manner specified by the commissioner by rule.
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.
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.
- The commissioner is authorized to administer and enforce the provisions of this article and any rules and regulations adopted pursuant thereto.
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The commissioner is authorized to adopt all reasonable rules for the administration and enforcement of this article, including, but not limited to:
- 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;
- 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;
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- 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.
- 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.
- Determining standards for denaturing any pesticides, including, but not limited to, any arsenicals, fluorides, or fluosilicates by color, taste, odor, or form;
- The collection and examination of samples of pesticides or devices;
- 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;
- 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;
- Determining labeling requirements for all pesticides required to be registered under the provisions of this article and any rules or regulations adopted pursuant thereto;
- Classifying or subclassifying any pesticide registration, device registration, or pesticide dealer license.
- (2.5) (a) 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.
- 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.
-
- 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.
- 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.
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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.
- The powers and duties vested in the commissioner by this article may be delegated to qualified employees of the department.
- 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.
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.
- 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.
-
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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:
- 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;
- 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.
- 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.
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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:
- 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.
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.
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It is unlawful and a violation of this article for any person:
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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:
- Any pesticide or device which has not been registered pursuant to the provisions of this article and any rules and regulations adopted pursuant thereto;
- 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;
- 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;
- Any pesticide which is adulterated or misbranded, or any device which is misbranded;
- Any pesticide in any container which violates rules adopted pursuant to this article or in any container which is unsafe due to damage;
- 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;
- 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;
- To use or cause to be used any pesticide contrary to the rules and restrictions adopted pursuant to section 35-9-118 (2)(c);
- 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);
- 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;
-
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To make false, misleading, deceptive, or fraudulent representations through any media regarding:
- Pesticides or any aspect of their use, including, but not limited to, representations regarding their safety and effectiveness; or
- Devices or any aspect of their use, including, but not limited to, representations regarding their safety and effectiveness.
- 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".
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To make false, misleading, deceptive, or fraudulent representations through any media regarding:
- To refuse or neglect to comply with the provisions of this article;
- To refuse or neglect to comply with any rule adopted under this article, or any lawful order of the commissioner;
- To impersonate any state, county, or city inspector or official;
- To make a false statement in any invoice, record, report, or application required under this article or any rule promulgated under this article; or
- 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.
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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:
-
It is unlawful and a violation of this article for any pesticide dealer:
- To store pesticides in a manner inconsistent with labeling directions, except as provided by law, or in a fraudulent, faulty, unsafe, or negligent manner;
- To dispose of empty pesticide containers or unused materials inconsistent with labeling directions or in a negligent or unsafe manner;
- To permit the use of his license by persons to whom the license was not issued;
- To fail to maintain records and file reports as required by this article or rules adopted pursuant thereto;
- To fail to notify the commissioner of any change of address within thirty days after said change of address;
- 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
- 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:
- To fail to maintain any records or reports required under this article or any rule promulgated under this article;
- To make a false statement of fact in any record or report required by this article or any rule promulgated under this article; or
- To fail to clean a refillable container in accordance with residue removal procedures specified by the commissioner by rule.
- Any violation of paragraph (a), (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.
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.
ANNOTATION
Subsection (1)(g) and rules 4.2(b)(2) and 6.1(i) of the Colorado department of agriculture regulations violate the first amendment to the U.S. Constitution by prohibiting manufacturer from making true and non-misleading claims on its product labels and in its advertising. Bioganic Safety Brands, Inc. v. Ament, 174 F. Supp. 2d 1168 (10th Cir. 2001).
Subsection (1)(g) and rules 4.2(b)(2) and 6.1(i) of the Colorado department of agriculture regulations impose an undue burden on interstate commerce and thus violate the dormant commerce clause of the U.S. Constitution by prohibiting manufacturer from making true and non-misleading claims on its product labels and in its advertising. Bioganic Safety Brands, Inc. v. Ament, 174 F. Supp. 2d 1168 (10th Cir. 2001).
Subsection (1)(g)(II) and rules 4.2(b)(2) and 6.1(i) of the Colorado department of agriculture regulations conflict with § 136v(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which forbids a state to impose requirements for labeling different from those required under FIFRA, and its implementing regulations as to labeling requirements. Bioganic Safety Brands, Inc. v. Ament, 174 F. Supp. 2d 1168 (10th Cir. 2001).
FIFRA also preempts subsection (1)(g) to the extent that it purports to bar advertising claims that merely repeat claims made on pesticide labels. Bioganic Safety Brands, Inc. v. Ament, 174 F. Supp. 2d 1168 (10th Cir. 2001).
35-9-121. Enforcement.
- The commissioner or his designee shall enforce the provisions of this article.
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- 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.
-
- 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.
- 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).
- 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.
- No stay of a cease-and-desist order shall be issued before a hearing thereon involving both parties.
- Matters brought before a court pursuant to this section shall have preference over other matters on the court's calendar.
- 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.
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.
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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:
- 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;
- Has been convicted of a felony for an offense related to conduct regulated by this article;
- Has used fraud or deception in the procurement or attempted procurement of any registration or license authorized under this article, or the renewal thereof;
- Has failed to comply with a lawful order of the commissioner;
- Has had an equivalent registration or license canceled, denied, revoked, or suspended by any authority;
- 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;
- 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
- Has falsified any information requested by the commissioner.
- 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.
- 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.
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.
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This section shall apply whenever the commissioner finds or has reasonable cause to believe that any pesticide or device:
- Is adulterated or misbranded;
- Has not been registered under the provisions of this article;
- Fails to bear on its label the information required by this article; or
- Is in violation of any provision of this article or any rule made pursuant to this article.
- 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.
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[ Editor's note: This version of subsection (3) is effective until March 1, 2022.] 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.
(3) [ Editor's note: This version of subsection (3) is effective March 1, 2022. ] 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 2 misdemeanor. In addition, such person may be subjected to appropriate administrative proceedings.
- 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.
- 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.
Source: L. 90: Entire article R&RE, p. 1572, § 1, effective June 7. L. 2002: (3) amended, p. 1547, § 304, effective October 1. L. 2021: (3) amended, amended, (SB 21-271), ch. 462, p. 3277, § 617, effective March 1, 2022.
Editor's note:
- This section is similar to former § 35-9-110 as it existed prior to 1990.
- Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
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.
- 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.
- 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.
- 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.
- 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.
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.
ANNOTATION
Applied in Speer v. Kourlis, 935 P.2d 43 (Colo. App. 1996).
35-9-125. Criminal penalties.
- 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).
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[ Editor's note: This version of subsection (2) is effective until March 1, 2022.] 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.
(2) [ Editor's note: This version of subsection (2) is effective March 1, 2022. ] 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 2 misdemeanor and shall be punished as provided in section 18-1.3-501.
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[ Editor's note: This version of subsection (3) is effective until March 1, 2022.] 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.
(3) [ Editor's note: This version of subsection (3) is effective March 1, 2022. ] Any person who violates section 35-9-120 (1)(g), (2)(d), (2)(e), or (2)(f) commits a petty offense and shall be punished as provided in section 18-1.3-503.
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- 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.
- This subsection (4) is repealed, effective March 1, 2022.
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. L. 2021: (2) and (3) amended, (SB 21-271), ch. 462, p. 3277, § 618, effective March 1, 2022; (4)(b) added by revision, (SB 21-271), ch. 462, pp. 3277, 3331, §§ 618, 803.
Editor's note:
- This section is similar to former § 35-9-109 as it existed prior to 1990.
- Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
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.
- 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.
- (Deleted by amendment, L. 2009, (HB 09-1249), ch. 87, p. 316, § 5, effective July 1, 2009.)
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.
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.
Source: L. 90: Entire article R&RE, p. 1574, § 1, effective June 7.
ARTICLE 10 PESTICIDE APPLICATORS' ACT
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.
Section
35-10-101. Short title.
This article shall be known and may be cited as the "Pesticide Applicators' Act".
Source: L. 90: Entire article R&RE, p. 1576, § 1, effective May 31.
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.
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:
- "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.
- "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.
- "Commissioner" means the commissioner of agriculture.
- "Department" means the department of agriculture.
- "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.
- "EPA" means the United States environmental protection agency.
- "General-use pesticide" means any pesticide so designated by the commissioner or the administrator of the EPA.
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"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.
- "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.
- "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.
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"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.
- "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.
- "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.
- "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.
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"Technician" means any individual who:
- Uses, under the supervision of a qualified supervisor, a device that requires licensure under this article for use;
- 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
- Evaluates pest problems, recommends products or treatments for pest problems, or sells application services under the supervision of a qualified supervisor.
- "Technician" does not include any individual whose duties are solely clerical or janitorial or otherwise completely disassociated from pest control.
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"Technician" means any individual who:
- "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.
- "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.
- "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.
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:
- This section is similar to former § 35-10-103 as it existed prior to 1990.
- Amendments to subsection (2) by House Bill 06-1239 and House Bill 06-1274 were harmonized.
35-10-104. Scope of article.
- 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.
- (Deleted by amendment, L. 2006, p. 1260 , § 2, effective January 1, 2007.)
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.
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.
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As requisites for licensure, the applicant for a commercial applicator business license shall:
- Obtain liability insurance in the minimum amount of four hundred thousand dollars with the provision that such policy shall not be canceled 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);
- 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;
- Provide verifiable training to all technicians in his employ according to standards adopted by the commissioner;
- Identify all pesticide application equipment in the form and manner prescribed by the commissioner;
- 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.
- 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.
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- 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.
- No additional commercial applicator business license shall be required for such additional business names.
- 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.
- Each applicant for a commercial applicator business license shall pay a license fee in an amount determined by the commissioner.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
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.
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.
- 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.
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- 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.
- 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.
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.
- 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.
- 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.
- 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).
- 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.
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.
- 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.
-
The records shall be kept as follows:
- For a commercial applicator, at the address specified in the application for the commercial applicator's business license;
- For a registered limited commercial or registered public applicator, at the address specified in the registry authorized in section 35-10-109; or
- For a licensed private applicator, at the address of record on file with the commissioner.
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.
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- 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.
- 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.
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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:
- Who resides on the property to be treated;
- Resides on property that abuts the property to be treated; or
- Resides in a multi-unit dwelling that abuts a common area to be treated.
- 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.
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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:
- 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.
- The commissioner may establish rules to further clarify the circumstances and manner in which notice shall be given to pesticide-sensitive persons.
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- 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.
- 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.
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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:
- The word "WARNING", in at least sixty-point bold-faced type;
- The words "PESTICIDES APPLIED", in at least twenty-four-point bold-faced type;
- The symbol of a circle at least two inches in diameter with a diagonal slash over an adult, child, and dog; and
- The name of the commercial, registered limited commercial, or registered public applicator that made the application, in at least eighteen-point bold-faced type.
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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:
- The telephone number of the applicator;
- The name of the pesticide applied; and
- The date the pesticide was applied.
- 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.
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.
ANNOTATION
Notification requirements of subsection (3) are not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act. Coparr, Ltd. v. City of Boulder, 942 F.2d 724 (10th Cir. 1991).
35-10-112.5. Statewide uniformity of pesticide control and regulation - exceptions.
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The general assembly hereby determines that:
- The citizens of this state benefit from a system of safe, effective, and scientifically sound pesticide regulation;
- 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;
- Through statute and regulation, the state has created a system of pesticide regulation based upon scientific standards that protects the citizens of this state;
- 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
- Pesticide regulation is a matter of statewide concern.
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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:
- 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;
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- 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.
- 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.
- Except as specifically provided in this article, any warnings and precautionary statements, notifications, or statements of practical treatment; or
- Licensure, training, or certification requirements for persons regulated under this article, including any insurance and record-keeping requirements.
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Nothing in this article may be construed to limit the authority of a local government as defined by state law to:
- 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;
- 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;
- Regulate the use of pesticides on property owned or leased by the local government;
- Issue local general occupational licenses to persons regulated by this article.
- 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.
- 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.
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Nothing in this article may be construed to limit the authority of a local government as defined by state law to:
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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 (a) of subsection (3) of this section
concerning pesticides shall file the following with the department of agriculture:
- A certified copy of the ordinance; and
- A map or legal description of the geographic area that the local government intends to regulate under the ordinance.
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.
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.
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.
Source: L. 2006: Entire section added, p. 1263, § 7, effective January 1, 2007.
35-10-114.7. Licensed private applicators - rules - repeal. (Repealed)
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.
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Each applicant for a qualified supervisor, certified operator, or private applicator license shall:
- Pass a written examination in each class or subclass of pesticide application, or device use, in which he or she wishes to be licensed;
- Possess the degree of experience and any other qualifications which may be required by the commissioner for licensure under this section; and
- 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.
- 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.
- 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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
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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:
- Application and payment of a reinstatement fee as determined by the commissioner; and
- Proof that all renewal requirements have been satisfied as of the expiration date of the license.
- 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.
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.
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Unless otherwise authorized by law, it is unlawful and a violation of this article for any person:
- 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;
- 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;
- 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;
- To refuse to comply with a cease-and-desist order issued pursuant to section 35-10-120;
- To refuse or fail to comply with the provisions of this article;
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- To make false, misleading, deceptive, or fraudulent representations.
- No claims of absolute safety shall be made for any product regulated by this article.
- To impersonate any state, county, city and county, or municipal official or inspector;
- 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;
- 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
- To refuse or fail to comply with any requirements of the federal worker protection standards set forth in 40 CFR part 170.
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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:
- 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;
- 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;
- 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;
- 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;
- 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;
- To fail to provide the notification required pursuant to section 35-10-112 (1)(c);
- 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;
- To fail to maintain or submit any records or reports required by this article or any rules or regulations adopted pursuant thereto.
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It is unlawful and a violation of this article for any commercial applicator, qualified supervisor, or certified operator:
- To permit the use of his license by any other person;
- 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;
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- 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).
- 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.
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It is unlawful and a violation of this article for any commercial applicator:
- 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;
- 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.
- 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.
- 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.
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.
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It is unlawful and a violation of this article for a licensed private applicator:
- 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;
- To fail to maintain or submit any records or reports required by this article or any rules adopted pursuant thereto; or
- To permit the use of a private applicator license by any person other than the person to whom the license was issued.
Source: L. 2006: Entire section added, p. 1264, § 11, effective January 1, 2007.
35-10-118. Powers and duties of the commissioner.
- The commissioner is authorized to administer and enforce the provisions of this article and any rules and regulations adopted pursuant thereto.
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The commissioner is authorized to adopt all reasonable rules for the administration and enforcement of this article, including, but not limited to:
- 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;
- 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;
- 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;
- The content of the examination required for the administration of this article and the amount of any examination and examination grading fee.
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The commissioner shall, for examinations required for any license under this article:
- 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;
- 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;
- Administer each such examination or contract with a person, corporation, or other entity to administer each such examination.
- 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.
- The commissioner shall establish any competency requirements and standards for any individuals licensed under section 35-10-115.
- 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.
- 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.
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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.
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(8.5) (a) The department may provide the following only to the extent of funding received pursuant to paragraph (b) of this subsection (8.5):
- Education programs for urban residents regarding the proper use of pesticides and regarding the dangers of misuse or overuse of pesticides; and
- 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.
- 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.
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(8.5) (a) The department may provide the following only to the extent of funding received pursuant to paragraph (b) of this subsection (8.5):
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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.
- The powers and duties vested in the commissioner by this article may be delegated to qualified employees of the department.
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.
- 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.
- 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.
- 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.
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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:
- 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;
- 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.
- 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.
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:
- This section is similar to former § 35-10-115 as it existed prior to 1990.
- Amendments to subsection (4)(a) by House Bill 06-1239 and House Bill 06-1274 were harmonized.
35-10-120. Enforcement.
- The commissioner or his designee shall enforce the provisions of this article.
- 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.
- 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.
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.
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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:
- 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;
- Has been convicted of a felony for an offense related to the conduct regulated by this article;
- Has had an equivalent license or registration denied, revoked, or suspended by any authority;
- 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;
- 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
- Has falsified any information requested by the commissioner.
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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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
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.
ANNOTATION
Penalties imposed by this section pursuant to this section were well within the maximum allowable because of the number of statutory and regulatory violations plaintiffs were found to have committed with respect to each of three incidents. Speer v. Kourlis, 935 P.2d 43 (Colo. App. 1996).
35-10-123. Criminal penalties.
- 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).
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[ Editor's note: This version of subsection (2) is effective until March 1, 2022.] 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.
(2) [ Editor's note: This version of subsection (2) is effective March 1, 2022. ] 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 2 misdemeanor and shall be punished as provided in section 18-1.3-501.
- 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.
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. L. 2021: (2) amended, (SB 21-271), ch. 462, p. 3277, § 619, effective March 1, 2022.
Editor's note:
- This section is similar to former § 35-10-120 as it existed prior to 1990.
- Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
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.
- 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.
- 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.
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.
- 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.
-
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:
- A formulator, or his Colorado representative, actively engaged in the sale of pesticides in Colorado;
- A commercial applicator, licensed under this article, who is actively engaged in the commercial application of pesticides for the control of agricultural crop pests;
- 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;
- A commercial applicator, licensed under this article, who is actively engaged in the application of pesticides for the control of structural pests;
- A qualified supervisor, employed by a limited commercial applicator registered under this article, who is actively engaged in the application of pesticides;
- Two representatives from public applicators registered under this article, each of whom shall be an elected official or a designee thereof;
- A representative from Colorado state university agricultural experiment station or extension service;
-
Two representatives from the Colorado department of public health and environment, both of whom have expertise in either:
- Human health with respect to toxicology, pest-related disease vectors, and epidemiology;
- Hazardous materials and food safety;
- Air pollution and hazardous pesticide air pollutants; or
- Water pollution and agricultural activities;
- Two representatives from the general public, one of whom is actively engaged in urban agricultural production;
- 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;
- A representative from the agricultural sector who is a worker, as that term is defined in 40 CFR 170.3; and
- A representative from the agricultural sector who is actively engaged in organic agricultural production.
- All members of the advisory committee, with the exception of the formulator, shall be residents of this state.
- 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.
- 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.
- Repealed.
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.
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)
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.
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.
ARTICLE 11 COLORADO CHEMIGATION ACT
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.
Section
35-11-101. Short title.
This article shall be known and may be cited as the "Colorado Chemigation Act".
Source: L. 87: Entire article RC&RE, p. 1278, § 1, effective July 1.
35-11-102. Definitions.
As used in this article, unless the context otherwise requires:
- "Chemical" means any fertilizer or pesticide.
- "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.
- "Commissioner" means the commissioner of agriculture.
- "Contamination" means the degradation of natural water quality as a result of man's activities.
- "Department" means the department of agriculture.
- "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.
- "Groundwater" means any water not visible on the surface of the ground under natural conditions.
- "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.
- "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.
- "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, or any other legal or commercial entity.
- "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.
- "Pollution" means the man-made or man-induced alteration of the physical, chemical, biological, or radiological integrity of water.
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.
- 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.
- 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.
- 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.
Source: L. 87: Entire article RC&RE, p. 1279, § 1, effective July 1.
35-11-104. Rules and regulations.
-
The commissioner shall promulgate rules and regulations pursuant to section 24-4-103, C.R.S., to:
- Administer the chemigation permit program;
- Establish equipment or performance standards and installation requirements;
- Establish fees for the direct and indirect costs of administering the provisions of this article; and
- Establish criteria for the entry of inspectors upon lands for purposes of conducting inspections.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
- 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.
- 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.
-
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:
- Repealed.
- 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.
- 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.
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.
-
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:
- Backflow prevention check valve and vacuum relief valve between the main check valve and the irrigation pump;
- Inspection port to check the performance of the check valve on the irrigation pipeline;
- 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;
- Check valve in the chemical injection line; and
- 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.
- 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.
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.
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.
Source: L. 87: Entire article RC&RE, p. 1281, § 1, effective July 1.
35-11-110. Failure to pass inspection - summary suspension - repair orders.
- 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.
- 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.
Source: L. 87: Entire article RC&RE, p. 1282, § 1, effective July 1.
35-11-111. Inspections - entry upon land.
- Each irrigation system for which a permit has been issued may be inspected once every two years.
- 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.
- 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.
- Except as otherwise provided in section 35-11-113, inspectors shall be employees of the department.
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.
-
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:
- Fails to have installed and operating, or to have properly installed, any device required by section 35-11-107;
- 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;
- Has utilized chemigation without a permit on or after January 1, 1990;
- 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;
- Has contaminated groundwater or surface water by the use of chemigation;
- Has violated any provision of this article or any rule or regulation promulgated by the commissioner pursuant to this article.
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.
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.
- 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.
- (Deleted by amendment, L. 2009, (HB 09-1249), ch. 87, p. 317, § 8, effective July 1, 2009.)
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.
- 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.
- 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.
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.
- 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.
- 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.
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.
Source: L. 88: Entire section added, p. 1221, § 6, effective July 1.
ORGANICALLY GROWN PRODUCTS
ARTICLE 11.5 ORGANIC CERTIFICATION ACT
Section
35-11.5-101. Short title.
This article shall be known and may be cited as the "Organic Certification Act".
Source: L. 89: Entire article added, p. 1376, § 1, effective June 6.
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.
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:
-
- "Agricultural products" means any agricultural, horticultural, floricultural, viticultural, or vegetable product grown or produced.
- 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.
- "Commissioner" means the commissioner of agriculture.
- "Department" means the department of agriculture.
- Repealed.
- Repealed.
- Repealed.
- Repealed.
- "Secretary" means the United States secretary of agriculture or a representative to whom authority has been delegated to act in the secretary's stead.
- "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.
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.
-
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:
- Fees to fund all direct and indirect costs of the administration and implementation of this article;
- Repealed.
- Repealed.
- Repealed.
- Repealed.
- Repealed.
- Repealed.
- Repealed.
- Repealed.
- The provisions of 7 U.S.C. sec. 6501 et seq. and 7 CFR part 205, applicable to the certification of organic producers;
- Confidentiality of information and documents pursuant to section 35-11.5-105 (4);
- 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.
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.
-
- 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.
- Inspections conducted under the state organic certification program may be performed by the commissioner or the commissioner's authorized agents.
- 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.
- The department and the commissioner shall coordinate with the secretary to implement the state organic certification program pursuant to this article.
-
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:
- Certificates issued during the current calendar year and the three immediately preceding calendar years;
- 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;
- 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
- Other business information as permitted in writing by the producer or handler.
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)
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)
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)
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)
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)
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)
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)
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.
- 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.
- (Deleted by amendment, L. 2009, (HB 09-1249), ch. 87, p. 318, § 10, effective July 1, 2009.)
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.
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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:
- Crop production;
- Livestock production;
- Processing/handling; and
- Wild crop handling.
- The members of the organic certification advisory board shall serve terms of three years and may be reappointed.
- 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.
- (Deleted by amendment, L. 93, p. 675 , § 11, effective May 1, 1993.)
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.
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.
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.
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.
FERTILIZERS
ARTICLE 12 COMMERCIAL FERTILIZERS AND SOIL CONDITIONERS
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.
Section
35-12-101. Short title.
This article shall be known and may be cited as the "Commercial Fertilizer, Soil Conditioner, and Plant Amendment Act".
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.
ANNOTATION
This article is a police measure. Durfee & Son v. Dept. of Agriculture, 151 Colo. 149 , 376 P.2d 685 (1962).
And no public health, safety, or morals question is involved in this article. Durfee & Son v. Dept. of Agriculture, 151 Colo. 149 , 376 P.2d 685 (1962).
35-12-102. Administration of article.
This article shall be administered by the commissioner of agriculture or the commissioner's duly authorized representatives.
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:
- "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.
- "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.
- "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.
- "Commission" means the state agricultural commission.
- "Commissioner" means the commissioner of agriculture of Colorado or the commissioner's authorized agent.
- "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.
- "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.
- "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.
- "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.
- "Distributor" means any person who distributes a commercial fertilizer, soil conditioner, plant amendment, compost, or manure.
- "Essential" means necessary for the maintenance and growth of plants.
- "Fertilizer" means a substance or product that contains one or more essential available plant nutrients.
- "Grade" means the percentage of total nitrogen, available phosphate, and soluble potash in the same terms, order, and percentages as in the guaranteed analysis.
-
-
"Guaranteed analysis" means the minimum percentage of plant nutrients claimed in the following order and form:
Total Nitrogen (N) .................... percent
Available Phosphate (P 2 O 5 ) .................... percent
Soluble Potash (K 2 O) .................... percent
- 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.
- 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.
-
"Guaranteed analysis" means the minimum percentage of plant nutrients claimed in the following order and form:
- "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.
- "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.
- "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.
- "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.
- "Manure" means animal or vegetable manure and includes treated and untreated manure.
- "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.
- "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.
- "Percent" or "percentage" means the percentage by weight.
- "Plant amendment and soil conditioner guaranteed analysis" means the percentage of each of the ingredients.
- "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.
- "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.
- "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.
- "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.
- "Sewage sludge, sewage effluents, and biosolids" means all materials resulting from domestic wastewater treatment that contain concentrations of organic or inorganic materials.
- "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.
- "Specialty fertilizer" means a commercial fertilizer distributed primarily for nonfarm use, such as home gardens, lawns, shrubbery, flowers, golf courses, parks, and cemeteries.
- "Ton" means a net weight of two thousand pounds avoirdupois.
- "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.
- "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.
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.
-
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:
- The name and address of the registrant;
- The name of the product;
- The grade, if a commercial fertilizer;
- The guaranteed analysis;
- The sources from which the guaranteed plant nutrients, soil conditioner, or plant amendment derive; and
- One copy of the label used in this state for the sale of each of the products being registered.
(1.5) Repealed.
- 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.
- 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.
- Commercial fertilizer shall contain the minimum stipulated quantities of plant nutrients required by rules promulgated by the commissioner.
- 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.
- 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.
- 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.
-
- 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.
- 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.
- 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.
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 .)
ANNOTATION
This section relates only to commercial fertilizer or soil amendments. Durfee & Son v. Dept. of Agriculture, 151 Colo. 149 , 376 P.2d 685 (1962).
35-12-105. Labels.
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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:
- The name and address of the registrant;
- The net weight or other measure prescribed by rule;
- The name of the product and grade;
- The guaranteed analysis in the form specified in section 35-12-103 (14)(a);
- 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;
- Directions for use as specified by rule of the commissioner.
- 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.
-
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:
- The name and address of the registrant;
- The net weight or other measure prescribed by rule;
- The name of the product;
- An accurate statement of composition, including the percent of each ingredient;
- The purpose of the product;
- 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;
- Directions for use as specified by rule of the commissioner.
- 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.
-
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:
- The name and address of the manufacturer;
- The net weight or measure as prescribed by rule of the commissioner;
- The guaranteed analysis and quantity of each registered product contained in the mix;
- The date on which the product was manufactured or delivered; and
- Directions for use as specified by rule of the commissioner.
- 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.
- 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.
- 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.
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.
ANNOTATION
This section requires labeling of all commercial fertilizers offered for sale or distributed. Durfee & Son v. Dept. of Agriculture, 151 Colo. 149 , 376 P.2d 685 (1962).
35-12-106. Distribution fees.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
-
- 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.
- Repealed.
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 .)
ANNOTATION
Applied in Durfee & Son v. Dept. of Agriculture, 151 Colo. 149 , 376 P.2d 685 (1962).
35-12-107. County tonnage reports. (Repealed)
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.
- 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.
- 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.
- 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.
- 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.
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.)
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.)
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.
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No person shall distribute a misbranded product. A commercial fertilizer, soil conditioner, plant amendment, or compost is misbranded:
- If its labeling is false or misleading in any particular;
- If it is distributed under the name of another product;
- If it is not labeled as required in section 35-12-105 and in accordance with rules prescribed under this article;
-
- 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.
- 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.
- If it does not conform to the ingredient form, availability, minimums, labeling, and investigational allowances set forth in the rules promulgated by the commissioner.
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.
-
No person shall distribute an adulterated product. A commercial fertilizer, soil conditioner, plant amendment, or compost is deemed adulterated:
- 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;
- If its composition falls below or differs from that which it is purported to possess by its labeling;
- If it contains unwanted crop seed or weed seed;
- If the concentration of any metal in the product exceeds the level established for that constituent by rule of the commissioner; or
- If it contains an infectious agent in sufficient amount to render it injurious to human health or beneficial plant, animal, or aquatic life.
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.
ANNOTATION
Buyers of commercial fertilizer are within the class of persons to be protected by this section and may base a claim of negligence per se on a violation of this section. Deacon v. Am. Plant Food Corp., 782 P.2d 861 (Colo. App. 1989), rev'd on other grounds sub nom. Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 1109 ( Colo. 1991 ).
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.
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.
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.
- 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.
-
-
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:
- 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;
- 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.
- 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.
-
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:
- 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.
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.
- 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.
- 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.
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.
- 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.
- 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.
- Matters brought before a court pursuant to this section shall have preference over other matters on the court's calendar.
- 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.
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.
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.
- 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.
- 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.
- 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.
- 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.
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.)
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.
ARTICLE 13 ANHYDROUS AMMONIA
Section
35-13-101. Legislative declaration.
- 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.
- 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.
Source: L. 67: p. 325, § 1. C.R.S. 1963: § 6-17-1. L. 2008: Entire section amended, p. 633, § 1, effective August 5.
35-13-102. Definitions.
As used in this article, unless the context otherwise requires:
- "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.
- "Commissioner" means the commissioner of agriculture.
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.
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.
Source: L. 67: p. 326, § 4. C.R.S. 1963: § 6-17-4.
35-13-105. Restriction of use of containers.
- 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.
- 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.
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.
Source: L. 67: p. 326, § 6. C.R.S. 1963: § 6-17-6.
35-13-107. Enforcement - investigation - access to locations and records.
- 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).
- 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.
-
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:
- 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
- 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.
-
- 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.
- 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.
- No stay of a cease-and-desist order shall be issued before a hearing on the order involving both parties.
- Matters brought before a court pursuant to this section shall have preference over other matters on the court's calendar.
- 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.
- 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.
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.
-
- 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.
- Before imposing a civil penalty, the commissioner may consider the effect of such penalty on the ability of the violator to stay in business.
- 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.
- 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.
- 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.
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.
- 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.
-
An application for registration shall state:
- The name of the applicant;
- If the applicant is a firm, the names of its members;
- If the applicant is a corporation, the names of its officers;
- The applicant's business address;
- The applicant's telephone number;
- The name and location of each fixed bulk facility; and
- The serial number or other identifying number of each mobile transportation tank or tank-mounted applicator.
- 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.
-
- 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.
- Repealed.
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 .)
WEIGHTS AND MEASURES
ARTICLE 14 MEASUREMENT STANDARDS
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.
Section
35-14-101. Short title.
This article shall be known and may be cited as the "Measurement Standards Act of 1983".
Source: L. 83: Entire article R&RE, p. 1339, § 1, effective July 1.
35-14-102. Definitions.
As used in this article, unless the context otherwise requires:
-
(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.
- "Certified scales" means scales located throughout the state which are used for public weighing and which meet the requirements of certification.
- "Certified weighers" means a natural person who is certified under the provisions of this article.
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"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.
-
"Commissioner" means the commissioner of agriculture.
(5.5) "Commodity" means any agricultural commodity, consumer commodity, or any other goods.
- "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".
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
- "Correct" means conformance to all applicable requirements of this article.
-
"Department" means the department of agriculture.
(9.5) "Grain protein analyzer" means the equipment and accessories used to determine the protein content of grain.
- "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.
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
- "Inch pound system" means the United States customary system of weights and measures as approved by the United States department of commerce.
- "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.
- "Laboratory" means the metrology laboratory of the division of inspection and consumer services in the department.
- "Metric system" means the "Systeme Internationale System of Weights and Measures", as adopted by the United States department of commerce.
- "Metrology services" means all testing and calibrating and, when necessary, the making of adjustments to weights and measures.
- "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.
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
- "Moisture-testing device" means all equipment and accessories required for determining the moisture content in a grain sample.
-
(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.
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
- "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.
- and (23.5) (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
- "Placing in service" means placing in use any new, used, repaired, or reconditioned weighing and measuring device.
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
-
"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.
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 323, § 6, effective April 2, 2009.)
-
"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.
-
"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.)
- "Vehicle" means any device by which any property, produce, commodity, or article is or may be transported.
- "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.
- "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.
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:
- This section is similar to former §§ 35-14-101 and 35-14-102 as they existed prior to 1983.
- 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.
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.
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.
- 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.
- A certificate of conformance is not required for a grain protein analyzer.
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.
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.
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The commissioner shall:
- Maintain traceability of this state's standards to the standards of the national institute of standards and technology;
- Implement and carry out the provisions of this article;
- 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;
- 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;
- Conduct investigations to ensure compliance with this article;
- Delegate to appropriate personnel any responsibilities for the proper administration of this article;
- 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;
- Inspect and test weights and measures kept, offered, or exposed for sale, including prepackaged commodities;
- 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;
- 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;
- 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.
- 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.
- 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;
- 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;
- 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;
- Negotiate and enter into contracts with local governments for the implementation and enforcement of this article.
- The commissioner may, upon request, inspect and test any weight, measure, or standard used by a governmental entity.
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.
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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:
- 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;
- 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;
- 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;
- 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.
- 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.
- 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.
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)
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.
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.
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.
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)
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)
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.
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Each vending machine which dispenses commodities in package form shall indicate:
- Proper identity;
- Net quantity; and
- Name, address, and telephone number of the vendor or of the responsible party.
- 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.
Source: L. 83: Entire article R&RE, p. 1346, § 1, effective July 1.
35-14-116. Railroad car tare weights.
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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:
- 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.
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The allowable difference between actual tare weight and stenciled tare weight on freight cars in use shall be:
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If in inch pounds:
- Plus or minus three hundred pounds for cars of fifty thousand pounds or less;
- Plus or minus four hundred pounds for cars over fifty thousand pounds but not over sixty thousand pounds; or
- Plus or minus five hundred pounds for cars over sixty thousand pounds;
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If in metric:
- Plus or minus one hundred fifty kilograms for cars twenty-five thousand kilograms or less;
- Plus or minus two hundred kilograms for cars over twenty-five thousand kilograms but not over thirty thousand kilograms; or
- Plus or minus two hundred fifty kilograms for cars over thirty thousand kilograms.
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If in inch pounds:
- Tare weight determinations for verification or change of stenciled weights shall only be made on properly prepared and adequately cleaned freight cars.
- 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.
Source: L. 83: Entire article R&RE, p. 1346, § 1, effective July 1.
35-14-117. Unit pricing - application - inch pound or metric.
- 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.
- 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.
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.
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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:
- The net quantity of the contents in terms of weight, measure, or count; and
- 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;
- The identity of the commodity in the manner specified by rule promulgated pursuant to this article.
- Under paragraph (a) 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.
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.
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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
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The following persons shall be permitted, but shall not be required, to obtain certification as certified weigher:
- A weights and measures officer when acting within the scope of his official duties;
- A person weighing property, produce, commodities, or articles that he or his employer, if any, is buying or selling; and
- 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.
- 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.
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.
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- 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.
- 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.
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- 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.
- 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.
- 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.
- 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.
- 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.
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- 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.
- 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.
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.
- 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.
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The commissioner shall adopt rules specifying:
- The categories and requirements for certification of commercial weighing and measuring device service providers; and
- The performance requirements for commercial weighing and measuring devices service providers.
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
- 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".
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- 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.
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
- 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.
- 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.
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
- (Deleted by amendment, L. 95, p. 896 , 8, effective July 1, 1995.)
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 331, § 18, effective April 2, 2009.)
- 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.
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.
- 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.
- 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.
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- 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.
- 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.
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 333, § 19, effective April 2, 2009.)
- The commissioner shall promulgate rules to clarify the circumstances under which a blue or red tag should be issued.
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:
- Amendments to this section by sections 5 and 19 of Senate Bill 09-113 were harmonized.
- This section is repealed, effective September 1, 2028, pursuant to § 35-14-134.
35-14-124.5. Disciplinary powers.
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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:
- Violated any provision of this article or of any rule adopted by the commissioner under this article;
- 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.;
- Committed fraud or deception in the procurement or attempted procurement of a license or certificate;
- Failed to comply with a lawful order of the commissioner concerning the administration of this article;
- Been convicted of deceptive trade practices under any state or federal law;
- Used a commercial weighing or measuring device or moisture-testing device in deceptive trade practices in violation of any state or federal law.
- 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.
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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:
- A person associated with the applicant in the business for which such applicant seeks to be licensed or certified;
- 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.
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)
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.
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No license shall be required for the use of the following commercial weighing or measuring devices and such devices shall be exempt from testing:
- Person weighers also referred to as pennyweight scales;
- 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;
- Those scales operated by the United States postal service;
- Postal scales used exclusively for determining postage fees and where final determination of weight is made by the United States postal service;
- A pharmacist's prescription scale having less than a four-ounce capacity;
- Any other device exempted by the commissioner by rule.
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.
- 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.
- 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.
- 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.
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- 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. (4) (a) (I) 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.
- (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
- (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
- The capacity of a given scale shall be determined by the manufacturer's rated capacity.
- The annual license fee for belt conveyor and in-motion railroad scales shall be as determined by the commission.
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- 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.
- (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
- (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
- (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
- (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
- (Deleted by amendment, L. 2007, p. 1905 , § 8, effective July 1, 2007.)
- (Deleted by amendment, L. 2009, (SB 09-113), ch. 88, p. 334, § 23, effective April 2, 2009.)
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The fees for inspection and testing pursuant to section 35-14-107 (2) shall be as determined by the commission.
- (12.5) (a) 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).
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- 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.
- Repealed.
- 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.
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:
- This section is similar to former § 35-14-123 as it existed prior to 1983.
- 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 .)
- 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.
- 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.
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- 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.
- Repealed.
- 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.
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.
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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:
- The price of the commodity tested; or
- For a moisture-testing device, the drying or other processing charge based upon moisture content of the commodity.
- to (6) Repealed.
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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
- Before imposing a civil penalty, the commissioner or a court of competent jurisdiction may consider the effect of such penalty on the business.
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It is a violation for any person to:
- 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;
- 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;
- Dispose of any rejected or condemned weight or measure in a manner contrary to law or rule;
- 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;
- Sell, or offer or expose for sale, less than the quantity such person represents of any commodity, thing, or service;
- 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;
- 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;
- 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;
- Violate any provision of this article or any rule promulgated under this article for which a specific penalty has not been prescribed;
- 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;
- 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;
- 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;
- Act as or represent oneself to be a certified weighing or measuring device service provider without being so certified.
- 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.
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:
- This section is similar to former § 35-14-132 as it existed prior to 1983.
- Subsections (5)(d), (5)(j), and (5)(m) are repealed, effective September 1, 2028, pursuant to § 35-14-134.
35-14-132. Criminal penalties.
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[ Editor's note: This version of subsection (1) is effective until March 1, 2022.] 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.
(1) [ Editor's note: This version of subsection (1) is effective March 1, 2022. ] 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 civil infraction and shall be punished as provided in section 18-1.3-503.
- 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.
- 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.
Source: L. 83: Entire article R&RE, p. 1357, § 1, effective July 1. L. 2002: (1) amended, p. 1548, § 308, effective October 1. L. 2021: (1) amended, (SB 21-271), ch. 462, p. 3277, § 620, effective March 1, 2022.
Editor's note:
- This section is similar to former § 35-14-132 as it existed prior to 1983.
- Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
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.
- The commissioner or the commissioner's designee shall enforce this article.
- 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.
- 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.
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.
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.
CENTRAL FILING SYSTEM
ARTICLE 15 STATE CENTRAL FILING SYSTEM BOARD
35-15-101 to 35-15-110. (Repealed)
Editor's note:
- 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.