Cross references. - Criminal penalty for livestock theft, § 16-8-20 .

Appointment of director of agricultural matters by board of regents, § 20-3-73 .

Conducting of farmers' institutes by board of regents, § 20-10-1 .

Sale of farm tractors, § 40-4-45 .

Provision that agricultural or farming operations, places, establishments, or facilities shall not become a nuisance as result of changed conditions in vicinity of such operations, places, establishments, or facilities, § 41-1-7 .

Exemption of agricultural products and machinery from sales and use taxes, §§ 48-8-3 through 48-8-5 .

Editor's notes. - By resolution (Ga. L. 1994, p. 1219), the General Assembly created the GA 96 AG Joint Steering Committee to guide the involvement of the agricultural industry in activities for and surrounding the 1996 Centennial Olympic Games, which committee was abolished on December 31, 1994.

CHAPTER 1 GENERAL PROVISIONS

Sec.

Administrative Rules and Regulations. - Organization, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Administration, Subject 40-1-1.

2-1-1. Definitions.

As used in this title, the term:

  1. "Commissioner" means the Commissioner of Agriculture.
  2. "Department" means the Department of Agriculture of this state.
  3. "Sustainable agriculture" or "sustainable agricultural practices" means science-based agricultural practices, technologies, or biological systems supported by research or otherwise demonstrated to lead to broad outcomes-based improvements, which may include but not be limited to such critical outcomes as increasing agricultural productivity and improving human health through access to safe, nutritious, affordable food and other agricultural products, while enhancing agricultural and surrounding environmental conditions through the stewardship of water, soil, air quality, biodiversity, and wildlife habitat, so as to meet the needs of the present and improve the ability for future generations to meet their own needs while advancing progress toward environmental, social, and economic goals and the well-being of agricultural producers and rural communities. (Code 1981, § 2-1-1 ; Ga. L. 2011, p. 248, § 1/HB 225.)

Editor's notes. - This Code section was created as part of the Code revision and was thus enacted by Ga. L. 1981, Ex. Sess., p. 8 (Code enactment Act).

2-1-1.1. Policy of state to promote sustainable agriculture.

It shall be the policy of this state to promote sustainable agriculture.

(Code 1981, § 2-1-1.1 , enacted by Ga. L. 2011, p. 248, § 2/HB 225.)

2-1-2. Verification of certain licenses by inspectors.

The inspectors of the department, in the regular course of their duties, shall verify that each facility they inspect has proper state licenses for the sale of cigarettes, malt beverages, and wine. Should any facility not have such state licenses as required by law, the state revenue commissioner shall be notified of such fact immediately, so that he can take such action as is required by law.

(Ga. L. 1972, p. 1015, § 506.)

2-1-3. Sales of farm products, plants, and seed on Sunday.

It shall be lawful to sell or offer for sale perishable farm products, growing plants, and perishable seed on Sunday.

(Ga. L. 1953, Jan.-Feb. Sess., p. 202, § 1.)

JUDICIAL DECISIONS

Cited in Evans v. Evans, 229 Ga. 418 , 192 S.E.2d 158 (1972).

RESEARCH REFERENCES

ALR. - Power of municipal corporation to legislate as to Sunday observance, 37 A.L.R. 575 .

Power to extend Sunday observance laws beyond Sunday hours, 50 A.L.R. 628 .

Validity, construction, and effect of "Sunday closing" or "blue" laws - modern status, 10 A.L.R.4th 246.

2-1-4. Anti-siphon devices for irrigation systems; rules and regulations as to such devices; hearings on violations; administrative and judicial review; filing of final order; payment of penalty.

  1. Any irrigation system which is designed or used for the application of fertilizer, pesticide, or chemicals must be equipped with an anti-siphon device adequate to protect against contamination of the water supply. Such anti-siphon device shall consist of a check valve and low pressure drain in the irrigation supply line located between the irrigation pump and the point of injection of fertilizer, pesticide, or chemicals. Any system which complied with the law in effect on January 1, 1982, shall be deemed to be in compliance with the provisions of this subsection.
  2. It shall be unlawful for any person to use any irrigation system designed or used for the application of fertilizer, pesticide, or chemicals, which system is not equipped as required by this Code section.
  3. The Commissioner shall make and publish in print or electronically such rules and regulations as he deems necessary to carry out this Code section, which rules and regulations are not inconsistent with this Code section. Such rules and regulations may specify requirements to be met by anti-siphon devices and the placement of such devices to provide adequate protection.
  4. The Commissioner, in order to enforce this Code section or any orders, rules, and regulations promulgated pursuant thereto, may issue an administrative order imposing a penalty not to exceed $1,000.00 for each violation whenever the Commissioner, after a hearing, determines that any person has violated any provision of this Code section, or any regulation or order promulgated hereunder. The hearing and any administrative review thereof shall be conducted in accordance with the procedure for contested cases under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Any person who has exhausted all administrative remedies available and who is aggrieved or adversely affected by a final order or action of the Commissioner shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50. All penalties recovered under this Code section shall be paid into the state treasury. The Commissioner may file in the superior court wherein the person under order resides, or, if the person is a corporation, in the county wherein the corporation maintains its principal place of business, or in the county wherein the violation occurred, a certified copy of a final order of the Commissioner unappealed from, or of a final order of the Commissioner affirmed upon appeal, whereupon such court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and proceedings in relation thereto shall thereafter be the same, as though such judgment has been rendered in a suit duly heard and determined by such court. The penalty prescribed in this Code section shall be concurrent, alternative, and cumulative with any and all other civil, criminal, or alternative rights, remedies, forfeitures, or penalties provided, allowed, or available to the Commissioner with respect to any violation of this Code section or any orders, rules, or regulations promulgated pursuant thereto.

    (Ga. L. 1981, p. 1256, §§ 1-4; Ga. L. 1982, p. 1232, §§ 1, 2; Ga. L. 1984, p. 22, § 2; Ga. L. 1989, p. 14, § 2; Ga. L. 2010, p. 838, § 10/SB 388.)

Cross references. - Control of water pollution and surface-water use, § 12-5-20 et seq.

Wells and drinking water, § 12-5-70 et seq.

2-1-5. Annual license fee for grain dealers, commercial feed dealers, grain warehousemen, and qualified agricultural producers; retention of funds.

  1. An individual conducting business as a grain dealer, commercial feed dealer, and grain warehouseman shall pay an annual license fee in an amount not less than $1,500.00 nor more than $3,000.00. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.
  2. A qualified agricultural producer, as defined in Code Section 48-8-3.3 , shall pay an annual license fee in an amount not less than $15.00 nor more than $25.00, but in no event shall the total amount of the proceeds from such fees exceed the cost of administering Code Section 48-8-3.3 . (Code 1981, § 2-1-5 , enacted by Ga. L. 1992, p. 2553, § 2.5; Ga. L. 2001, p. 1070, § 1; Ga. L. 2010, p. 9, § 1-1/HB 1055; Ga. L. 2012, p. 257, § 5-7/HB 386; Ga. L. 2014, p. 288, § 2/HB 983.)

Cross references. - License required, § 2-9-31 .

Issuance, renewal, and expiration of license, § 2-9-33 .

License required for distribution; product registration; fees; refusal or cancellation of license or registration, § 2-13-6 .

Editor's notes. - Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act." The amendment to this Code section became effective January 1, 2013.

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act." The amendment to this Code section became effective January 1, 2013.

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Ga. L. 2014, p. 288, § 3/HB 983, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2015, and shall be applicable to all taxable years beginning on or after January 1, 2015."

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Ga. St. U. L. Rev. 217 (2011). For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 112 (2012).

2-1-6. Preemption of local ordinances relating to production of agricultural or farm products.

  1. No county, municipality, consolidated government, or other political subdivision of this state shall adopt or enforce any ordinance, rule, regulation, or resolution regulating crop management or animal husbandry practices involved in the production of agricultural or farm products on any private property.
  2. Subsection (a) of this Code section shall not prohibit or impair the power of any local government to adopt or enforce any zoning ordinance or make any other zoning decision. As used in this subsection, the terms "local government", "zoning decision", and "zoning ordinance" have the same meanings provided by Code Section 36-66-3.
  3. Subsection (a) of this Code section shall not prohibit or impair any existing power of a county, municipality, consolidated government, or other political subdivision of this state to adopt or enforce any ordinance, rule, regulation, or resolution regulating land application of human waste. (Code 1981, § 2-1-6 , enacted by Ga. L. 2009, p. 444, § 1/HB 529.)

CHAPTER 2 DEPARTMENT OF AGRICULTURE

Sec.

Cross references. - Power of department as to animals, T. 4 generally.

Power of department as to petroleum products, T. 10, C. 1, Art. 8.

Power of department as to weights and measures, T. 10, C. 2.

Power of department as to warehousemen, T. 10, C. 4.

Power of department as to food, T. 26, C. 2.

Powers and duties of Department of Agriculture regarding manufacture, reupholstering, or renovation of articles of bedding, T. 31, C. 25.

Administrative Rules and Regulations. - Organization, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Administration, Subject 40-1-1.

Milk and milk products, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-2.

2-2-1. Department of Agriculture established.

There is established a Department of Agriculture for this state.

(Ga. L. 1874, p. 5, § 1; Code 1882, § 1465a; Civil Code 1895, § 1789; Civil Code 1910, § 2065; Code 1933, § 5-101.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 19 et seq.

C.J.S. - 3 C.J.S., Agriculture, §§ 3 et seq., 10 et seq.

ALR. - Constitutionality and construction of state farm aid laws, 92 A.L.R. 768 .

2-2-2. Commissioner of Agriculture - Qualifications; election; location of office.

The department shall be under the control and management of the Commissioner of Agriculture, who shall be a practical farmer, elected by qualified voters at the same time, in the same manner, and under the same rules and regulations as the Governor and statehouse officers are elected. The office of the Commissioner shall be at the capital of the state.

(Ga. L. 1874, p. 5, § 2; Code 1882, § 1465b; Ga. L. 1889, p. 63, § 2; Civil Code 1895, § 1790; Civil Code 1910, § 2066; Code 1933, §§ 5-102, 5-103, 5-104; Ga. L. 1943, p. 126, § 1.)

Cross references. - Qualifications of Commissioner, Ga. Const. 1983, Art. V, Sec. III, Para. II.

JUDICIAL DECISIONS

Cited in Georgia Fertilizer Co. v. Walker, 45 Ga. App. 68 , 163 S.E. 277 (1932); Talmadge v. Sutton, 175 Ga. 811 , 166 S.E. 240 (1932).

2-2-3. Commissioner of Agriculture - Term of office; removal.

The term of office of the Commissioner shall be for four years or until his successor is elected and qualified, unless he is removed in the manner prescribed by law for the removal of officers of the state government.

(Ga. L. 1874, p. 5, § 7; Code 1882, § 1465g; Ga. L. 1889, p. 63, § 1; Civil Code 1895, § 1790; Civil Code 1910, § 2066; Ga. L. 1927, p. 207, §§ 1, 2; Code 1933, § 5-103; Ga. L. 1935, p. 98, § 1; Ga. L. 1984, p. 1152, § 2.)

2-2-4. Commissioner of Agriculture - Salary and expenses; compensation of employees.

  1. The annual salary of the Commissioner shall be as provided in Code Sections 45-7-3 and 45-7-4. The Commissioner shall be entitled to reimbursement of expenses as provided by Code Section 45-7-20.
  2. The Commissioner is authorized to employ personnel for the department, to prescribe their duties, and to fix the compensation of such personnel; provided, however, that such compensation shall be in accordance with the rules and regulations of the State Personnel Board.

    (Ga. L. 1874, p. 5, § 3; Code 1882, § 1465c; Civil Code 1895, § 1791; Ga. L. 1905, p. 73, § 1; Ga. L. 1906, p. 110, § 1; Civil Code 1910, § 2067; Ga. L. 1919, p. 75, § 1; Ga. L. 1919, p. 92, § 1; Code 1933, § 5-105; Ga. L. 1947, p. 673, § 1; Ga. L. 1956, p. 376, § 1; Ga. L. 1960, p. 106, § 1; Ga. L. 1963, p. 586, § 1A; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-2/HB 642.)

Editor's notes. - Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

RESEARCH REFERENCES

C.J.S. - 3 C.J.S., Agriculture, § 27 et seq.

2-2-5. Commissioner of Agriculture - Bond.

The Commissioner shall give a bond of $50,000.00 as a guaranty of the faithful performance of the duties of his office and for the proper accounting for all moneys, fees, etc., received by his office. The bond shall be furnished by a surety company authorized to do business in Georgia by the laws of this state. The premium on the bond shall be paid by the state.

(Ga. L. 1927, p. 206, § 1; Code 1933, § 5-106.)

Cross references. - Official bonds generally, T. 45, C. 4.

JUDICIAL DECISIONS

Cited in Talmadge v. McDonald, 44 Ga. App. 728 , 162 S.E. 856 (1932); Talmadge v. Sutton, 175 Ga. 811 , 166 S.E. 240 (1932); National Sur. Co. v. Seymour, 46 Ga. App. 109 , 166 S.E. 777 (1932); National Sur. Co. v. Seymour, 177 Ga. 735 , 171 S.E. 380 (1933).

2-2-6. Commissioner of Agriculture - Acceptance of cash, government bonds, treasury notes, or equivalency in lieu of bond.

In all cases where a licensee or an applicant for a license is required to post a bond with the Commissioner, the Commissioner is authorized to accept cash, government bonds, treasury notes, or their equivalent in lieu of the bond where the licensee or applicant cannot obtain the prescribed bond. All such funds shall be held in trust by the Commissioner and shall be subject to the payment by the Commissioner of all claims to which the bond would be subject.

(Ga. L. 1958, p. 630, § 1.)

2-2-7. Commissioner of Agriculture - Powers and duties.

The Commissioner of Agriculture shall serve as the chief administrative officer of the Department of Agriculture. The Commissioner shall be responsible for the enforcement of all duties imposed upon him by law. In addition to any other powers which may be conferred upon him, the Commissioner may:

  1. Examine and investigate any matter relating to or affecting the welfare of farmers and consumers of the state;
  2. Gather, formulate, and disseminate, in such form and in such manner as he shall deem advisable, information which may benefit the farmers and consumers of this state;
  3. Participate in any show, fair, or exhibit in order to advance the agricultural industry in this state and make the public aware of the services offered by the Department of Agriculture;
  4. Promulgate rules and regulations concerning the operations of the department and such rules and regulations as may be necessary to carry out and enforce the duties and responsibilities imposed upon him by law;
  5. Secure the cooperation and assistance of the other departments and agencies of this state, or the other states, any department or agency of the United States, or any other organization that may be of assistance; and
  6. Participate as a member of, or in an advisory capacity to, any organization or association which is of benefit to the agricultural community or consumers of the state.

    (Ga. L. 1874, p. 5, § 4; Code 1882, § 1465d; Ga. L. 1893, p. 136, § 1; Civil Code 1895, § 1792; Civil Code 1910, § 2068; Code 1933, § 5-107.)

Cross references. - Power of Commissioner to employ a state veterinarian, § 4-1-2 .

Powers and duties of Commissioner in regard to prevention and control of disease in cattle, horses, and other livestock, T. 4, C. 4.

Powers and duties of Commissioner with regard to sale of petroleum products, brake fluid, and antifreeze, § 10-1-140 et seq.

Powers and duties of Commissioner with regard to enforcement of laws and regulations pertaining to weights and measures, T. 10, C. 2.

Designation of Commissioner as state warehouse commissioner, § 10-4-50 .

JUDICIAL DECISIONS

Cited in Talmadge v. Sutton, 175 Ga. 811 , 166 S.E. 240 (1932).

OPINIONS OF THE ATTORNEY GENERAL

Duties of Commissioner were not all included in the statutory provisions on agriculture (see now O.C.G.A. T. 2) and may be found in the statutory provisions on animals and commerce and trade (see now O.C.G.A. T. 4 and 10). 1958-59 Op. Att'y Gen. p. 4.

Purchase of protective outergarments authorized. - The Department may lawfully purchase protective smocks for use by employees if these protective outergarments are considered reasonably necessary and proper for the conduct of an inspectors' official activities. 1968 Op. Att'y Gen. No. 68-94.

RESEARCH REFERENCES

C.J.S. - 3 C.J.S., Agriculture, § 27 et seq.

ALR. - State statute in relation to inspection and grading of grain as unlawful burden on interstate commerce, 19 A.L.R. 164 .

Constitutionality, construction, and application of statutes relating to testing or sampling of agricultural fertilizers, 105 A.L.R. 348 ; 147 A.L.R. 765 .

2-2-8. Educational exhibits promoting state resources at agricultural fairs authorized.

  1. The Commissioner is authorized to advertise and promote the agricultural resources of this state through the use of educational exhibits at agricultural fairs. When he so desires, the Commissioner is authorized to establish such exhibits in cooperation with the College of Agricultural and Environmental Sciences of the University of Georgia, the Cooperative Extension Service of the University of Georgia, and other departments of this state.
  2. For an event to qualify as an agricultural fair, the organization sponsoring such fair must:
    1. Be able to show that at least 10 percent of the total receipts thereof are paid out in the form of premiums, scholarships, or agricultural programs; and
    2. Be a nonprofit organization, spending the profits of the fair on the enterprise or paying them out in the form of premiums, scholarships, or educational programs.
  3. Transportation costs, space rental, and utility costs at any agricultural fair shall be borne by the organization sponsoring such fair.
  4. Nothing in this Code section shall be construed to prohibit governmental agencies from participating in or exhibiting the resources of this state at any agricultural fair.

    (Ga. L. 1958, p. 197, §§ 1-3; Ga. L. 1995, p. 10, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, §§ 19 et seq, 35 et seq.

ALR. - Exemption from taxation of property of agricultural fair society or association, 89 A.L.R.2d 1104.

2-2-8.1. Contributions for Farmers and Consumers Market Bulletin and Poultry Market News.

The Commissioner is authorized to publicize and request, by means of publication of appropriate notices in the Farmers and Consumers Market Bulletin and the Poultry Market News , contributions to be used exclusively for the compilation, publication, printing, and distribution of the Farmers and Consumers Market Bulletin and the Poultry Market News .

(Code 1981, § 2-2-8.1 , enacted by Ga. L. 1995, p. 353, § 1; Ga. L. 2010, p. 9, § 1-2/HB 1055.)

Information and Education. Farmers and Consumers Market Bulletin, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-8.

2-2-9. Rules and regulations.

The Commissioner is empowered to make all necessary rules and regulations for the purpose of carrying out the purposes of this title.

(Ga. L. 1874, p. 5, § 5; Code 1882, § 1465e; Civil Code 1895, § 1793; Civil Code 1910, § 2083; Code 1933, § 5-108.)

Cross references. - Procedures for adoption of rules and regulations, T. 50, C. 13.

OPINIONS OF THE ATTORNEY GENERAL

Commissioner not obliged to provide formal means of administrative appeal. - The Commissioner has neither a statutory nor a constitutional obligation to provide a formal means of administratively appealing a decision to bar a party from a state-owned and regulated farmers' market. 1965-66 Op. Att'y Gen. No. 66-217.

2-2-9.1. "Aggrieved or adversely affected" defined; administrative authority of Commissioner; hearing for individuals adversely affected; penalties; final decisions; judicial review of final decisions.

  1. As used in this Code section, the term "aggrieved or adversely affected" means that the challenged action has caused or will cause the person injury in fact, and the injury is to an interest within the zone of interests to be protected or regulated by the statute that the Commissioner is empowered to administer and enforce.
  2. The Commissioner shall issue all orders and perform actions to include impoundments; quarantine; the issuance, suspension, denial, or revocation of registrations, licenses, or permits; or approval or denial of applications for registrations, licenses, or permits provided for in such federal and state laws as are to be enforced by the Department of Agriculture.
  3. Any administrative order issued by the Commissioner shall specify the alleged violation, monetary penalty, or other sanction; prescribe a reasonable time for some type of action to be accomplished; and provide notice of the right to a hearing. Any order issued pursuant to this Code section shall become final unless the aggrieved or adversely affected registrant, licensee, permittee, applicant, equine owner, livestock owner, dog or cat owner, exotic and pet bird owner, or farmer of crops or livestock, chickens, or other animals timely requests a hearing in writing as provided by this Code section.
  4. Any registrant, licensee, permittee, applicant, equine owner, livestock owner, dog or cat owner, exotic and pet bird owner, or farmer of crops or livestock, chickens, or other animals aggrieved or adversely affected by any order or action of the Commissioner to include the issuance, suspension, denial, or revocation of a registration, license, permit, or application; impoundment; quarantine; or stop sale, stop use, or stop removal order; upon petition within 30 days after the issuance of such order or the taking of such action, shall have a right to a hearing before a hearing officer appointed or designated for such purpose by the Commissioner. The decision of the hearing officer shall constitute an initial decision of the Department of Agriculture, and any party to the hearing, including the Commissioner, shall have the right to final agency review before the Commissioner in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and the provisions of this chapter.
  5. Where a statute for which the Commissioner has responsibility for administration or enforcement or a provision of Article 1 of Chapter 13 of Title 50 provides for different administrative procedures in providing for a notice and opportunity to be heard other than those specified in this Code section, the Commissioner may elect which procedure to be used on a case-by-case basis.
  6. In the event the Commissioner asserts in response to the petition before the hearing officer that the petitioner is not aggrieved or adversely affected, the hearing officer shall take evidence and hear arguments on such issue and thereafter make a ruling on such issue before continuing with the hearing. The burden of going forward with evidence on such issue shall rest with the petitioner. The decision of the hearing officer shall constitute the initial decision of the Commissioner; and any party to the hearing, including the Commissioner, shall have the right for final agency review before the Commissioner in accordance with Chapter 13 of Title 50.
  7. Prior to notice, hearing, or determination, the Commissioner is authorized to impose civil penalties in settlement of contested cases through administrative consent orders. The Commissioner is authorized to impose through administrative consent orders civil penalties of up to and including the applicable maximum amounts provided by paragraph (1) of subsection (h) of this Code section. Any civil penalties recovered shall be paid over into the general fund of the state treasury in accordance with Code Section 45-12-92.
    1. The Commissioner may seek civil penalties for the violation of those laws to be enforced by the Department of Agriculture; and where the imposition of such civil penalties is provided for therein, the Commissioner upon written request may cause a hearing to be conducted before a hearing officer appointed or designated by the Commissioner for the purpose of determining whether such civil penalties should be imposed in accordance with the applicable law; and where the imposition of such civil penalties is not provided for therein but violation of such law is punishable as a criminal offense, the Commissioner upon written request may cause a hearing to be conducted before a hearing officer appointed or designated by the Commissioner for the purpose of determining whether civil penalties in an amount not to exceed $1,000.00 per violation should be imposed. Any civil penalties recovered shall be paid over into the general fund of the state treasury in accordance with Code Section 45-12-92. The Commissioner may require any person to obtain a surety bond on the balance of a monetary penalty or suspended portion of a monetary penalty imposed on such person pursuant to a consent order or final decision from which no further review is taken or allowed. If any aggrieved or adversely affected party fails to follow the terms of such consent order or final decision, the Commissioner may commence and maintain an action against the principal and surety on the bond.
    2. The decision of the hearing officer shall constitute the initial decision of the Commissioner; and any party to the hearing, including the Commissioner, shall have the right of final agency review before the Commissioner in accordance with Chapter 13 of Title 50.
    3. In rendering a decision on a requested civil penalty, the hearing officer shall consider all relevant factors including, but not limited to, the following:
      1. The amount of civil penalty necessary to ensure immediate and continued compliance and the extent to which the violator may have profited by failing or delaying to comply;
      2. The conduct of the person incurring the civil penalty in promptly taking all feasible steps or procedures necessary or appropriate to comply with or to correct the violation or failure to comply;
      3. Any prior violations of, or failures by, such person to comply with statutes, rules, regulations, or orders administered, adopted, or issued by the Commissioner;
      4. The character and degree of injury to or interference with public health or safety which is caused or threatened to be caused by such violation or failure to comply;
      5. The character and degree of injury to or interference with reasonable use of property which is caused or threatened to be caused by such violation or failure to comply; and
      6. The character and degree of intent with which the conduct of the person incurring the civil penalty was carried out.
    1. Once the hearing officer issues an initial decision, that decision may be appealed by any party to the Commissioner for final agency review. The party requesting final agency review shall have 30 days from notice of the initial decision to file an application for final agency review. If the initial decision is not appealed within 30 days by any party, it shall be deemed final without need of any further proceedings.
    2. In application, the party requesting final agency review from the Commissioner shall include a short and plain statement of:
      1. The reasons for seeking review; and
      2. Any alleged errors in the initial decision.
    3. The Commissioner may in his or her discretion seek review on his or her own motion pursuant to subsection (a) of Code Section 50-13-17.
    4. Opposing parties may submit statements in response within 20 days of service of an application for final agency review.
    5. A copy of any application for final agency review or in opposition of application for review shall be served on all parties and their counsel as well as the Commissioner.
    1. The standard for final agency review of the initial decision shall be de novo review.
    2. The Commissioner may only review the record considered by the hearing officer in the initial decision hearing. The Commissioner shall not rely on investigative files.
    3. The Commissioner shall possess all the powers that the hearing officer had during the initial decision hearing.
    4. There shall be a presumption of correctness for the hearing officer's credibility determination of witnesses appearing before the hearing officer.
    5. The Commissioner shall not base his or her decision on conjecture, speculation, or impermissible inferences.
    1. The hearing officer shall forward to the Commissioner prior to review:
      1. A copy of the record of the case including the initial decision;
      2. All pleadings;
      3. Transcripts of the hearing; and
      4. All exhibits.
    2. During the final agency review, the Commissioner may hear or take testimony from any party, including the registrant, licensee, permittee, applicant, equine owner, livestock owner, dog or cat owner, exotic and pet bird owner, or farmer of crops or livestock, chickens, or other animals based on such authority as existed during the initial decision hearing.
    3. A party may file a motion not less than 14 days prior to the date of the final agency review to introduce evidence not submitted at the initial decision hearing. Additional evidence may be admitted only if it is material and if good cause exists for not presenting the evidence at the initial decision hearing. Opposing parties may submit responding motions in support of suppression of additional evidence seven days prior to the final agency review. Copies of all motions shall be served on the other party and its counsel as well as the Commissioner.
    1. The final decision shall be in writing, and if an initial decision is modified, the Commissioner shall give his or her reasons therefor in the form of findings of fact and conclusions of law, separately stated, along with the effective date of the final decision. If the Commissioner does not issue a final decision within 30 days, the initial decision shall be deemed final without need of further proceedings. Further, once the initial decision is final, a party's right to judicial review shall be extinguished.
    2. The Commissioner's final decision shall be rendered not later than 30 days from the date of the filing of an application for final agency review unless such period is extended pursuant to paragraph (4) of this subsection.
    3. The Commissioner may modify sanctions after review of an initial decision on appeal, stating the sanctions in the final decision. The Commissioner shall not have to make separate findings of fact to justify modified sanctions.
    4. The period of decision may be extended due to complexity of issues or volume of record materials. All parties involved shall be notified of any extension. A decision shall be rendered as soon as practicable.
    5. The Commissioner shall serve on the:
      1. Opposing party;
      2. Opposing party's counsel;
      3. Agency counsel; and
      4. Original hearing officer

        any resulting decision or notify the above parties if there is no change to the initial decision along with a statement of rights on appeal to the opposing party and counsel within 30 days of any such decision.

    1. A party, or the Commissioner on his or her own motion, may seek reconsideration by the Commissioner of a final agency decision.
    2. A party's written request for reconsideration must be submitted to the Commissioner within ten days of service of the final decision. The request shall include a short and plain statement of:
      1. All matters alleged to have been erroneously decided; and
      2. Any newly discovered factual matters and the reasons why any matters were not raised previously.
    3. Opposing parties may submit statements in response within 20 days of service of the request of the consideration.
    4. All requests for reconsideration and statements in opposition shall be served on all parties and the Commissioner.
    5. If the final agency decision is modified, the Commissioner shall give his or her reasons therefor in the form of findings of fact and conclusions of law along with the effective date of the decision.
    6. The Commissioner's reconsideration decision shall be rendered within 30 days following the latest filing deadline.
  8. Judicial review of the Commissioner's final decision may be had in accordance with Code Section 50-13-19.
    1. Any order issued by the Commissioner under the laws of this state to be enforced by the Department of Agriculture pursuant to a final decision, either unappealed from as provided by law or affirmed or modified on any review or appeal, and from which no further review is taken or allowed, may be filed, by certified copy of the order or final decision from the department, in the superior court of the county wherein the person under order resides, or if such person is a corporation in the county wherein the corporation maintains its principal place of business, or in the county wherein the violation occurred or in which jurisdiction is appropriate; whereupon such superior court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though such judgment had been rendered in an action duly heard and determined by such court.
    2. The Commissioner may commence an action in any superior court of proper venue to enforce any order issued by him or her and made an order of the superior court pursuant to this Code section.
    1. If a judicial review of the Commissioner's final decision is sought in accordance with Code Section 50-13-19 , and the matter involves the impoundment of equines under Chapter 13 of Title 4, the "Georgia Humane Care for Equines Act," the Commissioner shall, along with his or her answer to the petition, include a statement of the costs incurred in the impoundment and care of the impounded animal or animals and an estimate of the future costs expected to be incurred in the care of the impounded animal or animals. The judge of the superior court may then require the petitioner to submit a surety bond to the court in an amount necessary to provide for the reasonable costs of care for the impounded animal or animals. In lieu of a surety bond, the court may accept a cash bond or property bond, which shall in all respects be subject to the same claims and actions as would exist against a surety bond.
    2. Upon the entering of a final adverse decision against an aggrieved party by the superior court, the Commissioner shall within 15 days deliver to the court and to the aggrieved party a statement of the costs incurred in the impoundment and care of the impounded animal or animals. The aggrieved party shall then render payment of such costs to the Commissioner within 15 days after the service of the statement of the costs. If the aggrieved party fails to render payment to the Commissioner within the time period required in this paragraph, the Commissioner may commence and maintain an action against the principal and surety on the bond of the aggrieved party as in any civil action. (Code 1981, § 2-2-9.1 , enacted by Ga. L. 2004, p. 598, § 1; Ga. L. 2009, p. 446, § 1/SB 152; Ga. L. 2012, p. 698, § 1/HB 746; Ga. L. 2012, p. 1116, § 1/SB 367.)

Code Commission notes. - Pursuant to Code Section § 28-9-5 , in 2004, "section" was substituted for "Section" in subsection (a), punctuation was revised in subsections (b) and (d), and "for" was inserted after "statute" in subsection (e).

Editor's notes. - Ga. L. 2009, p. 446, § 7/SB 152, not codified by the General Assembly, provided that the amendment to this Code section shall apply to violations occurring on or after May 1, 2009.

Law reviews. - For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012).

JUDICIAL DECISIONS

Hearing held not required before impounding horses under the Georgia Humane Care for Equines Act. - Requiring hearings before impounding horses under the Georgia Humane Care for Equines Act, O.C.G.A. § 4-13-1 et seq., could cause further harm to animals being deprived of adequate food and water, thus, there was no due process violation and defendant agency officials had qualified immunity on the plaintiff animal owner's claim; the safeguards of O.C.G.A. §§ 4-13-3 and 4-13-4 , in connection with any seizure, and the procedure for requesting a hearing under O.C.G.A. § 2-2-9.1(d) after any seizure, were adequate. Reams v. Irvin, 561 F.3d 1258 (11th Cir. 2009).

Because the plaintiff equine owner could, pursuant to O.C.G.A. § 2-2-9.1(n) , seek judicial review of the defendant Georgia Department of Agriculture Commissioner's final decision as to the seizure of defendant's animals, and O.C.G.A. § 50-13-19(a) and (h), provided a judicial safety valve for review, the owner had no constitutional challenge to the procedural adequacy of the hearing-and-appeal procedure set forth in the Georgia Humane Care for Equines Act, O.C.G.A. § 4-13-1 et seq., and the Commissioner thus had qualified immunity on a due process claim. Reams v. Irvin, 561 F.3d 1258 (11th Cir. 2009).

2-2-10. Imposition of penalty authorized in lieu of other action; funding to general treasury.

  1. In any proceeding before the Commissioner involving a license, certificate, or registration issued by the Commissioner or a violation of the laws administered and enforced by the Commissioner and the rules and regulations promulgated thereunder, after notice, hearing, and a determination by him or her as provided by law that there are sufficient grounds to revoke, suspend, or cancel the license, certificate, or registration involved or to take any other action authorized by law in regard to the violation in question, the Commissioner may impose a reasonable penalty for each offense in lieu of a revocation, suspension, cancellation, or other authorized action. Except as provided in subsection (b) of this Code section, such a penalty shall be imposed only with the consent of the affected party; and except as provided in subsection (b) of this Code section, the amount of any such penalty shall not exceed $1,000.00.
  2. In any case subject to this Code section which involves a violation or attempted violation of Article 2 of Chapter 2 of Title 26, the "Georgia Food Act," the maximum penalty shall not exceed the greater of $1,000.00 or the amount of gain realized or sought to be realized through such violation, but in no event shall such penalty exceed $20,000.00; and in any case involving a violation or attempted violation of the "Georgia Food Act," the written consent of the person against whom the penalty is to be imposed shall not be required.
  3. Any civil penalties recovered shall be paid over into the general fund of the state treasury in accordance with Code Section 45-12-92.

    (Ga. L. 1960, p. 245, § 1; Ga. L. 1985, p. 1444, § 1; Ga. L. 2000, p. 1300, § 1; Ga. L. 2003, p. 838, § 1; Ga. L. 2009, p. 446, § 2/SB 152; Ga. L. 2020, p. 493, § 2/SB 429.)

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, substituted "Article 2 of Chapter 2 of Title 26, the 'Georgia Food Act,'" for "the 'Georgia Food Act,' Article 2 of Chapter 2 of Title 26," in the middle of subsection (b).

2-2-11. Inspection warrants.

Whenever the Constitution or laws of the United States or the State of Georgia require the issuance of a warrant to make an inspection under any law administered by the Commissioner of Agriculture or the Department of Agriculture, the procedure set forth in paragraphs (1) through (7) of this Code section shall be employed.

  1. The Commissioner or any person authorized to make inspections for the Commissioner shall make application for an inspection warrant to a person who is a judicial officer within the meaning of Code Section 17-5-21.
  2. An inspection warrant shall be issued only upon cause and when supported by an affidavit particularly describing the place, dwelling, structure, premises, or vehicle to be inspected and the purpose for which the inspection is to be made. In addition, the affidavit shall contain either a statement that consent to inspect has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent. Cause shall be deemed to exist if either reasonable legislative or administrative standards for conducting a routine or area inspection are satisfied with respect to the particular place, dwelling, structure, premises, or vehicle, or there is reason to believe that a condition of nonconformity exists with respect to the particular place, dwelling, structure, premises, or vehicle.
  3. An inspection warrant shall be effective for the time specified therein, but not for a period of more than 14 days, unless extended or renewed by the judicial officer who signed and issued the original warrant, upon satisfying himself that such extension or renewal is in the public interest. Such inspection warrant must be executed and returned to the judicial officer by whom it was issued within the time specified in the warrant or within the extended or renewed time. After the expiration of such time, the warrant, unless executed, is void.
  4. An inspection pursuant to an inspection warrant shall be made between 8:00 A.M. and 6:00 P.M. of any day or at any time during operating or regular business hours. An inspection should not be performed in the absence of an owner or occupant of the particular place, dwelling, structure, premises, or vehicle unless specifically authorized by the judicial officer upon a showing that such authority is reasonably necessary to effectuate the purpose of the regulation being enforced. An inspection pursuant to a warrant shall not be made by means of forcible entry, except that the judicial officer may expressly authorize a forcible entry where facts are shown which are sufficient to create a reasonable suspicion of a violation of this title or any other law administered by the Commissioner or the department, which, if such violation existed, would be an immediate threat to health or safety, or where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful. Where prior consent has been sought and refused and a warrant has been issued, the warrant may be executed without further notice to the owner or occupant of the particular place, dwelling, structure, premises, or vehicle to be inspected.
  5. It shall be unlawful for any person to refuse to allow an inspection pursuant to an inspection warrant issued as provided in this Code section. Any person violating this paragraph shall be guilty of a misdemeanor.
  6. Under this Code section, an inspection warrant is an order, in writing, signed by a judicial officer, directed to the Commissioner or any person authorized to make inspections for the Commissioner, and commanding him or her to conduct any inspection required or authorized by this title or any other law administered by the Commissioner or the department or regulations promulgated pursuant to this title or any other law administered by the Commissioner or the department.
  7. Nothing in this Code section shall be construed to require an inspection warrant when a warrantless inspection is authorized by law or a permit issued under this title or any other law administered by the Commissioner or the department. (Code 1981, § 2-2-11 , enacted by Ga. L. 1989, p. 390, § 1.)

Law reviews. - For note on 1989 enactment of this Code section, see 6 Ga. St. U. L. Rev. 253 (1989).

JUDICIAL DECISIONS

Cited in Bramblett v. Habersham County, 346 Ga. App. 511 , 816 S.E.2d 446 (2018).

2-2-12. Assistance to United States Department of Agriculture in inspection, certification, and identification of agricultural products and collection of fees.

  1. It is the intent of this Code section to authorize the department to assist the United States Department of Agriculture, pursuant to the federal Agricultural Marketing Act of 1946, 7 U.S.C. Sections 1621-1627, in the inspection and certification of products in commerce to the end that agricultural products may be marketed to the best advantage, that trading may be facilitated, and that consumers may be able to obtain the quality product which they desire.
  2. The department is authorized to assist the United States Department of Agriculture in the inspection, certification, and identification of the class, quality, quantity, and condition of agricultural products when shipped or received in commerce, under such rules as the secretary of agriculture may prescribe, including collection of such fees as will be reasonable and as will cover the cost of the service rendered.  Such fees shall not be considered taxes, fees, or assessments for state purposes but shall be collected under authority of the federal Agricultural Marketing Act of 1946 for purposes of assisting the United States Department of Agriculture in carrying out its mission under said act.
  3. The department may enter into cooperative agreements with the United States Department of Agriculture and with any firm, corporation, association, or organization having the capacity to contract for the purpose of assisting the United States Department of Agriculture in the inspection, certification, and identification of the class, quality, quantity, and condition of agricultural products when shipped or received in commerce and in the collection of such fees as will be reasonable and as will cover the cost of the service rendered. (Code 1981, § 2-2-12 , enacted by Ga. L. 1993, p. 327, § 1.)

2-2-13. Enforcement of laws and rules within jurisdiction of Commissioner; employment of investigators.

  1. The Commissioner shall be vested with police powers to enforce those laws governing matters within the jurisdiction of the Commissioner or the department as provided by this title and Titles 4, 10, 26, and 43 and the rules and regulations adopted pursuant thereto and to prevent, detect, and respond to acts of bioterrorism, other terroristic acts or threats, or natural disasters affecting or potentially affecting plants, animals, products, or facilities that are subject to regulation by the department.
  2. The Commissioner shall be authorized to employ, designate, and deputize investigators and to delegate to such employees of the department the necessary authority to enforce those laws governing matters within the jurisdiction of the Commissioner or the department as provided by this title and Titles 4, 10, 26, and 43 and the rules and regulations adopted pursuant thereto and to prevent, detect, and respond to acts of bioterrorism, other terroristic acts or threats, or natural disasters affecting or potentially affecting plants, animals, products, or facilities that are subject to regulation by the department. Employees who have been so designated by the Commissioner and who have been certified by the Georgia Peace Officer Standards and Training Council as having successfully completed the course of training required by Chapter 8 of Title 35, the "Georgia Peace Officer Standards and Training Act," shall be authorized:
    1. To carry firearms authorized or issued by the Commissioner while in the performance of their duties;
    2. To inspect plants, animals, products, or facilities when the same are subject to regulation by the department;
    3. To stop and inspect any vehicle transporting plants, animals, or products when the same are subject to regulation by the department;
    4. To inspect and require the production of health certificates, waybills, permits, or other documents required by federal or state laws, rules, regulations, or orders for the transportation of plants, animals, or products when the same are subject to regulation by the department;
    5. To protect any life or property when the circumstances demand action; and
    6. To arrest any person found to be in violation of a criminal law when enforcement of such law is authorized under this subsection.
  3. From funds appropriated or available to the department, the Commissioner shall be authorized to provide motor vehicles, uniforms, firearms, and any other equipment and supplies needed by employees of the department to carry out this Code section.
  4. This Code section shall not repeal, supersede, alter, or affect the power of any other law enforcement officer of this state or of any county, municipality, or other political subdivision of this state. At the request of the Commissioner of Agriculture, it shall be the duty of all state, county, municipal, and other law enforcement officers in this state to enforce and to assist the Commissioner and the employees and agents of the department in the enforcement of those laws governing matters within the jurisdiction of the Commissioner or the department as provided by this title and Titles 4, 10, 26, and 43. (Code 1981, § 4-4-5 , enacted by Ga. L. 1986, p. 425, § 2; Ga. L. 1990, p. 572, § 1; Code 1981, § 2-2-13 , as redesignated by Ga. L. 2008, p. 575, § 1/SB 429.)

CHAPTER 3 GEORGIA AGRICULTURAL EXPOSITION AUTHORITY

Sec.

Editor's notes. - Ga. L. 2001, p. 894, § 1, repealed and reserved this chapter, relating to the Georgia Agrirama Development Authority, effective July 1, 2001. The former chapter was based on Ga. L. 1970, p. 568, §§ 1-3; Ga. L. 1972, p. 1161, §§ 1-11; Ga. L. 1975, p. 523, § 1; Ga. L. 1975, p. 713, § 1; Ga. L. 1975, p. 842, § 1; Ga. L. 1976, p. 698, § 1; Ga. L. 1980, p. 598, § 1; Ga. L. 1980, p. 788; Ga. L. 1984, p. 898, § 1; Ga. L. 1988, p. 200, § 1; Ga. L. 1989, p. 1641, § 1; Ga. L. 1990, p. 872, § 1; Ga. L. 1995, p. 10, § 2. For comparable provisions, see Code Sections 12-3-650 through 12-3-661. Ga. L. 2011, p. 261, § 1, repealed the reservation of Code Sections 2-3-1 through 2-3-12.

2-3-1. Short title.

This chapter shall be known and may be cited as the "Georgia Agricultural Exposition Authority Act."

(Code 1981, § 12-3-470 , enacted by Ga. L. 1985, p. 801, § 1; Ga. L. 1996, p. 6, § 12; Code 1981, § 2-3-1 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2011, "This chapter" was substituted for "This part" at the beginning of this Code section.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Lands, §§ 1 et seq., 38 et seq.

C.J.S. - 3 C.J.S., Agriculture, § 156 et seq. 81A C.J.S., States, § 269 et seq.

2-3-2. Definitions.

As used in this chapter, the term:

  1. "Authority" means the Georgia Agricultural Exposition Authority.
  2. "Cost of the project" means the cost of construction; the cost of all lands, properties, rights, easements, and franchises acquired; the cost of all machinery and equipment; financing charges; interest prior to and during construction and for one year after completion of construction; the cost of engineering, architectural, and legal expenses and of plans and specifications and other expenses necessary or incident to determining the feasibility or practicability of the project; administrative expense; and such other expenses as may be necessary or incident to the financing authorized in this chapter, the construction of any project, the placing of the same in operation, and the condemnation of property necessary for such construction and operation. Any obligation or expense incurred for any of the foregoing purposes shall be regarded as a part of the cost of the project and may be paid or reimbursed as such out of such bonds or obligations as may be issued by any authority, department, commission, or agency of the State of Georgia.
  3. "Project" means and includes one or a combination of two or more of the following: buildings, facilities, and all structures; electric, gas, steam, water, and sewerage utilities; and improvements of every kind and character deemed by the authority necessary or convenient for its purposes. (Code 1981, § 12-3-471, enacted by Ga. L. 1985, p. 801, § 1; Ga. L. 1992, p. 6, § 12; Code 1981, § 2-3-2 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2011, "this chapter" was substituted for "this part" in the introductory language and in the middle of the first sentence of paragraph (2).

2-3-3. Creation of authority; membership; vacancies; compensation and reimbursement; record keeping.

  1. There is created a body corporate and politic to be known as the Georgia Agricultural Exposition Authority which shall be deemed to be an instrumentality of the State of Georgia and a public corporation; and by that name, style, and title such body may contract and be contracted with, sue and be sued, implead and be impleaded, and complain and defend in all courts of this state.
  2. The authority shall consist of ten members, including nine appointed members and the Commissioner of Agriculture, ex officio. Initially, appointed members shall serve staggered terms of office as follows: two members for one year, two members for two years, two members for three years, and three members for four years. Thereafter, each appointed member shall serve for a term of four years. All appointed members shall be appointed by the Governor, confirmed by the Senate, and shall serve until the appointment and qualification of a successor. The members appointed by the Governor shall be selected from the state at large but shall be representative of all of the geographic areas of the state. Such members also shall represent the state's agriculture and business interests. The Governor is authorized to appoint any elected or appointed state, county, municipal, or school board official or employee, except officials and employees of the legislative or judicial branches of state government, as members of the authority, and any person so appointed is authorized to serve as a member of the authority.
  3. All successors to appointed members shall be appointed in the same manner as original appointments. Vacancies in office of appointed members shall be filled in the same manner as original appointments. An appointment to fill a vacancy shall be for the unexpired term. The authority shall elect its own officers. No vacancy on the authority shall impair the right of the quorum to exercise all rights and perform all duties of the authority.
  4. The appointed members of the authority shall receive a daily expense allowance and reimbursement for transportation costs as provided for in Code Section 45-7-21; and the members of the authority shall not receive any other compensation for their services as such.
  5. The authority shall have perpetual existence. Any change in name or composition of the authority shall in no way affect the vested rights of any person under this chapter or impair the obligations of any contracts existing under this chapter.
  6. The members of the authority shall be accountable in all respects as trustees. The authority shall keep suitable and proper books and records of all receipts, income, and expenditures of every kind and shall submit for inspection all the books, together with the proper statement of the authority's financial position, to the state auditor.
  7. The authority is assigned to the Department of Agriculture for administrative purposes only. (Code 1981, § 12-3-472, enacted by Ga. L. 1985, p. 801, § 1; Ga. L. 1990, p. 6, § 1; Ga. L. 2011, p.261, § 2/HB 125; Code 1981, § 2-3-3 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2011, "this chapter" was substituted for "this part" twice in the last sentence of subsection (e).

2-3-4. Purpose and general business of authority.

The corporate purpose and the general nature of the business of the authority shall be:

  1. The provision of a facility for the agricultural community to present, exhibit, and promote its products and livestock to agribusiness persons and the public in an effort to boost the state's economy;
  2. The exhibition and promotion of agricultural accomplishments by the youth of this state;
  3. The provision of facilities and programs for public events, exhibits, and other activities, such as, but not limited to, fairs, nonagricultural exhibits, concerts, rodeos, flea markets, and auctions, which will make the authority as financially self-supporting as possible, benefit the state's economy, and attract the traveling public; and
  4. The promotion and staging of a state-wide fair at least once a year to accomplish one or more of the above purposes. (Code 1981, § 12-3-473, enacted by Ga. L. 1985, p. 801, § 1; Code 1981, § 2-3-4 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Editor's notes. - By resolution (Ga. L. 1986, p. 1197), the General Assembly authorized the designation of the main exhibition building at the Georgia Agricultural Exposition Center as the "Sam P. McGill Exhibition Building."

By resolution (Ga. L. 1986, p. 1198), the General Assembly authorized the designation of the show arena at the Georgia Agricultural Exposition Center as the "Henry L. Reaves Arena."

OPINIONS OF THE ATTORNEY GENERAL

Authority not entitled to recreational exemption from federal overtime requirements. - Since it was clear from former O.C.G.A. § 12-3-473 (see now O.C.G.A. § 2-3-4 ) that the Georgia Agricultural Exposition Authority's principal activity was not that of an amusement park, recreational establishment, organized camp, or nonprofit educational conference center, the authority cannot qualify for the recreational exemption from the overtime requirements of the federal Fair Labor Standards Act, 29 U.S.C. § 213(a)(3). 1989 Op. Att'y Gen. No. 89-8.

2-3-5. Powers of authority generally.

The authority is authorized:

  1. To have a seal and alter it at pleasure;
  2. To acquire, hold, and dispose of personal property for its corporate purposes;
  3. To appoint, select, and employ officers, agents, and employees, including engineering, architectural, and construction experts and fiscal agents; to contract for the services of individuals or organizations not employed full time by the authority who or which are engaged primarily in the rendition of personal services rather than the sale of goods or merchandise, such as, but not limited to, the services of accountants, engineers, architects, consultants, and advisors, and to allow suitable compensation for such services; and to make provisions for group insurance, retirement, or other employee benefit arrangements, provided that no part-time or contract employees shall participate in group insurance or retirement benefits;
  4. To make contracts and to execute all instruments necessary or convenient, including contracts for construction of projects or contracts with respect to the leasing or use of projects which the authority causes to be subdivided, erected, or acquired;
  5. To plan, survey, subdivide, administer, construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate, and manage projects as defined in this chapter, such projects to be located on property owned or leased by the authority or the State of Georgia or under the control and management of the authority. The cost of any such project shall be paid from its income, from the proceeds of revenue anticipation certificates of the authority, or from such proceeds and any loan, gift, or grant from the United States of America or any agency or instrumentality thereof, or the State of Georgia, or any county, municipal corporation, authority, or local government or governing body;
  6. To accept loans or grants, or both, of money, materials, or property of any kind from the United States of America or any agency or instrumentality thereof upon such terms and conditions as the United States of America or such agency or instrumentality may impose;
  7. To borrow money for any of its corporate purposes, to issue negotiable revenue anticipation certificates from earnings of such projects, and to provide for the payment of the same and for the rights of the holders thereof;
  8. To exercise any power which is usually possessed by private corporations performing similar functions and which is not in conflict with the Constitution and laws of this state;
  9. To act as agent for the United States of America or any agency, department, corporation, or instrumentality thereof, in any manner within the purposes or powers of the authority;
  10. To adopt, alter, or repeal its own bylaws, rules, and regulations governing the manner in which its business may be transacted and in which the power granted to it may be enjoyed as the authority may deem necessary or expedient in facilitating its business;
  11. To receive and accept loans, gifts, grants, donations, or contributions of property, facilities, or services, with or without consideration, from any person, firm, or corporation or from the State of Georgia, or any agency or instrumentality thereof, or from any county, municipal corporation, or local government or governing body;
  12. To hold, use, administer, and expend such sum or sums as may hereafter be received as income, as gifts, or as appropriations by authority of the General Assembly for any of the purposes of this authority;
  13. To do all things necessary or convenient to carry out the powers and purposes of the authority;
  14. To acquire, lease (as lessee), purchase, hold, own, and use any franchise or any property, real or personal, tangible or intangible, or any interest therein; and to sell, lease (as lessor), transfer, or dispose thereof whenever the same is no longer required for purposes of the authority or exchange the same for other property or rights which are useful for the purposes of the authority;
  15. To fix, alter, charge, and collect fares, rates, rentals, and other charges for its facilities and for admission to its grounds at reasonable rates to be determined by the authority;
  16. To contract with the Georgia State Financing and Investment Commission for the construction of the project as provided for in Article 2 of Chapter 17 of Title 50; or to contract with other authorities, departments, or agencies of the State of Georgia for the construction of the project;
  17. To invest and reinvest any or all idle funds or moneys, including, but not limited to, funds held in reserve or debt retirement or received through the issuance of revenue certificates or from contributions, gifts, or grants, which cannot be immediately used for the purpose for which received, such investment to be made in any security or securities which are legal investments for executors or trustees; provided, however, that investments in such securities will at all times be held for and, when sold, used for the purposes for which the money was originally received;
  18. To grant, on an exclusive or nonexclusive basis, the right to use and occupy streets, roads, sidewalks, and other public places for the purpose of rendering utility services, upon such conditions and for such time as the authority may deem wise;
  19. To appoint special advisory committees and panels of citizens to advise the authority of certain issues and to reimburse the individuals appointed for actual expenses incurred in performing their tasks;
  20. To select a site for the building of a state agricultural exposition and state fair center; and
  21. To sell, upon obtaining a license from the Department of Revenue, alcoholic beverages for consumption on the premises only upon property operated and controlled by the authority. (Code 1981, § 12-3-474, enacted by Ga. L. 1985, p. 801, § 1; Ga. L. 2001, p. 4, § 12; Code 1981, § 2-3-5 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2011, "this chapter" was substituted for "this part" in the middle of the first sentence of paragraph (5).

2-3-6. Public purpose of authority; tax and assessment exemptions.

It is found, determined, and declared that the creation of the authority and the carrying out of its corporate purposes are in all respects for the benefit of the people of this state and constitute a public purpose and that the authority will be performing an essential governmental function in the exercise of the powers conferred upon it by this chapter. The State of Georgia covenants that the authority shall be required to pay no taxes or assessments upon any of the property acquired by it or under its jurisdiction, control, possession, or supervision or upon its activities in the operation or maintenance of the facilities erected, maintained, or acquired by it or any fees, rentals, or other charges for the use of such facilities or other income received by the authority; provided, however, in no event shall the exemptions granted in this Code section extend to any lessee or other private person or entity.

(Code 1981, § 12-3-475, enacted by Ga. L. 1985, p. 801, § 1; Code 1981, § 2-3-6 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2011, "this chapter" was substituted for "this part" at the end of the first sentence.

2-3-7. Exercise of police powers by authority.

The authority is authorized to exercise such of the police powers of the state as may be necessary to maintain peace and order and to enforce any and all zoning, use, and personal conduct restrictions upon the properties, facilities, and persons under its jurisdiction to the extent that such is lawful under the laws of the United States and this state. The authority may delegate all or any part of the performance of these functions temporarily or permanently to the state or to the county in which its facilities are located.

(Code 1981, § 12-3-476, enacted by Ga. L. 1985, p. 801, § 1; Ga. L. 1992, p. 6, § 12; Code 1981, § 2-3-7 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

2-3-8. Authorization for security force.

The authority is authorized to contract for or to provide for and maintain a security force with respect to the facilities and property owned, leased, operated, or under the control of the authority and within the territory thereof. The security force shall have the duty to protect persons and property, disperse unlawful or dangerous assemblages, control pedestrian and vehicular traffic, and otherwise preserve and protect the public peace, health, and safety. For these purposes, a member of such force shall be a peace officer and, as such, shall have authority equivalent to the authority of a policeman or law enforcement officer of the county in which he is discharging his duties.

(Code 1981, § 12-3-477, enacted by Ga. L. 1985, p. 801, § 1; Code 1981, § 2-3-8 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

2-3-9. Receipts deemed trust funds.

All moneys received pursuant to the authority of this chapter, whether as grants or other contributions or as revenues, rents, and earnings, shall be deemed to be trust funds to be held and applied solely as provided in this chapter.

(Code 1981, § 12-3-478, enacted by Ga. L. 1985, p. 801, § 1; Code 1981, § 2-3-9 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2011, "this chapter" was substituted for "this part" twice in this Code section.

2-3-10. Setting rentals and other charges.

The authority is authorized to fix rentals and other charges which any user, exhibitor, concessionaire, franchisee, or vendor shall pay to the authority for the use of the project or part thereof or combination thereof, and to charge and collect the same, and to lease and make contracts with political subdivisions and agencies with respect to use of any part of the project. The rentals and other charges shall be so fixed and adjusted in respect to the aggregate thereof from the project or any part thereof so as to provide a fund sufficient with other revenues of such project, if any, to pay the cost of maintaining, repairing, and operating the project, including the reserves for extraordinary repairs and insurance, unless such cost shall be otherwise provided for, which cost shall be deemed to include the expenses incurred by the authority on account of the project for water, light, sewer, and other services furnished by other facilities at the project.

(Code 1981, § 12-3-479, enacted by Ga. L. 1985, p. 801, § 1; Code 1981, § 2-3-10 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

2-3-11. Legal services of Attorney General.

The Attorney General shall provide legal services for the authority and in connection therewith the provisions of Code Sections 45-15-13 through 45-15-16 shall be fully applicable.

(Code 1981, § 12-3-480, enacted by Ga. L. 1985, p. 801, § 1; Code 1981, § 2-3-11 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

2-3-12. Venue and jurisdiction for actions under chapter or against authority.

Any action to protect or enforce any rights under this chapter shall be brought in the Superior Court of Houston County, Georgia; and such court shall have exclusive, original jurisdiction of such actions. Furthermore, the venue for actions brought against the authority shall be in the Superior Court of Houston County, Georgia; and such court shall have exclusive, original jurisdiction of such actions. Nothing contained in this chapter shall be construed to impair any rights afforded the state under the Constitution of the United States.

(Code 1981, § 12-3-481, enacted by Ga. L. 1985, p. 801, § 1; Ga. L. 1994, p. 590, § 1; Code 1981, § 2-3-12 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2011, "this chapter" was substituted for "this part" in the first and last sentences of this Code section.

Editor's notes. - Ga. L. 1994, p. 590, § 2, not codified by the General Assembly, provides in part that this Act shall apply with respect to all actions filed on or after March 29, 1994.

2-3-13. Conflict of interest; full disclosure.

  1. Every member of the authority and every employee of the authority who knowingly has any interest, direct or indirect, in any contract to which the authority is or is about to become a party, or in any other business of the authority, or in any firm or corporation doing business with the authority shall make full disclosure of such interest to the authority. Failure to disclose such an interest shall constitute cause for which a member of the authority may be removed or an employee discharged or otherwise disciplined at the discretion of the authority.
  2. The provisions of Article 1 of Chapter 10 of Title 16 and Code Sections 16-10-21, 16-10-22, 16-10-92, and 16-10-93, regulating the conduct of officers, employees, and agents of political subdivisions, municipal and other public corporations, and other public organizations, shall be applicable to the conduct of members, officers, employees, and agents of the authority.
  3. Any contract or transaction of the authority involving a conflict of interest which is not disclosed under subsection (a) of this Code section, or involving a violation of Article 1 of Chapter 10 of Title 16 or Code Section 16-10-21 , 16-10-22 , 16-10-92 , or 16-10-93 , or involving a violation of any other provision of law regulating conflicts of interest which is applicable to the authority or its members, officers, or employees shall be voidable by the authority. (Code 1981, § 12-3-482, enacted by Ga. L. 1985, p. 801, § 1; Code 1981, § 2-3-13 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, "Code Section" was substituted for "Code Sections" in subsection (c).

2-3-14. Power of authority to issue revenue bonds.

  1. The authority or any authority or body which may succeed to the powers, duties, and liabilities vested in the authority is authorized at one time, or from time to time, to provide by resolution for the issuance of revenue bonds for the purpose of paying all or any part of the cost, as defined in this chapter, of any one project or a combination of projects. The principal and interest of such revenue bonds shall be payable solely from the special fund provided in subsection (n) of this Code section for such payment. The bonds of each issue shall be dated and shall mature at such times and bear interest at such rates as may be determined by the authority, payable in such medium of payment as to both principal and interest as may be determined by the authority, and may be made redeemable before maturity, at the option of the authority, at such price or prices and under such terms and conditions as may be fixed by the authority in the resolution providing for the issuance of the bonds.
  2. The authority shall determine the form of the bonds, including any interest coupons to be attached thereto, and shall fix the denomination or denominations of the bonds and the place or places of payment of principal and interest thereof, which may be at any bank or trust company inside or outside the state. The bonds may be issued in coupon or registered form, or both, as the authority may determine, and provision may be made for the registration of any coupon bond as to principal alone and also as to both principal and interest.
  3. In case any officer whose signature appears on any bonds or whose facsimile signature appears on any coupon ceases to be such officer before the delivery of such bonds, such signature shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until such delivery. All such bonds shall be signed by the chairman or vice chairman of the authority, and the official seal of the authority shall be affixed thereto and attested by the secretary or assistant secretary of the authority; and any coupons attached thereto shall bear the signature or facsimile signature of the chairman or vice chairman of the authority. Any coupon may bear the facsimile signature of such person, and any bond may be signed, sealed, and attested on behalf of the authority by such persons as at the actual time of the execution of such bonds shall be duly authorized or hold the proper office, although at the date of such bonds such persons may not have been so authorized or shall not have held such office.
  4. All revenue bonds issued under this chapter shall have and are declared to have all the qualities and incidents of negotiable instruments. Such bonds and the income therefrom shall be exempt from all taxation within the state.
  5. The authority may sell bonds in such manner and for such price as it may determine to be for the best interests of the authority.
  6. The proceeds of bonds shall be used solely for the payment of the cost of the project and shall be disbursed upon requisition or order of the chairman or vice chairman of the authority under such restrictions, if any, as provided by the resolution authorizing the issuance of the bonds or by the trust indenture mentioned in subsection (k) of this Code section.
  7. Prior to the preparation of definitive bonds, the authority may, under like restrictions, issue interim receipts, interim certificates, or temporary bonds, with or without coupons, exchangeable for definitive bonds upon the issuance of the latter.
  8. The authority may provide for the replacement of any bond which becomes mutilated or is destroyed or lost.
  9. Revenue bonds may be issued without the conducting of any proceedings, the existence of any conditions, or the happening of any events other than those proceedings, conditions, and events which are specified or required by this chapter. In the discretion of the authority, revenue bonds of a single issue may be issued for the purpose of paying the cost of any one or more, including a combination of, projects at any one institution or any number of institutions. Any resolution providing for the issuance of revenue bonds under this chapter shall become effective immediately upon its passage and need not be published or posted. Any such resolution may be passed at any regular, special, or adjourned meeting of the authority by a majority of its members.
  10. Revenue bonds issued under this chapter shall not be deemed to constitute a debt of the State of Georgia or a pledge of the faith and credit of the state. Such bonds shall be payable solely from the fund provided for in subsections (m) through (p) of this Code section, and the issuance of such revenue bonds shall not directly, indirectly, or contingently obligate the state to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment. All such bonds shall contain recitals on their faces covering substantially the foregoing provisions of this Code section. Anything in this Code section to the contrary notwithstanding, such funds as may be received from state appropriations or from any other source are declared to be available and may be used by any department, board, commission, or agency of the State of Georgia for the performance of any lease contract entered into by such department, board, commission, or agency with the authority.
    1. In the discretion of the authority, any issue of revenue bonds may be secured by a trust indenture by and between the authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company inside or outside of the state. Such trust indenture may pledge or assign rents, revenues, and earnings to be received by the authority.
    2. Either the resolution providing for the issuance of revenue bonds or the trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the authority in relation to the acquisition of property, the construction of the project, the maintenance, operation, repair, and insurance of the project, and the custody, safeguarding, and application of all moneys. The resolution or indenture may also provide that any project shall be constructed and paid for under the supervision and approval of consulting engineers or architects employed or designated by the authority and satisfactory to the original purchasers of the bonds issued therefor. The resolution or indenture may also require that the security given by contractors and by any depository of the proceeds of the bonds or revenues or other moneys be satisfactory to such purchasers and may also contain provisions concerning the conditions, if any, upon which additional revenue bonds may be issued.
    3. The indenture may set forth the rights and remedies of the bondholders and of the trustee and may restrict the individual right of action of bondholders as is customary in trust indentures securing bonds and debentures of corporations. In addition to the foregoing provisions of this Code section, the trust indenture may contain such other provisions as the authority may deem reasonable and proper for the security of the bondholders.
    4. It shall be lawful for any bank or trust company incorporated under the laws of this state to act as such depository and to furnish such indemnifying bonds or pledge such securities as may be required by the authority.
    5. All expenses incurred in carrying out the trust indenture may be treated as a part of the cost of maintenance, operation, and repair of the project and of the cost of the project affected by such indenture.
  11. The authority shall, in the resolution providing for issuance of revenue bonds or in the trust indenture, provide for the payment of the proceeds of the sale of the bonds to any officer or person who, or any agency, bank, or trust company which, shall act as trustee of such funds and shall hold and apply the same to the purposes expressed in this chapter, subject to such regulations as this chapter and such resolution or trust indenture may provide.
  12. Unless otherwise pledged and allocated, any and all revenues, rents, and earnings received by the authority, regardless of whether or not such revenues, rents, and earnings were produced by a particular project for which bonds have been issued, may be pledged and allocated by the authority to the payment of the principal and interest on revenue bonds of the authority as the trust indenture or the resolution authorizing the issuance of the bonds may provide.
  13. Such funds so pledged from whatever source received, which pledge may include funds received from one or more or all sources, shall be set aside at regular intervals, as may be provided in the resolution or trust indenture, into a sinking fund which shall be pledged to and charged with the payment of:
    1. The interest upon such revenue bonds as such interest shall fall due;
    2. The principal of the bonds as the same shall fall due;
    3. The necessary charges of paying agents for paying principal and interest; and
    4. Any premium upon bonds retired by call or purchase.
  14. The use and disposition of such sinking fund shall be subject to such regulations as may be provided in the resolution authorizing the issuance of the revenue bonds or in the trust indenture, but, except as may otherwise be provided in such resolution or trust indenture, such sinking fund shall be a fund for the benefit of all revenue bonds without distinction or priority of one over another.
  15. Subject to the provisions of the resolution authorizing the issuance of the bonds, or subject to the trust indenture, surplus moneys in the sinking fund may be applied to the purchasing or redemption of bonds, and any such bonds so purchased or redeemed shall forthwith be canceled and shall not again be issued.
  16. Except to the extent the rights given in this Code section may be restricted by resolution passed before the issuance of bonds or by a trust indenture, any holder of revenue bonds or interest coupons issued under this chapter, any receiver for such holders, or any indenture trustee, if any, may either at law or in equity, by action, mandamus, or other proceedings, protect and enforce any and all rights under the laws of the State of Georgia or granted by this chapter or under such resolution or trust indenture. Such holder, receiver, or trustee may enforce and compel performance of all duties required by this chapter, or by resolution or trust indenture, to be performed by the authority or any officer thereof, including the fixing, charging, and collecting of revenues, rents, and other charges for the use of the project or projects. In the event of default of the authority upon the principal and interest obligations of any revenue bond issue, such holder, receiver, or trustee shall be subrogated to each and every right which the authority may possess and, in the pursuit of his or its remedies as subrogee, may proceed either at law or in equity, by action, mandamus, or other proceedings to collect any sums by such proceedings due and owing to the authority and pledged or partially pledged directly or indirectly to the benefit of the revenue bond issue of which such holder, receiver, or trustee is representative. No holder, receiver, or trustee shall have the right to compel any exercise of the taxing power of the state to pay any such bond or the interest thereon, or to enforce the payment thereof against any property of the state, nor shall any such bond constitute a charge, lien, or encumbrance, legal or equitable, upon the property of the state.
  17. The authority is authorized to provide by resolution for the issuance of revenue refunding bonds of the authority for the purpose of refunding any revenue bonds issued under this chapter and then outstanding, together with accrued interest thereon. The issuance of such revenue refunding bonds, the maturities, and all other details thereof, the rights of the holders thereof, and the duties of the authority in respect to the same shall be governed by the foregoing provisions of this chapter insofar as the same may be applicable.
  18. While any of the bonds issued by the authority remain outstanding, the powers, duties, or existence of the authority, or of its officers, employees, or agents, or of any department, board, commission, or agency of the state shall not be diminished or impaired in any manner that will affect adversely the interests and rights of the holders of such bonds. This chapter shall be for the benefit of the state, the authority, and the holders of any such bonds and, upon the issuance of bonds under this chapter, shall constitute a contract with the holders of such bonds.
  19. Bonds of the authority shall be confirmed and validated in accordance with the procedure of Article 3 of Chapter 82 of Title 36. The petition for validation shall also make party defendant to such action any authority, division, subdivision, instrumentality, or agency of the State of Georgia which, or any person who, has contracted with the Georgia Agricultural Exposition Authority for the use of any building, structure, or facilities for which bonds have been issued and sought to be validated. Such authority, division, subdivision, instrumentality, agency, or person shall be required to show cause, if any, why such contract or contracts and the terms and conditions thereof should not be inquired into by the court, the validity of the terms thereof determined, and the contract adjudicated as security for the payment of any such bonds of the authority. The bonds when validated and the judgment of validation shall be final and conclusive with respect to such bonds and against the authority issuing the same and against any authority, division, subdivision, instrumentality, department, agency, or person contracting with the authority.
  20. No bonds shall be issued by the authority under this chapter unless the issuance of such bonds has been reviewed and approved by the Georgia State Financing and Investment Commission.
  21. The bonds authorized by this chapter are made securities in which all public officers and bodies of this state; all municipalities and all municipal subdivisions; all insurance companies and associations and other persons carrying on an insurance business; all banks, bankers, trust companies, savings banks, and savings associations, including savings and loan associations, building and loan associations, investment companies, and other persons carrying on a banking business; all administrators, guardians, executors, trustees, and other fiduciaries; and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations of the state may properly and legally invest funds, including capital in their control or belonging to them. The bonds are also made securities which may be deposited with and shall be received by all public officers and bodies of this state and all municipalities and municipal subdivisions for any purpose for which the deposit of the bonds or other obligations of this state is now or may hereafter be authorized. (Code 1981, § 12-3-483, enacted by Ga. L. 1985, p. 801, § 1; Ga. L. 1996, p. 6, § 12; Code 1981, § 2-3-14 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, "subsection (n)" was substituted for "subsection (b)" in the second sentence of subsection (a).

Pursuant to Code Section 28-9-5, in 2011, "chapter" was substituted for "part" throughout this Code section.

2-3-15. Authorization for department construction and acquisition of projects.

The Department of Agriculture is authorized to construct, erect, acquire, and own the project, as defined in this chapter. The costs of any such project may be paid from the proceeds of state general obligation or guaranteed revenue debt. The department is authorized to contract with the authority, the State Properties Commission, the Georgia State Financing and Investment Commission, or with any other department, agency, commission, board, official, or person for the construction, operation, maintenance, funding, design, or use of such project.

(Code 1981, § 12-3-484, enacted by Ga. L. 1985, p. 801, § 1; Ga. L. 2011, p. 261, § 3/HB 125; Code 1981, § 2-3-15 , as redesignated by Ga. L. 2011, p. 261, § 4/HB 125.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2011, "this chapter" was substituted for "this part" at the end of the first sentence.

CHAPTER 4 GEORGIA SEED DEVELOPMENT COMMISSION

Sec.

Administrative Rules and Regulations. - Seed Division, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-12.

OPINIONS OF THE ATTORNEY GENERAL

Funds accumulated by commission may be utilized for initiating seed research program at the College of Agriculture of the University of Georgia. 1975 Op. Att'y Gen. No. 75-57.

2-4-1. Short title.

This chapter may be cited as the "Georgia Seed Development Act."

(Ga. L. 1959, p. 83, § 1.)

2-4-2. Seed Development Commission - Creation; corporate powers.

  1. As used in this chapter, the term "commission" means the Georgia Seed Development Commission.
  2. There is created a body corporate and politic and an instrumentality and public corporation of this state, to be known as the Georgia Seed Development Commission. It shall have perpetual existence. In such name, it may contract and be contracted with, sue and be sued, implead and be impleaded, and complain and defend in all courts.
  3. The commission is assigned to the Department of Agriculture for administrative purposes only, as prescribed in Code Section 50-4-3.

    (Ga. L. 1959, p. 83, § 2; Ga. L. 1972, p. 1015, § 508.)

2-4-3. Seed Development Commission - Composition; officers; bylaws; quorum; compensation; records; audit; bonds.

  1. As used in this Code section, the term "licensee" means the designee of a holder of a license authorizing the production, conditioning, propagation, or marketing of crops, seed, turfgrass, or horticultural plants developed by the College of Agricultural and Environmental Sciences of the University of Georgia, where such license grants rights to intellectual property owned by the University of Georgia or a formally designated cooperative organization thereof.
  2. The commission shall be composed of the following 11 members:
      1. Two members to be appointed by the Governor, each of whom shall be a licensee or shall be otherwise involved in the production, conditioning, or marketing of crops, seed, turfgrass, or horticultural plants.
      2. No later than May 31, 2021, the Governor shall appoint two members as provided for in subparagraph (A) of this paragraph whose terms shall begin on July 1, 2021, and such members and their successors shall serve terms of four years. The terms of the members appointed as provided for in subparagraph (A) of this paragraph and serving as of June 30, 2021, shall terminate on that date;
      1. One member who shall be a licensee or shall be otherwise involved in the production, conditioning, or marketing of crops, seed, turfgrass, or horticultural plants, to be appointed by the Lieutenant Governor.
      2. No later than May 31, 2021, the Lieutenant Governor shall appoint a member as provided for in subparagraph (A) of this paragraph whose term shall begin on July 1, 2021, and such member shall serve a single term of five years. The successors to the member whose term ends on June 30, 2026, shall serve terms of four years that begin on July 1 of the year of their appointment. The term of the member appointed as provided for in subparagraph (A) of this paragraph and serving as of June 30, 2021, shall terminate on that date;
      1. One member who shall be a licensee or shall be otherwise involved in the production, conditioning, or marketing of crops, seed, turfgrass, or horticultural plants, to be appointed by the Speaker of the House of Representatives.
      2. No later than May 31, 2021, the Speaker of the House of Representatives shall appoint a member as provided for in subparagraph (A) of this paragraph whose term shall begin on July 1, 2021, and such member shall serve a single term of five years. The successors to the member whose term ends on June 30, 2026, shall serve terms of four years that begin on July 1 of the year of their appointment. The term of the member appointed as provided for in subparagraph (A) of this paragraph and serving as of June 30, 2021, shall terminate on that date;
    1. The Commissioner of Agriculture or his or her designee;
      1. Two representatives of the crop, seed, turfgrass, or horticultural plant industry or of farm related organizations, one of whom shall be appointed by the Senate Agriculture and Consumer Affairs Committee, and one of whom shall be appointed by the House Committee on Agriculture and Consumer Affairs. Such representatives shall be licensees or shall otherwise have knowledge of the production, conditioning, or marketing of crops, seed, turfgrass, or horticultural plants. Each committee shall make its appointment with a quorum present and a majority of those present concurring.
      2. No later than May 31, 2022, two members shall be appointed as provided for in subparagraph (A) of this paragraph whose terms shall begin on July 1, 2022, and such members shall serve a single term of six years. The successors to the two members whose terms end on June 30, 2028, shall serve terms of four years that begin on July 1 of the year of their appointment. The terms of the members appointed as provided for in subparagraph (A) of this paragraph and serving as of June 30, 2021, shall terminate on that date;
      1. One member who shall be a licensee or shall be otherwise involved in the production, conditioning, or marketing of crops, seed, turfgrass, or horticultural plants, to be appointed by the Commissioner of Agriculture.
      2. No later than May 31, 2022, the Commissioner of Agriculture shall appoint a member as provided for in subparagraph (A) of this paragraph whose term shall begin on July 1, 2022, and such member shall serve a single term of five years. The successors to the member whose term ends on June 30, 2027, shall serve terms of four years that begin on July 1 of the year of their appointment. The term of the member appointed as provided for in subparagraph (A) of this paragraph and serving as of June 30, 2021, shall terminate on that date;
    2. The dean of the College of Agricultural and Environmental Sciences of the University of Georgia;
    3. The associate dean for research of the College of Agricultural and Environmental Sciences of the University of Georgia, as a nonvoting member; and
      1. An additional nonvoting member who is a crop, seed, turfgrass, or horticultural plant breeder employed by the College of Agricultural and Environmental Sciences of the University of Georgia, appointed by the dean of the College of Agricultural and Environmental Sciences of the University of Georgia, after consultation with the commission.
      2. No later than May 31, 2022, the dean of the College of Agricultural and Environmental Sciences of the University of Georgia shall appoint a member as provided for in subparagraph (A) of this paragraph whose term shall begin on July 1, 2022, and such member shall serve a single term of five years. The successors to the member whose term ends on June 30, 2027, shall serve terms of four years that begin on July 1 of the year of their appointment. The term of the member appointed as provided for in subparagraph (A) of this paragraph and serving as of June 30, 2021, shall terminate on that date.
  3. The members of the commission shall enter upon their duties without further act or formality. The commission shall organize each odd-numbered year at the meeting next following July 1 of such year, at which time the commission shall elect one of its members as chairperson and another as vice chairperson. It shall also elect a secretary and a treasurer, who need not be members. The offices of secretary and treasurer may be combined in one person. The commission may make such bylaws for its government as it deems necessary but is under no duty to do so.
  4. Five voting members of the commission shall constitute a quorum necessary for the transaction of business, and a majority vote of those present at any meeting at which there is a quorum shall be sufficient to do and perform any action permitted the commission by this chapter. No vacancy on the commission shall impair the right of a quorum to transact any and all business of the commission.
  5. The members shall not receive compensation for their services but shall be reimbursed for actual expenses incurred in the performance of their duties.
  6. Members of the commission shall be accountable as trustees. They shall cause adequate books and records of all transactions of the commission, including records of income and disbursements of every nature, to be kept. The books and records shall be inspected and audited by the state auditor at least once in each year. The commission may require that an employee, an officer, member of the commission, or any person doing business with the commission post a bond, in an amount to be determined by the commission, for the faithful performance of the duties imposed upon such employee, officer, member of the commission, or person doing business with the commission. The principal of such bond of an officer, employee, or member of the commission shall be paid by the commission.

    (Ga. L. 1959, p. 83, § 3; Ga. L. 1980, p. 348, § 1; Ga. L. 1988, p. 426, § 1; Ga. L. 1995, p. 10, § 2; Ga. L. 2008, p. 309, § 1/SB 515; Ga. L. 2016, p. 742, § 1/HB 1030; Ga. L. 2020, p. 352, § 1/HB 894.)

The 2020 amendment, effective January 1, 2021, rewrote subsection (b) and substituted "odd-numbered" for "even-numbered" in the second sentence of subsection (c).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2020, "June 30, 2021" was substituted for "June, 30, 2021" near the end of subparagraph (b)(5)(B).

2-4-4. Seed Development Commission - Powers and duties generally.

The commission shall have, in addition to any other powers conferred in this chapter, the following powers:

  1. To have a seal and to alter it at its pleasure;
  2. To acquire by purchase, lease, gift, or otherwise and to hold, lease, and dispose of, in any manner, real and personal property of every kind and character for its corporate purposes;
  3. To appoint such additional officers, who need not be members of the commission, as the commission deems advisable; to employ such experts, agents, and employees as in its judgment may be necessary to carry on properly the business of the commission; to fix the compensation for such officers, experts, agents, and employees; and to promote and discharge them;
  4. To make such contracts and agreements as are legitimate and necessary for the purposes of this chapter and to make all other contracts and agreements as may be necessary to the proper performance of any action permitted by this chapter;
  5. To exercise any power granted to private corporations which is not in conflict with the Constitution and laws of this state nor with other provisions of this chapter;
  6. To do and perform all things necessary or convenient to carry out the powers conferred upon the commission by this chapter;
  7. To promote scientific and educational objectives in connection with the production and distribution of foundation seed stocks;
  8. To cooperate and contract with the experiment stations of the College of Agricultural and Environmental Sciences of the University of Georgia, the Department of Agriculture of this state, the United States Department of Agriculture, and any other agency of the state or federal government in making foundation seeds of superior varieties and hybrids available in adequate quantities, according to the requirements and needs of the farmers of this state;
  9. To receive and to be the agent for breeder's seed and other parent material distributed from the experiment stations of the College of Agricultural and Environmental Sciences of the University of Georgia and other sources;
  10. To contract for the production and promotion of foundation seed from breeder's seed;
  11. To purchase, process, and resell breeder's and foundation seeds from contract growers, the United States Department of Agriculture, experiment stations of the College of Agricultural and Environmental Sciences of the University of Georgia, and other breeders or from other sources, as the commission may deem necessary;
  12. To use the net proceeds from the sale of seed for necessary buildings, equipment, supplies, and expenses, as directed by the commission;
  13. To solicit, receive, collect, and disburse dues, funds, pledges, and other subscriptions of value in connection with carrying out the purposes of this chapter;
  14. To receive real and personal property, either by gift, grant, devise, or will, and to hold and dispose of the same in carrying out the purposes of the commission; and
  15. To buy, sell, and trade in all the elements necessary for the successful administration of the purposes of the commission.

    (Ga. L. 1959, p. 83, § 5; Ga. L. 1995, p. 10, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Overall intent and purpose of paragraph (8) of this section is to aid in the production and promotion of foundation seed from breeder seed. 1967 Op. Att'y Gen. No. 67-60.

Agent for experiment stations producing items other than breeder's seed or parent material. - The commission is the exclusive agent for any breeder's seed or parent material distributed by the agricultural experiment stations. However, if the agricultural experiment stations are producing items other than breeder's seed or parent material, the present Act does not require that the commission be the agent. 1989 Op. Att'y Gen. No. 89-2.

Seed Commission as "handler" for purposes of Peanut Commission assessment. - Inasmuch as the Seed Commission is a public corporation and state instrumentality which engages in the operation of selling peanuts which it has purchased from a producer, the commission is a "handler" to whom the Peanut Commission may look for payment of the assessment under Marketing Order 3. 1990 Op. Att'y Gen. No. 90-33.

2-4-5. Seed Development Commission - Purchase contracts.

All contracts for the purchase of supplies or equipment by the commission for any purpose whatever shall be made only after competitive sealed bids have been received.

(Ga. L. 1959, p. 83, § 7.)

2-4-6. Seed Development Commission - Operation on nonprofit basis.

It is the intent and purpose of the General Assembly that the commission shall be operated on a nonprofit basis. Any and all profits earned, beyond those required as a reasonable reserve for the future operations of the commission, shall be transmitted to the state treasury.

(Ga. L. 1959, p. 83, § 9.)

2-4-7. Advisory board created; members; function.

The commission may appoint an advisory board, consisting of such number and qualifications of members as the commission may determine, to advise and consult with the commission in the performance of the commission's duties. The function of such a board shall be advisory only.

(Ga. L. 1959, p. 83, § 4; Ga. L. 1995, p. 10, § 2; Ga. L. 2008, p. 309, § 2/SB 515.)

2-4-8. Terms of office of appointed members of commission and board.

The appointed members of the commission shall serve for terms of two years each commencing on July 1 of each even-numbered year; and the appointed members of the advisory board, if any, shall serve at the pleasure of the commission.

(Ga. L. 1960, p. 1106, § 1; Ga. L. 2008, p. 309, § 3/SB 515.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, "appointed" was substituted for "appointive" in this Code section.

2-4-9. Conveyance of state property to commission; consideration; reversion for nonuse.

The Governor is authorized to convey to the commission on behalf of the state any real or personal property or interest therein owned by the state in furtherance of this chapter. The consideration for such conveyance shall be determined by the Governor and expressed in the conveyance, provided that such consideration shall be nominal, the benefits going to the state and its citizens constituting full and adequate consideration. If, within one year after a conveyance by the Governor, use of the property conveyed has not been made by the commission, such property or interest shall revert to the state.

(Ga. L. 1959, p. 83, § 6.)

2-4-10. Debt or pledge of credit of state not authorized.

Nothing contained in this chapter shall be construed in any manner as authorizing the creation of a debt of the State of Georgia or a pledge of the credit of this state.

(Ga. L. 1959, p. 83, § 8.)

CHAPTER 5 REGISTRATION, LICENSES, AND PERMITS GENERALLY

Sec.

2-5-1. Short title.

This chapter may be cited as the "Department of Agriculture Registration, License, and Permit Act."

(Ga. L. 1966, p. 307, § 1.)

2-5-2. Applicability of chapter.

This chapter shall apply to all applications to the department for registrations, licenses, or permits required by law or regulation.

(Ga. L. 1966, p. 307, § 2.)

2-5-3. Applications - Designation of address or agent for service of process; forwarding to Secretary of State.

  1. All applications to the department for registrations, licenses, or permits shall:
    1. Designate an address in this state where the applicant can be personally served with legal process;
    2. Contain an appointment of an agent in this state for acceptance of service of legal process, together with the agent's address in this state; or
    3. Contain a designation of the Secretary of State for acceptance of service of legal process.
  2. A copy of such application shall be forwarded to the Secretary of State by the department.

    (Ga. L. 1966, p. 307, § 3.)

2-5-4. Applications - Admission that applicant is doing business in state.

The filing of an application with the department for registration, a license, or a permit shall constitute an admission by the applicant that the applicant is doing business in this state.

(Ga. L. 1966, p. 307, § 4.)

2-5-4.1. Applications - Form of submission; payment of fees.

The department is authorized to accept applications either in writing or through available electronic media approved by the Commissioner. The payment of fees and the acceptance of such fees by the department may be accomplished in any manner, including electronic fund transfers, approved by the Commissioner.

(Code 1981, § 2-5-4.1 , enacted by Ga. L. 1997, p. 401, § 1.)

2-5-5. Grounds for denial of registration, license, or permit; hearing.

  1. The Commissioner may deny registration, a license, or a permit to:
    1. Any applicant with a criminal record;
    2. Any applicant who is found by the Commissioner to have violated any law administered by the department or any regulation or quarantine of the department;
    3. A corporation, when any of its officers has a criminal record or is found by the Commissioner to have violated any law administered by the department or any regulation or quarantine of the department; or
    4. Any person who is less than 18 years of age on the date of his or her application.
  2. In the case of a partnership, all parties shall be considered applicants for the purpose of this Code section.
  3. No registration, license, or permit shall be denied under this Code section without opportunity for hearing in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

    (Ga. L. 1966, p. 307, § 5; Ga. L. 1997, p. 401, § 2.)

2-5-6. Grounds for revocation; hearing.

The Commissioner may revoke any outstanding registration, license, or permit where the holder of the same or any officer or agent of the holder is found by the Commissioner to have violated any law administered by the department or any regulation or quarantine of the department, provided that no registration, license, or permit shall be revoked under this Code section without opportunity for hearing in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

(Ga. L. 1966, p. 307, § 6.)

Cross references. - Authority of Commissioner to impose penalty in lieu of other action, § 2-2-10 .

2-5-7. Registration, license, or permit certificates as evidence thereof; republication and reissuance unnecessary.

All license, registration, and permit certificates published by the department shall, upon issuance, be permanent evidence of the pertinent licenses, registrations, and permits they are published for, until their surrender, abandonment, revocation, cancellation, or nonrenewal. No subsequent republication and reissuance of certificates for periodically renewable licenses, registrations, and permits by the department shall be necessary; provided, however, that all conditions and fees required by law for sustained effectiveness and renewal must be satisfied for continued enjoyment of the pertinent license, registration, or permit.

(Ga. L. 1976, p. 187, § 1.)

2-5-8. Rules and regulations.

The Commissioner shall make and publish in print or electronically such rules and regulations, not inconsistent with law, as he deems necessary to carry out the purposes of this chapter.

(Ga. L. 1966, p. 307, § 7; Ga. L. 2010, p. 838, § 10/SB 388.)

CHAPTER 6 SOIL AND WATER CONSERVATION

Soil Conservation Generally.

Soil and Water Conservation Districts.

Cross references. - Applicability of "Ground Water Use Act of 1972" ( § 12-5-90 et seq.) to water used for agricultural or poultry-processing purposes, § 12-5-105 .

Construction of dams, § 12-5-370 et seq.

Regulation of clearing, dredging, excavating, and other activities of land by Department of Natural Resources and local governing authorities, T. 12, C. 7.

Tax credit for donation of real property to be used for conservation purposes, § 48-7-29.12 .

ARTICLE 1 SOIL CONSERVATION GENERALLY

Law reviews. - For article, "Selected Oddities in Georgia Municipal Law," see 9 Ga. L. Rev. 783 (1975). For note, "Land Use Decisions and the Property Tax," see 11 Ga. St. B. J. 103 (1974).

OPINIONS OF THE ATTORNEY GENERAL

Agricultural extension work is public in character and is not in the nature of private enterprise. 1958-59 Op. Att'y Gen. p. 6.

State not liable for damages resulting from insect control recommendations. - As agents and employees of the state performing public functions, Cooperative Extension Service personnel are not suable without express consent; therefore, neither the state itself nor the Board of Regents would be liable for damages suffered by farmers as the result of following insect control recommendations. 1958-59 Op. Att'y Gen. p. 6.

RESEARCH REFERENCES

C.J.S. - 3 C.J.S., Agriculture, § 44 et seq.

ALR. - Constitutionality and construction of state farm aid laws, 92 A.L.R. 768 .

Federal and state Agricultural Adjustment Acts, 98 A.L.R. 1195 ; 102 A.L.R. 937 ; 114 A.L.R. 136 .

Validity and construction of statutes regulating strip mining, 86 A.L.R.3d 27.

2-6-1. Short title.

This article may be known and cited as the "Georgia Agricultural Conservation and Adjustment Act."

(Ga. L. 1937, p. 538, § 1.)

2-6-2. Purpose of article; legislative findings; acceptance of federal Soil Conservation and Domestic Allotment Act.

  1. It is recognized and declared:
    1. That the soil resources and fertility of the land of this state and the economic use thereof, the prosperity of the farming population of this state, the navigability of the rivers and harbors of this state, and the prevention of floods in this state are matters affected with a public interest;
    2. That the welfare of this state has been impaired and is in danger of being further impaired by destruction of its soil fertility, by uneconomic use and waste of its land, by exploitation and wasteful and unscientific use of its soil resources, by floods and impairment of its rivers and harbors and of the navigability of its waters and water courses as a result of soil erosion, and by the decrease in the purchasing power of the net income per person on farms in the state as compared with the net income per person in the state not on farms;
    3. That such 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; and
    4. That the formulation and effectuation by this state of state plans in conformity with Section 7 of the federal Soil Conservation and Domestic Allotment Act is calculated to remedy such conditions and will tend to advance the public welfare of this state.
  2. Therefore, 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 and harbors 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 beginning August, 1909, and ending July, 1914, as determined from statistics available in the United States Department of Agriculture, and the maintenance of such ratio, this state assents to and accepts the federal 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 such act, subject, however, to the following limitations:
    1. The powers conferred in this article shall be used to assist voluntary action calculated to effectuate such purposes;
    2. Such powers shall not be used to discourage the production of supplies of foods and fibers in this state which are 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; and
    3. In carrying out the purposes specified in this Code 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.

      (Ga. L. 1937, p. 538, § 2.)

U.S. Code. - The federal Soil Conservation and Domestic Allotment Act, referred to in this Code section, is codified principally at 16 U.S.C. § 590a et seq. Section 7 of the Act is codified at 16 U.S.C. § 590g.

2-6-3. Definitions.

As used in this article, the term:

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

    (Ga. L. 1937, p. 538, § 3.)

2-6-4. Designation of state agency.

The Cooperative Extension Service of the University of Georgia, hereinafter called the Cooperative Extension Service, is designated and authorized as the agency of this state to carry out the policy and purposes of this article and to formulate and administer state plans pursuant to the terms of this article.

(Ga. L. 1937, p. 538, § 4.)

2-6-5. Formulation and administration of state plans; investigations.

  1. The Cooperative Extension Service is authorized and directed to formulate for each calendar year and to submit to the secretary of agriculture of the United States for and in the name of this state, a state plan for carrying out the purposes of this article during such calendar year.
  2. The Cooperative Extension Service 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 the more substantial accomplishment of the purposes of this article.
  3. Each such plan shall provide for such participation in its administration by such voluntary county and community committees or associations of agricultural producers, organized for such purposes, as the Cooperative Extension Service determines to be necessary or proper for the effective administration of the plan.
  4. Each such plan shall provide, through agreements with agricultural producers or through other voluntary methods:
    1. 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 Cooperative Extension Service 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
    2. For payments to agricultural producers, in connection with such agreements or methods, in such amounts as the Cooperative Extension Service determines to be fair, reasonable, and calculated to promote such accomplishment of the purposes of this article without depriving such producers of a voluntary and uncoerced choice of action.
  5. Any such plan shall provide for such educational programs as the Cooperative Extension Service determines to be necessary or proper to promote the more substantial accomplishment of the purposes of this article.
  6. Each such plan shall contain an estimate of expenditures necessary to carry out such plan, together with a statement of such amount as the Cooperative Extension Service determines to be necessary to be paid by the secretary of agriculture of the United States as a grant in aid of such plan under Section 7 of the federal 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 Cooperative Extension Service to be necessary for carrying out such plan during such period.
  7. The Cooperative Extension Service shall provide for such investigations as it finds to be necessary for the formulation and administration of such plans.

    (Ga. L. 1937, p. 538, § 5.)

Cross references. - Employment and payment of county agricultural and home demonstration agents, § 20-2-62 .

U.S. Code. - Section 7 of the federal Soil Conservation and Domestic Allotment Act, referred to in this Code section, is codified at 16 U.S.C. § 590g.

2-6-6. Receipt and disbursement of funds; accounts; auditing; bonds.

  1. The Cooperative Extension Service 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 moneys or other aid, together with any moneys appropriated or other provision made by this state for such purpose, shall be forthwith available to the Cooperative Extension Service 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 have been received, for the purpose of administering this article. Such moneys or aid may be expended by the Cooperative Extension Service in carrying out the state plans provided for in Code Section 2-6-5 or in otherwise effectuating the purposes and policies of this article.
  2. Subject to any conditions upon which any such money or other aid is made available to the state and subject 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:
    1. Administration expenses;
    2. Equipment;
    3. Cost of research and investigation;
    4. Cost of educational activities;
    5. Compensation and expenses of members of the state advisory board provided for in Code Section 2-6-10;
    6. Reimbursement to other state agencies or to voluntary committees or associations of agricultural producers for the costs to such agencies, committees, or associations of assisting in the administration of this article when assistance is requested in writing by the Cooperative Extension Service and rendered to the Cooperative Extension Service;
    7. Reimbursement of any other fund from which the Cooperative Extension Service has made expenditures in providing services in the administration of this article;
    8. Payments to agricultural producers provided for in any plan made effective pursuant to this article;
    9. Salaries of employees; and
    10. All other expenditures requisite to carrying out the provisions and purposes of this article.
  3. The Cooperative Extension Service shall provide for the keeping of full and accurate accounts as such state agency, showing all receipts and expenditures of moneys, securities, or other property received, held, or expended under 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 this article.

    (Ga. L. 1937, p. 538, § 6.)

2-6-7. Assistance of other agencies and associations; rules and regulations; lease or purchase of equipment, facilities, and supplies; employment of personnel.

  1. The Cooperative Extension Service shall utilize such available services and assistance of other state agencies and of voluntary county and community committees and associations of agricultural producers as it determines to be necessary or calculated to assist substantially in the effective administration of this article.
  2. The Cooperative Extension Service shall have the authority to make such rules and regulations consistent with this article and to do any and all other acts consistent with this article which it finds to be necessary or proper for the effective administration of this article.
  3. The Cooperative Extension Service shall have the power and authority to obtain, by lease or purchase, such equipment, office accommodations, facilities, services, and supplies and to employ and determine the qualifications, duties, and compensation of 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 this article.

    (Ga. L. 1937, p. 538, § 7.)

2-6-8. Reports; investigations.

The Cooperative Extension Service shall compile or require to be made such reports as it determines to be necessary or proper in order to ascertain whether any plans provided for in this article are being carried out according to their terms. The Cooperative Extension Service shall provide for compliance with such requirements on the part of all persons and agencies participating in the administration of any such plan and may make or cause to be made such investigations as it determines to be necessary or proper to assure the correctness of such reports and to make possible the verification of the reports.

(Ga. L. 1937, p. 538, § 10.)

2-6-9. Community associations; community and county committees.

The Cooperative Extension Service, by regulation, 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, which shall be composed of three members of such association; and for a chairman to be chosen for each such community committee. The Cooperative Extension Service shall also provide for the selection by the members of such community committees within each county of a county committee for such county, to be composed of three members of such community committees, and for the selection of a chairman of each such county committee.

(Ga. L. 1937, p. 538, § 8.)

2-6-10. State advisory board.

  1. The Cooperative Extension Service shall, by regulation, provide for the selection of five persons of legal age, resident in this state, to act as farmer members of a state advisory board. Such members shall be selected from the standpoint of their actual farming experience and comprehensive understanding of the agricultural problems of this state and shall represent, as nearly as possible, all sections of the state and all major types of farming.
  2. The state advisory board, upon the request of the Cooperative Extension Service, shall advise the Cooperative Extension Service with regard to all matters of major importance in carrying out this article and may, in the absence of such request, submit advice and information to the Cooperative Extension Service with respect to the administration of this article.

    (Ga. L. 1937, p. 538, § 9.)

ARTICLE 2 SOIL AND WATER CONSERVATION DISTRICTS

Cross references. - Construction of dams, § 12-5-370 et seq.

Law reviews. - For article, "Selected Oddities in Georgia Municipal Law," see 9 Ga. L. Rev. 783 (1975). For comment, "The Right to Rainwater: An Unlikely Fairy Tale," see 69 Mercer L. Rev. 575 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Soil and Water Conservation Districts are agencies of this state. 1969 Op. Att'y Gen. No. 69-319.

Merit system rules violated by employee elected as supervisor. - A state merit system employee holding public office as an elected Soil and Water Conservation District supervisor would be in violation of the merit system rules. 1975 Op. Att'y Gen. No. 75-45.

Soil and water conservation district supervisors are eligible for comprehensive general liability insurance through the Department of Administrative Services. 1981 Op. Att'y Gen. No. 81-35.

RESEARCH REFERENCES

ALR. - Validity and construction of statutes regulating strip mining, 86 A.L.R.3d 27.

2-6-20. Short title.

This article may be known and cited as the "Soil and Water Conservation Districts Law."

(Ga. L. 1937, p. 377, § 1; Ga. L. 1962, p. 116, § 1.)

2-6-21. Legislative determinations and declarations of policy.

  1. Legislative determinations. It is declared, as a matter of legislative determination:
    1. THE CONDITION. That:
      1. The farm, forest, and grazing lands of this state are among the basic assets of this state and the preservation of these lands is necessary to protect and promote the health, safety, and general welfare of its people;
      2. Improper land use practices have caused and have contributed to and are now causing and contributing to a progressively more serious erosion of the farm and grazing lands of this state by wind and water;
      3. The breaking of natural grass, plant, and forest cover has interfered with the natural factors of soil stabilization, causing loosening of soil and exhaustion of humus and developing a soil condition that favors erosion;
      4. The topsoil is being washed and blown out of fields and pastures;
      5. There has been an accelerated washing of sloping fields;
      6. These processes of erosion by wind and water speed up with removal of absorptive topsoil, causing exposure of less absorptive and less protective, but more erosive, subsoil; and
      7. Failure by any landowner or occupier of land to conserve the soil and control erosion upon his lands causes a washing and blowing of soil and water from his lands onto other lands and makes the conservation of soil and control of erosion on such other lands difficult or impossible;
    2. THE CONSEQUENCES. That the consequences of such soil erosion in the form of soil washing and soil blowing are:
      1. The silting and sedimentation of stream channels, reservoirs, dams, ditches, and harbors;
      2. The loss of fertile soil material in dust storms;
      3. The piling up of soil on lower slopes and its deposit over alluvial plains;
      4. The reduction in productivity or outright ruin of rich bottom lands by overwash of poor subsoil material, sand, and gravel swept out of the hills;
      5. The deterioration of the soil and its fertility, the deterioration of the crops grown thereon, and declining acre yields despite development of scientific processes for increasing such yields;
      6. The loss of soil and water, which causes destruction of food and cover for wildlife;
      7. A blowing and washing of soil into streams, which silts over spawning beds and destroys water plants, diminishing the food supply of fish;
      8. A diminishing of the underground water reserve, which causes water shortages, intensifies periods of drought, and causes crop failures;
      9. An increase in the speed and volume of rainfall runoff, causing severe and increasing floods which bring suffering, disease, and death;
      10. The impoverishment of families attempting to farm eroding and eroded lands;
      11. Damage to roads, highways, railways, farm buildings, and other property from floods and from dust storms; and
      12. Losses in navigation, hydroelectric power, municipal water supply, irrigation developments, farming, and grazing; and
    3. THE APPROPRIATE CORRECTIVE METHODS. That to conserve soil resources and control or prevent soil erosion, it is necessary that land use practices contributing to soil wastage and soil erosion be discouraged and discontinued and that appropriate soil-conserving land use practices be adopted and carried out and that among the procedures necessary for widespread adoption are:
      1. The carrying on of engineering operations, such as the construction of terraces, terrace outlets, check dams, dikes, ponds, ditches, and the like;
      2. The utilization of strip cropping, lister furrowing, contour cultivating, and contour furrowing;
      3. Land irrigation;
      4. The seeding and planting of waste, sloping, abandoned, or eroded lands with water-conserving and erosion-preventing plants, trees, and grasses;
      5. Forestation and reforestation;
      6. The rotation of crops;
      7. Soil stabilization with trees, grasses, legumes, and other thick-growing, soil-holding crops;
      8. The addition of soil amendments, manurial materials, and fertilizers for the correction of soil deficiencies or for the promotion of increased growth of soil-protecting crops;
      9. The retardation of runoff by increasing the absorption of rainfall; and
      10. The retirement from cultivation of steep, highly erosive areas and areas badly gullied or otherwise eroded.
  2. Declaration of policy. It is declared to be the policy of the General Assembly to provide for the conservation of the soil and soil resources of this state and for the control and prevention of soil erosion and thereby to preserve natural resources; control floods; prevent impairment of dams and reservoirs; assist in maintaining the navigability of rivers and harbors; preserve wildlife; protect the tax base; protect public lands; and protect and promote the health, safety, and general welfare of the people of this state.

    (Ga. L. 1937, p. 377, § 2.)

RESEARCH REFERENCES

ALR. - Liability of one who diverts stream into new channel for overflow, 12 A.L.R. 187 .

2-6-22. Definitions.

As used in this article, the term:

  1. "Commission" or "State Soil and Water Conservation Commission" means the agency created in Code Section 2-6-23.
  2. "District" or "soil and water conservation district" means an agency of this state organized in accordance with this article for the purposes, with the powers, and subject to the restrictions set forth in this article.
  3. "Due notice" means notice published at least twice, with an interval of at least seven days between the two publication dates, in a newspaper or other publication of general circulation within the appropriate area or, if no such publication of general circulation is available, notice given by posting at a reasonable number of conspicuous places within the appropriate area, including, where possible, public places where it is customary to post notices concerning county or municipal affairs generally. At any hearing held pursuant to such notice, at the time and place designated in such notice, adjournment may be made from time to time without the necessity of renewing such notice for such adjourned dates.
  4. "Land occupier" or "occupier of land" means any person, firm, or corporation, other than the owner, who is in possession of any lands lying within a soil and water conservation district, whether as lessee, renter, tenant, or otherwise.
  5. "Landowner" or "owner of land" means any person, firm, or corporation who holds legal or equitable title to any lands lying within a soil and water conservation district.
  6. "Qualified elector" means any person qualified to vote in elections by the people under the Constitution of this state.
  7. "Supervisor" means one of the members of the governing body of a soil and water conservation district, elected or appointed in accordance with this article.

    (Ga. L. 1937, p. 377, § 3; Ga. L. 1962, p. 116, §§ 2, 3; Ga. L. 1988, p. 269, § 1.)

Cross references. - Construction of dams, § 12-5-370 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Utilization of convict labor for soil conservation project authorized. - In constructing water impounding structures and flooding pools, it would be legal to utilize convict labor to remove buildings on private land in connection with soil conservation projects being conducted by soil conservation district supervisors since soil conservation districts are expressly declared to be agencies of the state government. 1958-59 Op. Att'y Gen. p. 250.

Districts authorized to expend funds for liability insurance for state vehicles. - While normally state agencies are not authorized to expend funds for liability insurance covering damage by state vehicles, there is an exception to this prohibition with respect to soil conservation districts. 1962 Op. Att'y Gen. p. 17.

Districts' tax exempt status excludes payment of motor vehicle license fees. - Soil conservation districts of this state are expressly exempt from all taxation, but they are not exempt from the payment of license fees such as the license fee required of motor vehicles. 1952-53 Op. Att'y Gen. p. 454.

2-6-23. State Soil and Water Conservation Commission - Established; composition; terms of office; ex officio advisers; seal; rules and regulations.

  1. There is established, to serve as an agency of the state and to perform the functions conferred upon it in this article, the State Soil and Water Conservation Commission. The commission shall be assigned to the Department of Agriculture for administrative purposes only, as prescribed in Code Section 50-4-3.
  2. Commencing with appointments for the year 2015, the Governor shall appoint one at-large member from each of the five soil and water conservation district regions to serve on the commission. Such initial appointments shall be for terms of office of one, two, three, four, and five years, respectively. Thereafter, successors shall be appointed for terms of office of five years and until their successors are duly appointed.
  3. The following persons shall serve ex officio in an advisory capacity to the State Soil and Water Conservation Commission:
    1. The associate dean for extension of the College of Agricultural and Environmental Sciences of the University of Georgia;
    2. The commissioner of natural resources;
    3. The associate dean of research of the College of Agricultural and Environmental Sciences of the University of Georgia;
    4. The executive director of the Agricultural Stabilization Conservation Service;
    5. The Georgia state director of the Farmer's Home Administration;
    6. The director of the Southern Piedmont Conservation Research Center;
    7. The president of the Georgia Association of Conservation District Supervisors;
    8. The director of the State Forestry Commission;
    9. The Georgia supervisor of national forests of the U.S. Forestry Service;
    10. The state conservationist of the U.S. Natural Resources Conservation Service;
    11. The dean and director of the College of Agricultural and Environmental Sciences of the University of Georgia;
    12. The director of the Career, Technical, and Agricultural Education Division of the Department of Education;
    13. The Commissioner of Agriculture; and
    14. Such other representatives of state or federal agencies as the commission deems desirable.
  4. The commission shall adopt a seal, which shall be judicially noticed. It may perform such acts, hold such public hearings, and promulgate such rules and regulations as may be necessary for the execution of its functions under this article.

    (Ga. L. 1937, p. 377, § 4; Ga. L. 1945, p. 190, § 2; Ga. L. 1949, p. 584, § 1; Ga. L. 1962, p. 116, § 2; Ga. L. 1973, p. 929, § 1; Ga. L. 1988, p. 269, § 2; Ga. L. 1995, p. 10, § 2; Ga. L. 2015, p. 35, § 1/HB 397; Ga. L. 2020, p. 493, § 2/SB 429.)

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, substituted "director of the Career, Technical, and Agricultural Education Division of the Department of Education" for "state program manager of agricultural education" in paragraph (c)(12).

OPINIONS OF THE ATTORNEY GENERAL

Committee (now commission) coordinates and supervises watershed and flood prevention programs in the State of Georgia. 1975 Op. Att'y Gen. No. 75-29.

2-6-24. State Soil and Water Conservation Commission - Chairperson; quorum; compensation; surety bonds; records; audits.

The commission shall designate one of its members as chairperson and may, from time to time, change such designation. A member of the commission shall hold office so long as he or she retains the office by virtue of which he or she is serving on the commission. A majority of the commission shall constitute a quorum, and the concurrence of a majority shall be required for the determination of any matter within its duties. The members of the commission shall receive for each day of actual attendance of meetings of the commission a daily expense allowance in the amount specified in subsection (b) of Code Section 45-7-21 and shall be entitled to expenses, including traveling expenses, necessarily incurred in the discharge of their duties on the commission. The commission shall provide for the execution of surety bonds for all employees and officers who are entrusted with funds or property. It shall provide for the keeping of a full and accurate record of all proceedings and of all resolutions, regulations, and orders issued or adopted and shall provide for an annual audit of the accounts of receipts and disbursements.

(Ga. L. 1937, p. 377, § 4; Ga. L. 1988, p. 269, § 3; Ga. L. 2002, p. 951, § 1.)

2-6-25. State Soil and Water Conservation Commission - Employment of administrative officer, experts, agents, and employees; legal services; delegation of powers and duties; furnishing of information; agency cooperation.

The commission may employ an administrative officer and such technical experts and other agents and employees, permanent and temporary, as it may require. It shall determine their qualifications, duties, and compensation. The commission may call upon the Attorney General of this state for such legal services as it may require. It shall have authority to delegate, to one or more of its members or to one or more agents or employees, such powers and duties as it may deem proper. The commission is authorized to furnish information and to call upon any or all state or local agencies for cooperation in carrying out this article.

(Ga. L. 1937, p. 377, § 4; Ga. L. 1975, p. 724, § 1; Ga. L. 1988, p. 269, § 4.)

2-6-26. State Soil and Water Conservation Commission - Merit and retirement systems for employees.

All employees of the State Soil and Water Conservation Commission, not including members of the commission, shall be subject to a merit system of employment as promulgated by the commission, under which all such employees shall be selected on a basis of merit, fitness, and efficiency, according to law. All such employees are authorized to become and be members of the Employees' Retirement System of Georgia, as established by Chapter 2 of Title 47. There shall be paid from the funds appropriated for the operation of the State Soil and Water Conservation Commission all employer contributions required by Chapter 2 of Title 47 creating the Employees' Retirement System of Georgia. All rights, credits, and funds in such retirement system which were possessed by persons at the time of their employment by the commission are continued and preserved, it being the intention of the General Assembly that such persons shall not lose any rights, credits, or funds to which they may be entitled prior to becoming employees of the commission.

(Ga. L. 1973, p. 908, § 1; Ga. L. 1988, p. 269, § 5.)

2-6-27. State Soil and Water Conservation Commission - Additional duties and powers.

In addition to the duties and powers otherwise conferred upon the commission, it shall have the following duties and powers:

  1. To offer such assistance as may be appropriate to the supervisors of the soil and water conservation districts in the carrying out of any of their powers and programs;
  2. To keep the supervisors of each of the districts informed of the activities and experiences of all the other districts and to facilitate an interchange of advice, experience, and cooperation between such districts;
  3. To coordinate the programs of the districts so far as this may be done by advice and consultation;
  4. To secure the cooperation and assistance of the United States and any of its agencies and of the agencies and counties of this state in the work of such districts;
  5. To disseminate information throughout this state concerning the activities and programs of the districts and to encourage the formation of such districts in areas where their organization is desirable;
  6. To receive gifts, appropriations, materials, equipment, land, and facilities and to manage, operate, and disperse the same;
  7. To formulate such rules and regulations, to exercise such powers, and to perform such duties as are necessary to implement the administration of the federal Watershed Protection and Flood Prevention Act;

    (7.1) To formulate such rules and regulations in consultation with the Environmental Protection Division of the Department of Natural Resources, to exercise such powers, and to perform such duties as are necessary to implement the administration of the education and training program established under Code Section 12-7-19;

  8. To enter into contracts and agreements with the districts, municipalities, and counties of this state, other agencies of this state, the United States and any agencies thereof, any association, any landowner or land occupier, or any person in order to carry out the purposes of this article; and
  9. To receive grants from any agency of the United States government or any agency of this state, and to make grants to districts, municipalities, or counties in this state, or other state agencies in order to:
    1. Fund up to 20 percent of the cost of obtaining permits for and constructing improvements to any dam that was originally constructed or financially assisted by the Natural Resources Conservation Service, formerly known as the Soil Conservation Service, of the United States Department of Agriculture; or
    2. Carry out other purposes of this article.

      (Ga. L. 1937, p. 377, § 4; Ga. L. 1949, p. 584, § 2; Ga. L. 1955, p. 257, § 1; Ga. L. 1962, p. 116, § 3; Ga. L. 1988, p. 269, § 6; Ga. L. 1988, p. 1336, § 1; Ga. L. 2003, p. 224, § 1; Ga. L. 2003, p. 813, § 1; Ga. L. 2008, p. 644, § 1-2/SB 342; Ga. L. 2015, p. 35, § 2/HB 397; Ga. L. 2018, p. 974, § 1/SB 451.)

The 2018 amendment, effective July 1, 2018, deleted former paragraph (7.2), which read: "To formulate such rules and regulations and to exercise such powers as are necessary to perform its duties under subsection (m.1) of Code Section 12-5-31 and subsection (b.1) of Code Section 12-5-105;".

Editor's notes. - Ga. L. 2008, p. 644, § 1-1/SB 342, not codified by the General Assembly, provides that: "This part shall be known and may be cited as the 'Water Conservation and Drought Relief Act.'"

Ga. L. 2008, p. 644, § 5-1/SB 342, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to all applications pending on or after the effective date thereof. The effective date was July 1, 2008.

Law reviews. - For article on the 2003 amendment of this Code section, see 21 Ga. St. U. L. Rev. 1 (2004).

U.S. Code. - The federal Watershed Protection and Flood Prevention Act, referred to in paragraph (7), is codified at 16 U.S.C. § 1001 et seq. and 33 U.S.C. § 701b.

OPINIONS OF THE ATTORNEY GENERAL

Committee must approve request for federal administration of construction contracts. - Counties of this state may request federal administration of construction contracts under Pub. L. No. 566 if such request is first approved by the committee. 1969 Op. Att'y Gen. No. 69-344.

2-6-28. Number and boundaries of soil and water conservation districts; alteration of existing districts or formation of new districts.

  1. The number and geographical boundaries of the several soil and water conservation districts shall remain as they existed on July 1, 1973, unless changed as provided in this Code section.
  2. If two-thirds of the supervisors within each of the affected districts, each of the governing authorities of each county within any affected district, and the State Soil and Water Conservation Commission agree to the alteration of any district or the formation of any new district, the alteration or formation may be effected if all such approvals are filed with the commission along with the description of the altered boundaries or the boundaries of the new districts. The alteration of existing districts or formation of new districts may not be effected so that the boundaries of any such district will traverse the boundaries of any regional commission within the district or districts. All of the property and assets of any altered district shall be distributed among the affected districts in accordance to the same ratio used in the distribution of state appropriated funds to the affected districts.

    (Ga. L. 1937, p. 377, § 5; Ga. L. 1973, p. 929, § 2; Ga. L. 1988, p. 269, § 7; Ga. L. 1989, p. 1317, § 6.1; Ga. L. 2008, p. 181, § 11/HB 1216.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, the hyphen in "state appropriated" near the end of subsection (b) was deleted.

OPINIONS OF THE ATTORNEY GENERAL

Federal funds finance construction of watershed projects. - The local soil and water conservation districts carry out the construction of watershed projects financed in whole or in part by federal funds. 1975 Op. Att'y Gen. No. 75-29.

2-6-29. District supervisors - Number; appointment, qualifications, and terms of appointive supervisors; county basis of election of elected supervisors.

  1. The governing body of each district shall consist of not less than five supervisors. Two supervisors shall be appointed by the commission, provided that in those districts which contain three or more counties or portions of three or more counties, the commission shall appoint one supervisor for each county in the district. Appointments by the commission shall be made from a list submitted to the commission by the elected supervisors of the district, containing three nominees for each appointive position. The supervisors appointed by the commission shall be persons who are qualified by training and experience to perform the specialized, skilled services which will be required of them in the performance of their duties under this article. Appointed supervisors shall serve for terms of office of two years and until their successors are appointed.
  2. Elected supervisors shall be elected upon a county basis, as provided in Code Section 2-6-30. Not more than one elected supervisor shall be elected from each county within a district, except in districts consisting of less than three counties.

    (Ga. L. 1937, p. 377, § 7; Ga. L. 1949, p. 584, § 5; Ga. L. 1973, p. 929, § 3; Ga. L. 1988, p. 269, § 8.)

OPINIONS OF THE ATTORNEY GENERAL

Nominees grouped on ballot by counties. - The elected supervisors of soil conservation districts continue to be elected by the voters of the whole district, but the nominees are to be grouped on the ballot by counties; the nominee receiving the largest number of votes cast from one's county in one's group shall be elected to represent one's county. 1948-49 Op. Att'y Gen. p. 458.

Elected soil and water district supervisors. - Elected soil and water district supervisors are elected state officials and are thus subject to the constitutional provision that their office is vacated when they qualify for another state, county or municipal office. 1992 Op. Att'y Gen. No. 92-28.

2-6-30. District supervisors - Election procedure for elected supervisors.

  1. Within 30 days after the date of issuance by the Secretary of State of a certificate of organization for a soil and water conservation district, nominating petitions may be filed with the commission to nominate candidates for supervisors of such district. The commission shall have authority to extend the time within which nominating petitions may be filed. No such nominating petition shall be accepted by the commission unless it is subscribed by 25 or more qualified electors of the county in which the nominee resides. Qualified electors may sign more than one such nominating petition to nominate more than one candidate for supervisor.
  2. The commission shall be required to give due notice of an election only in the particular county in which an election is to be held. The ballot for each county shall contain only the names of the nominees from that county and the electors of each county shall be eligible to vote only for the nominees of their particular county. The names of all nominees within the county on behalf of whom nominating petitions have been filed within the time designated shall appear upon the ballots arranged in the alphabetical order of their surnames, with a square before each name and a direction to insert an "X" in the square appearing before the name of the person for whom the elector desires to vote. The nominee receiving the highest number of votes shall be declared the duly elected district supervisor from that county.
  3. The commission shall pay all the expenses of such election, shall supervise the conduct thereof, shall prescribe regulations governing the conduct of such election and the determination of the eligibility of voters therein, and shall publish the results thereof.

    (Ga. L. 1937, p. 377, § 6; Ga. L. 1949, p. 584, § 6; Ga. L. 1950, p. 293, § 1; Ga. L. 1988, p. 269, § 9.)

Cross references. - Definition of public office, § 21-2-2 .

Disclosure reports, § 21-5-34 .

2-6-31. District supervisors - Chairman; terms of office of elected supervisors; filling vacancies; quorum; compensation and expenses.

  1. The supervisors shall designate a chairman and from time to time may change such designation.
    1. The term of office of each elected supervisor shall be four years, except as otherwise provided by paragraph (2) of this subsection. An elected supervisor shall hold office until his or her successor has been elected and has qualified. Successors to elected supervisors shall be elected at the general election immediately preceding the expiration of terms and shall take office the first day of January immediately following that election.
      1. The terms of those persons elected as supervisors in 2003 and whose terms have not expired as of the date that implementation of this paragraph is permissible under the Voting Rights Act of 1965, as amended, shall expire on December 31, 2008.
      2. The terms of those persons elected as supervisors in 2004 and whose terms have not expired as of the date that implementation of this paragraph is permissible under the Voting Rights Act of 1965, as amended, shall expire on December 31, 2008.
      3. The terms of those persons elected as supervisors in 2005 shall expire on December 31, 2010.
      4. The terms of those persons elected as supervisors in 2006 shall expire on December 31, 2010.
      5. If any persons were elected as supervisors on or after January 1, 2007, but prior to the date that implementation of this paragraph is permissible under the Voting Rights Act of 1965, as amended, then the terms of such persons shall expire on December 31, 2012.
    1. Any vacancy in the office an appointed supervisor shall be filled for the unexpired term. The selection of any person to fill an unexpired term of an appointed supervisor shall be made in the same manner in which the original appointment was made.
    2. Any vacancy occurring in the office of an elected supervisor shall be filled as follows:
      1. If the vacancy occurs more than 90 days prior to the date of a general election preceding the general election at which a successor will be elected to a new full term of office, then such vacancy shall be filled for the unexpired term of office at a special election to be held on the same date as said general election preceding the general election at which a successor will be elected to a new full term of office; and in such case the Governor shall select a qualified person from among two persons nominated by the remaining supervisors of the district to fill the vacancy until the person elected at such special election takes office; and
      2. If the vacancy does not occur more than 90 days prior to the date of a general election preceding the general election at which a successor will be elected to a new full term of office, then the Governor shall select a qualified person from among two persons nominated by the remaining supervisors of the district to fill the vacancy for the unexpired term.
  2. A majority of the supervisors shall constitute a quorum; and the concurrence of a majority of the supervisors in any matter within their duties shall be required for its determination.
  3. The commission is authorized to fix a per diem payment for supervisors; in addition thereto, such supervisors shall be entitled to the regular mileage allowances provided for state employees if such supervisors travel by private conveyance and to their actual travel expenses if they travel by public conveyance.

    (Ga. L. 1937, p. 377, § 7; Ga. L. 1951, p. 695, § 1; Ga. L. 1973, p. 929, § 3; Ga. L. 1988, p. 269, § 10; Ga. L. 2007, p. 276, § 1/SB 263.)

Editor's notes. - Ga. L. 2007, p. 276, § 2/SB 263, not codified by the General Assembly, provides: "The Attorney General of Georgia shall cause this Act to be submitted for preclearance under the federal Voting Rights Act of 1965, as amended, and such submission shall be made to the United States Department of Justice or filed with the appropriate court no later than 45 days after the date on which this Act is approved by the Governor or becomes law without such approval. If as of June 30, 2008, implementation of this Act is not permissible under the Voting Rights Act of 1965, as amended, then as of such date this Act shall be void and shall stand repealed in its entirety." The United States Department of Justice precleared the Act under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, on December 20, 2007.

2-6-32. District supervisors - Services of county agricultural agents; employees and agents; copies of rules, orders, and other documents; surety bonds; removal of supervisor; consultation.

  1. The supervisors of a district may utilize the services of the county agricultural agents and the facilities of the county agricultural agents' offices insofar as practicable and feasible. With the approval of the commission they may employ additional employees and agents, permanent and temporary, as they may require and may determine their qualifications, duties, and compensation. The supervisors may delegate to their chairman, to one or more supervisors, or to one or more agents or employees such powers and duties as they may deem proper.
  2. The supervisors shall furnish to the commission, upon request, copies of such rules, regulations, orders, contracts, forms, and other documents as they shall adopt or employ and such other information concerning their activities as the commission may require in the performance of its duties under this article.
  3. The supervisors shall provide for the execution of surety bonds for all employees and officers who are entrusted with funds or property. They shall provide for the keeping of a full and accurate record of all proceedings and of all resolutions, regulations, and orders issued or adopted and shall provide to the commission summary financial data listing cash receipts and disbursements for each state fiscal year.
  4. Any supervisor may be removed by the commission, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other reason.
  5. The supervisors of a district may invite the legislative body of any municipality or county located near the territory comprised within the district to designate a representative to advise and consult with the supervisors on all questions of program and policy which may affect the property, water supply, or other interests of such municipality or county.

    (Ga. L. 1937, p. 377, § 7; Ga. L. 1988, p. 269, § 11; Ga. L. 1998, p. 206, § 1.)

2-6-33. Powers of districts and supervisors; prerequisites to exercise.

A soil and water conservation district shall be an agency of this state. Such district and the supervisors thereof shall have, in addition to other powers granted in this article, the following powers; provided, however, that before the supervisors shall have the authority to exercise any of the powers conferred in this Code section, they shall formulate and submit to the commission for its approval a program or programs of projects and operations, proposed changes in which may be submitted for the approval of the commission from time to time, and shall not undertake any of such work until after such program or programs shall have been approved in writing by the commission; and provided, further, that no provision with respect to the acquisition, operation, or disposition of property by public bodies of this state shall be applicable to a district unless the General Assembly shall specifically so state:

  1. To conduct surveys, investigations, and research relating to the character of soil erosion and the preventive and control measures needed; to publish the results of such surveys, investigations, or research; and to disseminate information concerning such preventive and control measures, provided that in order to avoid duplication of research activities, no district shall initiate any research program except in cooperation with the government of this state or any of its agencies or with the government of the United States or any of its agencies;
  2. To conduct demonstrational projects within the district on lands owned or controlled by this state or any of its agencies, with the cooperation of the agency administering and having jurisdiction thereof, and on any other lands within the district, upon obtaining the consent of the owner and occupiers of such lands or the necessary rights or interests in such lands, in order to demonstrate by example the means, methods, and measures by which soil and soil resources may be conserved and soil erosion in the form of soil blowing and soil washing may be prevented and controlled;
  3. To carry out preventive and control measures within the district, including, but not limited to, engineering operations, methods of cultivation, the growing of vegetation, changes in the use of land, and the measures listed in paragraph (3) of subsection (a) of Code Section 2-6-21, on lands owned or controlled by this state or any of its agencies, with the cooperation of the agency administering and having jurisdiction thereof, and on any other lands within the district, upon obtaining the consent of the owner and the occupiers of such lands or the necessary rights or interests in such lands;
  4. To cooperate and enter into agreements with and, within the limits of appropriations duly made available to the district by law, to furnish financial or other aid to any agency, governmental or otherwise, or any owner or occupier of lands within the district, in the carrying on of erosion control or prevention operations within the district, subject to such conditions as the supervisors may deem necessary to advance the purposes of this article;
  5. To obtain options upon and to acquire, by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, or any rights or interests therein; to maintain, administer, and improve any properties acquired; to receive income from such properties and to expend such income in carrying out the purposes and provisions of this article; and to sell, lease, or otherwise dispose of any of its property or interests therein, in furtherance of the purposes and provisions of this article, provided that title to all property acquired shall be taken in the name of the State of Georgia;
  6. To make available to landowners and occupiers of land within the district, on such terms as it prescribes, agricultural and engineering machinery and equipment, fertilizer, seeds and seedlings, and such other material or equipment as will assist such landowners and occupiers of land to carry on operations upon their lands for the conservation of soil resources and for the prevention or control of soil erosion;
  7. To construct, improve, and maintain such structures as may be necessary or convenient for the performance of any of the operations authorized in this article;
  8. To develop comprehensive plans for the conservation of soil resources and for the control and prevention of soil erosion within the district, which plans shall specify, in such detail as may be possible, the acts, procedures, performances, and avoidances which are necessary or desirable for the effectuation of such plans, including engineering operations, methods of cultivation, the growing of vegetation, cropping programs, tillage practices, and changes in the use of land; and to publish such plans and information and bring them to the attention of owners and occupiers of lands within the district;
  9. To take over, by purchase, lease, or otherwise, and to administer any soil conservation, erosion control, or erosion prevention project located within its boundaries which was first undertaken by the United States or any of its agencies or by this state or any of its agencies; to manage, as agent of the United States or any of its agencies or of this state or any of its agencies, any soil conservation, erosion control, or erosion prevention project within its boundaries; to act as agent for the United States or any of its agencies or for this state or any of its agencies, in connection with the acquisition, construction, operation, or administration of any soil conservation, erosion control, or erosion prevention project within its boundaries; to accept donations, gifts, and contributions in money, services, materials, or otherwise from the United States or any of its agencies, from this state or any of its agencies, or from others and to use or expend such money, services, materials, or other contributions in carrying on its operations, including promotion of conservation and conservation education;
  10. To have a seal, which shall be judicially noticed; to have perpetual succession unless terminated as provided in this article; to make and execute contracts and other instruments necessary or convenient to the exercise of its powers; and to make, amend, and repeal rules and regulations not inconsistent with this article, in order to carry into effect its purposes and powers.

    (Ga. L. 1937, p. 377, § 8; Ga. L. 1962, p. 116, § 3; Ga. L. 1988, p. 269, § 12; Ga. L. 1998, p. 207, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Disposition of formerly condemned land authorized. - In the event the fee simple title to land is condemned as necessary to a watershed project, and subsequently it should become surplusage to the project, the district could dispose of it in accordance with this section. 1967 Op. Att'y Gen. No. 67-108.

Expenditure of funds for liability insurance authorized. - While normally state agencies are not authorized to expend funds for liability insurance covering damage by state vehicles, there is an exception to this prohibition with respect to soil conservation districts. 1962 Op. Att'y Gen. p. 17.

Utilization of convict labor for soil conservation projects authorized. - In constructing water impounding structures and flooding pools, it would be legal to utilize convict labor to remove buildings on private land in connection with soil conservation projects being conducted by soil conservation district supervisors. 1958-59 Op. Att'y Gen. p. 250.

2-6-34. Conditions to extending benefits or performing work.

As a condition to the extending of any benefits under this article to or the performance of any work upon any lands not owned or controlled by this state or any of its agencies, the supervisors of a district may require contributions in money, services, materials, or otherwise to any operations conferring such benefits and may require landowners and occupiers of land to enter into and perform such agreements or covenants as to the permanent use of such lands as will tend to prevent or control erosion thereon.

(Ga. L. 1937, p. 377, § 8.)

2-6-35. Land use regulations - Adoption authorized; public hearings.

The supervisors of each district shall have authority to formulate regulations governing the use of lands within the district, in the interest of conserving soil and soil resources and preventing and controlling soil erosion. The supervisors may conduct such public meetings and public hearings upon proposed regulations as may be necessary to assist them in this work.

(Ga. L. 1937, p. 377, § 9.)

Cross references. - Rules, regulations, and ordinances adopted by Board of Natural Resources and local governments for purpose of governing certain land-disturbing activities, § 12-7-6 .

2-6-36. Land use regulations - Referendum.

  1. The supervisors shall not have the authority to adopt land use regulations until after they shall have caused due notice to be given of their intention to conduct a referendum for submission of such regulations to the owners of lands lying within the boundaries of the district, for their indication of approval or disapproval of such proposed regulations, and until after the supervisors have considered the result of such referendum. No proposed regulations shall be submitted in a referendum until after they have been submitted to and approved in writing by the commission. Copies of such proposed regulations shall be available for the inspection of all eligible voters during the period between the publication of the notice and the date of the referendum. The notice of the referendum shall recite the contents of the proposed regulations or shall state where copies of such proposed regulations may be examined.
  2. The question shall be submitted by ballots, upon which the words:
  3. The supervisors shall supervise such referendum, shall prescribe appropriate regulations governing the conduct thereof, and shall publish the result thereof.
  4. All owners of lands within the district, and only such landowners, shall be eligible to vote in the referendum.
  5. No informalities in the conduct of the referendum or in any matters relating thereto shall invalidate the referendum or the result thereof, if notice thereof was given substantially as provided in this Code section and if the referendum was conducted fairly.
  6. The supervisors shall not have the authority to adopt proposed regulations unless at least a majority of the votes cast in the referendum were cast for approval of the proposed regulations. However, the approval of the proposed regulations by a majority of the votes cast in such referendum shall not be deemed to require the supervisors to adopt such proposed regulations.

    (Ga. L. 1937, p. 377, § 9; Ga. L. 1988, p. 269, § 13.)

" [ ] YES Shall the proposed land use regulations for conser- [ ] NO vation of soil and prevention of erosion be ap- proved?" shall appear, with directions that all persons desiring to vote for approval of the regulations shall vote "Yes" and all persons desiring to vote against the regulations shall vote "No."

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, the comma after " 'erosion be approved?' " in subsection (b) was deleted.

RESEARCH REFERENCES

ALR. - Referendum of general legislative act to people in absence of constitutional requirement in that regard, 76 A.L.R. 1053 .

2-6-37. Land use regulations - Provisions authorized; uniformity required; availability of copies.

  1. The regulations to be adopted by the supervisors under this article may include:
    1. Provisions requiring the carrying out of necessary engineering operations, including the construction of terraces, terrace outlets, check dams, dikes, ponds, ditches, and other necessary structures, having due regard to the legislative findings set forth in Code Section 2-6-21;
    2. Provisions requiring the observance of particular methods of cultivation, including: contour cultivating; contour furrowing; lister furrowing; sowing; planting; strip cropping, changes in cropping systems, seeding, and planting of lands to water-conserving and erosion-preventing plants, trees, and grasses; forestation; and reforestation; having due regard to the legislative findings set forth in Code Section 2-6-21; and
    3. Provisions requiring the retirement from cultivation of highly erosive areas or of areas on which erosion may not be adequately controlled if cultivation is carried on, having due regard to the legislative findings set forth in Code Section 2-6-21.
  2. The regulations shall be uniform throughout the territory within the district, provided that the supervisors may classify the lands within the district with reference to such factors as soil type, degree of slope, degree of erosion threatened or existing, cropping and tillage practices in use, and other relevant factors and may provide regulations varying with the type or class of land affected but uniform as to all lands within each class or type.
  3. Copies of land use regulations adopted under this article shall be printed and made available to all owners and occupiers of lands lying within the district.

    (Ga. L. 1937, p. 377, § 9.)

2-6-38. Land use regulations - Binding effect.

Land use regulations adopted pursuant to Code Sections 2-6-35 and 2-6-36 by the supervisors of any district shall be binding and obligatory upon all owners and occupiers of land within such districts.

(Ga. L. 1937, p. 377, § 9.)

2-6-39. Land use regulations - Inspections to determine observance; petition; judicial proceedings; costs and expenses.

  1. The supervisors shall have authority to go upon any lands within the district to determine whether land use regulations adopted under this article are being observed.
  2. Where the supervisors of any district find that any of the provisions of land use regulations adopted in accordance with this article are not being observed on particular lands and that such nonobservance tends to increase erosion on such lands and is interfering with the prevention or control of erosion on other lands within the district, the supervisors may present a petition to the superior court of the county or counties within which the lands of the defendant lie. The petition shall set forth the adoption of the land use regulations, the failure of the defendant landowner or occupier of the land to observe such regulations and to perform particular work, operations, or avoidances as required thereby, and that such nonobservance tends to increase erosion on such lands and is interfering with the prevention or control of erosion on other lands within the district. It shall ask the court to require the defendant to perform the work, operations, or avoidances within a reasonable time and to order that if the defendant fails to do so, the supervisors may go on the land, perform the work or other operations or otherwise bring the condition of the land into conformity with the requirements of such regulations, and recover the costs and expenses thereof, with interest, from the owner or occupier of such land.
  3. Upon the presentation of the petition, the court shall cause process to be issued against the defendant and shall hear the case. If it appears to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which report shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may dismiss the petition or it may require the defendant to perform the work, operations, or avoidances and may provide that upon the failure of the defendant to initiate such performance within the time specified in the order of the court and to prosecute the same to completion with reasonable diligence, the supervisors may enter upon the land involved, perform the work or operations or otherwise bring the conditions of the land into conformity with the requirements of the regulations, and recover the costs and expenses thereof, with interest at the rate of 5 percent per annum, from the owner or occupier of such land.
  4. The court shall retain jurisdiction of the case until after the work has been completed. Upon completion of the work by the supervisors pursuant to the order of the court, the supervisors may file a petition with the court, a copy of which shall be served upon the defendant in the case, stating the costs and expenses sustained by them in the performance of the work and seeking judgment therefor with interest. The court shall have jurisdiction to enter judgment for the amount of such costs and expenses, with interest at the rate of 5 percent per annum until paid, together with the costs of the action, including a reasonable attorney's fee to be fixed by the court.

    (Ga. L. 1937, p. 377, § 10.)

2-6-40. Land use regulations - Amendment or repeal.

  1. Any owner of land within a district may at any time file a petition with the supervisors asking that any or all of the land use regulations adopted by the supervisors under Code Sections 2-6-35 and 2-6-36 be amended, supplemented, or repealed.
  2. Such land use regulations shall not be amended, supplemented, or repealed except in accordance with the procedure prescribed in Code Section 2-6-36 for adoption of land use regulations.
  3. Referenda on adoption, amendment, supplementation, or repeal of land use regulations shall not be held more often than once in six months.

    (Ga. L. 1937, p. 377, § 9.)

2-6-41. Right of eminent domain for small watershed project; conditions precedent; procedure.

  1. When a small watershed project is instituted under the sponsorship of a duly constituted district alone or under cosponsorship with any political subdivision of this state and is approved by the state and federal governments for construction thereof, and when, as a condition precedent to the exercise of the rights conferred in this Code section, 90 percent or more of the separate property owners have gratuitously given in writing and delivered to such district the necessary easements and land rights, for the purpose of the small watershed project, and when the governing board of the district finds that it cannot acquire by voluntary contract the remaining necessary easements and land rights, the sponsoring district, upon such showing incorporated in a condemnation proceeding, is granted the right of eminent domain for the purpose of acquiring the remaining necessary easements and land rights to enable it to accomplish the completion of the small watershed project.
  2. Upon compliance with the conditions precedent set forth in subsection (a) of this Code section, a district may proceed to condemn such land in accordance with the procedure set forth by Code Sections 22-2-130 through 22-2-142 and other pertinent eminent domain statutes to acquire the remaining easements and land rights necessary. In any such proceeding, the condemnor shall be required to condemn the fee simple title to all land not otherwise acquired which will be covered by permanent ponding or permanent flooding. The condemnor shall tender to the condemnee the full sum awarded in the condemnation proceedings or shall pay the same into court, in the event of the refusal of the condemnee to accept the same, before entering upon, occupying, or subjecting to its use, by flooding or otherwise, any part of the lands or rights in land sought to be condemned.

    (Ga. L. 1960, p. 973, §§ 1, 2.)

Cross references. - Condemnation proceedings before assessors, § 22-2-1 et seq.

Condemnation proceedings before special master, § 22-2-100 et seq.

Authority of counties to exercise power of eminent domain for construction and operation of watershed projects, flood-control projects and other projects, § 22-3-100 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Condemnation permitted by district or county under cosponsored project. - Either the district or the county may condemn property for a small watershed project instituted under the cosponsorship of a soil and water conservation district and a county or counties. 1967 Op. Att'y Gen. No. 67-108.

Condemnor cannot appeal award without tendering amount of award to condemnee. - It is not necessary for the agency bringing condemnation proceedings to place any appraised amount in trust prior to a court ruling; however, if assessors are appointed, the condemning authority cannot appeal the assessors' award without tender of the amount of the award to the condemnee or payment into the registry of the court. 1967 Op. Att'y Gen. No. 67-108.

RESEARCH REFERENCES

ALR. - Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679 .

Condemner's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 A.L.R.4th 68.

2-6-42. Cooperation between districts.

The supervisors of any two or more districts may cooperate with one another in the exercise of any or all powers conferred in this article.

(Ga. L. 1937, p. 377, § 11.)

2-6-43. State agencies to cooperate with districts and observe land use regulations.

Agencies of this state which have jurisdiction over or are charged with the administration of any state-owned lands lying within the boundaries of any district and agencies of any county or other governmental subdivision of the state which have jurisdiction over or are charged with the administration of any county-owned or other publicly owned lands lying within the boundaries of any such district shall cooperate to the fullest extent with the supervisors of such districts in the effectuation of programs and operations undertaken by the supervisors under this article. The supervisors of such districts shall be given free access to enter and perform work upon such publicly owned lands. The provisions of land use regulations adopted pursuant to Code Sections 2-6-35 through 2-6-38 shall be in all respects observed by the agencies administering such publicly owned lands.

(Ga. L. 1937, p. 377, § 12.)

Cross references. - Authority of State Properties Commission to grant revocable licenses to persons to have access to property under custody and control of commission, § 50-16-42 .

2-6-44. Exemption from taxation.

The property and property rights of every kind and nature acquired in the name of the State of Georgia by any district shall be exempt from state, county, and other taxation.

(Ga. L. 1937, p. 377, § 8.)

OPINIONS OF THE ATTORNEY GENERAL

Soil conservation districts of this state are expressly exempt from all taxation, but they are not exempt from the payment of license fees, such as the license fee required of motor vehicles. 1952-53 Op. Att'y Gen. p. 454.

2-6-45. Discontinuance of district - Petition of landowners; hearings.

Following the expiration of five years from the organization of a district, any 25 owners of land lying within the boundaries of such district may file a petition with the commission seeking to have the operations of the district terminated and the existence of the district discontinued. The commission may conduct such public meetings and public hearings upon the petition as may be necessary to assist it in the consideration thereof.

(Ga. L. 1937, p. 377, § 13; Ga. L. 1988, p. 269, § 14.)

2-6-46. Discontinuance of district - Referendum.

  1. Within 60 days after a petition has been received by the commission, it shall hold a referendum on the issue. The commission shall give due notice of the holding of the referendum, shall supervise such referendum, and shall issue appropriate regulations governing the conduct thereof. The question shall be submitted by ballots, upon which the words:        " [ ]  YES     Shall the existence of the (name of         [ ]  NO     district) be terminated?"

    shall appear, with directions that all persons desiring to vote for termination of the district shall vote "Yes" and all persons desiring to vote against termination of the district shall vote "No."

  2. All owners of lands lying within the boundaries of the district, and only such landowners, shall be eligible to vote in the referendum.
  3. No informalities in the conduct of the referendum or in any matters relating thereto shall invalidate the referendum or the result thereof, if notice thereof was given substantially as provided in this Code section and if the referendum was conducted fairly.

    (Ga. L. 1937, p. 377, § 13; Ga. L. 1988, p. 269, § 15.)

RESEARCH REFERENCES

ALR. - Referendum of general legislative act to people in absence of constitutional requirement in that regard, 76 A.L.R. 1053 .

2-6-47. Discontinuance of district - Publication of referendum results; determination of feasibility of continuance.

The commission shall publish the result of the referendum. It shall consider and determine whether the continued operation of the district within the defined boundaries is administratively practicable and feasible. If the commission determines that the continued operation of such district is administratively practicable and feasible, it shall record such determination and deny the petition; provided, however, that the commission shall not have the authority to determine that the continued operation of the district is administratively practicable and feasible unless at least a majority of the votes cast in the referendum were cast in favor of the continuance of such district. If the commission determines that the continued operation of such district is not administratively practicable and feasible, it shall record such determination and shall certify such determination to the supervisors of the district. In making its determination, the commission shall give due regard and weight to the attitudes of the owners and occupiers of lands lying within the district, the number of landowners eligible to vote in such referendum who voted, the proportion of the votes cast in such referendum in favor of the discontinuance of the district to the total number of votes cast, the approximate wealth and income of the landowners and occupiers of land of the district, the probable expense of carrying on erosion control operations within such district, and such other economic and social factors as may be relevant to such determination, having due regard to the legislative findings set forth in Code Section 2-6-21.

(Ga. L. 1937, p. 377, § 13; Ga. L. 1988, p. 269, § 16.)

RESEARCH REFERENCES

14A Am. Jur. Pleading and Practice Forms, Initiative and Referendum, § 2.

2-6-48. Discontinuance of district - Certification from committee; termination of affairs; application for dissolution; certificate of dissolution.

  1. Upon receipt from the commission of a certification that the commission has determined that the continued operation of the district is not administratively practicable and feasible, the supervisors shall proceed forthwith to terminate the affairs of the district. The supervisors shall dispose of all property belonging to the district at public auction and shall pay the proceeds of such sale into the state treasury.
  2. The supervisors shall thereupon file an application, duly verified, with the Secretary of State for the discontinuance of such district and shall transmit with such application the certificate of the commission setting forth the determination of the commission that the continued operation of such district is not administratively practicable and feasible. The application shall recite that the property of the district has been disposed of and that the proceeds were paid as provided in this Code section and shall set forth a full accounting of such properties and of the proceeds of the sale.
  3. The Secretary of State shall issue a certificate of dissolution to the supervisors and shall record such certificate in an appropriate book of record in his office.

    (Ga. L. 1937, p. 377, § 13; Ga. L. 1988, p. 269, § 17.)

2-6-49. Discontinuance of district - Effect of dissolution.

  1. Upon issuance of a certificate of dissolution under Code Section 2-6-48, all land use regulations theretofore adopted by a district and in force therein shall be of no further force and effect.
  2. All contracts entered into prior to the dissolution of a district, to which the district or supervisors are parties, shall remain in force and effect for the period provided in such contracts. The commission shall be substituted for the district or supervisors as party to such contracts. The commission shall be entitled to all benefits and subject to all liabilities under such contracts and shall have the same rights and liability to perform, to require performance, and to modify or terminate such contracts by mutual consent or otherwise as the supervisors of the district would have had.
  3. Such dissolution shall not affect the lien of any judgment entered under Code Section 2-6-39 nor the pendency of any action instituted under such Code section. The commission shall succeed to all the rights and obligations of the district or supervisors as to such liens and actions.

    (Ga. L. 1937, p. 377, § 13; Ga. L. 1988, p. 269, § 18.)

2-6-50. Discontinuance of district - Frequency of discontinuance attempts.

The commission shall not be required to entertain petitions for the discontinuance of any district, to conduct referenda upon such petitions, or to make determinations pursuant to such petitions more often than once in five years.

(Ga. L. 1937, p. 377, § 13; Ga. L. 1988, p. 269, § 19.)

2-6-51. District not liable for loss, damage, injury, or death.

Notwithstanding any other provision of law to the contrary, no district shall have any liability for loss, damage, injury, or death resulting from the location of structures or dwellings on state owned or controlled property in violation of properly recorded easements when all legal recourse to remove such structures or dwellings has been exhausted and property rights in favor of the person infringing upon the easement have been upheld on a final judgment with no appeal or review pending. The provisions of this section shall only apply to soil and water conservation districts and their easements.

(Code 1981, § 2-6-51 , enacted by Ga. L. 2000, p. 420, § 1.)

2-6-52. Creation of Agricultural Water Conservation Incentive Program; purpose; participation; funding.

  1. There is created the Agricultural Water Conservation Incentive Program. The program shall be developed, implemented, and supervised by the State Soil and Water Conservation Commission.
  2. The purpose of the program shall be to provide incentives to agricultural producers to foster water conservation and enhance water quality.
  3. Participation in the program shall be voluntary.
  4. The program shall include all 159 counties and 40 soil and water conservation districts.
  5. Priority designations for inclusion in the program shall be under the authority of the State Soil and Water Conservation Commission.
  6. Areas shall be included in the program as the funds are appropriated and the technical assistance becomes available from the local soil and water conservation district or the State Soil and Water Conservation Commission.
  7. Funding may be provided to assist practices including but not limited to diversions, filter strips, fencing along streams, field borders, alternative watering systems, critical area plantings, grassed waterways, terraces, surface-water retention structures, heavy-use areas, closures of farm animal manure lagoons, riparian buffers or equivalent controls, animal manure waste systems and application, manure stack houses and other manure-holding structures, irrigation system enhancements, and other projects that foster water conservation and enhance water quality.
  8. Priority designation for inclusion in this program for state funding shall be given to projects that foster water conservation and enhance water quality. To be eligible for cost share funds under this Code section, a project shall be evaluated before funding is awarded and after the project is completed to determine the impact on water quality. (Code 1981, § 2-6-52 , enacted by Ga. L. 2004, p. 341, § 1.)

CHAPTER 7 PLANT DISEASE, PEST CONTROL, AND PESTICIDES

General Provisions.

Control of Pesticides.

Use and Application of Pesticides.

Pest Control Compact.

Boll Weevil Eradication.

Liability for Use of Fertilizers, Plant Growth Regulators, or Pesticides.

Feral Hogs.

Cross references. - Preservation of forest resources and other plant life generally, T. 12, C. 6.

Authority of Commissioner to quarantine animals bearing residue of pesticides, insecticides, and other chemicals, § 26-2-150 et seq.

Persons engaged in structural pest control, T. 43, C. 45.

ARTICLE 1 GENERAL PROVISIONS

Code Commission notes. - Ga. L. 1937, p. 659 § 19, which forms the basis for this article, reads as follows: "It is hereby declared to be the purpose of this Act to repeal and supersede all previous legislation upon the subject of the State Entomologist, his powers, duties and functions with respect to injurious insects, plant diseases and other kindred subjects formerly placed under his control, and supervision, (with the exception of the Act approved March 28, 1935 (Ga. Laws 1935, page 461) relating to the fraudulent sale of plants), to repeal and supplant all chapters and sections referred to and to be considered as exhaustive of the subject of the powers, duties and functions of the State Entomologist with respect to the aforesaid subjects."

Administrative Rules and Regulations. - Entomology and plant industry, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of the Georgia Department of Agriculture, Chapter 40-4.

OPINIONS OF THE ATTORNEY GENERAL

Commissioner empowered to delegate authority to sign checks. - The director of entomology (now Commissioner) has the power to delegate to an assistant the authority to sign checks. 1954-56 Op. Att'y Gen. p. 4.

RESEARCH REFERENCES

ALR. - Exterminator's tort liability for personal injury or death directly resulting from operations, 29 A.L.R.4th 987.

2-7-1. Short title.

This article shall be known as "The Entomology Act of 1937."

(Ga. L. 1937, p. 659, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

This article does not by implication repeal Bee Disease Laws of 1920 and 1921. 1945-47 Op. Att'y Gen. p. 5.

Extent of repeal of state entomologist's powers and duties. - The previous powers and duties of the state entomologist were only repealed and supplanted by this article to the extent that they related to the subjects dealt with in this article. 1945-47 Op. Att'y Gen. p. 5.

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 323 et seq. 73 C.J.S., Public Administrative Law and Procedure, §§ 146 et seq., 190 et seq., 207 et seq. 98 C.J.S., Woods and Forests, §§ 3 et seq., 8 et seq.

ALR. - Right to and measure of compensation for animals or trees destroyed to prevent spread of disease or infection, 67 A.L.R. 208 .

Warranties and conditions upon sale of seed, nursery stock, etc., 168 A.L.R. 581 .

Validity of statutes, ordinances, or regulations for protection of vegetation against disease or infection, 70 A.L.R.2d 852.

2-7-2. Definitions.

As used in this article, the term:

  1. "Agent" means any person soliciting orders for or selling or distributing nursery stock under the partial or full control of a nurseryman or dealer.
  2. "Dealer" means any person not a grower of nursery stock, who buys or otherwise acquires nursery stock for the purpose of reselling or distributing same independently of any control of the nurseryman.
  3. Reserved.
  4. "Nursery" means any grounds or premises on or in which nursery stock is grown, kept, or propagated for sale or distribution.
  5. "Nurseryman" means any person engaged in the production of nursery stock for sale or distribution.
  6. "Nursery stock" means all trees or plants or parts of trees or plants grown or kept for or capable of propagation, distribution, or sale.
  7. "Persons" means individuals, associations, partnerships, and corporations, whether private, public, or municipal.
  8. "Places" means vessels, aircraft, cars, trucks, automobiles, wagons and other vehicles, buildings, docks, depots, yards, nurseries, greenhouses, orchards, and other premises where material affected by this article is grown, produced, kept, stored, or handled.

    (8.1) "Plant pest" means any organism which is determined by the Commissioner to be injurious to the agricultural, horticultural, or other interests of the state, including, but not limited to, insects, bacteria, fungi, viruses, or weeds.

  9. "Plants and plant products" means trees, shrubs, vines, forage and cereal plants, and all other plants, cuttings, grafts, scions, buds, and other parts of plants; and fruit, vegetables, roots, bulbs, seeds, wood, timber, and all other plant products. The term "trees" includes shade trees and all other trees except forest trees, jurisdiction as to which is vested in the State Forestry Commission, provided that the term "trees" includes nursery stock of all trees, including forestry trees.

    (Ga. L. 1937, p. 659, § 2; Ga. L. 1955, p. 309, § 25; Ga. L. 1996, p. 329, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1996, the "(3)" designation was added.

OPINIONS OF THE ATTORNEY GENERAL

Scope of article. - This article is meant to be limited to injurious insects or insect pests and their diseases. 1945-47 Op. Att'y Gen. p. 5.

Honey bee is not considered as an "insect pest." 1945-47 Op. Att'y Gen. p. 5 (decided prior to 1996 amendment).

2-7-3. Division of Entomology established.

There is established as a division of the Department of Agriculture the Division of Entomology, which shall be under the supervision of the chief entomologist appointed pursuant to Code Section 2-7-4 and shall be subject to the control and supervision of the Commissioner.

(Ga. L. 1959, p. 360, § 3.)

RESEARCH REFERENCES

C.J.S. - 3 C.J.S., Agriculture, § 115 et seq.

2-7-4. Commissioner of Agriculture as ex officio state entomologist; designation of chief entomologist authorized.

  1. The Commissioner shall be ex officio state entomologist.
  2. The Commissioner is authorized to designate a chief entomologist, who must be a graduate of a recognized college of agriculture and shall have had courses in entomology and plant pathology and experience in field and administrative work in pest control while in the employment of one or more of the several states of the United States or in the employment of that branch of the federal government which is in charge of pest control. The chief entomologist shall serve at the pleasure of and shall be compensated in an amount determined by the Commissioner.

    (Ga. L. 1959, p. 360, § 2.)

2-7-5. Duty of Commissioner generally.

It shall be the duty of the Commissioner to protect the agricultural, horticultural, and other interests of the state from plant pests.

(Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 2.)

2-7-6. Publication of information and advice.

The Commissioner may disseminate information and advice to the public on the prevention, control, or eradication of plant pests, by the publication and distribution of printed matter, by correspondence, and by other methods.

(Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 3.)

2-7-7. Cooperative agreements.

The Commissioner may enter into cooperative arrangements with any person, municipality, county, or other department of this state and with boards, officers, and authorities of other states and of the United States for inspection with reference to plant pests and for the control and eradication thereof. The Commissioner may contribute a just and proportionate share of the expenses incurred under such arrangements.

(Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 4.)

2-7-8. Purchases and expenditures.

The Commissioner may purchase all necessary materials, supplies, office and field equipment, and other things and may make such other expenditures as may be essential and necessary in carrying out this article, within the limits of the amount appropriated by law.

(Ga. L. 1937, p. 659, § 4.)

2-7-9. Investigations authorized; employment of experts; rental, lease, or purchase of land.

The Commissioner may carry on investigations of methods of control, eradication, and prevention of dissemination of plant pests and for that purpose may employ the necessary experts and may rent, lease, or purchase the necessary land, when required for this purpose.

(Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 5.)

RESEARCH REFERENCES

C.J.S. - 3 C.J.S., Agriculture, §§ 102 et seq., 115 et seq.

ALR. - Right to and measure of compensation for animals or trees destroyed to prevent spread of disease or infection, 67 A.L.R. 208 .

2-7-10. Inspection of plants and other things capable of disseminating or carrying plant pests.

The Commissioner may inspect or cause to be inspected by duly authorized employees or agents any plants, plant products, or other articles, things, or substances that may in the Commissioner's opinion be capable of disseminating or carrying plant pests. For this purpose the Commissioner or the Commissioner's employees and agents shall have the power to enter into or upon any place and to open any bundle, package, or other container containing or thought to contain plants or plant products or other things capable of disseminating or carrying plant pests.

(Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 37 et seq.

2-7-11. Nursery inspections; rules governing nursery stock and plants in transit.

  1. The Commissioner may inspect or cause to be inspected all nurseries in this state at such intervals as the Commissioner may deem best. The Commissioner shall have a plenary power to make all rules and regulations governing nurseries and the movement of nursery stock therefrom or the introduction of nursery stock therein as the Commissioner may deem necessary in the eradication, control, or prevention of the dissemination of plant pests.
  2. The Commissioner may also make rules and regulations:
    1. To govern the sale and distribution of nursery stock by dealers and agents;
    2. Under which nursery stock may be brought into this state from other states and territories of the United States or any foreign country; and
    3. With reference to plants and plant products and other things and substances while in transit through this state as may be deemed necessary to prevent the introduction into, dissemination within, and establishment in this state of injurious plant pests.

      (Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 7.)

Administrative Rules and Regulations. - Live plant regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Entomology and Plant Industry, Subject 40-4-9.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, §§ 37 et seq., 51 et seq.

2-7-12. Treatment, cutting, or destruction of infested trees, plants, or other things or substances.

The Commissioner may visit any section of this state in which any dangerous pest is supposed to exist and determine whether any infested trees, plants, or other things or substances are worthy of remedial treatment or shall be destroyed. The Commissioner may supervise or cause the treatment, cutting, or destruction of plants, trees, or other things or substances when deemed necessary to prevent or control the dissemination of plant pests or to eradicate same and may prescribe rules and regulations therefor.

(Ga. L. 1898, p. 94, § 4; Civil Code 1910, § 2123; Code 1933, § 5-706; Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 8.)

2-7-13. Interception and inspection of plants, plant products, or other things or substances in transit; disposition.

The Commissioner may intercept and inspect, while in transit or after arrival at destination, all plants, plant products, or other things or substances likely to carry plant pests being moved in this state or brought into this state from another state or territory of the United States or from any foreign country. If, upon inspection, such plants, plant products, or other things or substances are found to be infested or infected with an injurious plant pest or are believed to be likely to communicate or transmit same or are being transported in violation of any of the rules and regulations of the Commissioner, then such plants, plant products, or other things or substances may be treated if necessary and released, returned to the sender, or destroyed, their disposition to be determined under rules and regulations prescribed by the Commissioner.

(Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 9.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, §§ 44, 45.

2-7-14. Demand for information; penalty.

  1. The Commissioner may demand of any person who has plants or plant products or other things likely to carry plant pests in his or her possession to give full information as to the origin and source of the same.
  2. It shall be a misdemeanor for a person to refuse to give the information demanded under subsection (a) of this Code section if he or she is able to do so.

    (Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 10.)

2-7-15. Declaration of public nuisance authorized.

The Commissioner may declare a dangerous plant pest, as well as any plant or other thing which has been infested or infected therewith or exposed to infestation or infection and is therefore likely to communicate the same, to be a public nuisance.

(Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 11.)

2-7-16. Notice of declaration of nuisance; prescription of treatment; right of appeal.

Whenever inspection discloses that any places, plants or plant products, or other things or substances are infested or infected with any dangerous plant pest which has been declared a public nuisance under this article, the Commissioner or the Commissioner's agents or employees shall give written notice to the owner or other person in possession or control of the place where such things are found, in person or by registered or certified mail or statutory overnight delivery. Such owner or other person shall proceed to control, eradicate, or prevent the dissemination of such plant pest and to remove, cut, or destroy infested or infected plants and plant products or other things or substances within the time and in the manner prescribed by the notice or the rules and regulations made pursuant to this article or to take an appeal as provided in Code Section 2-7-24.

(Ga. L. 1898, p. 94, § 5; Civil Code 1910, § 2124; Code 1933, § 5-707; Ga. L. 1937, p. 659, § 7; Ga. L. 1996, p. 329, § 12; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

2-7-17. Treatment of nuisance by department where owner fails to act; lien for expenses; compensation not allowed.

Whenever an owner or other person cannot be found or fails, neglects, or refuses to obey the requirements of the notice given under Code Section 2-7-16 and the rules and regulations made pursuant to this article, such requirements shall be carried out by the inspectors or other employees or agents of the department. The Commissioner shall have and enforce a lien for the expense thereof against the place in or upon which such expense was incurred, in the same manner as liens are had and enforced upon buildings and lots, wharves, and piers, for labor and materials furnished by virtue of contract with the owner. No compensation shall be allowed for any trees or plants, plant products, or other things or substances that are destroyed.

(Ga. L. 1937, p. 659, § 8.)

Cross references. - Mechanics' and materialmen's liens generally, § 44-14-360 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, §§ 44, 46, 47.

ALR. - Right to and measure of compensation for animals or trees destroyed to prevent spread of disease or infection, 67 A.L.R. 208 .

2-7-18. Judicial proceeding where owner refuses to act or to permit Commissioner to act; expenses and court costs.

In case any person or persons refuse to execute the directions of the Commissioner or refuse to allow the Commissioner or his agents to do so, the judge of the superior court of the county having jurisdiction over such person, upon complaint filed by the Commissioner or any citizen, shall cite the person or persons to appear before him within three days after notice is served. The judge may hear and determine all these cases. Upon satisfactory evidence, the judge shall cause the prescribed treatment to be executed. The expenses thereof and the costs of court shall be collected from the owner or owners of the affected material.

(Ga. L. 1898, p. 94, § 6; Civil Code 1910, § 2125; Code 1933, § 5-708; Ga. L. 1937, p. 659, § 9.)

2-7-19. Investigation on citizens' complaint; notice to owner; treatment or destruction of affected plants or other things or substances; costs.

When two reputable citizens of any county in this state notify the Commissioner, from belief, that noxious insects or plant diseases exist in their county, the Commissioner shall ascertain as speedily as possible the nature and extent of the condition reported. If, after such investigation, it is determined by the Commissioner that it is necessary or desirable for the public interest, he shall act with all due diligence to control or eradicate such insects or plant diseases by giving notice to the owner, tenant, or agent of the owner of such premises to treat such affected plants or other things or substances according to the methods he may prescribe or to destroy them within the period set forth in such notice. If, after the expiration of the period set forth in the notice, the affected materials or other things or substances have not been destroyed or treated as prescribed in the notice or the treatment has not been properly applied or is not effectual in ridding the affected materials, things, or substances of the pests, the Commissioner shall cause such affected materials, things, or substances to be properly treated or destroyed, as his judgment warrants. The cost of the work shall be assessed against the owner of the premises and shall be collected in the same manner as that provided in Code Section 2-7-17.

(Ga. L. 1898, p. 94, § 14; Civil Code 1910, § 2132; Code 1933, § 5-714; Ga. L. 1937, p. 659, § 10.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 39 et seq.

2-7-20. Declaration of quarantine; violation unlawful.

  1. The Commissioner may declare a quarantine against any area, place, nursery, grove, orchard, county, or counties within this state, other states, or territories of the United States or any portion thereof or any foreign country, in reference to dangerous plant pests and may prohibit the movement within this state or any part thereof or the introduction into this state from other states or territories of the United States or any foreign country of all plants, plant products, or other things or substances from such quarantined places or areas as are likely to carry dangerous plant pests, if such quarantine is determined by the Commissioner, after due investigation, to be necessary in order to protect the agricultural, horticultural, or other interests of this state. In such cases the quarantine may be made absolute or rules and regulations may be adopted prescribing the method and manner under which the prohibited articles may be moved into or within, sold, or otherwise disposed of within or outside the state.
  2. Whenever the Commissioner declares a quarantine against any place, nursery, grove, orchard, county, or counties of the state or against other states or territories of the United States or any foreign country, as to a dangerous plant pest, it shall be unlawful thereafter until such quarantine is removed for any person to introduce into this state or to move, sell, or otherwise dispose of within this state any plant, plant produce, or other things included in such quarantine, except under such rules and regulations as may be prescribed by the Commissioner.

    (Ga. L. 1937, p. 659, §§ 4, 13; Ga. L. 1996, p. 329, § 13.)

Cross references. - Power of director of State Forestry Commission to declare and fix boundaries of zones of infestation or infection upon determination of existence of infestation of forest insect pests or infection of forest tree diseases, § 12-6-16 .

OPINIONS OF THE ATTORNEY GENERAL

Agent criminally liable for quarantine violation. - The fact that the manager of a company was acting for the manager's employer in violating a quarantine established by the director of entomology (now Commissioner) would not relieve the manager of individual criminal liability. 1945-47 Op. Att'y Gen. p. 8.

Quarantine violation punishable as misdemeanor. - The violation of a quarantine declared by the director of entomology (now Commissioner) is punishable as a misdemeanor. 1945-47 Op. Att'y Gen. p. 8.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, §§ 37, 38.

2-7-21. Registration of certain growers.

The Commissioner may provide for the registration of all growers of plant or nursery stock intended for sale or distribution, when such plants or nursery stock has been declared by the Commissioner as being liable or likely to disseminate or capable of disseminating plant pests.

(Ga. L. 1937, p. 659, § 4; Ga. L. 1996, p. 329, § 14.)

2-7-22. Assessment of costs.

For the purpose of defraying the expenses of the registration of nurserymen, dealers, agents, and plant growers and the certification and inspection of plants or plant products or other things, the Commissioner may assess and collect the cost thereof, any surplus to be paid into the state treasury.

(Ga. L. 1937, p. 659, § 4.)

2-7-23. Promulgation of rules and regulations; publication thereof.

  1. The Commissioner may make such rules and regulations governing the conditions under which plants or other products may be produced as will permit such plants or other products to be certified as free or relatively free from plant pests.
  2. Any rules and regulations made by the Commissioner relative to the certification of tomato, cabbage, onion, and all other cruciferous plants shall be published on or before December 15 of the year preceding that in which such plants are to be grown; provided, however, that in case of emergency supplemental rules and regulations may be promulgated and published; and provided, further, that certification of tomato, cabbage, onion, and other cruciferous plants shall not be compulsory on the grower.
  3. All rules and regulations made by the Commissioner within the limits of the authority conferred by this article shall have the full force and effect of law. Printed copies of all acts, rules and regulations, quarantines, and notices of the department which are published under the authority of the Commissioner shall be admitted as sufficient evidence of such acts, rules and regulations, quarantines, or notices in all courts and on all occasions whatsoever, when the correctness of such copies is certified by the Commissioner.

    (Ga. L. 1937, p. 659, §§ 4, 5; Ga. L. 1996, p. 329, § 15.)

OPINIONS OF THE ATTORNEY GENERAL

Commissioner authorized to establish quarantine. - The director of entomology (now Commissioner) may establish a quarantine for the protection of the agricultural, horticultural, and other interests of the state from insects, pests, and plant diseases. 1945-47 Op. Att'y Gen. p. 8.

2-7-24. Administrative review of rules and notices.

Any person affected by any rule or regulation made or notice given pursuant to this article may have a review thereof as provided in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for the purpose of having such rule, regulation, or notice modified, suspended, or withdrawn.

(Ga. L. 1937, p. 659, § 6.)

2-7-25. Required compliance with article and rules.

It shall be unlawful for any nurseryman, dealer, or agent to sell, give away, carry, ship, or deliver for carriage or shipment any nursery stock, except in compliance with this article and the rules and regulations made pursuant thereto.

(Ga. L. 1937, p. 659, § 14.)

2-7-26. Importation of injurious insect or plant disease without permit prohibited.

The introduction into this state of any insect injurious to plants in any stage of development or of any specimen of any disease injurious to plants, except under a special permit issued by the Commissioner, is prohibited.

(Ga. L. 1937, p. 659, § 11.)

2-7-27. Report of violations; investigation and disposition.

Any person, including a common carrier, who receives plants, plant products, or other things or substances sold, given away, carried, shipped, or delivered for carriage or shipment within this state, as to which this article and the rules and regulations made pursuant thereto have not been complied with, shall immediately inform the Commissioner or any employee or agent of the Commissioner and shall isolate and hold the plants, plant products, or other things or substances in question unopened or unused, subject to such inspection and such disposition as may be provided by the Commissioner.

(Ga. L. 1937, p. 659, § 12.)

2-7-28. Act of agent imputed to principal.

In construing and enforcing this article, the act, omission, or failure of any official, agent, or other person acting for or employed by any association, partnership, corporation, or other principal within the scope of his employment or office shall in every case be deemed the act, omission, or failure of such association, partnership, corporation, or other principal, as well as that of the individual.

(Ga. L. 1937, p. 659, § 16.)

OPINIONS OF THE ATTORNEY GENERAL

Agent criminally liable for quarantine violation. - The fact that the manager of a company was acting for the manager's employer in violating a quarantine established by the director of entomology (now Commissioner) would not relieve the manager of individual criminal liability. 1945-47 Op. Att'y Gen. p. 8.

2-7-29. Enforcement of article generally; criminal proceedings; subpoena powers.

The Commissioner may enforce this article and the rules and regulations made pursuant hereto by injunction in the proper court as well as by criminal proceedings. It shall be the duty of the prosecuting attorneys of all courts to represent the Commissioner when called upon to do so. In the discharge of his duties and in the enforcement of the powers delegated in this article, the Commissioner may issue subpoenas for the production of evidence, require production of books and papers, administer oaths, and subpoena and hear witnesses. To this end, it is made the duty of the various sheriffs throughout this state to serve all subpoenas and other papers upon the request of the Commissioner.

(Ga. L. 1937, p. 659, § 4.)

2-7-30. Injunctions; violations declared public nuisances.

The Commissioner may institute action to enjoin any violation of this article or any rule or regulation or quarantine promulgated under this article. A violation of this article or any rule or regulation promulgated pursuant to this article or any quarantine established pursuant hereto is declared to constitute a public nuisance. Such action for injunction may be maintained notwithstanding the existence of other legal remedies and notwithstanding the pendency or successful completion of a criminal prosecution as for a misdemeanor.

(Ga. L. 1960, p. 255, § 1.)

2-7-31. Penalty.

Any person who violates any provision or requirement of this article or of the rules and regulations made thereunder or of any notice given pursuant thereto or who forges, counterfeits, defaces, destroys, or wrongfully or improperly uses any certificate provided for in this article or in the rules and regulations made pursuant hereto or who interferes with or obstructs any inspector or other employee or agent of the department in the performance of his duties shall be guilty of a misdemeanor.

(Ga. L. 1937, p. 659, § 15.)

OPINIONS OF THE ATTORNEY GENERAL

Agent criminally liable for quarantine violation. - The fact that the manager of a company was acting for the manager's employer in violating a quarantine established by the director of entomology (now Commissioner) would not relieve the manager of individual criminal liability. 1945-47 Op. Att'y Gen. p. 8.

Violation of quarantine punishable as misdemeanor. - The violation of a quarantine declared by the director of entomology (now Commissioner) is punishable as a misdemeanor. 1945-47 Op. Att'y Gen. p. 8.

ARTICLE 2 CONTROL OF PESTICIDES

Administrative Rules and Regulations. - Economic poisons, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-11.

Pesticide use and application, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-21.

Law reviews. - For article, "Controlling the Use of Pesticides," see 15 J. of Public L. 311 (1966).

OPINIONS OF THE ATTORNEY GENERAL

Registration required for mildew-resistant paint. - Mildew-resistant paint is subject to the registration and other requirements of this article. 1972 Op. Att'y Gen. No. 72-95.

Registration required for device sold for controlling bacteria in markets. - A device being manufactured and sold in this state for the stated purpose of controlling meat-spoilage bacteria and fungi in meat markets and packing houses is subject to registration under this article. 1963-65 Op. Att'y Gen. p. 543.

RESEARCH REFERENCES

ALR. - Anticompetitive covenants: aerial spray dust business, 60 A.L.R.4th 965.

2-7-50. Short title.

This article shall be known as the "Georgia Pesticide Control Act of 1976."

(Ga. L. 1976, p. 282, § 1.)

Law reviews. - For article advocating more comprehensive laws regulating pesticide use, see 17 J. of Public L. 351 (1968). For annual survey of product liability law, see 58 Mercer L. Rev. 313 (2006).

2-7-51. Purpose of article; legislative findings.

The purpose of this article is to regulate, in the public interest, the labeling, distribution, storage, transportation, use, and disposal of pesticides. The General Assembly finds that pesticides are valuable to this state's agricultural production and to the protection of man and the environment from insects, rodents, weeds, and other forms of life which may be pests but that it is essential to the public health and welfare that they be regulated to prevent adverse effects on human life and on the environment. New pesticides which are valuable to the control of pests and for use as defoliants, desiccants, and plant regulators are continually being discovered or synthesized. The dissemination of accurate scientific information as to the proper use of any pesticide is vital to the public health and welfare and to the environment, both immediately and in the future. Therefore, it is deemed necessary to provide for regulation of such pesticides.

(Ga. L. 1976, p. 282, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 1 et seq.

2-7-52. Definitions.

As used in this article, the term:

  1. "Active ingredient" means any ingredient which will prevent, destroy, repel, control, or mitigate pests or which will act as a plant regulator, defoliant, or desiccant.
  2. "Adulterated" shall apply to any pesticide:
    1. If its strength or purity falls below the professed standard of quality, as expressed on its labeling or under which it is sold;
    2. If any substance has been substituted wholly or in part for the pesticide; or
    3. If any valuable constituent of the pesticide has been wholly or in part abstracted.
  3. "Animal" means all vertebrate and invertebrate species, including, but not limited to, man and other mammals, birds, fish, and shellfish.
  4. "Antidote" means the most practical immediate treatment in case of poisoning and includes first-aid treatment.
  5. "Beneficial insects" means those insects which, during their life cycles, are effective pollinators of plants, are parasites or predators of pests, or are otherwise beneficial.
  6. "Commissioner" means the Commissioner of Agriculture.
  7. "Defoliant" means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.
  8. "Desiccant" means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue.
  9. "Device" means any instrument or contrivance, other than a firearm, which is 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; the term does not include equipment used for the application of pesticides when such equipment is sold separately therefrom.
  10. "Distribute" means to offer for sale, hold for sale, sell, barter, ship, deliver for shipment, or receive and, having so received, deliver or offer to deliver pesticides in this state.
  11. "Environment" includes the water, air, and land, all plants and man and other animals living therein, and the interrelationships which exist among these.
  12. "Environmental Protection Agency" means the United States Environmental Protection Agency.
  13. "FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act, and the amendments thereto.
  14. "Fungi" means all nonchlorophyll-bearing thallophytes, that is, all nonchlorophyll-bearing plants of a lower order than mosses and liverworts, as, for example, rusts, smuts, mildews, molds, yeasts, and bacteria, except those on or in living man or other living animals and except those in or on processed food, beverages, or pharmaceuticals.
  15. "Highly toxic pesticide" means any pesticide determined to be a highly toxic pesticide under the authority of Section 25(c)(2) of FIFRA or by the Commissioner under paragraph (2) of subsection (a) of Code Section 2-7-63.
  16. "Imminent hazard" means a situation which exists when the continued use of a pesticide during the time required for cancellation proceedings pursuant to Code Section 2-7-59 would likely result in unreasonable adverse effects on the environment or will involve unreasonable hazard to the survival of a species declared endangered under the Endangered Species Act of 1973 and any amendments thereto.
  17. "Inert ingredient" means an ingredient which is not an active ingredient.
  18. "Ingredient statement" means a statement of the name and percentage of each active ingredient in a pesticide, together with the total percentage of the inert ingredients in the pesticide. When the pesticide contains arsenic in any form, the ingredient statement shall also include percentages of total and water soluble arsenic, each calculated as elemental arsenic.
  19. "Insect" means any of the numerous small invertebrate animals generally having a body more or less obviously segmented, for the most part belonging to the class Insecta, comprising six-legged, usually winged forms, as, for example, beetles, bugs, bees, and flies, and to other allied classes of arthropods whose members are wingless and usually have more than six legs, as, for example, spiders, mites, ticks, centipedes, and wood lice.
  20. "Label" means the written, printed, or graphic matter on or attached to the pesticide or device or any of its containers or wrappers.
  21. "Labeling" means the label and all other written, printed, or graphic matter:
    1. Accompanying the pesticide or device at any time; or
    2. To which reference is made on the label or in literature accompanying the pesticide or device, except for current official publications of:
      1. The Environmental Protection Agency;
      2. The United States Department of Agriculture;
      3. The United States Department of the Interior;
      4. The United States Department of Health and Human Services;
      5. State experiment stations;
      6. State agricultural colleges; and
      7. Other similar federal or state institutions or agencies authorized by law to conduct research in the field of pesticides.
  22. "Land" means all land and water areas, including airspace, and all plants, animals, structures, buildings, contrivances, and machinery appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation.
  23. "Nematode" means invertebrate animals of the phylum Nemathelminthes and class Nematoda, that is, unsegmented roundworms with elongated, fusiform, or saclike bodies covered with cuticle and inhabiting soil, water, plants, or plant parts; they may also be called nemas or eelworms.
  24. "Permit" means a written certificate issued by the Commissioner or his authorized agent, authorizing the purchase, possession, or use, or any combination thereof, of certain pesticides or pesticide uses defined in paragraphs (31) and (33) of this Code section.
  25. "Person" means any individual, partnership, association, fiduciary, corporation, or organized group of persons, whether or not incorporated.
  26. "Pest" means:
    1. Any insect, rodent, nematode, fungus, or weed; or
    2. Any other form of terrestrial or aquatic plant or animal life or virus, bacterium, or other microorganism, except viruses, bacteria, or other microorganisms on or in living man or other living animals, which the Environmental Protection Agency administrator declares to be a pest under Section 25(c)(1) of FIFRA or which the Commissioner declares to be a pest under paragraph (1) of subsection (a) of Code Section 2-7-63.
  27. "Pesticide" means:
    1. Any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pests; and
    2. Any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.
  28. "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 ornamental or crop plants or the produce thereof; the term shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments.
  29. "Protect health and the environment" means protection against any unreasonable adverse effects on the environment.
  30. "Registrant" means a person who has registered any pesticide pursuant to this article.
  31. "Restricted use pesticide" means any pesticide whose label bears one or more uses which have been classified as restricted by the administrator of the Environmental Protection Agency.
  32. "Restricted use pesticide dealer" means any person who distributes any restricted use pesticide or any pesticide whose label bears a state restricted pesticide use to any person other than a manufacturer or distributor of pesticides.
  33. "State restricted pesticide use" means any pesticide use which, when carried out in accordance with label directions and other commonly recognized good practices, the Commissioner determines, subsequent to a hearing, to require additional restrictions for that use to protect the environment, including man, lands, beneficial insects, animals, crops, and wildlife, other than pests.
  34. "Unreasonable adverse effects on the environment" means any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.
  35. "Weed" means any plant which grows where not wanted.
  36. "Wildlife" means all living things that are neither human, domesticated, nor, as defined in this article, pests, including, but not limited to, mammals, birds, and aquatic life.

    (Ga. L. 1950, p. 390, § 2; Ga. L. 1960, p. 178, § 1; Ga. L. 1976, p. 282, § 4.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "Section" was substituted for "section" in paragraphs (15) and (26).

U.S. Code. - The Federal Insecticide, Fungicide, and Rodenticide Act and amendments thereto, referred to in paragraph (13) of this Code section, was codified at 7 U.S.C. §§ 135 through 135K. However, in 1972 the Federal Insecticide, Fungicide, and Rodenticide Act was extensively amended by Pub. L. No. 92-516. The 1972 Act, as amended, provided that the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act and the regulations enacted thereunder should remain in effect until superseded by the amendments made by the 1972 Act and the regulations thereunder. See Pub. L. No. 92-516, § 4, as amended by Pub. L. No. 94-140, § 4 and Pub. L. No. 95-396, § 28. The 1972 Act has been codified at 7 U.S.C. §§ 136 through 136y and treated as a new subchapter 2 in the chapter of the U.S.C. in which the Federal Insecticide, Fungicide, and Rodenticide Act appeared. Public Law No. 92-516, § 1 provides that the short title of the 1972 Act is the Federal Environmental Pesticide Control Act of 1972.

Section 25(c)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in paragraph (15) of this Code section, is codified at 7 U.S.C. § 136w(c)(2).

The federal Endangered Species Act of 1973, referred to in paragraph (16) of this Code section, is codified at 16 U.S.C. § 1531 et seq.

Section 25(c)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in paragraph (26) of this Code section, is codified at 7 U.S.C. § 136w(c)(1).

2-7-53. Meaning of "misbranded."

The term "misbranded" shall apply:

  1. To any pesticide or device subject to this article:
    1. If its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular;
    2. If it is an imitation of or is distributed under the name of another pesticide; or
    3. If any word, statement, or other information required to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or graphic matter in the labeling, or in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
  2. To any pesticide:
    1. If the labeling does not contain a statement of the federal use classification under which the product is registered;
    2. If the labeling accompanying it does not contain directions for use which are necessary for effecting the purpose for which the product is intended and which, if complied with, together with any requirements imposed under Section 3(d) of FIFRA, are adequate to protect health and the environment; or
    3. If the label does not bear:
      1. The name, brand, or trademark under which the pesticide is distributed;
      2. An ingredient statement on that part of the immediate container which is presented or displayed under customary conditions of purchase, and on the outside container and wrapper of the retail package, if there is such a container and wrapper through which the ingredient statement on the immediate container cannot be clearly read, provided that the ingredient statement may appear prominently on another part of the container, as permitted pursuant to Section 2(q)(2)(A) of FIFRA 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;
      3. A warning or caution statement which may be necessary and which, if complied with together with any requirements imposed under Section 3(d) of FIFRA, would be adequate to protect health and the environment;
      4. The net weight or measure of the contents;
      5. The name and address of the manufacturer, registrant, or person for whom manufactured; and
      6. The Environmental Protection Agency registration number assigned to the pesticide and the Environmental Protection Agency establishment number if required by regulations under FIFRA;
    4. If the pesticide contains any substance or substances in quantities highly toxic to man, unless the label bears, in addition to other label requirements:
      1. The skull and crossbones;
      2. The word "POISON" in red, prominently displayed on a background of distinctly contrasting color; and
      3. A statement of a practical treatment, first aid or otherwise, in case of poisoning by the pesticide; or
    5. If the pesticide container does not bear a registered label or does not bear a label stating that it is for "experimental use only."

      (Ga. L. 1950, p. 390, § 2; Ga. L. 1976, p. 282, § 5.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "Section" was substituted for "section" in subparagraph (2)(B) and in two places in subparagraph (2)(C).

U.S. Code. - Section 2(q)(2)(A) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in division (2)(C)(ii) of this Code section, is codified at 7 U.S.C. § 135(q)(2)(R).

Section 3(d) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in subparagraph (B) of paragraph (2) and division (2)(C)(iii) of this Code section, is codified at 7 U.S.C. § 136a(d).

RESEARCH REFERENCES

ALR. - Constitutionality of statutes requiring notice by label or otherwise of the fact that product is imported, or as to place of production, 124 A.L.R. 572 .

2-7-54. Commissioner to administer article.

This article shall be administered by the Commissioner of Agriculture of this state.

(Ga. L. 1976, p. 282, § 2.)

2-7-55. Registration required; exceptions; contents of application; fees; renewal; special local needs.

  1. Every pesticide which is distributed in this state shall be registered with the Commissioner, subject to this article. Such registration shall be renewed annually prior to January 1, provided that registration is not required if a pesticide is shipped from one plant or warehouse to another plant or warehouse operated by the same person and if the pesticide is used solely at such plant or warehouse as a constituent part to make a pesticide which is registered under this article or if the pesticide is distributed under the provisions of an experimental use permit issued under Code Section 2-7-56; provided, further, that after all pesticides have been classified for "General Use" or "Restricted Use" as required by Section 3 of FIFRA, the Commissioner, by regulation, may require the registration of products on a multiple-year basis of two, three, four, or five years.
  2. The applicant for registration shall file a statement with the Commissioner which shall include:
    1. The name and address of the applicant and the name and address of the person whose name will appear on the label, if other than the applicant's;
    2. The name of the pesticide;
    3. Other necessary information required for completion of the department's application for registration form; and
    4. A complete copy of the labeling accompanying the pesticide and a statement of all claims to be made for it, including the directions for use and the use classification as provided for in FIFRA.
  3. The Commissioner, when he deems it necessary in the administration of this article, may require the submission of the complete formula of any pesticide, including the active and inert ingredients.
  4. The Commissioner may require a full description of the tests made and the results thereof on which the claims are based on any pesticide not registered pursuant to Section 3 of FIFRA or on any pesticide on which restrictions are being considered. The Commissioner may refuse to consider data he required of the initial registrant of a pesticide use in support of any other application for registration of that same use, unless such subsequent applicant has first obtained written permission to use such data. If data from the original registrant is considered without such permission, the Commissioner shall promptly notify such initial registrant. In the case of renewal of registration, a statement shall be required only with respect to information which is different from that furnished when the pesticide was registered or last reregistered.
  5. The Commissioner may prescribe other necessary information by regulation.
  6. The applicant desiring to register a pesticide shall pay an annual registration fee to the Commissioner for each pesticide registered for such applicant. The amount of such fee shall be established by the Commissioner in an amount not less than $100.00 nor more than $200.00 per annum. All such registrations shall expire on December 31 of any one year, provided that if the Commissioner adopts a multiple-year registration period, the annual registration fee per product shall be compounded for the number of years included in the multiple-year registration. A registration for a special local need pursuant to subsection (i) of this Code section which is disapproved by the administrator of the Environmental Protection Agency shall expire on the effective date of the administrator's disapproval. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.
  7. Any registration approved by the Commissioner and in effect on December 31 or, in case a multiple-year registration period is adopted, on the last day of the registration period, for which a renewal application has been made and the proper fee paid, shall continue in full force and effect until such time as the Commissioner notifies the applicant that the registration has been renewed or denied, in accordance with Code Section 2-7-59. Forms for reregistration shall be mailed to registrants at least 30 days prior to the due date.
  8. If the renewal of a pesticide registration is not filed prior to January 1 of any one year, or by the expiration date in the case of multiple-year registration, the applicable registration fee shall be doubled and shall be paid by the applicant before the registration renewal for that pesticide shall be issued.
  9. Provided the state is certified by the administrator of the Environmental Protection Agency to register pesticides for special local need pursuant to Section 24(c) of FIFRA, the Commissioner shall require the information set forth under subsections (b) through (e) of this Code section and, subject to the terms and conditions of that certification, shall register such pesticide if he determines that:
    1. Its composition is such as to warrant the proposed claims for it;
    2. Its labeling and other material required to be submitted comply with the requirements of this article;
    3. It will perform its intended function without unreasonable adverse effects on the environment;
    4. When used in accordance with widespread and commonly recognized practice, it will not generally cause unreasonable adverse effects on the environment;
    5. The classification for general use or restricted use is in conformity with Section 3(d) of FIFRA; and
    6. A special local need exists.
  10. The Commissioner shall not make any lack of essentiality a criterion for denying registration of any pesticide. Where two pesticides meet the requirements of this Code section, one should not be registered in preference to the other.

    (Ga. L. 1950, p. 390, § 4; Ga. L. 1958, p. 389, § 1; Ga. L. 1976, p. 282, § 7; Ga. L. 2001, p. 900, § 1; Ga. L. 2010, p. 9, § 1-3/HB 1055.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "Section" was substituted for "section" in subsection (a), subsection (d), and in two places in subsection (i).

U.S. Code. - Section 3 of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in subsections (a) and (d) of this Code section, is codified at 7 U.S.C. § 136a.

Section 24(c) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in subsection (i) of this section, is codified at 7 U.S.C. § 136v(c).

Section 3(d) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in paragraph (i)(5) of this section, is codified at 7 U.S.C. § 136a(d).

RESEARCH REFERENCES

Am. Jur. 2d. - 61C Am. Jur. 2d, Pollution Control, § 1633 et seq.

2-7-56. Issuance of experimental use permits; terms; revocation or modification.

  1. Provided the state is authorized by the administrator of the Environmental Protection Agency to issue experimental use permits, the Commissioner may:
    1. Issue an experimental use permit to any person applying for an experimental use permit, if he determines that the applicant needs such permit in order to accumulate information necessary to register a pesticide under subsection (i) of Code Section 2-7-55. An application for an experimental use permit may be filed at the time of or before or after an application for registration is filed;
    2. Refuse to issue an experimental use permit, if he determines that issuance of such permit is not warranted or that the pesticide use to be made under the proposed terms and conditions may cause unreasonable adverse effects on the environment;
    3. Prescribe terms, conditions, and a period of time for the experimental use permit, which permit shall be under the supervision of the Commissioner; and
    4. Revoke or modify any experimental use permit at any time if he finds that its terms or conditions are being violated or that its terms and conditions are inadequate to avoid unreasonable adverse effects on the environment.
  2. Any person who has obtained an Environmental Protection Agency experimental use permit for a product to be used in this state shall, before shipping the product into this state, also secure an experimental use permit from the Commissioner. No fee shall be required for any experimental use permit issued under this article.

    (Ga. L. 1976, p. 282, § 8.)

RESEARCH REFERENCES

Am. Jur. 2d. - 61C Am. Jur. 2d, Pollution Control, § 1726 et seq.

2-7-57. Licensing of restricted use pesticide dealers required; application; fees; responsibility of dealer.

  1. It shall be unlawful for any person to act in the capacity of a restricted use pesticide dealer, as defined by this article, or to advertise as or assume to act as a restricted use pesticide dealer at any time, without first having obtained an annual license from the Commissioner, which license shall expire on December 31 of each year. A license shall be required for each location or outlet located within this state from which restricted use pesticides or pesticides with state restricted uses are distributed, provided that any manufacturer, registrant, or distributor who has no pesticide dealer outlet within this state and who distributes such pesticides directly into this state shall obtain a restricted use pesticide dealer license for his principal out-of-state location or outlet.
  2. Application for a license shall be accompanied by a $55.00 annual license fee, shall be on a form prescribed by the Commissioner, and shall include the full name of the person applying for such license. If the applicant is a partnership, association, corporation, or organized group of persons, the full name of each member of the firm or partnership or the names of the principal officers of the association or corporation shall be given on the application. Such application shall further state the address of the outlet to be licensed, the principal business address of the applicant, and any other necessary information prescribed by the Commissioner. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.
  3. This Code section shall not apply to a licensed pesticide contractor who sells pesticides only as an integral part of his pesticide application service, when such pesticides are dispensed only through equipment used for such pesticide application, or to a federal, state, county, or municipal agency which provides pesticides only for its own programs.
  4. If an application for renewal of a restricted use pesticide dealer license is not filed on or prior to January 1 of any one year, an additional fee of $15.00 shall be assessed and added to the original fee and shall be paid by the applicant before the renewal license shall be issued.
  5. Each restricted use pesticide dealer shall be responsible for the acts of each person employed by him in the solicitation and sale of pesticides and all claims and recommendations for use of pesticides. The dealer's license shall be subject to denial, suspension, or revocation, after a hearing, for any violation of this article or regulations issued hereunder, whether committed by the dealer or by the dealer's officer, agent, or employee.

    (Ga. L. 1976, p. 282, § 14; Ga. L. 2010, p. 9, § 1-4/HB 1055.)

RESEARCH REFERENCES

ALR. - Right to enjoin business competitor from unlicensed or otherwise illegal acts or practices, 90 A.L.R.2d 7.

2-7-58. Denial, suspension, or revocation of license, registration, or permit.

The Commissioner is authorized to deny, suspend, or revoke any license, registration, or permit provided for in this article, subject to a hearing and in conformance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," in any case in which he finds that there has been a failure or refusal to comply with this article or regulations adopted hereunder.

(Ga. L. 1950, p. 390, § 8; Ga. L. 1976, p. 282, § 16.)

Cross references. - Authority of Commissioner to impose penalties in lieu of other action, § 2-2-10 .

2-7-59. Grounds for denial, suspension, or cancellation of registration of pesticides formulated to meet local needs or for seeking legal recourse against them; notice and hearing; judicial review.

  1. Provided the state is certified by the administrator of the Environmental Protection Agency to register pesticides formulated to meet special local needs, the Commissioner may act according to the criteria set forth in this Code section in refusing to register such pesticides, in canceling or suspending registration of such pesticides, or in seeking legal recourse against such pesticides.
  2. If it does not appear to the Commissioner that the composition of a pesticide is such as to warrant the proposed claims for it or if the pesticide and its labeling and other material required to be submitted do not comply with this article or regulations adopted hereunder, he shall notify the applicant of the manner in which the pesticide, labeling, or other material required to be submitted fails to comply with this article, so as to afford the applicant an opportunity to make the necessary corrections. If, upon receipt of such notice, the applicant does not make the required changes, the Commissioner may refuse to register the pesticide. The applicant may request a hearing as provided for in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  3. When the Commissioner determines that a pesticide or its labeling does not comply with this article or the regulations adopted hereunder or when necessary to prevent unreasonable adverse effects on the environment, he may cancel the registration of a pesticide or change the classification of a pesticide, after providing opportunity for a hearing in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  4. When the Commissioner determines that there is an imminent hazard, he may, on his own motion, immediately suspend the registration of a pesticide in conformance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Opportunity for a hearing shall be provided thereafter with the utmost possible expedition.
  5. If the Commissioner determines that a federally registered pesticide, with respect to the use of such pesticide within this state, does not warrant the proposed claims for it or would cause unreasonable adverse effects on the environment, he may refuse to register the pesticide as required in Code Section 2-7-55, or, if the pesticide is registered under Code Section 2-7-55, he may cancel or suspend the registration pursuant to this Code section. If the Commissioner determines that the pesticide does not comply with FIFRA or the regulations adopted thereunder, he shall advise the Environmental Protection Agency of the manner in which the pesticide, labeling, or other material required to be submitted fails to comply with FIFRA and suggest necessary corrections.
  6. Any person who will be adversely affected by an order authorized in this Code section may obtain judicial review thereof in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

    (Ga. L. 1976, p. 282, § 9; Ga. L. 1982, p. 3, § 2.)

2-7-60. Subpoena powers.

The Commissioner may issue subpoenas to compel the attendance of witnesses or the production of books, documents, and records or any combination thereof in this state, in any hearing affecting the authority or privilege granted by a license, registration, or permit issued under this article.

(Ga. L. 1976, p. 282, § 17.)

2-7-61. Records to be kept; access by Commissioner; confidentiality.

  1. Any person issued a license, permit, or registration under this article may be required by the Commissioner to keep accurate records containing the following information:
    1. The delivery, movement, or holding of any pesticide or device, including the quantity thereof;
    2. The date of shipment and receipt;
    3. The name of consignor and consignee; and
    4. Any other information necessary for the enforcement of this article, as prescribed by the Commissioner.
  2. The Commissioner shall have access to the records required in subsection (a) of this Code section at any reasonable time, in order to copy or make copies of such records, for the purpose of carrying out this article. Unless required for the enforcement of this article, the information derived from such records shall be confidential and, if summarized, shall not identify an individual person.

    (Ga. L. 1976, p. 282, § 15.)

RESEARCH REFERENCES

Am. Jur. 2d. - 61C Am. Jur. 2d, Pollution Control, § 1692 et seq.

2-7-62. Prohibited acts; exemptions.

  1. It is unlawful for any person to distribute any of the following in this state:
    1. Any pesticide which has not been registered pursuant to this article;
    2. Any pesticide, if any of the claims made for it or any of the directions for its use or any labeling differs from the representations made in connection with its registration or if the composition of the pesticide differs from its composition as represented in connection with its registration, provided that a change in the labeling or formulation of a pesticide may be made within a registration period without requiring reregistration of the product, if the registration is amended to reflect such change and if such change will not violate any provision of FIFRA or this article;
    3. Any pesticide, unless it is in the registrant's or the manufacturer's unbroken immediate container and there is affixed to such container and to the outside container or wrapper of the retail package, if there is one through which the required information on the immediate container cannot be clearly read, a label bearing the information required in this article and the regulations adopted under this article;
    4. Any pesticide which has not been colored or discolored pursuant to Section 25(c)(5) of FIFRA or paragraph (6) of subsection (b) of Code Section 2-7-63;
    5. Any pesticide which is adulterated or misbranded or any device which is misbranded; or
    6. Any pesticide in containers which are unsafe due to damage.
  2. It shall be unlawful:
    1. To distribute any pesticide labeled for restricted uses to any person who is required by law or regulations promulgated under such law to have a permit or to be certified to use or purchase such pesticide labeled for restricted uses, unless such person or his agent to whom distribution is made has a valid permit or is certified to use or purchase the kind and quantity of such pesticide labeled for restricted uses, provided that subject to conditions established by the Commissioner, such permit may be obtained immediately prior to distribution, from any person designated by the Commissioner;
    2. For any person to detach, alter, deface, or destroy, wholly or in part, any label or labeling provided for in this article or regulations adopted under this article 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 regulations adopted hereunder;
    3. For any person to use or cause to be used any pesticide in a manner inconsistent with its labeling or the regulations of the Commissioner, if those regulations further restrict the uses provided on the labeling;
    4. For any person to use for his own advantage or to reveal, other than to the Commissioner, to properly designated state or federal officials, to employees of the state or federal executive agencies, to the courts of the state or the federal government in response to a subpoena, to physicians, or, in emergencies, to pharmacists and other qualified persons for use in the preparation of antidotes, any information relative to formulas of products acquired by authority of Code Section 2-7-55 or any information judged by the Commissioner as containing or relating to trade secrets or commercial or financial information obtained by authority of this article and marked as privileged or confidential by the registrant;
    5. For any person to handle, transport, store, display, or distribute pesticides in such a manner as to endanger man and his environment or to endanger food, feed, or any other products that may be transported, stored, displayed, or distributed with such pesticides;
    6. For any person to dispose of, discard, or store any pesticides or pesticide containers in such a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, or beneficial insects or in such a manner as to pollute any water supply or waterway;
    7. For any person to refuse or otherwise fail to comply with this article or the regulations adopted hereunder.
  3. The penalties provided for violations of paragraphs (1) through (5) of subsection (a) of this Code section shall not apply to:
    1. Any carrier, while lawfully engaged in transporting pesticides or devices within this state, if such carrier, upon request, permits the Commissioner to copy all records showing the transactions in and movements of the pesticides or devices;
    2. Public officials of this state and the federal government, while engaged in the performance of their official duties in administering state or federal pesticide laws or regulations;
    3. The manufacturer, shipper, or distributor of a pesticide for experimental use only by or under the supervision of an agency of this state or of the federal government authorized by law to conduct research in the field of pesticides, provided that there is a valid experimental use permit for such pesticide; or
    4. Any person who ships a substance or mixture of substances being put through tests, in which the purpose is only to determine its value for pesticide purposes or to determine its toxicity or other properties and from the use of which the user does not expect to receive any benefit in pest control.
  4. 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 the provisions of this article shall apply.

    (Ga. L. 1950, p. 390, §§ 3, 7; Ga. L. 1976, p. 282, § 6.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "Section" was substituted for "section" in paragraph (a)(4).

U.S. Code. - Section 25(c)(5) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in paragraph (a)(4) of this Code section, is codified at 7 U.S.C. § 136w(c)(5).

JUDICIAL DECISIONS

Mixing chemicals inconsistently with label is jury question. - Upon a claim that a pesticide company violated O.C.G.A. § 2-7-62(b)(3), given the multiple instructions included on the pesticide label, particularly that portion suggesting that the preparer reverse the order of the added components, the trial court properly concluded that the issue of whether the chemical was mixed in a manner inconsistent with its label was a jury question. Moreover, even if the company violated § 2-7-62(b)(3), it did not entitle the plaintiff to judgment as a matter of law, as it would improperly remove the issue of proximate cause from the jury. Chancey v. Peachtree Pest Control Co., 288 Ga. App. 767 , 655 S.E.2d 228 (2007), cert. denied, No. S08C0642, 2008 Ga. LEXIS 459 (Ga. 2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, §§ 37 et seq., 48 et seq.

2-7-63. Powers of Commissioner generally; rules and regulations.

  1. The Commissioner is authorized, after due notice and an opportunity for a hearing:
    1. To declare as a pest any form of plant or animal life (other than man and other than bacteria, viruses, and other microorganisms on or in living man or other living animals) which is injurious to health or the environment;
    2. To determine whether pesticides registered under the authority of Section 24(c) of FIFRA are highly toxic to man. The regulations promulgated by the Environmental Protection Agency pursuant to Section 25(c)(2) of FIFRA, as issued or as hereafter amended, shall govern the Commissioner's determinations; and
    3. To determine pesticides and quantities of substances contained in pesticides registered for special local needs which are injurious to the environment. The Commissioner shall be guided by Environmental Protection Agency regulations in this determination.
  2. The Commissioner is authorized, after due notice and a public hearing as provided for in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," to make appropriate regulations, where such regulations are necessary for the enforcement and administration of this article, including but not limited to regulations providing for:
    1. The collection, examination, and reporting of samples of pesticides or devices pursuant to subsection (a) of Code Section 2-7-69;
    2. The safe handling, transportation, storage, display, distribution, and disposal of pesticides and their containers;
    3. Labeling requirements for all pesticides required to be registered under this article, provided that such regulations shall not impose any requirements for federally registered labels in addition to or different from those required pursuant to FIFRA;
    4. The specification of classes of devices which shall be subject to paragraph (1) of Code Section 2-7-53;
    5. The determination of which pesticides with restricted uses may be distributed only by licensed restricted use pesticide dealers;
    6. The requirement that any pesticide registered for special local needs should be colored or discolored, if he determines that such requirement is feasible and is necessary for the protection of health and the environment. Such regulations shall be consistent with regulations promulgated by the Environmental Protection Agency pursuant to Section 25(c)(5) of FIFRA; and
    7. The establishment of standards for the packages, containers, and wrappings of pesticides registered for special local needs. Such regulations shall be consistent with the regulations promulgated by the Environmental Protection Agency pursuant to Section 25(c)(3) of FIFRA.
  3. For the purpose of uniformity of requirements between the states and the federal government, the Commissioner, after a public hearing, may adopt regulations in conformity with the primary pesticide standards, particularly as to labeling, registration requirements, and issuance of experimental use permits, established by the Environmental Protection Agency or other federal or state agencies.

    (Ga. L. 1950, p. 390, § 5; Ga. L. 1976, p. 282, § 10.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "Section" was substituted for "section" in two places in paragraph (a)(2) and in paragraphs (b)(6) and (b)(7).

U.S. Code. - Section 24(c) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in paragraph (a)(2) of this Code section, is codified at 7 U.S.C. § 136v(c).

Section 25(c)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in paragraph (a)(2) of this Code section, is codified at 7 U.S.C. § 136w(c)(2).

Section 25(c)(5) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in paragraph (b)(6) of this Code section, is codified at 7 U.S.C. § 136w(c)(5).

Section 25(c)(3) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in paragraph (b)(7) of this Code section, is codified at 7 U.S.C. § 136w(c)(5).

RESEARCH REFERENCES

ALR. - Mistake as to chemical or product furnished or misdescription thereof by label or otherwise as basis of liability for personal injury or death resulting from combination with other chemical, 123 A.L.R. 939 .

2-7-64. Delegation of duties.

All authority vested in the Commissioner by virtue of this article may be executed with like force and effect by such employees of the Department of Agriculture as the Commissioner may designate from time to time for such purposes.

(Ga. L. 1950, p. 390, § 12; Ga. L. 1976, p. 282, § 21.)

2-7-65. Cooperation with federal and state agencies; grants-in-aid.

The Commissioner may cooperate, receive grants-in-aid, and enter into cooperative agreements with any agency of the federal government, of this state or its subdivisions, or of another state for the following purposes, without exclusion:

  1. To secure uniformity of regulations;
  2. To enter into cooperative agreements with the Environmental Protection Agency to register pesticides under the authority of this article and FIFRA;
  3. To cooperate in the enforcement of the federal pesticide control laws through the use of state or federal personnel and facilities or any combination thereof and to implement cooperative enforcement programs including, but not limited to, the registration and inspection of establishments;
  4. To enter into a contract for monitoring pesticides for the national plan; and
  5. To prepare and submit state plans to meet federal certification standards or for issuing experimental use permits.

    (Ga. L. 1950, p. 390, § 13; Ga. L. 1976, p. 282, § 22.)

2-7-66. Disposition of funds.

Reserved. Repealed by Ga. L. 2010, p. 9, § 1-4.1, effective May 12, 2010.

Editor's notes. - This Code section was based on Ga. L. 1976, p. 282, § 23.

2-7-67. Publication of information.

The Commissioner may publish, in such form as he deems proper, results of analyses based on official samples as compared with the analyses guaranteed and information concerning the distribution of pesticides, provided that individual distribution information shall not be a public record.

(Ga. L. 1976, p. 282, § 19.)

2-7-68. Designation of trade secrets by applicant; protection from public disclosure; notification of proposed release; declaratory judgment.

  1. In submitting data required by this article, the applicant may:
    1. Clearly mark any portions thereof which in his opinion are trade secrets or commercial or financial information; and
    2. Submit such marked material separately from other material required to be submitted under this article.
  2. Notwithstanding any other provision of this article, the Commissioner shall not make public any information which in his judgment contains or relates to trade secrets or any commercial or financial information obtained from a person and considered privileged or confidential, provided that when necessary to carry out this article, information relating to formulas of products acquired by authorization of this article may be revealed to any state or federal agency consulted or as required by law and may be revealed at a public hearing or in findings of fact issued by the Commissioner.
  3. If the Commissioner proposes to release for inspection any information which the applicant or registrant has indicated that he believes is protected from disclosure under subsection (b) of this Code section, he shall notify the applicant or registrant, in writing, by certified mail or statutory overnight delivery. The Commissioner shall not thereafter make such data available for inspection until 30 days after receipt of the notice by the applicant or registrant. During this period, the applicant or registrant may institute an action in an appropriate court for a declaratory judgment as to whether such information is subject to protection under subsection (b) of this Code section.

    (Ga. L. 1976, p. 282, § 20; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

Abandonment of Trade Secret, 100 POF3d195, 140 POF3d 81.

ALR. - Disclosure of trade secret as abandonment of secrecy, 92 A.L.R.3d 138.

2-7-69. Sampling and inspections authorized; notice of contemplated proceedings; search warrants; duty of enforcement; injunctions; written warnings authorized for minor violations.

  1. Sampling and examination of pesticides or devices shall be made under the direction of the Commissioner for the purpose of determining whether they comply with the requirements of this article. The Commissioner is authorized, upon presentation of proper identification, to enter any distributor's premises, including any vehicle of transport, at all reasonable times, in order to have access to inspect and sample labeled pesticides or devices packaged for distribution. If it appears upon inspection or examination that a pesticide or device fails to comply with this article or regulations adopted hereunder and the Commissioner contemplates instituting criminal proceedings against any person, the Commissioner shall cause appropriate notice to be given to such person. Any person so notified shall be given an opportunity, within a reasonable time, to present his views, either orally or in writing, with regard to the contemplated proceedings. If thereafter, in the opinion of the Commissioner, it appears that this article or regulations adopted hereunder have been violated by such person, the Commissioner shall refer a copy of the results of the analysis or the examination of such pesticide or device to the prosecuting attorney for the county in which the violation occurred.
  2. Should the Commissioner be denied access to any land where such access was sought for the purposes set forth in this article, he may apply to any court of competent jurisdiction for a search warrant authorizing access to such land for such purposes. The court, upon such application, may issue the search warrant for the purposes requested.
  3. The Commissioner is charged with the duty of enforcing the requirements of this article and the rules and regulations promulgated hereunder.
  4. In addition to any other remedy provided in this article, the Commissioner is authorized to bring an action to enjoin a violation of any provision of this article or any rule or regulation promulgated hereunder. In such an action it shall not be necessary for the Commissioner to allege or prove the absence of an adequate remedy at law.
  5. Nothing in this article shall be construed as requiring the Commissioner to report minor violations of this article for prosecution or for the institution of condemnation proceedings, when he believes that the public interest will be served best by a suitable notice of warning in writing.

    (Ga. L. 1950, p. 390, § 6; Ga. L. 1976, p. 282, § 11; Ga. L. 1980, p. 747, §§ 1, 2.)

2-7-70. Stop sale, use, or removal order.

When the Commissioner has reasonable cause to believe that a pesticide or device is being distributed, stored, transported, or used in violation of any of the provisions of this article or of any of the prescribed regulations under this article, he may issue and serve a written stop sale, use, or removal order upon the owner or custodian of any such pesticide or device. If the owner or custodian is not available for service of the order upon him, the Commissioner may attach the order to the pesticide or device and notify the owner or custodian and the registrant. The pesticide or device shall not be sold, used, or removed until this article has been complied with and until the pesticide or device has been released in writing under conditions specified by the Commissioner or until the violation has been otherwise disposed of as provided in this article by a court of competent jurisdiction.

(Ga. L. 1950, p. 390, § 10; Ga. L. 1976, p. 282, § 12.)

2-7-71. Judicial actions after stop sale, use, or removal order generally; injunctions; condemnation; disposition of condemned pesticide or device; costs and expenses.

  1. After service of a stop sale, use, or removal order is made upon any person, either that person, the registrant, or the Commissioner may file an action in a court of competent jurisdiction in the appropriate county for an adjudication of the alleged violation. The court in such action may issue temporary or permanent injunctions, mandatory or restraining, and such intermediate orders as it deems necessary or advisable. The court may order condemnation of any pesticide or device which does not meet the requirements of this article or regulations adopted hereunder.
  2. If the pesticide or device is condemned, after entry of decree it shall be disposed of by destruction or sale as the court directs; and if such pesticide or device is sold, the proceeds, less costs, including legal costs, shall be retained pursuant to the provisions of Code Section 45-12-92.1, provided that the pesticide or device shall not be sold contrary to this article or regulations adopted hereunder. Upon payment of costs and execution and delivery of a good and sufficient bond conditioned that the pesticide or device shall not be disposed of unlawfully, the court may direct that the pesticide or device be delivered to the owner thereof for relabeling, reprocessing, removal from the state, or otherwise bringing the product into compliance.
  3. When a decree of condemnation is entered against a pesticide or device, court costs, fees, storage, and other proper expenses shall be awarded against the person, if any, appearing as claimant of the pesticide.

    (Ga. L. 1950, p. 390, § 11; Ga. L. 1976, p. 282, § 13; Ga. L. 2010, p. 9, § 1-4.2/HB 1055.)

2-7-72. Effect of article on certain other laws.

No provision of this article shall authorize any person to violate any law or any rules or regulations adopted and promulgated thereunder, the administration and enforcement of which are assigned to the Department of Natural Resources or any division thereof or to the Coastal Marshlands Protection Committee. This article shall not be construed as repealing, preempting, modifying, or limiting the authority or functions assigned to the Department of Natural Resources or its divisions or officials or to the Coastal Marshlands Protection Committee.

(Ga. L. 1976, p. 282, § 24.)

2-7-73. Penalties.

Any person who violates any provision of this article or of the regulations adopted hereunder shall be guilty of a misdemeanor.

(Ga. L. 1950, p. 390, § 8; Ga. L. 1976, p. 282, § 18.)

ARTICLE 3 USE AND APPLICATION OF PESTICIDES

Law reviews. - For article, "Controlling the Use of Pesticides," see 15 J. of Pub. L. 311 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 61C Am. Jur. 2d, Pollution Control, § 1691 et seq.

ALR. - Exterminator's tort liability for personal injury or death directly resulting from operations, 29 A.L.R.4th 987.

2-7-90. Short title.

This article shall be cited as the "Georgia Pesticide Use and Application Act of 1976."

(Ga. L. 1972, p. 849, § 1; Ga. L. 1976, p. 369, § 1.)

Law reviews. - For annual survey of product liability law, see 58 Mercer L. Rev. 313 (2006).

2-7-91. Purpose of article; legislative findings.

The purpose of this article is to regulate, in the public interest, the use and application of pesticides to control pests, as defined in this article. Pesticides perform a valuable role by:

  1. Controlling insects, fungi, nematodes, rodents, and other pests which ravage and destroy our supply of food and fiber, which serve as vectors of disease, and which otherwise constitute a nuisance in the environment or the home;
  2. Controlling weeds which compete in the production of food and fiber and which otherwise are unwanted elements in our environment; and
  3. Regulating plant growth to enhance both the quantity and quality of our supply of food and fiber and to facilitate its harvest.

    New pesticides are continually being discovered, synthesized, or developed which are valuable for the control of pests and for use as defoliants, desiccants, plant regulators, and related purposes. However, such pesticides may be ineffective, may cause injury to man, or may cause unreasonable adverse effects on the environment if not properly used. Pesticides may injure man or animals, either by direct poisoning or by gradual accumulation of pesticide residues in the tissues. Crops or other plants may also be injured by the improper use of pesticides. The drifting or washing of pesticides into streams or lakes may cause appreciable damage to aquatic life. A pesticide applied for the purpose of killing pests in a crop which is not itself injured by the pesticide may drift and injure other crops or nontarget organisms with which it comes in contact. Therefore, it is deemed necessary to provide for regulation of the use and application of such pesticides.

    (Ga. L. 1972, p. 849, § 3; Ga. L. 1976, p. 369, § 3.)

2-7-92. Definitions.

As used in this article, the term:

  1. "Animal" means all vertebrate and invertebrate species, including, but not limited to, man and other mammals, birds, fish, and shellfish.
  2. "Beneficial insects" means those insects which, during their life cycles, are effective pollinators of plants, are parasites or predators of pests, or are otherwise beneficial.
  3. "Board" means the Pesticide Advisory Board.
  4. "Certified applicator" means any individual who is certified under this article to use or supervise the use of any restricted use pesticide restricted to use by certified applicators or any state restricted pesticide use restricted to use by certified applicators.
  5. "Commercial applicator" means any individual:
    1. Who is not a "private applicator," who uses or supervises the use of any restricted use pesticide restricted to use by certified applicators or any state restricted pesticide use restricted to use by certified applicators; or
    2. Who uses or supervises the use of any other pesticide for a pesticide contractor, as an employee or otherwise.
  6. "Defoliant" means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.
  7. "Desiccant" means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue.
  8. "Environment" includes the water, air, and land, all plants and man and other animals living therein, and the interrelationships which exist among these.
  9. "Environmental Protection Agency" means the United States Environmental Protection Agency.
  10. "Equipment" means any type of ground, water, or aerial equipment or contrivance using motorized, mechanical, or pressurized power and used to apply any pesticide on land and anything that may be growing, habitating, or stored on or in such land but shall not include any pressurized hand-sized household apparatus used to apply any pesticide or any equipment or contrivance of which the person who is applying the pesticide is the source of power or energy in making such pesticide application.
  11. "FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act, and the amendments thereto.
  12. "Fungi" means all nonchlorophyll-bearing thallophytes, that is, all nonchlorophyll-bearing plants of a lower order than mosses and liverworts, as, for example, rusts, smuts, mildews, molds, yeasts, and bacteria, except those on or in living man or other living animals and except those in or on processed food, beverages, or pharmaceuticals.
  13. "Insect" means any of the numerous small invertebrate animals generally having a body more or less obviously segmented, for the most part belonging to the class Insecta, comprising six-legged, usually winged forms, as, for example, beetles, bugs, bees, and flies, and other allied classes of arthropods whose members are wingless and usually have more than six legs, as, for example, spiders, mites, ticks, centipedes, and wood lice.
  14. "Label" means the written, printed, or graphic matter on or attached to the pesticide or device or any of its containers or wrappers.
  15. "Labeling" means the label and all other written, printed, or graphic matter:
    1. Accompanying the pesticide or device at any time; or
    2. To which reference is made on the label or in literature accompanying the pesticide or device, except for current official publications of:
      1. The Environmental Protection Agency;
      2. The United States Department of Agriculture;
      3. The United States Department of the Interior;
      4. The United States Department of Health and Human Services;
      5. State experiment stations;
      6. State agricultural colleges; and
      7. Other similar federal or state institutions or agencies authorized by law to conduct research in the field of pesticides.
  16. "Land" means all land and water areas, including airspace, and all plants, animals, structures, buildings, contrivances, and machinery appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation.
  17. "Nematode" means invertebrate animals of the phylum Nemathelminthes and class Nematoda, that is, unsegmented roundworms with elongated, fusiform, or saclike bodies covered with cuticle, and inhabiting soil, water, plants, or plant parts; they may also be called nemas or eelworms.
  18. "Permit" means a written certificate issued by the Commissioner or his authorized agent, authorizing the purchase, possession, or use of certain pesticides or pesticide uses defined in paragraphs (26) and (27) of this Code section.
  19. "Person" means any individual, partnership, association, fiduciary, corporation, or organized group of persons, whether or not incorporated.
  20. "Pest" means:
    1. Any insect, rodent, nematode, fungus, or weed; or
    2. Any other form of terrestrial or aquatic plant or animal life or virus, bacterium, or other microorganism, except viruses, bacteria, or other microorganisms on or in living man or other living animals,

      which the Environmental Protection Agency administrator declares to be a pest under Section 25(c)(1) of FIFRA or which the Commissioner declares to be a pest under subsection (f) of Code Section 2-7-97.

  21. "Pesticide" means:
    1. Any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pests; and
    2. Any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.
  22. "Pesticide contractor" means any person who engages in the business of contracting for the application of any pesticide to the lands of another.
  23. "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 ornamental or crop plants or the produce thereof; the term shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments.
  24. "Private applicator" means any individual who purchases, uses, or supervises the use of any restricted use pesticide restricted to use by certified applicators or any state restricted pesticide use restricted to use by certified applicators, for purposes of producing any agricultural or forestry commodity on property owned or rented by him or his employer or, if applied without compensation other than the trading of personal services between producers of agricultural and forestry commodities, on the property of another person.
  25. "Protect health and the environment" means to protect against any unreasonable adverse effects on the environment.
  26. "Restricted use pesticide" means any pesticide whose label bears one or more uses which have been classified as restricted by the administrator of the Environmental Protection Agency.
  27. "State restricted pesticide use" means any pesticide use which, when used as directed or in accordance with a widespread and commonly recognized practice, the Commissioner determines, subsequent to a hearing, to require additional restrictions for that use to protect the environment, including man, lands, beneficial insects, animals, crops, and wildlife, other than pests.
  28. "Under the direct supervision of a certified applicator" means that, unless otherwise prescribed by its labeling or regulations of the Commissioner, a pesticide shall be considered to be applied under the direct supervision of a certified applicator if it is applied by a competent person acting under the instructions and control of a certified applicator who is available if and when needed, even though such certified applicator is not physically present at the time and place the pesticide is applied.
  29. "Unreasonable adverse effects on the environment" means any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.
  30. "Weed" means any plant which grows where not wanted.
  31. "Wildlife" means all living things that are neither human, domesticated, nor, as defined in this article, pests, including, but not limited to, mammals, birds, and aquatic life.

    (Ga. L. 1972, p. 849, § 4; Ga. L. 1976, p. 369, § 4; Ga. L. 1994, p. 97, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "Section" was substituted for "section" in paragraph (20).

U.S. Code. - The Federal Insecticide, Fungicide, and Rodenticide Act and amendments thereto, referred to in paragraph (11) of this Code section, was codified at 7 U.S.C. §§ 135 through 135k. However, in 1972 the Federal Insecticide, Fungicide, and Rodenticide Act was extensively amended by Pub. L. No. 92-516. The 1972 Act, as amended, provided that the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act and the regulations enacted thereunder should remain in effect until superseded by the amendments made by the 1972 Act and the regulations thereunder. See Pub. L. No. 92-516, § 4, as amended by Pub. L. No. 94-140, § 4 and Pub. L. No. 95-396, § 28. The 1972 Act has been codified at 7 U.S.C. §§ 136 through 136y and treated as a new subchapter 2 in the chapter of the U.S.C. in which the Federal Insecticide, Fungicide, and Rodenticide Act appeared. Public Law No. 92-516, § 1 provides that the short title of the 1972 Act is the Federal Environmental Pesticide Control Act of 1972.

Section 25(c)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in the ending paragraph of subparagraph (20)(B) of this Code section, is codified at 7 U.S.C. § 136w(c)(1).

2-7-93. Commissioner to administer article; appointment of Pesticide Advisory Board.

This article shall be administered by the Commissioner of Agriculture of this state. In the administration of this article the Commissioner shall appoint a Pesticide Advisory Board for the purpose of advising him on all matters relating to pesticides and their use and application.

(Ga. L. 1972, p. 849, § 2; Ga. L. 1976, p. 369, § 2.)

2-7-94. Delegation of duties.

The functions vested in the Commissioner by this article may be delegated by him to such employees or agents of the department as the Commissioner may from time to time designate for such purposes.

(Ga. L. 1972, p. 849, § 22; Ga. L. 1976, p. 369, § 24.)

2-7-95. Publication of information; instruction.

The Commissioner may cooperate with educational institutions and other state or federal agencies in publishing information and conducting short courses of instruction in the areas of knowledge required by this article.

(Ga. L. 1972, p. 849, § 18; Ga. L. 1976, p. 369, § 20.)

2-7-96. Cooperative agreements; grants-in-aid.

The Commissioner may cooperate, receive grants-in-aid, and enter into agreements with any agency of the federal government, of this state or its subdivisions, or of another state, to obtain assistance in the implementation of this article, in order to:

  1. Secure uniformity of regulations;
  2. Cooperate in the enforcement of the federal pesticide control laws through the use of personnel and facilities of the state or the federal government or both and implement cooperative enforcement programs;
  3. Develop and administer state plans for training and for certification of certified applicators consistent with federal standards;
  4. Contract for training with other agencies for the purpose of training certified applicators;
  5. Prepare and submit state plans to meet federal certification standards, as provided for in Section 4 of FIFRA; and
  6. Regulate certified applicators.

    (Ga. L. 1972, p. 849, § 23; Ga. L. 1976, p. 369, § 9.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "Section" was substituted for "section" in paragraph (5).

U.S. Code. - Section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in paragraph (5) of this Code section, is codified at 7 U.S.C. § 136b.

2-7-97. Promulgation of rules and regulations authorized; notice and hearing; restricted use pesticide classifications and state restricted pesticide uses; declaration of pests; reports to Environmental Protection Agency.

  1. The Commissioner shall administer and enforce this article. He shall have authority to issue regulations to carry out this article, after a public hearing following due notice to all interested persons, in conformance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Such regulations may prescribe methods to be used in the application of pesticides. When the Commissioner finds that such regulations are necessary to carry out the purpose and intent of this article, such regulations may relate to the time, place, manner, methods, materials, and amounts and concentrations in connection with the application of pesticides; they may restrict or prohibit the use of pesticides in designated areas during specified periods of time and shall encompass all reasonable factors which the Commissioner deems necessary to prevent damage or injury by drift or misapplication to:
    1. Plants, including forage plants, or adjacent or nearby lands;
    2. Wildlife in the adjoining or nearby areas;
    3. Fish and other aquatic life in waters in reasonable proximity to the area to be treated; and
    4. Humans, animals, or beneficial insects.
  2. In issuing such regulations, the Commissioner shall give consideration to pertinent research findings and recommendations of other agencies of this state or of the federal government. The Commissioner may require, by regulation, that notice of a proposed application of a pesticide be given to land owners in designated areas if he finds that such notice is necessary to carry out the purpose of this article.
  3. For the purpose of uniformity and in order to enter into cooperative agreements, the Commissioner may adopt "restrictive use pesticide" classifications as determined by the Environmental Protection Agency. In addition to those "restricted use pesticides" classified by the administrator of the Environmental Protection Agency, the Commissioner also may determine, by regulation, after a public hearing following due notice, "state restricted pesticide uses" for the state or for designated areas within the state. If the Commissioner determines that a pesticide use, when applied in accordance with its directions for use, warnings, cautions, and for uses for which it is registered, may cause, without additional regulatory restrictions, unreasonable adverse effects on the environment, including injury to the applicator or other persons because of acute dermal or inhalation toxicity of the pesticide, the pesticide use shall be applied only by or under the direct supervision of a certified applicator or shall be subject to such other restrictions as the Commissioner may determine.
  4. Regulations adopted under this article shall not permit any pesticide use which is prohibited by FIFRA and any regulations or orders issued thereunder.
  5. Regulations adopted under this article as to certified applicators of "restricted use pesticides" as designated under FIFRA shall not be inconsistent with the requirements of FIFRA and any regulations promulgated thereunder.
  6. The Commissioner, after notice and opportunity for hearing, is authorized to declare any form of plant or animal life, other than man and other than bacteria, viruses, and other microorganisms on or in living man or other living animals, which is injurious to health or the environment to be a pest.
  7. In order to comply with Section 4 of FIFRA, the Commissioner is authorized to make such reports to the Environmental Protection Agency, in such form and containing such information, as the agency may from time to time require.

    (Ga. L. 1972, p. 849, § 5; Ga. L. 1976, p. 369, § 5; Ga. L. 1982, p. 3, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "Section" was substituted for "section" in subsection (g).

U.S. Code. - Section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in subsection (g) of this Code section, is codified at 7 U.S.C. § 136b.

RESEARCH REFERENCES

ALR. - Validity, construction, and operation of state and municipal act or regulation requiring notice of pesticide and herbicide use, 18 A.L.R.6th 793.

2-7-98. Classification of certifications and licenses; standards for certification of applicators.

  1. The Commissioner may classify or subclassify certifications or licenses to be issued under this article, as may be necessary for the effective administration and enforcement of this article. Each classification shall be subject to separate requirements, provided that no person shall be required to pay an additional license fee if such person desires to be licensed in one or all of the license classifications provided for certified commercial pesticide applicators by the Commissioner under the authority of this Code section.
  2. The Commissioner, in promulgating regulations under this article, shall prescribe standards for the certification of applicators of pesticides. Such standards may relate to the use and handling of pesticides or to the use and handling of the pesticide or class of pesticides covered by the individual's certification and shall be relative to the hazards involved.
  3. In determining standards, the Commissioner shall consider:
    1. The characteristics of the pesticide formulation, such as the acute dermal and inhalation toxicity and the persistence, mobility, and susceptibility to biological concentration;
    2. The use experience which may reflect an inherent misuse or an unexpected good safety record which does not always follow laboratory toxicological information;
    3. The relative hazards or patterns of use, such as granular soil applications, ultralow volume or dust aerial applications, or air blast sprayer applications; and
    4. The extent of the intended use.

      Further, the Commissioner shall take into consideration the standards of the Environmental Protection Agency and is authorized to adopt such standards by regulation.

      (Ga. L. 1972, p. 849, § 6; Ga. L. 1976, p. 369, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 61C Am. Jur. 2d, Pollution Control, § 1719 et seq.

ALR. - Right of one who acquires title to, or other interest in, real property to benefit of a license previously issued by the public, permitting use of property for a specified purpose, 131 A.L.R. 1339 .

2-7-99. Licensing requirements; applications; issuance; fees; renewal.

  1. Pesticide contractor's license.
    1. REQUIRED; ADDITIONAL REQUIREMENT; FEE. No person shall engage in the business of contracting for the application of any pesticide to the lands of another within this state at any time without a pesticide contractor's license issued by the Commissioner for each business location. In addition to the pesticide contractor's license, each business location must maintain, in full-time employment during all periods of operation, at least one certified commercial pesticide applicator. The Commissioner shall require an annual fee of $55.00 for each pesticide contractor's license issued. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.
    2. APPLICATION FOR LICENSE; FORM; CONTENT. Application for a pesticide contractor's license shall be made in writing to the Commissioner on a designated form obtained from the Commissioner's office. Each application for a license shall contain information regarding the applicant's qualifications and proposed operations and shall include the following:
      1. The full name of the person applying for the license;
      2. If the applicant is a person other than an individual, the full name of each member of the firm or partnership or the names of the principal officers of the association, corporation, or group;
      3. The principal business address of the applicant in this state and elsewhere;
      4. If applicable, the name and address of an attorney in fact pursuant to the requirements of Chapter 5 of this title, the "Department of Agriculture Registration, License, and Permit Act";
      5. The model, make, horsepower, and size of any equipment used by the applicant to apply pesticides; and
      6. Any other necessary information prescribed by the Commissioner.
    3. ISSUANCE. If the Commissioner finds the applicant qualified to engage in the business of contracting for the application of pesticides commercially, if the applicant files proof of financial responsibility as required under Code Section 2-7-103, and if the applicant applying for a license to contract for aerial application of pesticides has met all of the requirements of the Federal Aviation Administration and all aeronautic requirements of this state for operation of equipment described in the application, the Commissioner shall issue a pesticide contractor's license, with any necessary limitations; provided, however, commercial aerial applicators of crop protection products and pesticide contractors applying crop protection products to agricultural crops shall not be required to file proof of financial responsibility as required under Code Section 2-7-103.  The license shall expire at the end of the calendar year of issue, unless it is revoked or suspended prior thereto by the Commissioner for cause.
  2. Certified pesticide applicator licenses.
    1. CERTIFIED PRIVATE APPLICATOR'S LICENSE.
      1. Required; competency. No individual shall purchase, use, or supervise the use of any pesticide as a private applicator unless he is licensed as a certified private applicator or is acting under the direct supervision of an individual who is licensed as a certified private applicator. The Commissioner shall require the applicant to demonstrate his competency to apply "restricted use pesticides" safely, effectively, and in such a manner as to prevent any unreasonable adverse effects on the environment. Such determination of competency shall be made on the basis of standards and procedures approved by the Environmental Protection Agency in the "Georgia Plan for Certification of Pesticide Applicators."
      2. Application for license; form; content. Application for a license shall be made in writing to the Commissioner on a designated form obtained from the Commissioner's office. Each application shall contain information regarding the applicant's qualifications and proposed operations and shall include the following:
        1. The name of the person applying for the license;
        2. The complete home address and mailing address of the applicant; and
        3. Any other information pertinent to the applicant's operation.
      3. Issuance. If the Commissioner finds the applicant qualified to use or supervise the use of "restricted use pesticides" as a private pesticide applicator, he shall issue such license, to be effective for a specified period which shall be determined by the Commissioner by regulation. There shall be no fee required for a certified private applicator's license.
    2. CERTIFIED COMMERCIAL PESTICIDE APPLICATOR'S LICENSE.
      1. Required; competency. No individual shall purchase, use, or supervise the use of any pesticide as a commercial applicator unless he is licensed as a certified commercial applicator or is acting under the direct supervision of an individual who is licensed as a certified commercial applicator. No person shall commercially apply any pesticide by aerial equipment without a certified commercial pesticide applicator license. The Commissioner shall require the applicant to demonstrate his competency to apply pesticides safely, effectively, and without any unreasonable adverse effects on the environment. Such determination of competency shall be made on the basis of standards and procedures approved by the Environmental Protection Agency in the "Georgia Plan for Certification of Pesticide Applicators."
      2. Application for license; form; content. Application for a license shall be made in writing to the Commissioner on a designated form obtained from the Commissioner's office. Each application shall contain information regarding the applicant's qualifications and proposed operations and shall include the following:
        1. The full name of the person applying for the license;
        2. The principal business address of the applicant in this state and elsewhere;
        3. If applicable, the name and address of an attorney in fact pursuant to the requirements of Chapter 5 of this title, the "Department of Agriculture Registration, License, and Permit Act"; and
        4. Any other necessary information prescribed by the Commissioner.
      3. Issuance; fees; renewal. If the Commissioner finds the applicant qualified to apply pesticides in the classification or classifications he or she has applied for, the Commissioner shall issue a certified commercial pesticide applicator's license. Effective August 21, 1980, all new certified commercial pesticide applicator licenses shall be issued for a period of five years from the date of certification. The fee for the five-year license shall be $90.00. Licenses shall be subject to renewal on the day following expiration, based on such recertification requirements as the Commissioner may establish by regulation.

        (Ga. L. 1972, p. 849, § 7; Ga. L. 1976, p. 369, § 7; Ga. L. 1980, p. 749, §§ 1, 2; Ga. L. 1982, p. 3, § 2; Ga. L. 1990, p. 1253, § 1; Ga. L. 2010, p. 9, § 1-5/HB 1055.)

Cross references. - Licensing of restricted use pesticide dealers, § 2-7-57 .

Administrative Rules and Regulations. - Recertification and applicator license renewals, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Pesticide Use and Application, Subject 40-21-4.

2-7-100. Reciprocal examination waiver.

The Commissioner may waive all or part of the examination requirements provided for in Code Sections 2-7-98, 2-7-99, and 2-7-111 on a reciprocal basis with any other state which has substantially the same standards.

(Ga. L. 1972, p. 849, § 14; Ga. L. 1976, p. 369, § 16.)

2-7-101. Renewals of licenses, permits, or certifications; penalty for late renewals.

  1. If the application for renewal of any license, permit, or certification is not filed prior to the first day of the succeeding license period, a penalty of 50 percent shall be assessed and added to the original fee and shall be paid by the applicant before the renewal license, permit, or certification is issued.
  2. Any person holding a current valid license, permit, or certification may renew such license, permit, or certification for the next year or the next license period, subject to reexamination or such other requirements as the Commissioner may impose by regulation to ensure that applicators continue to meet the needs of changing technology and to assure a continuing level of competence and ability to use pesticides safely and properly.
  3. If a license, permit, or certification is not renewed within 60 days after the beginning of a new license period, then such licensee, permittee, or certificate holder shall be required to take another examination.

    (Ga. L. 1972, p. 849, § 8; Ga. L. 1976, p. 369, § 10.)

2-7-102. Grounds for denial, suspension, revocation, or modification of license, permit, or certification.

  1. Any licensed or unlicensed person shall be subject to prosecution or civil injunctive action for committing any of the following acts, each of which is declared unlawful; and additionally, if an applicant or the holder of any license, permit, or certification is found by the Commissioner to have committed any of the following acts, or is subject to a final order imposing a civil penalty pursuant to Section 14 of FIFRA, the Commissioner may suspend any such license, permit, or certification, pending inquiry, for not longer than ten days, and, after opportunity for a hearing, may deny, suspend, or revoke such license, permit, or certification, or modify any provision thereof:
    1. Made false or fraudulent claims through any media misrepresenting the effect of pesticides or methods to be utilized;
    2. Made a pesticide recommendation or use inconsistent with the labeling, the Environmental Protection Agency or Georgia state registration for that pesticide, or in violation of the Environmental Protection Agency or Georgia state restrictions on the use of that pesticide;
    3. Applied known ineffective or improper pesticides;
    4. Operated faulty or unsafe equipment;
    5. Operated in a faulty, careless, or negligent manner;
    6. Neglected or, after notice, refused to comply with this article or the rules adopted hereunder;
    7. Refused or neglected to keep and maintain the records required by this article or to make reports when and as required;
    8. Made false or fraudulent records, invoices, or reports;
    9. Contracted to apply any pesticide to the lands of another without a licensed commercial pesticide applicator in full-time employment;
    10. Used fraud or misrepresentation in making an application for or renewal of a license, permit, or certification;
    11. Refused or neglected to comply with any limitations or restrictions on or in a duly issued license, permit, or certification;
    12. Aided or abetted a licensed or an unlicensed person to evade the provisions of this article, conspired with such a licensed or an unlicensed person to evade the provisions of this article, or allowed one's license, permit, or certification to be used by another person;
    13. Made false or misleading statements, during or after an inspection, concerning any infestation or infection of pests found on land;
    14. Impersonated any federal, state, county, or city inspector or official; or
    15. Acted in the capacity of, or advertised as, a pesticide contractor or applicator without the required license issued by the Commissioner.
  2. The Commissioner may suspend any pesticide contractor's license or any certified commercial pesticide applicator's license, pending inquiry, for not longer than ten days and, after opportunity for a hearing, may deny, suspend, or revoke such license for a period not to exceed five years upon a finding by the Commissioner that:
    1. The applicant for or holder of such a license has been convicted of or has pleaded guilty to a violation of Code Section 16-13-31;
    2. The conviction occurred or the plea was entered on or after January 1, 1984;
    3. The conviction occurred or the plea was entered within the immediately preceding five years; and
    4. An aircraft was used in the commission of such violation.
  3. The Commissioner may suspend any pesticide contractor's license or certified commercial pesticide applicator's license or refuse to grant or renew either license upon notice to the Commissioner by either a court of competent jurisdiction or the child support agency within the Department of Human Services that:
    1. The applicant for or holder of either such license is not in compliance with an order for child support as defined in Code Section 19-6-28.1 or 19-11-9.3; and
    2. The hearings and appeals procedures provided in Code Section 19-6-28.1 or 19-11-9.3, where applicable, shall be the only such procedures required under this article.
  4. The Commissioner shall not suspend any pesticide contractor's license or certified commercial pesticide applicator's license or refuse to grant or renew either license because an applicant for or holder of either such license is a borrower in default who is not in satisfactory repayment status under the Georgia Higher Education Loan Program as determined by the Georgia Higher Education Assistance Corporation or who has been certified by any entity of the federal government for nonpayment or default or breach of a repayment or service obligation under any federal educational loan, loan repayment, or service conditional scholarship program.

    (Ga. L. 1972, p. 849, § 9; Ga. L. 1976, p. 369, § 11; Ga. L. 1982, p. 3, § 2; Ga. L. 1984, p. 890, § 1; Ga. L. 1985, p. 149, § 2; Ga. L. 1996, p. 453, § 1; Ga. L. 1997, p. 143, § 2; Ga. L. 1998, p. 1094, § 1; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2019, p. 462, § 1-1/SB 214.)

The 2019 amendment, effective July 1, 2019, rewrote subsection (d), which read: "The Commissioner shall suspend any pesticide contractor's license or certified commercial pesticide applicator's license or refuse to grant or renew either license upon notice to the Commissioner by the Georgia Higher Education Assistance Corporation that:

"(1) The applicant for or holder of either such license is a borrower in default who is not in satisfactory repayment status as defined in Code Section 20-3-295; and

"(2) The hearings and appeals procedures provided in Code Section 20-3-295, where applicable, shall be the only such procedures required under this article."

Cross references. - Authority of Commissioner to impose penalties in lieu of other action, § 2-2-10 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "Section" was substituted for "section" in the introductory language of subsection (a).

U.S. Code. - Section 14 of the Federal Insecticide, Fungicide, and Rodenticide Act, referred to in the introductory paragraph of this section, is codified at 7 U.S.C. § 136 l .

2-7-103. Evidence of financial responsibility required; amount of bond, insurance, or cash deposit; notice of reduction or cancellation.

  1. Required. The Commissioner shall not issue a pesticide contractor's license until the applicant has furnished evidence of financial responsibility with the Commissioner, consisting either of a surety bond, a liability insurance policy, or a cash deposit or certification thereof, protecting persons who may suffer legal damages as a result of the operation of the applicant, provided that such surety bond, liability insurance policy, or cash deposit need not apply to damages or injury to agricultural crops, plants, or land being worked upon by the applicant.
  2. Amount; notice of reduction or cancellation by surety or insurer. The amount of surety bond, liability insurance, or cash deposit provided for in this Code section shall be set by regulation. Such surety bond, liability insurance, or cash deposit shall be maintained at not less than the minimum set by regulation at all times during the license period. The Commissioner shall be notified ten days prior to any reduction made at the request of the applicant or any cancellation of such surety bond or liability insurance by the surety or insurer. The total and aggregate liability of the surety and insurer for all claims shall be limited to the face of the bond or liability insurance policy or cash deposit. The Commissioner may accept a liability insurance policy, surety bond, or cash deposit in the proper sum, which has a deductible clause in an amount not exceeding $1,000.00 for aerial contractors and $500.00 for all other contractors, for the total amount of liability insurance, surety bond, or cash deposit required, provided that if the applicant has not satisfied the requirement of the deductible amount in any prior legal claim, such deductible clause shall not be accepted by the Commissioner, unless such applicant furnishes the Commissioner with a surety bond, liability insurance, or cash deposit which shall satisfy the amount of the deductible as to all claims that may arise in his application of pesticides. In the event that any contractor has an unpaid and outstanding judgment against him as a result of damages caused to a second party by the misuse of pesticides, he must provide a bond in an amount acceptable to the Commissioner before he can be licensed or relicensed.
  3. Personal liability for damage. Nothing in this article shall be construed to relieve any person from liability for any damage to the person or lands of another caused by the use of pesticides, even though such use conforms to the rules and regulations of the Commissioner.

    (Ga. L. 1972, p. 849, § 10; Ga. L. 1974, p. 1189, §§ 1, 2; Ga. L. 1976, p. 369, § 12; Ga. L. 1980, p. 749, § 3.)

JUDICIAL DECISIONS

"Legal damages" construed. - "Legal damages" as referred to in subsection (a) of O.C.G.A. § 2-7-103 include damages arising from the use of aircraft utilized in the application of pesticides, where the use of that aircraft leads to the injury of an employee of the insured. Kelly v. Lloyd's of London, 255 Ga. 291 , 336 S.E.2d 772 (1985).

Section prevails over insurance contract. - Any terms in an insurance contract which conflict with O.C.G.A. § 2-7-103 are void and will be superseded by the provisions of that section. Kelly v. Lloyd's of London, 255 Ga. 291 , 336 S.E.2d 772 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 61C Am. Jur. 2d, Pollution Control, § 1692 et seq.

2-7-104. Records to be kept; inspection thereof.

The Commissioner shall require licensed pesticide contractors and licensed certified commercial applicators who are not employed by or otherwise acting for a licensed pesticide contractor to maintain records with respect to applications of pesticides. Such relevant information as the Commissioner may deem necessary to be recorded and maintained may be specified by regulation. Such records shall be kept for a period of time specified by the Commissioner by regulation. The Commissioner or his authorized designee shall be permitted to inspect such records during normal business hours at the place where they are maintained. Upon request in writing, the Commissioner or his authorized designee shall be furnished with a copy of such records forthwith by the licensee.

(Ga. L. 1972, p. 849, § 12; Ga. L. 1976, p. 369, § 14.)

Administrative Rules and Regulations. - Record keeping requirements, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Pesticide Use and Application, Subject 40-21-5.

2-7-105. Equipment inspection; requirement of repairs or other changes.

The Commissioner may provide for inspection of any equipment used for application of pesticides. He may require repairs or other changes before its further use for pesticide application. A list of requirements which equipment must meet may be adopted by regulation.

(Ga. L. 1972, p. 849, § 13; Ga. L. 1976, p. 369, § 15.)

2-7-106. Transportation, storage, and disposal of pesticides and pesticide containers.

No person shall transport, store, or dispose of any pesticide or pesticide containers in such a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, or beneficial insects or in such a manner as to pollute any waterway in a way harmful to any wildlife therein. The Commissioner may promulgate rules and regulations governing the storing and disposal of such pesticides or pesticide containers. In determining these standards, the Commissioner shall take into consideration any regulations issued by the United States Environmental Protection Agency and any regulations issued by the Environmental Protection Division of the Department of Natural Resources of this state.

(Ga. L. 1972, p. 849, § 16; Ga. L. 1976, p. 369, § 18.)

Cross references. - Powers of Environmental Protection Division of Department of Natural Resources regarding management of hazardous waste, § 12-8-60 et seq.

2-7-107. Inspections; search warrants; injunctions.

  1. For the purpose of carrying out this article, the Commissioner may enter upon any public or private premises, at reasonable times, in order to:
    1. Have access for the purpose of inspecting any equipment subject to this article;
    2. Inspect or sample lands actually or reported to be exposed to pesticides;
    3. Inspect storage or disposal areas;
    4. Inspect or investigate complaints of injury to humans or land;
    5. Sample pesticides being applied or to be applied; or
    6. Observe the use and application of any pesticide.
  2. Should the Commissioner be denied access to any land, where such access was sought for the purposes set forth in this article, he may apply to any court of competent jurisdiction for a search warrant authorizing access to such land for such purposes. Upon such application, the court may issue a search warrant for the purposes requested.
  3. The Commissioner is charged with the duty of enforcing the requirements of this article and the rules and regulations promulgated hereunder.
  4. In addition to any other remedy provided in this article, the Commissioner is authorized to bring an action to enjoin a violation of any provision of this article or any rule or regulation promulgated hereunder. In such an action it shall not be necessary for the Commissioner to allege or prove the absence of an adequate remedy at law.

    (Ga. L. 1972, p. 849, § 21; Ga. L. 1976, p. 369, § 23; Ga. L. 1980, p. 749, §§ 4, 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, §§ 39 et seq., 53 et seq.

2-7-108. Subpoena powers.

The Commissioner may issue subpoenas to compel the attendance of witnesses and the production of books, documents, and records anywhere in this state in any hearing affecting the authority or privilege granted by a license, certification, or permit issued under this article.

(Ga. L. 1972, p. 849, § 20; Ga. L. 1976, p. 369, § 22.)

2-7-109. Judicial review of Commissioner's actions.

Any person aggrieved by any action of the Commissioner may obtain judicial review thereof in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

(Ga. L. 1972, p. 849, § 17; Ga. L. 1976, p. 369, § 19.)

2-7-110. Reports of pesticide accidents; claim of damage; notification; inspection; effect of failure to file; failure to permit observation as bar to claim.

  1. The Commissioner by regulation may require the reporting of significant pesticide accidents or incidents.
  2. Any person claiming damages from a pesticide application shall file with the Commissioner, on a form prescribed by the Commissioner, a written statement claiming that he has been damaged. This report shall be filed within 60 days after the date that damages occur. If a growing crop is alleged to have been damaged, the report must be filed prior to the time that 25 percent of the crop has been harvested. Such statement shall contain, but shall not be limited to, the name of the person allegedly responsible for the application of the pesticide, the name of the owner or lessee of the land on which the crop is grown and for which damage is alleged to have occurred, and the date on which the alleged damage occurred. The Commissioner shall prepare a form to be furnished for use in such cases. Such form shall also contain such other requirements as the Commissioner may deem proper. Upon receipt of such statement, the Commissioner shall notify the licensee and the owner or lessee of the land or other person who may be charged with responsibility for the damages claimed and shall furnish such copies of the statement as may be requested. The Commissioner shall inspect damages whenever possible. When he determines that a complaint has sufficient merit, he shall make such information available to the person claiming damages and to the person who is alleged to have caused the damage.
  3. The filing of a report as prescribed in subsection (b) of this Code section or the failure to file such a report need not be alleged in any complaint which might be filed in a court of law; nor shall the failure to file a report be considered any bar to the maintenance of any criminal or civil action.
  4. The failure to file a report as prescribed in subsection (b) of this Code section shall not be a violation of this article. However, if the person failing to file such report is the only one injured from the use or application of a pesticide by others, the Commissioner, when in the public interest, may refuse to hold a hearing for the denial, suspension, or revocation of a license or permit issued under this article until such report is filed.
  5. Where damage is alleged to have occurred, the claimant shall permit the Commissioner and the licensee and his representatives, including the bondsman and the insurer, to observe, within reasonable hours, the lands or nontarget organism alleged to have been damaged, in order that such damage may be examined. Failure of the claimant to permit such observation and examination of the damaged lands shall automatically bar the claim against the licensee.

    (Ga. L. 1972, p. 849, § 11; Ga. L. 1976, p. 369, § 13.)

RESEARCH REFERENCES

C.J.S. - 3 C.J.S., Agriculture, § 115 et seq.

ALR. - Products liability: fertilizers, insecticides, pesticides, fungicides, weedkillers, and the like, or articles used in application thereof, 12 A.L.R.4th 462.

2-7-111. Applicability of article to governmental entities; liability of such entities.

  1. All state agencies, municipal corporations, and other governmental agencies shall be subject to this article and rules adopted hereunder concerning the application and use of pesticides.
  2. Employees of agencies listed in subsection (a) of this Code section who use or supervise the use of restricted use pesticides restricted to use by certified applicators or state restricted pesticide uses restricted to use by certified applicators shall be subject to the requirements provided for in paragraph (2) of subsection (b) of Code Section 2-7-99, provided that the Commissioner shall issue a limited license without a fee to such public applicator who has qualified for such license. Such license shall be valid only when such applicator is acting as an applicator applying or supervising application of pesticides used by such entities. Government research personnel shall be exempt from this licensing requirement when applying pesticides, other than restricted use pesticides restricted to use by certified applicators or state restricted pesticide uses restricted to use by certified applicators, to experimental plots only. Individuals licensed pursuant to this subsection shall be certified commercial applicators for the use of "restricted use pesticides" covered by the applicant's classification.
  3. Such governmental agencies and municipal corporations shall be subject to legal recourse by any person damaged by the application of any pesticide. Such action may be brought in the county where the damage or some part thereof occurred.

    (Ga. L. 1976, p. 369, § 8.)

RESEARCH REFERENCES

ALR. - Products liability: fertilizers, insecticides, pesticides, fungicides, weedkillers, and the like, or articles used in application thereof, 12 A.L.R.4th 462.

2-7-112. Exemptions from article.

  1. Farmers. Code Section 2-7-99, relating to licenses and requirements for their issuance, shall not apply to any farmer applying pesticides classified for general use for himself or for his farmer neighbors, provided that:
    1. He operates farm property and operates and maintains pesticide application equipment primarily for his own use;
    2. He is not regularly engaged in the business of applying pesticides for hire, amounting to a principal or regular occupation, and he does not publicly hold himself out as a pesticide contractor; and
    3. He operates his pesticide application equipment only in the vicinity of his own property and for the accommodation of his neighbors.
  2. Veterinarians. Paragraph (2) of subsection (b) of Code Section 2-7-99, relating to license and requirements for their issuance, shall not apply to a doctor of veterinary medicine applying pesticides to animals during the normal course of his veterinary practice, provided that he is not regularly engaged in the business of applying pesticides for hire, amounting to a principal or regular occupation, and does not publicly hold himself out as a pesticide contractor.
  3. Experimental research. Code Section 2-7-99, relating to licenses and requirements for their issuance, shall not apply to research personnel applying pesticides, other than restricted use pesticides restricted to use by certified applicators or state restricted pesticide uses restricted to use by certified applicators, only to bona fide experimental plots.
  4. Persons subject to Structural Pest Control Act. Persons subject to Chapter 45 of Title 43, the "Structural Pest Control Act," are exempt from this article and the regulations issued hereunder with respect to any activities which are regulated under Chapter 45 of Title 43.

    (Ga. L. 1972, p. 849, § 15; Ga. L. 1976, p. 369, § 17.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2019, "Georgia" was deleted preceding "Structural Pest Control Act" in subsection (d).

2-7-113. Effect of article on certain other laws.

No provision of this article shall authorize any person to violate any of the provisions of any law or any rules or regulations adopted and promulgated thereunder, the administration and enforcement of which is assigned to the Department of Natural Resources or any division therein or to the Coastal Marshlands Protection Committee. This article shall not be construed as repealing, preempting, modifying, or limiting the authority or functions assigned to the Department of Natural Resources or its divisions or officials or to the Coastal Marshlands Protection Committee.

(Ga. L. 1976, p. 369, § 25.)

2-7-113.1. Local regulation of pesticides prohibited; variances from rule or regulation of Commissioner of Agriculture.

  1. No county, municipal corporation, consolidated government, or other political subdivision of this state shall adopt or continue in effect any ordinance, rule, regulation, or resolution relating to pesticide use, sale, distribution, storage, transportation, disposal, formulation, labeling, registration, or manufacture.  This provision shall in no way prohibit or impair the legal right of any county, municipal corporation, consolidated government, or other political subdivision of this state to issue business licenses or to make zoning decisions.
  2. The governing authority of any county or municipality may, by resolution, petition the Commissioner of Agriculture for a variance from a rule or regulation of the Commissioner because of special circumstances relating to the use or application of a pesticide. If such a petition is received by the Commissioner, it shall be the duty of the Commissioner to notify the President of the Senate, the Speaker of the House of Representatives, and the chairpersons of the Agriculture and Consumer Affairs Committee and Natural Resources and the Environment Committee of the Senate and the Agriculture and Consumer Affairs Committee and the Natural Resources and Environment Committee of the House of Representatives that such petition has been received. The Commissioner shall conduct a public hearing on such petition and issue a decision on the requested variance within 60 days of the receipt of the petition. If a decision is not given within 60 days of the receipt of the petition, the variance shall automatically be granted. The Commissioner may grant a variance requested under this subsection with or without changes. (Code 1981, § 2-7-113.1 , enacted by Ga. L. 1992, p. 3162, § 1; Ga. L. 2009, p. 303, § 2/HB 117; Ga. L. 2011, p. 752, § 2/HB 142.)

Editor's notes. - Ga. L. 2009, p. 303, § 20/HB 117, not codified by the General Assembly, provides that: "This Act is intended to reflect the current internal organization of the Georgia Senate and House of Representatives and is not otherwise intended to change substantive law. In the event of a conflict with any other Act of the 2009 General Assembly, such other Act shall control over this Act."

2-7-114. Penalties.

Any person violating any provision of this article or any regulation adopted hereunder shall be guilty of a misdemeanor.

(Ga. L. 1972, p. 849, § 19; Ga. L. 1976, p. 369, § 21.)

ARTICLE 4 PEST CONTROL COMPACT

2-7-130. Enactment; text of compact.

The Pest Control Compact is enacted into law and entered into with all other jurisdictions legally joining therein. The compact is substantially as follows:

PEST CONTROL COMPACT

A RTICLE I. FINDINGS.

The party states find that:

  1. In the absence of the higher degree of cooperation among them possible under this compact, the annual loss of approximately 25 billion dollars from the depredations of pests is virtually certain to continue, if not to increase.
  2. Because of varying climatic, geographic and economic factors, each state may be affected differently by particular species of pests but all states share the inability to protect themselves fully against those pests which present serious dangers to them.
  3. The migratory character of pest infestations makes it necessary for states both adjacent to and distant from one another, to complement each other's activities when faced with conditions of infestation and reinfestation.
  4. While every state is seriously affected by a substantial number of pests, and every state is susceptible of infestation by many species of pests not now causing damage to its crop and plant life and products, the fact that relatively few species of pests present equal danger to or are of interest to all states makes the establishment and operation of an Insurance Fund, from which individual states may obtain financial support for pest control programs of benefit to them in other states and to which they may contribute in accordance with their relative interests, the most equitable means of financing cooperative pest eradication and control programs.

A RTICLE II. DEFINITIONS.

As used in this compact, unless the context clearly requires a different construction:

  1. "State" means a state, territory or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
  2. "Requesting state" means a state which invokes the procedures of the compact to secure the undertaking or intensification of measures to control or eradicate one or more pests within one or more other states.
  3. "Responding state" means a state requested to undertake or intensify the measures referred to in subdivision (b) of this Article.
  4. "Pest" means any invertebrate animal, pathogen, parasitic plant or similar or allied organism which can cause disease or damage in any crops, trees, shrubs, grasses or other plants of substantial value.
  5. "Insurance Fund" means the Pest Control Insurance Fund established pursuant to this compact.
  6. "Governing Board" means the administrators of this compact representing all of the party states when such administrators are acting as a body in pursuance of authority vested in them by this compact.
  7. "Executive Committee" means the committee established pursuant to Article V (e) of this compact.

A RTICLE III. THE INSURANCE FUND.

There is hereby established the Pest Control Insurance Fund for the purpose of financing other than normal pest control operations which states may be called upon to engage in pursuant to this compact. The Insurance Fund shall contain monies appropriated to it by the party states and any donations and grants accepted by it. All appropriations, except as conditioned by the rights and obligations of party states expressly set forth in this compact, shall be unconditional and may not be restricted by the appropriating state to use in the control of any specified pest or pests. Donations and grants may be conditional or unconditional, provided that the Insurance Fund shall not accept any donation or grant whose terms are inconsistent with any provision of this compact.

A RTICLE IV. THE INSURANCE FUND, INTERNAL OPERATIONS AND MANAGEMENT.

  1. The Insurance Fund shall be administered by a Governing Board and Executive Committee as hereinafter provided. The actions of the Governing Board and Executive Committee pursuant to this compact shall be deemed the actions of the Insurance Fund.
  2. The members of the Governing Board shall be entitled to one vote each on such Board. No action of the Governing Board shall be binding unless taken at a meeting at which a majority of the total number of votes on the Governing Board are cast in favor thereof. Action of the Governing Board shall be only at a meeting at which a majority of the members are present.
  3. The Insurance Fund shall have a seal which may be employed as an official symbol and which may be affixed to documents and otherwise used as the Governing Board may provide.
  4. The Governing Board shall elect annually, from among its members, a chairman, a vice chairman, a secretary and a treasurer. The chairman may not succeed himself. The Governing Board may appoint an executive director and fix his duties and his compensation, if any. Such executive director shall serve at the pleasure of the Governing Board. The Governing Board shall make provision for the bonding of such of the officers and employees of the Insurance Fund as may be appropriate.
  5. Irrespective of the civil service, personnel or other merit system laws of any of the party states, the executive director, or if there be no executive director, the chairman, in accordance with such procedures as the bylaws may provide, shall appoint, remove or discharge such personnel as may be necessary for the performance of the functions of the Insurance Fund and shall fix the duties and compensation of such personnel. The Governing Board in its bylaws shall provide for the personnel policies and programs of the Insurance Fund.
  6. The Insurance Fund may borrow, accept or contract for the services of personnel from any state, the United States, or any other governmental agency, or from any person, firm, association or corporation.
  7. The Insurance Fund may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials and services, conditional or otherwise, from any state, the United States, or any other governmental agency, or from any person, firm, association or corporation, and may receive, utilize and dispose of the same. Any donation, gift or grant accepted by the Governing Board pursuant to this paragraph or services borrowed pursuant to paragraph (f) of this Article shall be reported in the annual report of the Insurance Fund. Such report shall include the nature, amount and conditions, if any, of the donation, gift, grant or services borrowed and the identity of the donor or lender.
  8. The Governing Board shall adopt bylaws for the conduct of the business of the Insurance Fund and shall have the power to amend and rescind these bylaws. The Insurance Fund shall publish its bylaws in convenient form and shall file a copy thereof and a copy of any amendment thereto with the appropriate agency or officer in each of the party states.
  9. The Insurance Fund annually shall make to the Governor and legislature of each party state a report covering its activities for the preceding year. The Insurance Fund may make such additional reports as it may deem desirable.
  10. In addition to the powers and duties specifically authorized and imposed, the Insurance Fund may do such other things as are necessary and incidental to the conduct of its affairs pursuant to this compact.

A RTICLE V. COMPACT AND INSURANCE FUND ADMINISTRATION.

  1. In each party state there shall be a compact administrator, who shall be selected and serve in such manner as the laws of his state may provide, and who shall:
    1. Assist in the coordination of activities pursuant to the compact in his state; and
    2. Represent his state on the Governing Board of the Insurance Fund.
  2. If the laws of the United States specifically so provide, or if administrative provision is made therefor within the federal government, the United States may be represented on the Governing Board of the Insurance Fund by not to exceed three representatives. Any such representative or representatives of the United States shall be appointed and serve in such manner as may be provided by or pursuant to federal law, but no such representative shall have a vote on the Governing Board or on the Executive Committee thereof.
  3. The Governing Board shall meet at least once each year for the purpose of determining policies and procedures in the administration of the Insurance Fund and, consistent with the provisions of the compact, supervising and giving direction to the expenditure of monies from the Insurance Fund. Additional meetings of the Governing Board shall be held on call of the chairman, the Executive Committee, or a majority of the membership of the Governing Board.
  4. At such times as it may be meeting, the Governing Board shall pass upon applications for assistance from the Insurance Fund and authorize disbursements therefrom. When the Governing Board is not in session, the Executive Committee thereof shall act as agent of the Governing Board, with full authority to act for it in passing upon such applications.
  5. The Executive Committee shall be composed of the chairman of the Governing Board and four additional members of the Governing Board chosen by it so that there shall be one member representing each of four geographic groupings of party states. The Governing Board shall make such geographic groupings. If there is representation of the United States on the Governing Board, one such representative may meet with the Executive Committee. The chairman of the Governing Board shall be chairman of the Executive Committee. No action of the Executive Committee shall be binding unless taken at a meeting at which at least four members of such Committee are present and vote in favor thereof. Necessary expenses of each of the five members of the Executive Committee incurred in attending meetings of such Committee, when not held at the same time and place as a meeting of the Governing Board, shall be charges against the Insurance Fund.

A RTICLE VI. ASSISTANCE AND REIMBURSEMENT.

  1. Each party state pledges to each other party state that it will employ its best efforts to eradicate, or control within the strictest practicable limits, any and all pests. It is recognized that performance of this responsibility involves:
    1. The maintenance of pest control and eradication activities of interstate significance by a party state at a level that would be reasonable for its own protection in the absence of this compact.
    2. The meeting of emergency outbreaks or infestations of interstate significance to no less an extent than would have been done in the absence of this compact.
  2. Whenever a party state is threatened by a pest not present within its borders but present within another party state, or whenever a party state is undertaking or engaged in activities for the control or eradication of a pest or pests, and finds that such activities are or would be impracticable or substantially more difficult of success by reason of failure of another party state to cope with infestation or threatened infestation, that state may request the Governing Board to authorize expenditures from the Insurance Fund for eradication or control measures to be taken by one or more of such other party states at a level sufficient to prevent, or to reduce to the greatest practicable extent, infestation or reinfestation of the requesting state. Upon such authorization the responding state or states shall take or increase such eradication or control measures as may be warranted. A responding state shall use monies made available from the Insurance Fund expeditiously and efficiently to assist in affording the protection requested.
  3. In order to apply for expenditures from the Insurance Fund, a requesting state shall submit the following in writing:
    1. A detailed statement of the circumstances which occasion the request for the invoking of the compact.
    2. Evidence that the pest on account of whose eradication or control assistance is requested constitutes a danger to an agricultural or forest crop, product, tree, shrub, grass or other plant having a substantial value to the requesting state.
    3. A statement of the extent of the present and projected program of the requesting state and its subdivisions, including full information as to the legal authority for the conduct of such program or programs and the expenditures being made or budgeted therefor, in connection with the eradication, control, or prevention of introduction of the pest concerned.
    4. Proof that the expenditures being made or budgeted as detailed in item 3 do not constitute a reduction of the effort for the control or eradication of the pest concerned or, if there is a reduction, the reasons why the level of program detailed in item 3 constitutes a normal level of pest control activity.
    5. A declaration as to whether, to the best of its knowledge and belief, the conditions which in its view occasion the invoking of the compact in the particular instance can be abated by a program undertaken with the aid of monies from the Insurance Fund in one year or less, or whether the request is for an installment in a program which is likely to continue for a longer period of time.
    6. Such other information as the Governing Board may require consistent with the provisions of this compact.
  4. The Governing Board or Executive Committee shall give due notice of any meeting at which an application for assistance from the Insurance Fund is to be considered. Such notice shall be given to the compact administrator of each party state and to such other officers and agencies as may be designated by the laws of the party states. The requesting state and any other party state shall be entitled to be represented and present evidence and argument at such meeting.
  5. Upon the submission as required by paragraph (c) of this Article and such other information as it may have or acquire, and upon determining that an expenditure of funds is within the purposes of this compact and justified thereby, the Governing Board or Executive Committee shall authorize support of the program. The Governing Board or the Executive Committee may meet at any time or place for the purpose of receiving and considering an application. Any and all determinations of the Governing Board or Executive Committee, with respect to an application, together with the reasons therefor shall be recorded and subscribed in such manner as to show and preserve the votes of the individual members thereof.
  6. A requesting state which is dissatisfied with a determination of the Executive Committee shall upon notice in writing given within 20 days of the determination with which it is dissatisfied, be entitled to receive a review thereof at the next meeting of the Governing Board. Determinations of the Executive Committee shall be reviewable only by the Governing Board at one of its regular meetings, or at a special meeting held in such manner as the Governing Board may authorize.
  7. Responding states required to undertake or increase measures pursuant to this compact may receive monies from the Insurance Fund, either at the time or times when such state incurs expenditures on account of such measures, or as reimbursement for expenses incurred and chargeable to the Insurance Fund. The Governing Board shall adopt and, from time to time, may amend or revise procedures for submission of claims upon it and for payment thereof.
  8. Before authorizing the expenditure of monies from the Insurance Fund pursuant to an application of a requesting state, the Insurance Fund shall ascertain the extent and nature of any timely assistance or participation which may be available from the federal government and shall request the appropriate agency or agencies of the federal government for such assistance and participation.
  9. The Insurance Fund may negotiate and execute a memorandum of understanding or other appropriate instrument defining the extent and degree of assistance or participation between and among the Insurance Fund, cooperating federal agencies, states and any other entities concerned.

A RTICLE VII. ADVISORY AND TECHNICAL COMMITTEES.

The Governing Board may establish advisory and technical committees composed of state, local, and federal officials, and private persons to advise it with respect to any one or more of its functions. Any such advisory or technical committee, or any member or members thereof may meet with and participate in its deliberations. Upon request of the Governing Board or Executive Committee an advisory or technical committee may furnish information and recommendations with respect to any application for assistance from the Insurance Fund being considered by such Board or Committee and the Board or Committee may receive and consider the same: provided that any participant in a meeting of the Governing Board or Executive Committee held pursuant to Article VI (d) of the compact shall be entitled to know the substance of any such information and recommendations, at the time of the meeting if made prior thereto or as a part thereof or, if made thereafter, no later than the time at which the Governing Board or Executive Committee makes its disposition of the application.

A RTICLE VIII. RELATIONS WITH NONPARTY JURISDICTIONS.

  1. A party state may make application for assistance from the Insurance Fund in respect of a pest in a nonparty state. Such application shall be considered and disposed of by the Governing Board or Executive Committee in the same manner as an application with respect to a pest within a party state, except as provided in this Article.
  2. At or in connection with any meeting of the Governing Board or Executive Committee held pursuant to Article VI (d) of this compact a nonparty state shall be entitled to appear, participate, and receive information only to such extent as the Governing Board or Executive Committee may provide. A nonparty state shall not be entitled to review of any determination made by the Executive Committee.
  3. The Governing Board or Executive Committee shall authorize expenditures from the Insurance Fund to be made in a nonparty state only after determining that the conditions in such state and the value of such expenditures to the party states as a whole justify them. The Governing Board or Executive Committee may set any conditions which it deems appropriate with respect to the expenditure of monies from the Insurance Fund in a nonparty state and may enter into such agreement or agreements with nonparty states and other jurisdictions or entities as it may deem necessary or appropriate to protect the interests of the Insurance Fund with respect to expenditures and activities outside of party states.

A RTICLE IX. FINANCE.

  1. The Insurance Fund shall submit to the executive head or designated officer or officers of each party state a budget for the Insurance Fund for such period as may be required by the laws of that party state for presentation to the legislature thereof.
  2. Each of the budgets shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. The requests for appropriations shall be apportioned among the party states as follows: one-tenth of the total budget in equal shares and the remainder in proportion to the value of agricultural and forest crops and products, excluding animals and animal products, produced in each party state. In determining the value of such crops and products the Insurance Fund may employ such source or sources of information as in its judgment present the most equitable and accurate comparisons among the party states. Each of the budgets and requests for appropriations shall indicate the source or sources used in obtaining information concerning value of products.
  3. The financial assets of the Insurance Fund shall be maintained in two accounts to be designated respectively as the "Operating Account" and the "Claims Account." The Operating Account shall consist only of those assets necessary for the administration of the Insurance Fund during the next ensuing two-year period. The Claims Account shall contain all monies not included in the Operating Account and shall not exceed the amount reasonably estimated to be sufficient to pay all legitimate claims on the Insurance Fund for a period of three years. At any time when the Claims Account has reached its maximum limit or would reach its maximum limit by the addition of monies requested for appropriation by the party states, the Governing Board shall reduce its budget requests on a pro rata basis in such manner as to keep the Claims Account within such maximum limit. Any monies in the Claims Account by virtue of conditional donations, grants or gifts shall be included in calculations made pursuant to this paragraph only to the extent that such monies are available to meet demands arising out of claims.
  4. The Insurance Fund shall not pledge the credit of any party state. The Insurance Fund may meet any of its obligations in whole or in part with monies available to it under Article IV (g) of this compact, provided that the Governing Board takes specific action setting aside such monies prior to incurring any obligation to be met in whole or in part in such manner. Except where the Insurance Fund makes use of monies available to it under Article IV (g) hereof, the Insurance Fund shall not incur any obligation prior to the allotment of monies by the party states adequate to meet the same.
  5. The Insurance Fund shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Insurance Fund shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Insurance Fund shall be audited yearly by a certified or licensed public accountant and a report of the audit shall be included in and become part of the annual report of the Insurance Fund.
  6. The accounts of the Insurance Fund shall be open at any reasonable time for inspection by duly authorized officers of the party states and by any persons authorized by the Insurance Fund.

A RTICLE X. ENTRY INTO FORCE AND WITHDRAWAL.

  1. This compact shall enter into force when enacted into law by any five or more states. Thereafter, this compact shall become effective as to any other state upon its enactment thereof.
  2. Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until two years after the executive head of the withdrawing state has given notice in writing of the withdrawal to the executive heads of all other party states. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal.

A RTICLE XI. CONSTRUCTION AND SEVERABILITY.

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating herein, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the state affected as to all severable matters.

(Code 1981, § 2-7-130 , enacted by Ga. L. 1984, p. 1021, § 1; Ga. L. 1985, p. 149, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2019, "Governing Board" was substituted for "governing board" at the beginning of the third sentence of subsection (d) of Article IV.

2-7-131. Cooperation with insurance fund.

Consistent with the law of this state and within the limits of funds appropriated or otherwise available, the departments, agencies, and officers of this state may cooperate with the insurance fund established by the Pest Control Compact.

(Code 1981, § 2-7-131 , enacted by Ga. L. 1984, p. 1021, § 1.)

2-7-132. Filing of compact bylaws and amendments.

Pursuant to Article IV (h) of the Pest Control Compact, copies of bylaws and amendments thereto shall be filed with the Commissioner of Agriculture.

(Code 1981, § 2-7-132 , enacted by Ga. L. 1984, p. 1021, § 1.)

2-7-133. Compact administrator.

The compact administrator for the Pest Control Compact for this state shall be the Commissioner of Agriculture.

(Code 1981, § 2-7-133 , enacted by Ga. L. 1984, p. 1021, § 1.)

2-7-134. Request or application for assistance from insurance fund.

Within the meaning of Article VI (b) or VIII (a) of the Pest Control Compact, a request or application for assistance from the insurance fund may be made by the Governor.

(Code 1981, § 2-7-134 , enacted by Ga. L. 1984, p. 1021, § 1.)

2-7-135. Appropriation of funds; receipt and expenditure of payments.

  1. The funds necessary to carry out this article and the Pest Control Compact shall be paid from funds appropriated to or otherwise made available to the Department of Agriculture.
  2. When any payment is made to this state pursuant to the Pest Control Compact for purposes of allowing this state to undertake or intensify a control or eradication program, such payment shall be received by the department, agency, or officer expending funds or becoming liable to expend funds for such control or eradication program. Such payment shall be expended for purposes of such control or eradication program by such department, agency, or officer; and such payment need not be paid into the general fund of the state treasury. (Code 1981, § 2-7-135 , enacted by Ga. L. 1984, p. 1021, § 1.)

2-7-136. "Executive head" defined.

As used in the Pest Control Compact, with reference to this state, the term "executive head" shall mean the Governor.

(Code 1981, § 2-7-136 , enacted by Ga. L. 1984, p. 1021, § 1.)

ARTICLE 5 BOLL WEEVIL ERADICATION

Editor's notes. - Ga. L. 1985, p. 1079, § 2 provided for an effective date for this article as follows:

"This Act shall become effective July 1, 1985, for the purposes of certifying a cotton growers' organization and conducting a referendum among cotton growers. For all other purposes, this Act shall not become effective until the states of Alabama and Florida have enacted a boll weevil eradication program similar to the program provided for in this Act."

Alabama enacted a similar program in 1984. For Alabama law, see § 2-19-120 et seq., Code of Alabama 1975. Florida enacted a similar program in 1987. For Florida law, see Fla. Stat. § 593.101 et seq. (1987), effective May 29, 1987.

By the terms of Ga. L. 1985, p. 1079, § 2, this article became effective May 29, 1987.

Administrative Rules and Regulations. - Boil Weevil eradication, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-24.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 37 et seq.

C.J.S. - 3 C.J.S., Agriculture, §§ 102 et seq., 115 et seq.

2-7-150. Short title.

This article shall be cited as the "Georgia Boll Weevil Eradication Act of 1985."

(Code 1981, § 2-7-150 , enacted by Ga. L. 1985, p. 1079, § 1.)

2-7-151. Declaration of purpose.

The boll weevil, Anthonomus grandis Boheman, is declared to be a serious pest and a menace to the cotton-growing industry. The purpose of this article is to provide for the eradication of this pest.

(Code 1981, § 2-7-151 , enacted by Ga. L. 1985, p. 1079, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, a hyphen was inserted between "cotton" and "growing" in the first sentence.

2-7-152. Definitions.

As used in this article, the term:

  1. "Bale" means a running bale of cotton averaging 500 pounds.

    (1.1) "Boll weevil" means Anthonomus grandis Boheman in any stage of development.

  2. "Certificate" means a document issued by the Commissioner certifying that a regulated article is free of the boll weevil.
  3. "Commissioner" means the Commissioner of Agriculture, any employee of the Department of Agriculture, or any other person authorized by the Commissioner to act in his or her behalf.
  4. "Department" means the Georgia Department of Agriculture.

    (4.1) "First handler" means that person who owns or operates the gin where cotton is first delivered from the cotton grower.

  5. "Host" means any plant, plant part, or product thereof, including cotton, which is capable of sustaining the boll weevil in the completion of any portion of its life cycle.
  6. "Infested" means actually infested with the boll weevil or exposed to such an extent that it would be reasonable to expect that an infestation exists.
  7. "Noncommercial cotton" means cotton intended for purposes other than processing.
  8. "Permit" means a document issued or authorized by the Commissioner providing for the movement of regulated articles to restricted destinations for limited handling, use, or processing.
  9. "Person" means an individual, corporation, company, society, association, or other business entity.
  10. "Regulated article" means any article carrying or capable of carrying the boll weevil, including, but not limited to, cotton plants, seed cotton, hosts, gin trash, and equipment which may be designated by the Commissioner. (Code 1981, § 2-7-152 , enacted by Ga. L. 1985, p. 1079, § 1; Ga. L. 1998, p. 1123, § 1; Ga. L. 2009, p. 439, § 1/SB 43.)

Editor's notes. - Ga. L. 1998, p. 1123, § 5, not codified by the General Assembly, provides that: "This Act is not severable. In the event any section, subsection, sentence, clause, or phrase of this Act shall be declared or adjudged invalid or unconstitutional, the other sections, subsections, sentences, clauses, or phrases of this Act shall automatically be repealed and Article 5 of Chapter 7 of Title 2 of the Official Code of Georgia Annotated in effect immediately prior to the enactment of this Act is reenacted as of such date as if this Act had not been enacted. The General Assembly declares that it would not have passed the remaining parts of this Act if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional."

2-7-153. Administration and enforcement by Commissioner.

The Commissioner is authorized to administer and enforce the provisions of this article through the utilization of personnel and facilities of the department.

(Code 1981, § 2-7-153 , enacted by Ga. L. 1985, p. 1079, § 1.)

2-7-154. Powers of Commissioner.

The Commissioner is authorized to:

  1. Cooperate with and, as he may deem necessary, enter into written agreements with any other agency of this state, any agency of the federal government, any agency of another state, any person who may be engaged in the growing, processing, marketing, or handling of cotton, or any other person for the purpose of cost sharing or assignment of duties and responsibilities in destroying and eradicating the boll weevil in Georgia;
  2. Inspect or cause to be inspected by duly authorized employees or agents any land, plants, plant products, or other articles, things, or substances that may, in his opinion, be capable of disseminating or carrying the boll weevil. For this purpose, the Commissioner or his employees and agents shall have the power to enter into or upon any place and to open any bundle, package, or other container containing or thought to contain any regulated article or other item capable of disseminating or carrying the boll weevil;
  3. Require every person growing cotton in this state to furnish, on forms supplied by the Commissioner, such information as he may require relating to the size and location of all commercial and noncommercial cotton fields or patches being grown in this state;
  4. Quarantine this state or any portion thereof or any other state or portion thereof when, after hearing, he determines that such action is necessary to prevent or reduce the spread of the boll weevil;
  5. Adopt, after hearing, such rules as he deems necessary to prevent or reduce the spread of the boll weevil, including but not limited to rules:
    1. Governing the movement of regulated articles into, out of, or within this state;
    2. Establishing eradication zones within the state where eradication efforts will be undertaken;
    3. Restricting or prohibiting the planting of cotton in eradication zones when he determines that it would jeopardize the success of the eradication effort or present a hazard to the public health or safety;
    4. Requiring that all growers of commercial cotton in the designated eradication zones participate in the eradication program, including cost sharing through assessment;
    5. Establishing penalty fees for those growers in eradication zones who fail to comply with the rules adopted by the Commissioner; or
    6. Imposing restrictions on pasturing of livestock, entry by humans, and location of honeybee colonies in any eradication zone which has been or is to be treated with pesticides for eradication of the boll weevil or in any other area affected by such treatments;
  6. Enter upon any premise, property, or field within an eradication zone and treat with pesticides or destroy any volunteer or noncommercial cotton when he determines that such action is necessary to the success of the eradication efforts;
  7. Require the destruction of commercial cotton in an eradication zone when it is not being grown in compliance with the rules adopted under this article; and
  8. Exempt from the assessment penalty requirements set forth in this article those cotton growers for whom paying the assessment penalties would impose an undue financial hardship.  The Commissioner is authorized to establish, upon the recommendation of the cotton growers' organization certified pursuant to Code Section 2-7-155 , a payment plan in such hardship cases.  This exemption shall be implemented as follows:
    1. The Commissioner shall adopt rules and regulations defining the criteria to be used in determining financial hardship; provided, however, that no exemption shall be granted to any cotton grower who, after the amount of assessments and penalties otherwise due has been subtracted from his taxable net income, as defined in Code Section 48-7-27 , has a net income exceeding $15,000.00 for the year in which he seeks an exemption;
    2. Any cotton grower who claims an exemption shall apply on a form prescribed by the Commissioner.  A separate application shall be filed for each calendar year in which a cotton grower claims an exemption.  Each application shall contain an explanation of the conditions to be met for approval.  An oath shall be included on the form and the form, upon completion, shall be returned to the Commissioner;
    3. The Commissioner shall forward all completed exemption application forms to the cotton growers' organization certified pursuant to Code Section 2-7-155 .  The certified growers' organization shall determine from the information contained in the application forms whether or not the applicants qualify for a hardship exemption and may recommend a payment plan to the Commissioner; and
    4. The certified cotton growers' organization shall notify the Commissioner of its determination, which shall be binding upon the applicants. Upon receipt of the determination of the certified cotton growers' organization, the Commissioner shall promptly notify each affected cotton grower of that determination.  If an exemption has been denied, assessments and penalties for the year in which the application was made will become due at the time they would otherwise have become due had no application for exemption been filed or within 30 days after the date of the Commissioner's notice of an adverse determination, whichever is later. (Code 1981, § 2-7-154 , enacted by Ga. L. 1985, p. 1079, § 1; Ga. L. 1991, p. 452, § 1.)

2-7-155. Certification of cotton growers' organization by Commissioner; effect of certification; powers of organization; liability.

  1. The Commissioner is authorized to certify a cotton growers' organization for the purpose of entering into agreements with the department, agencies of other states, the federal government, or any other person as may be necessary to carry out the purposes of this article. In applying to the Commissioner for certification, the cotton growers' organization shall demonstrate that:
    1. It is a nonprofit organization within the meaning of Section 501(a) of the Internal Revenue Code (26 U.S.C. Section 501(a));
    2. Membership is open to all cotton growers in this state;
    3. It has only one class of members and each member has only one vote;
    4. Its board of directors consists of six cotton growers elected by the membership and one employee of the department;
    5. All books and records of account and minutes of proceedings of the organization are available for inspection or audit by the Commissioner upon request at any reasonable time; and
    6. Any employee or agent of the organization who handles its funds is adequately bonded.
  2. If the Commissioner finds that the growers' organization meets the requirements set forth in subsection (a) of this Code section, he shall certify the organization, in writing, for the purposes of this article only, and such certification shall not affect any other organization of cotton growers established for other purposes. The Commissioner is authorized to revoke such certification if at any time the organization fails to meet the certification requirements or the purposes of this article.
    1. The certified cotton growers' organization:
      1. Shall be a public corporation and may contract and be contracted with, implead and be impleaded, and complain and defend in all courts; and
      2. Shall be governed by a board of directors which shall name its chairman, vice chairman, and secretary and determine a quorum for the transaction of its business.
    2. The certified cotton growers' organization is authorized to appoint advisory boards, special committees, legal counsel, and technical and clerical personnel to advise, aid, and assist the organization in the performance of its duties and to fix, if necessary, any compensation for such services.
    3. The members, officers, and employees of the cotton growers' organization operating under this article shall not be held individually responsible in any way whatsoever to any grower or other person for errors in judgment, mistakes, or other acts of omission or commission, other than their own individual acts of dishonesty or crime. No member, officer, or employee shall be held individually responsible for any act or omission of any other member of such organization. The liability of the members of the growers' organization shall be several and not joint, and no member shall be liable for the default of any other member.
    4. The certified cotton growers' organization is authorized to borrow money or otherwise incur indebtedness and to expend the moneys so acquired for the purpose of destroying and eradicating the boll weevil in Georgia. Any indebtedness created pursuant to this paragraph shall be repaid from the assessments on cotton growers provided for in Code Section 2-7-156 or from other funds available to the certified cotton growers' organization and shall not constitute a debt of the State of Georgia or any department, agency, political subdivision, official, or employee thereof. Funds borrowed under this paragraph may be expended by the certified cotton growers' organization for the purpose of reducing the annual assessment or increasing the number of years over which cotton growers are required to pay assessments under this article. (Code 1981, § 2-7-155 , enacted by Ga. L. 1985, p. 1079, § 1; Ga. L. 1986, p. 1086, § 1; Ga. L. 1987, p. 191, § 9.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2019, "26 U.S.C. Section 501(a)" was substituted for "26 USC 501(a)" near the end of paragraph (a)(1).

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

2-7-156. Assessment for suppression and eradication programs; conditions.

An assessment shall be levied upon all cotton growers in this state to cover, in whole or in part, the cost of boll weevil suppression and eradication programs authorized by this article, subject to the following:

  1. All assessments imposed on cotton shall be levied on a per acre or per bale basis as determined by the Commissioner upon recommendation of the cotton growers' organization; provided, however, that the per acre assessment shall continue to be used so long as acreage certification is available to the department;
  2. The per acre or per bale assessment, the period for which it shall be levied, and the geographical area to which the assessment applies shall be established by the Commissioner, upon recommendation by the board of directors of the cotton growers' organization;
  3. When the assessment is imposed on a per bale basis, it shall be the duty of each first handler of cotton from cotton growers in this state to collect the assessments imposed pursuant to this article on such cotton, to file reports on forms prescribed by the Commissioner listing such sales and the name of the grower, and to remit the amounts so imposed and collected to the Commissioner within 30 days of the date of purchase of the cotton;
  4. The Commissioner of Agriculture is authorized, and it shall be the Commissioner's duty, to receive, collect, hold in trust, and disburse all assessments and any other funds created under this article as trust funds of the cotton growers' organization, without complying with the requirements applicable to funds collected for the use and benefit of the state. Such funds shall not be required to be deposited in the state treasury and appropriated therefrom. All moneys collected by the Commissioner shall be deposited in a bank or other depository approved by the growers' organization and shall be disbursed by the Commissioner only upon the written authorization of the certified cotton growers' organization for the administration and implementation of the boll weevil eradication program. Should the eradication program be discontinued or certification of the growers' organization be revoked by the Commissioner, the assessments authorized by this article shall be discontinued on the date specified by the Commissioner and any funds remaining in its hands at such time are authorized to be paid out by the Commissioner for existing obligations and for winding up the affairs of the certified cotton growers' organization. Any funds remaining over and above those required for completing the business of the cotton growers' organization shall be paid by the Commissioner to the contributing growers on a pro rata basis;
  5. Records maintained by the Commissioner on behalf of the certified cotton growers' organization shall be audited at least annually by the state auditor;
  6. The Commissioner shall have a lien for the payment of assessments under this article which shall be of equal dignity with liens for taxes in favor of the state. The Commissioner is authorized to issue executions for the collection of such assessments in like manner as executions are issued for ad valorem property taxes due the state. It shall be the duty of each and every sheriff of this state and their lawful deputies, upon request of the Commissioner, to levy and collect such executions and to make their return thereof to the Commissioner in like manner as such tax executions are levied and return thereof made to county tax collectors and tax commissioners; provided, however, that the Commissioner shall be authorized to levy and collect his or her own executions;
  7. In addition to the lien provided in paragraph (6) of this Code section, the Commissioner shall have a special lien on cotton for payment of assessments which shall be superior to any other lien provided by law, shall arise as of the time the assessments become due and payable, and shall cover all cotton grown by or ginned from the cotton grower from the date the lien arises until such assessments are paid; provided, however, that any buyers of cotton shall take free of such lien if such buyer has not received written notice of the lien from the Commissioner. Such lien extends to the proceeds of sale received by the person who originally bought the cotton from the grower. Notice may be provided by tagging the cotton as being subject to a delinquency or by documentation in the sales agreement indicating that the cotton is subject to a delinquency. The Commissioner or the Commissioner's authorized representative is authorized and empowered to so tag the cotton wherever found. In order to enforce such liens, the Commissioner is authorized to issue an execution for the collection of delinquent assessments due the Commissioner. The execution shall be directed to all and singular sheriffs of this state and shall command them to levy upon the cotton of the cotton grower or notified initial buyer; provided, however, that the Commissioner shall be authorized to levy and collect his or her own executions. Each sheriff or the Commissioner or the Commissioner's authorized representative shall execute the execution as in cases of writs of execution from the superior courts. The Commissioner or the Commissioner's authorized representative may levy and conduct judicial sales in the manner provided by law for sales by sheriffs and constables. The special lien on cotton may also be enforced by a foreclosure action or action at law, as appropriate, brought by the Commissioner in the superior court of the county of residence of the person who originally bought the cotton from the grower. A buyer of cotton other than a person buying cotton from the grower takes free of the lien created by this paragraph. (Code 1981, § 2-7-156 , enacted by Ga. L. 1985, p. 1079, § 1; Ga. L. 1986, p. 1086, § 2; Ga. L. 1990, p. 5, § 1; Ga. L. 1991, p. 452, § 2; Ga. L. 1998, p. 1123, § 2; Ga. L. 2009, p. 439, § 2/SB 43.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, "Code section" was substituted for "subsection" in paragraph (7).

Editor's notes. - Ga. L. 1998, p. 1123, § 5, not codified by the General Assembly, provides that: "This Act is not severable. In the event any section, subsection, sentence, clause, or phrase of this Act shall be declared or adjudged invalid or unconstitutional, the other sections, subsections, sentences, clauses, or phrases of this Act shall automatically be repealed and Article 5 of Chapter 7 of Title 2 of the Official Code of Georgia Annotated in effect immediately prior to the enactment of this Act is reenacted as of such date as if this Act had not been enacted. The General Assembly declares that it would not have passed the remaining parts of this Act if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional." This Act became effective July 1, 1998.

2-7-156.1. Assessment Advisory Committee created; composition; eligibility of members; duties.

Repealed by Ga. L. 1998, p. 1123, § 3, effective March 24, 2010.

Editor's notes. - This Code section was based on Code 1981, § 2-7-156.1 , enacted by Ga. L. 1998, p. 1123, § 3.

2-7-157. Prohibited activities.

It shall be unlawful:

  1. To plant cotton in any eradication zone in which planting has been prohibited by the Commissioner;
  2. To alter, forge, counterfeit, or engage in the unauthorized use of any certificate, permit, or other document provided for in this article; or
  3. To store or handle any regulated article in the eradication zone or to move a regulated article into, through, or from the eradication zone in violation of the purposes of this article. (Code 1981, § 2-7-157 , enacted by Ga. L. 1985, p. 1079, § 1.)

2-7-158. Penalties.

  1. Any person violating any provision of this article shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than $50.00 nor more than $1,000.00 or by imprisonment not exceeding 12 months, or both, as determined by the court.
  2. Any cotton grower or the first handler of cotton from a cotton grower who fails to pay any assessment levied under this article when due and upon reasonable notice shall be subject to a penalty of not more than $25.00 per acre or $12.50 per bale, such amount to be established by the Commissioner upon recommendation of the board of directors of the cotton growers' organization.
  3. Any cotton grower who fails to pay all assessments, including penalties, within 30 days from the date of notice shall be required to destroy all cotton plants growing on his or her property which are subject to assessment. Any plants not destroyed shall be deemed to be a public nuisance. In such case, the Commissioner is authorized to apply to any court of competent jurisdiction and such court shall issue judgment and order condemnation and destruction of such nuisance. The grower shall be liable for all court costs, fees, and other expenses incurred in such action. (Code 1981, § 2-7-158 , enacted by Ga. L. 1985, p. 1079, § 1; Ga. L. 1991, p. 452, § 3; Ga. L. 1998, p. 1123, § 4; Ga. L. 2009, p. 439, § 3/SB 43.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, "12" was substituted for "twelve" in subsection (a).

Editor's notes. - Ga. L. 1998, p. 1123, § 5, not codified by the General Assembly, provides that: "This Act is not severable. In the event any section, subsection, sentence, clause, or phrase of this Act shall be declared or adjudged invalid or unconstitutional, the other sections, subsections, sentences, clauses, or phrases of this Act shall automatically be repealed and Article 5 of Chapter 7 of Title 2 of the Official Code of Georgia Annotated in effect immediately prior to the enactment of this Act is reenacted as of such date as if this Act had not been enacted. The General Assembly declares that it would not have passed the remaining parts of this Act if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional." This Act became effective July 1, 1998.

ARTICLE 6 LIABILITY FOR USE OF FERTILIZERS, PLANT GROWTH REGULATORS, OR PESTICIDES

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 46.

C.J.S. - 3 C.J.S., Agriculture, §§ 93 et seq., 102 et seq., 115 et seq.

ALR. - Exterminator's tort liability for personal injury or death resulting from operations, 29 A.L.R.4th 987.

2-7-170. Liability resulting from use or application of fertilizer, plant growth regulator, or pesticide; previous orders issued by Department of Agriculture and Department of Natural Resources; strict tort liability against product manufacturers.

  1. No person, firm, or corporation engaged in an agricultural, silvicultural, farming, horticultural, or similar operation, place, establishment, or facility, or any of its appurtenances, who has applied or used or arranged for the application or use of any fertilizer, plant growth regulator, or pesticide as defined in the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135, et seq., as amended by the Federal Environmental Pesticide Control Act of 1972, 7 U.S.C. 136, et seq., and Article 2 of this chapter, known as the "Georgia Pesticide Control Act of 1976," and Article 3 of this chapter, known as the "Georgia Pesticide Use and Application Act of 1976," shall be responsible or liable under this title, without proof of negligence or lack of due care, for any damages, response costs, or injunctive relief relating to any direct or indirect discharge or release into, or actual or threatened pollution of, the land, waters, air, or other resources of the state that is or may be associated with or resulting from such application or use, provided that:
    1. Such application or use was in a manner consistent with the labeling of such fertilizer, plant growth regulator, or pesticide and in accordance with acceptable agricultural management practices and all applicable state and federal laws and regulations at the time of such application or use;
    2. The state or federal government, or any of its agencies, had approved, recommended, or permitted the application or use and there is no finding that any conditions of such approval, recommendation, or permit were violated or that warnings or limitations regarding the application or use were ignored; and
    3. Such fertilizer, plant growth regulator, or pesticide was licensed by or registered with the state or federal government at the time of such application or use and such person, firm, or corporation knew of no special geological, hydrological, or soil type condition existing on the land which rendered such application or use likely to cause pollution. No person, firm, or corporation shall be liable based solely on ownership of the land where such application or use took place.
  2. Nothing in this article shall affect or limit any right of action of an individual against any person, firm, or corporation engaged in an agricultural or farming operation for injury to person or property resulting from such chemical application or use.
  3. All orders issued by the Department of Agriculture and the Department of Natural Resources prior to July 1, 1988, pursuant to this title and Title 12, and the liability upon which such orders are premised, if any, shall remain in effect unless the orders are otherwise revoked, amended, or modified by the Commissioner of Agriculture or the commissioner of natural resources.
  4. Nothing in this article shall be construed to prohibit any cause of action based on strict tort liability against any manufacturer of such fertilizer, plant growth regulator, or pesticide. (Code 1981, § 2-7-170 , enacted by Ga. L. 1988, p. 1409, § 1; Ga. L. 1989, p. 502, § 1; Ga. L. 1990, p. 8, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, "natural resources" was substituted for "Natural Resources" at the end of subsection (c).

RESEARCH REFERENCES

ALR. - Common-law strict liability in tort of prior landowner or lessee to subsequent owner for contamination of land with hazardous waste resulting from prior owner's or lessee's abnormally dangerous or ultrahazardous activity, 13 A.L.R.5th 600.

Federal pre-emption of state common-law products liability claims pertaining to pesticides, 101 A.L.R. Fed. 887.

ARTICLE 7 FERAL HOGS

2-7-200. "Feral hog" defined.

As used in this article, the term "feral hog" has the meaning provided by Code Section 27-1-2.

(Code 1981, § 2-7-200 , enacted by Ga. L. 2015, p. 1352, § 3/HB 475.)

2-7-201. Transport of live feral hogs; permit required.

  1. No person shall transport live feral hogs anywhere in this state unless authorized to do so pursuant to a feral hog transport permit carried on such person while engaging in the transport of such feral hogs.
    1. Upon request by any person, the department shall issue a feral hog transport permit authorizing such person to transport live feral hogs; provided, however, that such permit shall only authorize the transportation of live feral hogs directly to slaughter, to a slaughtering facility, or to any other type of facility approved and licensed by the department, unless otherwise directed pursuant to an order issued by the state veterinarian.
    2. The cost of a feral hog transport permit shall not exceed $15.00.
  2. The department may require a license for the operation of any facility which holds but does not slaughter live feral hogs. The cost of such license shall not exceed $100.00.
  3. Any fees for licenses collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.
  4. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and shall be punished as provided by Code Section 17-10-4 ; provided, however, that if a fine is imposed pursuant to such Code section, such fine shall be not less than $1,500.00. In addition, any license or permit previously issued under Title 27 to any such person shall by operation of law be revoked and shall not be reissued for a period of three years after the date of conviction. Such person shall be notified of the revocation by the Department of Natural Resources either personally or by a letter sent by certified mail or statutory overnight delivery to the name and address indicated on the application for the license or permit, or both, or to the Secretary of State as provided in Code Section 27-2-24 . (Code 1981, § 2-7-201 , enacted by Ga. L. 2015, p. 1352, § 3/HB 475.)

2-7-202. Commingling feral hogs with domestic swine prohibited.

No person shall commingle feral hogs with domestic swine or hold feral hogs on any premises where domestic swine are located.

(Code 1981, § 2-7-202 , enacted by Ga. L. 2015, p. 1352, § 3/HB 475.)

2-7-203. Penalty for violation.

Except as provided in subsection (e) of Code Section 2-7-201, any person who violates any provision of this article shall be guilty of a misdemeanor.

(Code 1981, § 2-7-203 , enacted by Ga. L. 2015, p. 1352, § 3/HB 475.)

2-7-204. Promulgation of rules and regulations.

The department may promulgate all rules and regulations necessary to administer the provisions of this article.

(Code 1981, § 2-7-204 , enacted by Ga. L. 2015, p. 1352, § 3/HB 475.)

CHAPTER 8 AGRICULTURAL COMMODITIES PROMOTION

Purpose of Chapter.

Promotion of Agricultural Commodities.

Agricultural Commodity Commissions Generally.

Agricultural Commodity Commission for Peanuts.

Agricultural Commodity Commission for Georgia Grown Products.

Agricultural Commodity Commission for Equines.

Agricultural Commodity Commission for Propane.

Cross references. - Promotion of agricultural products, Ga. Const. 1983, Art. VII, Sec. III, Para. II.

Georgia Development Authority, T. 50, C. 10.

Administrative Rules and Regulations. - Agricultural Commodity Commissions, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-26.

JUDICIAL DECISIONS

Cited in Campbell v. Farmer, 223 Ga. 605 , 157 S.E.2d 276 (1967).

OPINIONS OF THE ATTORNEY GENERAL

Powers and duties of commission governed by this chapter. - The creation, powers, and duties of any agricultural commodity commission are subject to the provisions of this chapter and are governed and controlled thereby. 1976 Op. Att'y Gen. No. 76-4.

Assessment program not authorized. - Absent a constitutional amendment, a program to assess testing of equines for equine infectious anemia cannot be established under the authority of O.C.G.A. T. 2, Ch. 8 or through amendment thereof. 1995 Op. Att'y Gen. No. 95-18.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 19 et seq.

C.J.S. - 3 C.J.S., Agriculture, §§ 51, 68 et seq., 185 et seq.

ARTICLE 1 PURPOSE OF CHAPTER

2-8-1. Short title.

This chapter may be cited as the "Georgia Agricultural Commodities Promotion Act."

(Ga. L. 1961, p. 301, § 2; Ga. L. 1969, p. 763, § 3; Ga. L. 1989, p. 1420, § 1.)

2-8-2. Intent and purpose of chapter.

It is the intent and purpose of this chapter to implement Article VII, Section III, Paragraph II(b) of the Constitution of Georgia, providing for the promotion of the production, marketing, sale, use and utilization, processing, and improvement of agricultural products. The provisions of this chapter which provide for the financing of the cost of programs authorized under this chapter are expressly found, determined, and declared to be an exercise of the authority vested in the General Assembly by this provision of the Constitution. It is the purpose of this chapter to promote agricultural products and commodities, provide education related to such agricultural products and commodities, and promote research concerning such agricultural products and commodities.

(Ga. L. 1961, p. 301, § 1; Ga. L. 1969, p. 763, § 2; Ga. L. 1983, p. 3, § 46; Ga. L. 1989, p. 1420, § 1.)

Law reviews. - For article, "Agricultural Commodities Promotion," see 30 Ga. St. U. L. Rev. 1 (2013).

ARTICLE 1A PROMOTION OF AGRICULTURAL COMMODITIES

2-8-5. Definitions.

  1. As used in this Code section, the term:
    1. "Agricultural commodities" means any and all agricultural, horticultural, floricultural, and vegetable products produced in this state or any class, variety, or utilization thereof, either in their natural state or as processed by a producer for the purpose of marketing such product or by a processor, and shall include any one, any combination thereof, or all of the agricultural products, livestock and livestock products, poultry and poultry products, timber and timber products, fish and seafood, and the products of the farms and forests of this state.
    2. "Processor" has the meaning provided by Code Section 2-8-11.
    3. "Producer" has the meaning provided by Code Section 2-8-11.
  2. The Commissioner shall be authorized to take all actions necessary and appropriate to create, register, license, promote, and protect a trademark for use in connection with the general promotion of agricultural commodities as being Georgia grown. (Code 1981, § 2-8-5 , enacted by Ga. L. 2009, p. 446, § 3/SB 152.)

ARTICLE 2 AGRICULTURAL COMMODITY COMMISSIONS GENERALLY

2-8-10. Nonapplicability of article to Agricultural Commodity Commission for Peanuts, Agricultural Commodity Commission for Equines, Agricultural Commodity Commission for Georgia Grown Products; or Agricultural Commodity Commission for Propane.

This article shall not apply to the Agricultural Commodity Commission for Peanuts provided for in Article 3 of this chapter, except as provided in Code Section 2-8-13; nor shall this article apply to the Agricultural Commodity Commission for Equines provided for in Article 5 of this chapter; nor shall this article apply to the Agricultural Commodity Commission for Georgia Grown Products provided for in Article 4 of this chapter; nor shall this article apply to the Agricultural Commodity Commission for Propane provided for in Article 6 of this chapter.

(Code 1981, § 2-8-10 , enacted by Ga. L. 1989, p. 1420, § 1; Ga. L. 2006, p. 632, § 1/SB 380; Ga. L. 2013, p. 74, § 2/HB 298; Ga. L. 2019, p. 91, § 2/HB 512.)

The 2019 amendment, effective April 18, 2019, added "; nor shall this article apply to the Agricultural Commodity Commission for Propane provided for in Article 6 of this chapter" at the end of this Code section.

Editor's notes. - Ga. L. 2006, p. 632, § 2/SB 380, not codified by the General Assembly, provides that the 2006 amendment became effective January 1, 2007, only upon ratification of a constitutional amendment by the voters at the November 2006 general election. The constitutional amendment (Ga. L. 2006, p. 1112) was approved by a majority of the qualified voters voting at the general election held on November 7, 2006.

Law reviews. - For article, "Agricultural Commodities Promotion," see 30 Ga. St. U. L. Rev. 1 (2013).

2-8-11. Definitions.

As used in this article, the term:

  1. "Advertising and sales promotion" means, in addition to the ordinarily accepted meaning thereof, trade promotion and activities for the prevention, modification, or removal of trade barriers which restrict the normal flow of agricultural commodities to market and may include the presentation of facts to and negotiations with state, federal, or foreign governmental agencies on matters which affect the marketing of any commodity or commodities included in any marketing order made effective pursuant to this article.
  2. "Agricultural commodity" means any and all agricultural, horticultural, floricultural, and vegetable products produced in this state or any class, variety, or utilization thereof, either in their natural state or as processed by a producer for the purpose of marketing such product or by a processor as defined in this Code section, and shall include any one, any combination thereof, or all of the agricultural products, livestock and livestock products, poultry and poultry products, timber and timber products, fish and seafood, and the products of the farms and forests of this state. For the purpose of this article, the term "agricultural commodity" shall not mean or include peanuts.
  3. "Commission" means each and every agricultural commodity commission created under this article.
  4. "Distributor" means any person who engages in the operation of selling, marketing, or distributing an agricultural commodity which he has produced or has purchased or acquired from a producer or which he is marketing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise, but shall not include a retailer as defined in this Code section, except a retailer who purchases or acquires from, or handles on behalf of, any producer, an agricultural commodity not theretofore subjected to regulation by the marketing order covering such commodity.
  5. "Handler" means any person engaged within this state as a distributor in the business of distributing an agricultural commodity or any person engaged as a processor in the business of processing an agricultural commodity.
  6. "Marketing order" means an order issued pursuant to this article prescribing rules and regulations governing the processing, distributing, or handling in any manner of any agricultural commodity within this state or establishing an assessment for financing the programs established under this article.
  7. "Person" means an individual, firm, corporation, association, or any other business unit or any combination thereof and includes any state agency which engages in any of the commercial activities regulated pursuant to this article.
  8. "Processor" means any person engaged within this state in the operation of receiving, grading, packing, canning, fermenting, distilling, extracting, preserving, grinding, crushing, or changing the form of an agricultural commodity for the purpose of preparing such agricultural commodity for market or of marketing such commodity or engaged in any other activities performed for the purpose of preparing such commodity for market or of marketing such commodity but shall not include a person engaged in manufacturing another and different product from an agricultural commodity, so changed in form. The term "processor" shall not include an agent of the processor nor any person who receives an agricultural commodity for or on the account of another person.
  9. "Producer" means any person engaged within this state in the business of producing or causing to be produced for market any agricultural commodity as defined in this Code section. In the case of the Agricultural Commodity Commission for Wine and Grapes, such term means a farm winery as defined in subsection (a) of Code Section 3-6-21.1.
  10. "Producer marketing" or "marketed by producers" means any or all operations performed by any producer in preparing for market and includes selling, delivering, or disposing of, for commercial purposes, any agricultural commodity which he has produced to any handler as defined in this Code section.
  11. "Retailer" means any person who purchases or acquires any agricultural commodity for resale at retail to the general public for consumption off the premises; however, such person shall also be included within the definition of "distributor," as set forth in this Code section, to the extent that he engages in the business of a distributor as defined in this Code section.
  12. "Seasonal marketing regulations" means marketing regulations, applicable to a particular marketing order, made effective as prescribed in this article for the purpose of carrying into effect, by administrative order, the marketing regulatory authorizations and the provisions of such marketing order, as such authorizations or provisions may be applicable to or required by changing economic or marketing conditions and requirements from time to time during each marketing season in which such marketing order may operate. Such seasonal marketing regulations shall not extend beyond the marketing order concerned; nor shall they modify or change the language of such marketing order.
  13. "To distribute" means to engage in the business of a distributor as defined in this Code section.
  14. "To handle" means to engage in the business of a handler as defined in this Code section.
  15. "To process" means to engage in the business of a processor as defined in this Code section. (Ga. L. 1961, p. 301, § 3; Ga. L. 1964, p. 141, § 1A; Ga. L. 1968, p. 398, § 1; Ga. L. 1969, p. 763, § 4; Code 1981, § 2-8-3; Code 1981, § 2-8-11 , as redesignated by Ga. L. 1989, p. 1420, § 1; Ga. L. 2020, p. 611, § 1/HB 1093.)

The 2020 amendment, effective August 3, 2020, added the last sentence in paragraph (9).

JUDICIAL DECISIONS

Cited in Herrin v. Opatut, 248 Ga. 140 , 281 S.E.2d 575 (1981).

OPINIONS OF THE ATTORNEY GENERAL

"Business unit" applies in determining eligibility to vote in referendum. - The "business unit" engaged in the producing of an affected commodity is the appropriate criterion to apply in determining eligibility to vote in commodity commission referendum. 1970 Op. Att'y Gen. No. 70-168.

Each "business unit" is entitled to cast one vote. 1970 Op. Att'y Gen. No. 70-168.

"Producer." - "Producer" is party responsible for assessments levied by commission. 1976 Op. Att'y Gen. No. 76-4.

"Producer" is also the individual to whom voting rights in the commission referenda must devolve. 1976 Op. Att'y Gen. No. 76-4.

2-8-12. Commissioner to administer and enforce article.

The Commissioner shall be authorized to exercise supervisory jurisdiction over the administration and enforcement of this article. In the performance of this duty, he is authorized to utilize the personnel and facilities of the department.

(Ga. L. 1961, p. 301, § 4; Ga. L. 1969, p. 763, § 5; Code 1981, § 2-8-4; Code 1981, § 2-8-12 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-13. Ratification of previously established commissions and establishment of additional commissions; contributions deemed voluntary; balloting to determine continued existence.

    1. Each of the following commissions heretofore established pursuant to the "Georgia Agricultural Commodities Promotion Act," (Ga. L. 1961, p. 301), as amended, effective from the date set forth below opposite its name, is ratified and confirmed as a public corporation and instrumentality of the State of Georgia from and since such date:
      1. The Agricultural Commodity Commission for Milk established July 1, 1961;
      2. The Agricultural Commodity Commission for Eggs established July 1, 1961;
      3. The Agricultural Commodity Commission for Peanuts established August 1, 1961;
      4. The Agricultural Commodity Commission for Sweet Potatoes established August 1, 1961;
      5. The Agricultural Commodity Commission for Peaches established May 1, 1962;
      6. The Agricultural Commodity Commission for Tobacco established July 1, 1962;
      7. The Agricultural Commodity Commission for Apples established August 1, 1962; and
      8. The Agricultural Commodity Commission for Cotton established August 1, 1965.
    2. Each of the following entities that were formed de facto to act as commodity commissions upon presentation by the producers of the affected agricultural commodity of a list of nominees for appointment and on which ex officio members elected by the House Committee on Agriculture and Consumer Affairs and the Senate Agriculture and Consumer Affairs Committee served is ratified and confirmed as a public corporation and instrumentality of the State of Georgia from and since such date:
      1. The Agricultural Commodity Commission for Soybeans established September 1, 1971;
      2. The Agricultural Commodity Commission for Canola established June 24, 1994;
      3. The Agricultural Commodity Commission for Pecans established June 24, 1994;
      4. The Agricultural Commodity Commission for Corn established March 24, 1995; and
      5. The Agricultural Commodity Commission for Vegetables established June 19, 2006.
    3. There shall be an Agricultural Commodity Commission for Blueberries established on May 12, 2008.
    4. There shall be an Agricultural Commodity Commission for Ornamental Plants established on May 1, 2009. For purposes of this paragraph, the term "ornamental plants" means any plants grown in commercial nurseries for sale as live plants for use primarily in ornamental or landscape plantings; such term shall not include turf production or plants grown in nurseries for other agricultural, horticultural, or silvicultural use.
    5. There shall be an Agricultural Commodity Commission for Beef established on April 17, 2013. For purposes of this paragraph, the term "beef" means any bovine animal.
    6. There shall be an Agricultural Commodity Commission for Wine and Grapes established on September 1, 2020.
    1. All actions taken by each of the commissions enumerated in paragraph (1) of subsection (a) of this Code section prior to July 1, 1969, pursuant to terms of Ga. L. 1961, p. 301, as amended, are ratified; and all funds received by each of the commissions after the effective date shown opposite its name and prior to July 1, 1969, are determined to have been voluntarily contributed pursuant to subsection (h) of Code Section 2-8-14 and to constitute trust funds of such commission as provided in Code Section 2-8-17. Each of such commissions shall, from and after July 1, 1969, be organized and constituted, have corporate existence, and possess powers and duties as stated in this article and shall be governed and controlled by this article; provided, however, that any contract obligation or other undertaking entered into or incurred by or in behalf of any such commission prior to July 1, 1969, shall be valid and binding if authorized by Ga. L. 1961, p. 301, as amended.
    2. All actions taken by each of the commissions enumerated in paragraph (2) of subsection (a) of this Code section prior to May 11, 2007, pursuant to terms of Ga. L. 1969, p. 763, as amended, or this article are ratified; and all funds received by each of the commissions on or after the effective date shown opposite its name and prior to May 11, 2007, are determined to have been voluntarily contributed pursuant to subsection (h) of Code Section 2-8-14 and to constitute trust funds of such commission as provided in Code Section 2-8-17. Each of such commissions shall, from and after May 11, 2007, be organized and constituted, have corporate existence, and possess powers and duties as stated in this article and shall be governed and controlled by this article; provided, however, that any contract obligation or other undertaking entered into or incurred by or in behalf of any such commission prior to May 11, 2007, shall be valid and binding if authorized by Ga. L. 1969, p. 763, as amended, or this article.
    1. Prior to April 30, 1971, and each three years thereafter, balloting shall be conducted in accordance with Code Section 2-8-23 to determine whether any existing commission listed in paragraph (1) of subsection (a) of this Code section shall continue to exist and operate under this article.
    2. Prior to April 30, 2009, and each three years thereafter, balloting shall be conducted in accordance with Code Section 2-8-23 to determine whether any existing commission listed in paragraph (2) of subsection (a) of this Code section shall continue to exist and operate under this article.
    3. Prior to April 30, 2010, and each three years thereafter, balloting shall be conducted in accordance with Code Section 2-8-23 to determine whether any existing commission listed in paragraph (3) of subsection (a) of this Code section shall continue to exist and operate under this article.
    4. Prior to April 30, 2011, and each three years thereafter, balloting shall be conducted in accordance with Code Section 2-8-23 to determine whether any existing commission listed in paragraph (4) of subsection (a) of this Code section shall continue to exist and operate under this article.
    5. Prior to December 31, 2015, and each three years thereafter, balloting shall be conducted in accordance with Code Section 2-8-23 to determine whether any existing commission listed in paragraph (5) of subsection (a) of this Code section shall continue to exist and operate under this article.
    6. Prior to December 31, 2023, and each three years thereafter, balloting shall be conducted in accordance with Code Section 2-8-23 to determine whether any existing commission listed in paragraph (6) of subsection (a) of this Code section shall continue to exist and operate under this article. (Ga. L. 1968, p. 398, § 2; Ga. L. 1969, p. 763, § 8; Code 1981, § 2-8-5 ; Code 1981, § 2-8-13 , as redesignated by Ga. L. 1989, p. 1420, § 1; Ga. L. 2007, p. 75, § 1/SB 165; Ga. L. 2008, p. 311, § 1/HB 649; Ga. L. 2009, p. 446, §§ 4, 5/SB 152; Ga. L. 2013, p. 65, §§ 1, 2/SB 97; Ga. L. 2020, p. 611, § 2/HB 1093.)

The 2020 amendment, effective August 3, 2020, added paragraphs (a)(6) and (c)(6).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2007, in paragraph (b)(2), "May 11, 2007," was substituted for "the effective date of this paragraph" three times, and "May 11, 2007" for "the effective date of this paragraph" once.

Pursuant to Code Section 28-9-5, in 2008, "May 12, 2008" was substituted for "the effective date of this paragraph" at the end of paragraph (a)(3).

Pursuant to Code Section 28-9-5, in 2009, "May 1, 2009" was substituted for "the effective date of the paragraph" in paragraph (a)(4).

Pursuant to Code Section 28-9-5, in 2013, "on April 17, 2013" was substituted for "on the effective date of this paragraph" in paragraph (a)(5).

Editor's notes. - Ga. L. 1961, p. 301, as amended, referred to in this Code section, was repealed by Ga. L. 1969, p. 763, § 1, which enacted this article.

OPINIONS OF THE ATTORNEY GENERAL

Powers and duties of commission governed by this chapter. - The creation, powers, and duties of any agricultural commodity commission are subject to the provisions of this chapter and are governed and controlled thereby. 1976 Op. Att'y Gen. No. 76-4.

Who may vote in referendum. - The only persons who may vote in a commodity commission continuation referendum are those persons undertaking physical activities of producing or causing the appropriate commodity to be produced for market. 1982 Op. Att'y Gen. No. U82-23.

This chapter contains no requirement that a "producer," to be eligible to vote in a referendum, must have produced in year prior to balloting. 1982 Op. Att'y Gen. No. U82-23.

Commissions permitted to participate in employee's insurance and pension plans. - In fixing the compensation for services of employees, the commissions may participate in or provide health insurance and pension plan coverage for their employees. 1972 Op. Att'y Gen. No. 72-78.

"Producer" is party responsible for assessments levied by commission. 1976 Op. Att'y Gen. No. 76-4.

"Producer" is also the individual to whom voting rights in the commission referenda must devolve. 1976 Op. Att'y Gen. No. 76-4.

2-8-14. Composition; appointments, terms of office, and compensation; certification; advisory boards, special committees, and personnel; legal representation; acceptance of donations; voting; termination.

  1. Each commission shall be composed of:
    1. The Commissioner of Agriculture, or his or her designee, except as to the Agricultural Commodity Commission for Peanuts as created by Article 3 of this chapter, ex officio;
    2. The president of the Georgia Farm Bureau Federation, ex officio;
    3. One member, to serve as an ex officio member of all commissions, elected by the Senate Agriculture and Consumer Affairs Committee with a quorum present and a majority of those present concurring, who shall be a producer of an affected agricultural commodity and shall not be a member of the General Assembly;
    4. One member, to serve as an ex officio member of all commissions, elected by the Agriculture and Consumer Affairs Committee of the House of Representatives with a quorum present and a majority of those present concurring, who shall be a producer of an affected agricultural commodity and shall not be a member of the General Assembly; and
    5. Except as otherwise provided in subsection (c.1) of this Code section, five additional members, who shall be producers of the affected agricultural commodity, to be appointed by the ex officio members of the commission; provided, however, that such additional membership of the Agricultural Commodity Commission for Beef shall consist of three beef cattle farmers, one dairy farmer, and one individual involved in the marketing of cattle; and provided, further, that for the Agricultural Commodity Commission for Cotton, the number of additional members appointed pursuant to this paragraph shall be seven. For the purposes of the appointment of such additional members, the two members elected by each of the agriculture committees of the General Assembly, who shall serve as members of each commission, shall be deemed to be ex officio members.
  2. Except as otherwise provided in subsection (c.1) of this Code section, members elected by the agriculture committees of the General Assembly shall be elected during each regular session of the General Assembly convening in even-numbered years. Such members shall be selected so that one member is from the northern part of Georgia and one member is from the southern part. For purposes of this selection the northern part of Georgia shall be that area north of and including Richmond, McDuffie, Warren, Hancock, Baldwin, Jones, Bibb, Crawford, Upson, Talbot, and Muscogee counties; and the southern part shall be that area south of such counties. The chairpersons of the Senate and House committees shall by agreement determine which committee shall choose the member from the northern part and which committee shall choose the member from the southern part. Such members shall serve from the date of their election until the election of their successors.
  3. Except as otherwise provided in subsection (c.1) of this Code section, the appointment of additional members of the commission by the ex officio members thereof, as provided in this Code section, shall be made by them from a list of nominees, submitted by the producers of the affected agricultural commodity, containing the names of double the number of appointments to be made. In the event of a controversy as to the producer group authorized to submit a list of nominees for appointment as members of the commission, the ex officio members shall consider and determine all issues pertaining thereto and upon making their determination shall make the appointments in accordance with such determination. Initial appointments shall be made for three members for a term of three years each from the effective date of their appointment and until their successors are appointed and qualified and two members for a term of two years each from the effective date of their appointment and until their successors are appointed and qualified. Thereafter, successors shall be appointed for a term of three years each from the effective date of their appointment and until their successors are appointed and qualified. Vacancies shall be filled by appointment by the ex officio members of the commission, in like manner, for the unexpired term, except that vacancies in the office of a member elected by a legislative committee shall be filled for the unexpired term by the legislative committee which made the previous appointment. Any appointed member shall be eligible for reappointment provided he or she is nominated as provided in subsection (b) of this Code section.

    (c.1) (1) The Agricultural Commodity Commission for Wine and Grapes shall also be composed of:

    1. Two members, who shall be producers of wine, appointed by the ex officio members of the Agricultural Commodity Commission for Wine and Grapes. Said members shall serve initial terms of two years and subsequent terms of three years from the effective date of their appointment and until their successors are appointed and qualified;
    2. One member appointed by the ex officio members of the Agricultural Commodity Commission for Wine and Grapes who shall be a producer of wine and shall reside in one of the following counties of this state: Banks, Bartow, Catoosa, Chattooga, Cherokee, Dade, Dawson, Elbert, Fannin, Floyd, Forsyth, Franklin, Gilmer, Gordon, Habersham, Hall, Hart, Jackson, Lumpkin, Madison, Murray, Pickens, Rabun, Stephens, Towns, Union, Walker, White, or Whitfield. In appointing such member, the ex officio members shall consider any recommendations of the board of directors of Georgia Wine Producers, Inc. Such member shall serve a three-year term from the effective date of his or her appointment and until a successor is appointed and qualified;
    3. One member appointed by the ex officio members of the Agricultural Commodity Commission for Wine and Grapes who shall be a producer of wine and shall reside in one of the following counties of this state: Baldwin, Barrow, Bibb, Bleckley, Bulloch, Burke, Butts, Candler, Carroll, Chattahoochee, Clarke, Clayton, Cobb, Columbia, Coweta, Crawford, DeKalb, Douglas, Effingham, Emanuel, Fayette, Fulton, Glascock, Greene, Gwinnett, Hancock, Haralson, Harris, Heard, Henry, Houston, Jasper, Jefferson, Jenkins, Johnson, Jones, Lamar, Laurens, Lincoln, Macon, Marion, McDuffie, Meriwether, Monroe, Morgan, Muscogee, Newton, Oconee, Oglethorpe, Paulding, Peach, Pike, Polk, Putnam, Richmond, Rockdale, Schley, Screven, Spalding, Talbot, Taliaferro, Taylor, Treutlen, Troup, Twiggs, Upson, Walton, Warren, Washington, Wilkes, or Wilkinson. In appointing such member, the ex officio members shall consider any recommendations of the board of directors of Georgia Wine Producers, Inc. Such member shall serve a three-year term from the effective date of his or her appointment and until a successor is appointed and qualified; and
    4. One member appointed by the ex officio members of the Agricultural Commodity Commission for Wine and Grapes who shall be a producer of wine and shall reside in one of the following counties of this state: Appling, Atkinson, Bacon, Baker, Ben Hill, Berrien, Brantley, Brooks, Bryan, Calhoun, Camden, Charlton, Chatham, Clay, Clinch, Coffee, Colquitt, Cook, Crisp, Decatur, Dodge, Dooly, Dougherty, Early, Echols, Evans, Glynn, Grady, Irwin, Jeff Davis, Lanier, Lee, Liberty, Long, Lowndes, McIntosh, Miller, Mitchell, Montgomery, Pierce, Pulaski, Quitman, Randolph, Seminole, Stewart, Sumter, Tattnall, Telfair, Terrell, Thomas, Tift, Toombs, Turner, Ware, Wayne, Webster, Wheeler, Wilcox, or Worth. In appointing such member, the ex officio members shall consider any recommendations of the board of directors of Georgia Wine Producers, Inc. Such member shall serve a three-year term from the effective date of his or her appointment and until a successor is appointed and qualified.

      (2) Vacancies shall be filled by appointment by the ex officio members of the Agricultural Commodity Commission for Wine and Grapes, in like manner, for the unexpired term, except that vacancies in the office of a member elected by a legislative committee shall be filled for the unexpired term by the legislative committee which made the previous appointment. Any appointed member shall be eligible for reappointment provided he or she is nominated as provided in this Code section.

    1. The ex officio members who are state officers shall be compensated as provided by law. Each such ex officio member shall be reimbursed by his respective department or from the funds of the commission for actual and necessary expenses incurred in the performance of his duties. Each such ex officio member who is a state officer may designate a representative of his department to act for him in performing any duties under this article.
    2. The two members elected by the agriculture committees of the General Assembly, as provided by subsection (a) of this Code section, shall be entitled to receive, for attending meetings of the commission, the same expenses and travel allowances which members of the General Assembly receive for attending meetings of legislative interim committees. Such expenses and allowances shall be paid from funds appropriated or otherwise available to the legislative branch of state government.
    3. The appointed members of the commission and the president of the Georgia Farm Bureau Federation shall receive compensation and reimbursement of expenses as shall be provided by the commission, and such funds shall be payable from the funds of the commission.
  4. It shall be the duty of the Commissioner to certify to the Secretary of State the membership of each commission and each change in membership as the same occurs.
  5. Each commission is authorized to appoint advisory boards, special committees, and individuals, including technical and clerical personnel, to advise, aid, and assist the commission in the performance of its duties. Compensation for such services shall be fixed by each commission and may be paid from the funds of each commission. The Attorney General shall represent each commission in legal matters and shall be the attorney for each commission. If the Attorney General determines that outside legal counsel is necessary or desirable in connection with any legal matter of the commission, he shall so inform the particular commission involved and, upon approval of the commission, he shall employ such outside counsel. Compensation for such outside counsel shall be agreed upon between such counsel and the Attorney General, subject to the approval of the commission. Such compensation shall be paid from the funds of the commission. Neither Code Section 16-10-9 nor any other law shall prohibit or be applicable to the employment of such counsel.
  6. Any other provision of this article to the contrary notwithstanding, a member of any federation or organization of producers shall be eligible to be appointed as a member of any commission administering this article with respect to any agricultural commodity produced by such federation or organization or handled by it for its members who produce it.
  7. Each commission is authorized to accept donations, gifts, and other property and to use the same for commission purposes. Each commission may exercise the powers and authority conferred by law upon corporations.
  8. The two members elected by the agriculture committees of the General Assembly, as provided by subsection (a) of this Code section, as members of each commission shall be entitled to vote on matters pertaining to the organization of each such commission and upon the selection and nomination of the appointed members of each commission. Such two members shall not be entitled to vote upon any matter pertaining to the policy provisions of the agricultural commodity nor shall they be entitled to vote upon the expenditure of any funds of the commission.
  9. Each commission shall continue as a public corporation and instrumentality of the State of Georgia until abolished by law or until terminated by referendum. (Ga. L. 1961, p. 301, §§ 9, 10; Ga. L. 1964, p. 141, § 1; Ga. L. 1968, p. 398, § 3; Ga. L. 1969, p. 763, §§ 10, 11; Ga. L. 1970, p. 86, § 1; Ga. L. 1980, p. 568, §§ 1-3; Ga. L. 1981, p. 692, § 1; Ga. L. 1982, p. 3, § 2; Code 1981, § 2-8-6; Code 1981, § 2-8-14 , as redesignated by Ga. L. 1989, p. 1420, § 1; Ga. L. 2008, p. 311, § 2/HB 649; Ga. L. 2009, p. 303, § 1/HB 117; Ga. L. 2013, p. 65, § 3/SB 97; Ga. L. 2013, p. 74, § 3/HB 298; Ga. L. 2017, p. 774, § 2/HB 323; Ga. L. 2019, p. 314, § 1/HB 332; Ga. L. 2020, p. 611, § 3/HB 1093.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "appointed member" for "appointive member" in subsection (c) and substituted "appointed members" for "appointive members" in paragraph (d)(3) and subsection (i).

The 2019 amendment, effective July 1, 2019, inserted "or his or her designee, except as to the Agricultural Commodity Commission for Peanuts as created by Article 3 of this chapter," in paragraph (a)(1).

The 2020 amendment, effective August 3, 2020, substituted "Except as otherwise provided in subsection (c.1) of this Code section, five" for "Five" at the beginning of paragraph (a)(5); substituted "Except as otherwise provided in subsection (c.1) of this Code section, members" for "Members" at the beginning of subsection (b); and, in subsection (c), substituted "Except as otherwise provided in subsection (c.1) of this Code section, the" for "The" at the beginning of and inserted "or she" at the end of the last sentence; and added subsection (c.1).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2013, "and provided, further," was substituted for "provided, however," near the middle of the first sentence of paragraph (a)(5).

Editor's notes. - Ga. L. 2009, p. 303, § 20/HB 117, not codified by the General Assembly, provides that: "This Act is intended to reflect the current internal organization of the Georgia Senate and House of Representatives and is not otherwise intended to change substantive law. In the event of a conflict with any other Act of the 2009 General Assembly, such other Act shall control over this Act."

Law reviews. - For article, "Agricultural Commodities Promotion," see 30 Ga. St. U. L. Rev. 1 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Election of officers is matter "pertaining to the organization" of commodity commissions within the meaning of this section. 1970 Op. Att'y Gen. No. 70-9.

Participation in appointment of producer members. - All ex-officio members of the commissions shall participate by vote in the appointment of the five producer members of each commission. 1977 Op. Att'y Gen. No. 77-22.

Transacting business by conducting telephone poll of members prohibited. - An agricultural commodity commission may not transact business by conducting a telephone poll of commission members. 1970 Op. Att'y Gen. No. 70-122. (Modified by 1985 Op. Att'y Gen. 85-26).

Applicability of Workers' Compensation Act. - The fact that the various agricultural commodity commission members receive a salary which they themselves establish out of commission monies creates no employment relationship within the purview of the Workers' Compensation Act, either with the particular commission or the State of Georgia. 1973 Op. Att'y Gen. No. 73-68.

Nonpaid "beauty queens" of commissions are not subject to Workers' Compensation Act under any circumstance; however, the Peach Queen, who receives a per diem salary, would be covered by the Workers' Compensation Act, provided that the Act's various criteria are met. 1973 Op. Att'y Gen. No. 73-68.

Commissions permitted to participate in employees' insurance and pension plans. - In fixing the compensation for services of employees, the commissions may participate in or provide health insurance and pension plan coverage for their employees. 1972 Op. Att'y Gen. No. 72-78.

2-8-15. Public corporations; corporate powers; chairman; quorum; oath of office; certification of appointments to Secretary of State.

Each commission, with the name of the agricultural commodity annexed thereto, shall be a public corporation and an instrumentality of the State of Georgia. By that name, style, and title, each such commission may contract and be contracted with, implead and be impleaded, and complain and defend in all courts. Each such commission shall name its chairman and determine a quorum for the transaction of business. Each such commission shall assume the duties and exercise the authority provided in this article without further formality than that provided in this article. Each member of each such commission shall be a public officer and shall take an oath of office faithfully to perform his duties. Such oath shall be administered by the Commissioner or some other person qualified to administer oaths. The fact of a member's appointment shall be certified to the Secretary of State, who shall issue the appropriate commission under the seal of his office.

(Ga. L. 1961, p. 301, § 8; Ga. L. 1969, p. 763, § 9; Code 1981, § 2-8-7; Code 1981, § 2-8-15 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Ex-officio member may hold office of chair. - This chapter does not require the office of chair to be held by a producer member; an ex-officio member may hold the office. 1970 Op. Att'y Gen. No. 70-70.

Effect of vacancy. - So long as there remain sufficient members to provide a quorum, the operation of the commission is not affected by a vacancy in its membership. 1970 Op. Att'y Gen. No. 70-70.

Transacting business by conducting telephone poll of members prohibited. - An agricultural commodity commission may not transact business by conducting a telephone poll of commission members. 1970 Op. Att'y Gen. No. 70-122. (Modified by 1985 Op. Att'y Gen. 85-26).

Commission's property exempt from ad valorem taxes. - Because the property owned by the Agricultural Commodity Commission for Peanuts is public property, not used for the purpose of private or corporate profit and income, it is exempt from city and county ad valorem taxes. 1963-65 Op. Att'y Gen. p. 390.

2-8-16. Funds of commissions - Receipt, collection, and disbursement.

The Commissioner is authorized and it shall be his duty to receive, collect, and disburse the funds of each commission qualifying and operating under this article. He shall disburse funds of any entity created under this article only upon the written authorization of the affected commission.

(Ga. L. 1961, p. 301, § 5; Ga. L. 1969, p. 763, § 6; Code 1981, § 2-8-8; Code 1981, § 2-8-16 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-17. Funds of commissions - Treatment as trust funds.

Funds received by the Commissioner under this article shall be held in trust for the affected commission. Such funds shall be deposited, accounted for, and disbursed in the same manner as the funds of this state but shall not be required to be deposited in the state treasury and appropriated therefrom as are other state funds. It is the express intent and purpose of this article to authorize the receipt, collection, and disbursement by the Commissioner of such funds as trust funds of the affected entity without complying with the requirement applicable to funds collected for the use and benefit of the state.

(Ga. L. 1961, p. 301, § 6; Ga. L. 1969, p. 763, § 7; Code 1981, § 2-8-9; Code 1981, § 2-8-17 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Funds expended for student scholarships in dairy science curricula prohibited. - Fiscal resources of the Georgia Agricultural Commodity Commission for Milk may not be expended to fund student scholarships in the dairy science curricula at the University of Georgia or to participate in funding a private scholarship foundation for students matriculating in such curricula. 1976 Op. Att'y Gen. No. 76-115.

Also contributions to Southeastern Legal Foundation activities. - Funds of the commissions may not be expended for contributions to and support of the activities of the Southeastern Legal Foundation since the Foundation is a private enterprise undertaken by and serving private groups and individuals. 1976 Op. Att'y Gen. No. 76-102.

2-8-18. Bonds of persons handling funds.

Any person who handles funds under this article shall be bonded with good and sufficient surety in an amount determined by the Commissioner for the accounting of any and all funds coming into his hands.

(Ga. L. 1961, p. 301, § 26; Ga. L. 1969, p. 763, § 27; Code 1981, § 2-8-10 ; Code 1981, § 2-8-18 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-19. Liability of commission members and employees.

The members and employees of any commission governed by this article and the Commissioner shall not be held responsible individually in any way whatsoever to any producer, processor, distributor, or other handler or to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of any such commission. The liability of the members of the commission shall be several and not joint and no member shall be liable for the default of any other member.

(Ga. L. 1961, p. 301, § 21; Ga. L. 1969, p. 763, § 22; Code 1981, § 2-8-11 ; Code 1981, § 2-8-19 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

"Members" and "employees" not one and same. - The General Assembly, by referring to both "members" of the commission and "employees" of the commission, would clearly seem to have indicated that "members and employees" are not one and the same. 1973 Op. Att'y Gen. No. 73-68.

2-8-20. Cooperation with state and federal governmental authorities.

The Commissioner and any commission governed by this article are authorized to confer with and to make any information obtained pursuant to this article available to the duly constituted governmental authorities of this state, of other states, of political subdivisions of this state or other states, and of the United States who, by reason of their duties, have legitimate concern with the subject and to cooperate with all such authorities for the purpose of obtaining administrative uniformity and achieving the objectives of this article.

(Ga. L. 1968, p. 398, § 15; Ga. L. 1969, p. 763, § 24; Code 1981, § 2-8-12 ; Code 1981, § 2-8-20 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-21. Issuance of marketing orders authorized; notice; public hearing; record; reports from handlers; compilation of lists of producers and handlers; use of information in reports.

  1. The Commissioner, upon the approval and request of a commission governed by this article, is authorized to issue, administer, and enforce the provisions of marketing orders regulating producer marketing or the handling of agricultural commodities within this state.
    1. Whenever the Commissioner has reason to believe that the issuance of a marketing order or amendments to an existing marketing order will tend to effectuate the declared policy of this article with respect to any agricultural commodity, he shall, either upon his own motion, upon the motion of any commission, or upon the application of any producer of such commodity or any organization of such persons, give due notice of and an opportunity for a public hearing upon a proposed marketing order or amendments to an existing marketing order.
    2. Notice of any hearing called for such purpose shall be given by the Commissioner or the commission by publishing a notice of such hearing for a period of not less than five days in a newspaper of general circulation published in the capital of the state and in such other newspapers as the Commissioner may prescribe. No such public hearing shall be held prior to five days after the last day of such period of publication. The Commissioner or the commission shall also mail a copy of such notice of hearing and a copy of such proposed marketing order or proposed amendments to all producers of such agricultural commodity whose names and addresses appear upon lists of such persons on file in the department and who may be directly affected by the provisions of such proposed marketing order or such proposed amendments. Such notice of hearing shall in all respects comply with the requirements of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
    3. The hearing shall be public and all testimony shall be received under oath. A full and complete record of the proceedings at such hearing shall be made and maintained on file in the office of the Commissioner or the commission. The hearing shall, in all respects, be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The hearing may be conducted by the commission, by a member of the commission, or by the Commissioner, as may be designated by the commission in each instance, but no decision shall be made based on hearings conducted other than by the commission itself, at which a majority of the members thereof are present, until the members of the commission have been afforded an opportunity to review the hearing record. Where the commission conducts hearings, its recommendation shall be based on the findings reached after a review of the record of the hearing.
    1. In order to provide the Commissioner or the commission with accurate and reliable information with respect to the persons who may be directly affected by any proposed marketing order for any agricultural commodity when such information is not then on file in the department, the Commissioner or the commission is authorized and directed, whenever the Commissioner or the commission has reason to believe that the issuance of a marketing order will tend to effectuate the declared policy of this article or upon receipt of a written application for a hearing pursuant to subsection (b) of this Code section, to notify all handlers of such agricultural commodity, by publication of a notice as required in paragraph (2) of this subsection, to file with the Commissioner or the commission within ten days from the last date of such publication a report, properly certified, showing:
      1. The correct name and address of such handler;
      2. The quantities of the agricultural commodity affected by the proposed marketing order handled by such handler in the marketing season next preceding the filing of such report;
      3. The correct names and addresses of all producers of such agricultural commodity who may be directly affected by such proposed marketing order, from whom such handler received such agricultural commodity in the marketing season next preceding the filing of such report; and
      4. The quantities of such agricultural commodity received by such handler from each such producer in the marketing season next preceding the filing of such report.
    2. The notice to handlers requiring them to file a report shall be published by the Commissioner or the commission for a period of not less than five days in a newspaper of general circulation published in the capital of the state and in such other newspaper or newspapers as the Commissioner or the commission may prescribe. The Commissioner or the commission shall also mail a copy of such notice to all handlers of such agricultural commodity whose names and addresses appear upon the lists on file in the department who may be directly affected by such proposed marketing order.
    3. Each handler of an agricultural commodity directly affected by a proposed marketing order shall file his verified report with the Commissioner or the commission within the time specified in paragraph (1) of this subsection. Failure or refusal of any handler to file such report shall not invalidate any proceeding taken or marketing order issued. The Commissioner or the commission is authorized and directed to proceed upon the basis of such information and reports as may otherwise be available.
    4. From the reports so filed and the information so received or available to the Commissioner or the commission, including any proper corrections, the Commissioner or the commission shall prepare a list of the names and addresses of such producers and the volume of such commodity produced or marketed by all such producers and a list of the names and addresses of such handlers and the volume of such commodity handled by all such handlers, directly affected by such proposed marketing order or amendments thereto, in the preceding marketing season. Such lists shall constitute complete and conclusive lists for use in any finding made by the Commissioner or the commission pursuant to subsection (a) of Code Section 2-8-23 and such findings shall be conclusive.
    5. The information contained in the individual reports of handlers filed with the Commissioner or the commission pursuant to this Code section shall not be made public in such form. The information contained in such reports may be prepared in combined form for use by the Commissioner or the commission, their agents, or other interested persons in the formulation, administration, and enforcement of a marketing order or may be made available pursuant to court order. Such information shall not be made available to anyone for private purposes. (Ga. L. 1961, p. 301, § 11; Ga. L. 1968, p. 398, § 4; Ga. L. 1969, p. 763, § 12; Code 1981, § 2-8-13 ; Code 1981, § 2-8-21 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5 , in 1989, the reference to § 2-8-15 in paragraph (c)(4) was changed to § 2-8-23 .

Law reviews. - For article, "Agricultural Commodities Promotion," see 30 Ga. St. U. L. Rev. 1 (2013).

2-8-22. Recommendation of marketing orders or amendments by commission; authorized provisions.

  1. If, upon the basis of the record of testimony and documentary evidence received at the hearing provided for in Code Section 2-8-21 and the facts officially noticed therein from official publications or institutions of recognized standing, the commission determines that the issuance of a marketing order or an amendment will tend to effectuate the intent and purpose of this article, it may recommend the promulgation of a marketing order or amendment with respect to the matters specified in the hearing notice and supported by the record, containing any or all of the following provisions, but no others:
    1. Provisions regulating the period or periods during which any agricultural commodity or any grade, size, or quality of such commodity may be processed, distributed, or otherwise marketed within this state by any and all persons engaged in such processing, distributing, or marketing within this state; such periods shall be established by the commission so as to conform to the better principles of sound agricultural practices with respect to production of the commodities affected, in order to secure, so far as is commercially practical, a sufficient supply of good quality of each grade of such commodity proportionate to normal market demand and to prevent disruptive marketing practices likely to result in oversupply or scarcity, which create unnecessarily inflated prices to consumers and handlers, depressed prices to producers, or salability of products of inferior grade and quality due to unavailability of good quality products;
    2. Provisions establishing or providing for establishing, with respect to any agricultural commodity, either as delivered by producers to handlers or processors or as handled, processed, or otherwise prepared for market or as marketed by producers, handlers, or processors:
      1. Grading standards of quality, condition, size, maturity, or pack, which standards may include minimum standards, provided that the standards so established shall not be established below any minimum standards prescribed by law for such commodity; and
      2. Uniform inspection and grading of such commodity in accordance with the standards so established.
    3. Provisions for the establishment of plans for advertising and sales promotion to maintain present markets or to create new or larger markets for agricultural commodities grown in this state or for the prevention, modification, or removal of trade barriers which obstruct the normal flow of agricultural commodities to market. The commission is authorized to prepare, issue, administer, and enforce plans for promoting the sale of any agricultural commodity, provided that any such plan shall be directed toward promoting and increasing the sale, use, and utilization of such commodity without reference to a particular brand or trade name; and provided, further, that no advertising or sales promotion program shall be issued by the Commissioner or the commission which makes use of false or unwarranted claims in behalf of any such product or disparages the quality, value, sale, or use of any other agricultural commodity;
    4. Provisions prohibiting unfair trade practices by which any producer or handler tends toward establishment of monopoly, unfairly discriminates among customers as to price or quality, or engages in fraudulent, deceptive, or misleading representations, concealment, or other similar sharp business practices which are harmful to his or its customers, injurious to competitors, likely to bring into disrepute persons generally engaged in production and handling of the commodity involved, or detrimental to the intent and purpose of this article;
    5. Provisions for carrying on research studies in promoting the production, marketing, sale, use and utilization, processing, and improvement of any agricultural commodity or any combination thereof and for the expenditure of moneys for such purposes. In any research carried on under this paragraph, the dean of the College of Agricultural and Environmental Sciences of the University of Georgia, the Commissioner, and the commission shall cooperate in selecting the research project or projects to be carried on from time to time. Insofar as practicable such projects shall be carried out by the College of Agricultural and Environmental Sciences but, if the dean of the college and the commission determine that the college has no facilities for a particular project or that some other research agency has better facilities therefor, the project may be carried out by other research agencies selected by the commission;
    6. Provisions establishing or providing authority for establishing, for any agricultural commodity, either as such commodity is produced or is delivered by producers to handlers or as such commodity is handled or otherwise prepared for market or as such commodity is marketed by producers or handlers, an educational program designed to acquaint producers, handlers, or other interested persons with quality improvement, including sanitation practices, procedures, or methods as applied to such commodity;
    7. Provisions for the promotion of the marketing of surplus commodities through the establishment of surplus, stabilization, or by-product pools for any agricultural commodity or any grade, size, quality, or condition thereof, providing for the sale of the commodity in any such pool and for the equitable distribution among the persons participating therein of the net returns derived from the sale of such commodity. Whenever the marketing order authorizes the establishment of any such pool or pools, the commission shall have the power to receive such commodity from each producer or handler, to handle the same according to the grade, size, quality, or condition thereof, and to account to each producer or handler participating therein upon a pro rata basis for the net proceeds derived from the sale thereof. Whenever the marketing order authorizes the establishment of a surplus, stabilization, or by-product pool, the commission shall have authority to promote the marketing of surplus commodities by making arrangements for and operating any necessary facilities for the storing, financing, grading, hauling, packing, servicing, processing, preparing for market, selling, and disposing of the contents of any pools provided for in this paragraph. Whenever the marketing order authorizes the establishment of any type of pool authorized in this paragraph, the commission shall have authority to create, by a uniform assessment upon producers, or to maintain and disburse, upon some other uniform and equitable basis, an equalization fund to be used for the removal of any inequalities between producers or handlers participating in any pool.
  2. All provisions authorized by this Code section which are contained in marketing orders and amendments thereto heretofore adopted by any commission and in effect on July 1, 1969, shall be and remain of full force and effect until repealed or modified by each such commission as provided in this article. (Ga. L. 1961, p. 301, § 13; Ga. L. 1968, p. 398, § 6; Ga. L. 1969, p. 763, § 13; Ga. L. 1971, p. 78, § 1; Ga. L. 1974, p. 564, § 1; Code 1981, § 2-8-14 ; Code 1981, § 2-8-22 , as redesignated by Ga. L. 1989, p. 1420, § 1; Ga. L. 1995, p. 10, § 2.)

Law reviews. - For article, "Agricultural Commodities Promotion," see 30 Ga. St. U. L. Rev. 1 (2013).

2-8-23. Approval by producers prerequisite to issuance of marketing order or major amendment; notice; rules and regulations; expiration; extensions; referendum.

    1. No marketing order or major amendment thereto, directly affecting producers or producer marketing, issued pursuant to this article, shall be made effective by the commission or the Commissioner until the finding of one or more of the following:
      1. That such marketing order or amendment thereto has been assented to in writing by not less than 65 percent of the producers who are engaged within the area specified in such marketing order or amendment thereto in the production for market or the producer marketing of not less than 51 percent of the agricultural commodity specified therein in commercial quantities;
      2. That such marketing order or amendment thereto has been assented to in writing by producers who produce not less than 65 percent of the volume of such agricultural commodity and by 51 percent of the total number of producers so engaged; or
      3. That such marketing order or amendment thereto has been approved or favored by producers in a referendum among producers directly affected if the valid votes cast in such referendum in favor of such marketing order or amendment thereto represent not less than 51 percent of the total number of producers of the commodity of record with the department who marketed not less than 51 percent of the total quantity of the commodity marketed in the next preceding marketing season by the total number of producers of record with the department.
    2. Whenever any marketing order or any major amendment to any marketing order is issued by the commission, the commission shall determine whether assent, approval, or favor thereto of the producers shall be by written assents or by referendum.
    3. If the Commissioner or the commission determines that a referendum shall be had, the Commissioner or the commission shall establish a referendum period of 30 days. At the close of such referendum period, the Commissioner or the commission shall count and tabulate the ballots filed during such period. If from such tabulation the Commissioner or the commission finds that the number of producers voting in favor of such marketing order or amendment thereto is not less than 51 percent of the total number of producers of record with the department and that such producers who voted in favor of the marketing order or amendment thereto marketed not less than 51 percent of the total volume of such commodity marketed by all producers of record with the department during the marketing season next preceding such referendum, the Commissioner or the commission may make such marketing order or amendment thereto effective. The Commissioner and the commission are authorized to prescribe such additional procedures as may be necessary to conduct such referendum.
    4. At a public hearing held to consider a proposed marketing order or major amendments to an existing marketing order which directly affect producers or producer marketing, the Commissioner or the commission shall also receive testimony or evidence from which he or it can determine whether the assent, approval, or favor of such producers shall be determined by written assents or by referendum as prescribed in this Code section. Upon the conclusion of any hearing which involves a marketing order or a major amendment thereto directly affecting producers or producer marketing, the Commissioner or the commission shall make a finding, based upon the testimony and evidence received, whether producer assent, approval, or favor shall be determined by written assents or by referendum. If the Commissioner or the commission finds that a referendum shall be had, he or it shall direct that a referendum be held in accordance with this subsection.
    5. Any referendum or assent in writing to a marketing order under paragraphs (3), (5), and (6) of subsection (a) of Code Section 2-8-22 shall be held pursuant to this Code section; and upon the approval thereof by two-thirds of those voting therein, where the total vote cast thereon represents not less than 25 percent of those eligible to vote or where the total vote cast thereon represents not less than 25 percent of the total amount of the affected agricultural commodity, such marketing order may be declared by the commission to be approved.
    6. In the event of the failure of any proposed marketing order to be approved, no additional referendum thereon shall be held during a period of 12 months from the date of the close of the previous referendum period.
  1. Subject to the provisions, restrictions, and limitations imposed in this article, the Commissioner or the commission may issue marketing orders regulating producer marketing and the processing, distributing, or handling in any manner of agricultural commodities by any and all persons engaged in such producer marketing, processing, distributing, or handling of such agricultural commodities within this state.
    1. Upon the recommendation of not less than three of the appointive members of the commission, the Commissioner or the commission may make effective minor amendments to a marketing order. The Commissioner or the commission may require a public hearing upon minor amendments if in his or its opinion the substance of such minor amendments so warrants. The Commissioner or the commission, however, shall not be required to submit minor amendments for written assents or referendum approval.
    2. In making effective major amendments to a marketing order, the Commissioner or the commission shall follow the same procedures prescribed in this article for the institution of a marketing order. For the purpose of this article, a major amendment to a marketing order shall include, but shall not be limited to, any amendment which adds to or deletes from any such marketing order any of the following types of regulations or authorizations:
      1. Authority for regulating the period or periods during which any agricultural commodity or any grade, size, or quality of such commodity may be processed, distributed, or otherwise marketed within this state;
      2. Authority for the establishment of uniform grading and inspection of any agricultural commodity and the establishment of grading standards of quality, condition, size, or pack of such commodity;
      3. Authority for the establishment of plans for advertising and sales promotion of any agricultural commodity;
      4. Authority to prohibit unfair trade practices;
      5. Authority for carrying out research studies in the production, processing, or distribution of any agricultural commodity;
      6. Authority to increase an assessment rate beyond the maximum rate authorized by the marketing order in effect;
      7. Authority to extend the application of the provisions of any marketing order to portions or uses of an agricultural commodity not previously subject to such provisions or to restrict or extend the application of such provisions upon the producers or handlers of such portions or uses of such commodity.
    3. Modification of any provisions of any marketing order in effect, for the purpose of clarifying the meaning or application of such provisions or of modifying administrative procedures for carrying out such provisions, are declared not to be a major amendment of such marketing order.
  2. Upon the issuance of any order making effective a marketing order or any suspension, amendment, or termination thereof, a notice thereof shall be posted on a public bulletin board maintained at the Department of Agriculture; and a copy of such notice shall be published as the Commissioner or the commission may prescribe. No marketing order nor any suspension, amendment, or termination thereof shall become effective until the termination of a period of five days from the date of such posting and publication. It shall also be the duty of the Commissioner or the commission to mail a copy of the notice of such issuance to all persons directly affected by the terms of such marketing order, suspension, amendment, or termination whose names and addresses are on file in the office of the Commissioner or the commission and to every person who files in the office of the Commissioner or the commission a written request for such notice.
  3. The Commissioner or the commission shall have the power, consistent with this article and in accordance with marketing orders and agreements made effective under this article, to establish such general rules and regulations for uniform application to all marketing orders issued hereunder as may be necessary to facilitate the administration and enforcement of such marketing orders. The provisions of subsection (d) of this Code section relative to posting, publication, and time of taking effect shall be applicable to any such general rule or regulation established pursuant to this subsection and applicable to marketing orders generally. Such notice shall be furnished by the Commissioner or the commission for each marketing order in active operation.
  4. Upon the recommendation of the commission concerned, the Commissioner shall have the power, consistent with this article, to establish administrative rules and regulations for each marketing order issued and made effective as may be necessary to facilitate the supervision, administration, and enforcement of each such order. The provisions of subsection (d) of this Code section relative to posting, publication, mailing of notice, and time of taking effect shall be applicable to any such administrative rules and regulations.
  5. Unless extended as provided in this Code section, all marketing orders issued under the authority of this article shall expire, terminate, and become of no force and effect at the expiration of three years from the date of the issuance of the original marketing order or, if such marketing order has been extended, at the expiration of three years after the date of any such extension.
  6. In the event either one of the following conditions is complied with, a marketing order shall be extended for a period of three years after the date of its original expiration:
    1. Assent has been given in writing to such marketing order by not less than two-thirds of the producers participating; or
    2. Approval or favor of such marketing order has been given by producers in a referendum among producers directly affected if at least 66 2/3 percent of the votes cast in such referendum favor the extension of such marketing order.
  7. If the Commissioner or the commission determines that a referendum shall be held, the Commissioner or the commission shall establish a referendum period of 30 days, such referendum period to terminate at least 30 days prior to the expiration date of the marketing order which is the subject of such referendum. At the close of such referendum period, the Commissioner or the commission shall count and tabulate the ballots cast during such period. If from such tabulation the Commissioner or the commission finds that the number of producers voting in favor of the extension of such marketing order is not less than 66 2/3 percent of the total number of ballots cast, then such marketing order shall be extended for a period of three years after the expiration date. If it is found from the tabulation of such referendum that the number of producers who had voted in favor of the extension of such marketing order is less than the required 66 2/3 percent of the total number of ballots cast, then the marketing order shall expire, terminate, and be of no force and effect as provided in subsection (g) of this Code section. (Ga. L. 1961, p. 301, § 14; Ga. L. 1964, p. 141, §§ 2, 3; Ga. L. 1969, p. 763, §§ 15, 16; Code 1981, § 2-8-15 ; Code 1981, § 2-8-23 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Conflict between Commission Rules and Uniform Rules. - Only the Commissioner can adopt rules and regulations that apply uniformly to all commodity commissions. Therefore, the provisions of Commission Rules dealing with subjects other than the depositing and disbursement of funds must yield to the provisions of the Uniform Rules covering the same subject matter whenever a conflict exists. 1989 Op. Att'y Gen. No. 89-1.

Business unit applies in determining eligibility to vote in referendum. - The business unit engaged in the producing of an affected commodity is the appropriate criterion to apply in determining eligibility to vote in commodity commission referendum; such business unit is entitled to cast one vote. 1970 Op. Att'y Gen. No. 70-168.

Producer is individual to whom voting rights in commission referenda must devolve. 1976 Op. Att'y Gen. No. 76-4.

Party responsible for assessments levied by commission. 76 Op. Att'y Gen. No. 76-115.

2-8-23.1. Limitations on assessments.

  1. No marketing order issued by the Agricultural Commodity Commission for Beef shall impose an assessment in excess of $1.00 per head on bovine animals sold, nor shall any assessment be placed on any bovine animal which sells for less than $100.00.
  2. The Agricultural Commodity Commission for Beef may in its discretion lower the assessment amount imposed by any marketing regulation duly issued under the authority provided by this article.
  3. No marketing order issued by the Agricultural Commodity Commission for Wine and Grapes shall exceed the highest excise tax levied under Code Section 3-6-50 . (Code 1981, § 2-8-23.1 , enacted by Ga. L. 2013, p. 65, § 4/SB 97; Ga. L. 2020, p. 611, § 4/HB 1093.)

The 2020 amendment, effective August 3, 2020, added subsection (c).

2-8-24. Area marketing orders authorized.

Marketing orders issued by any commission under this article may be limited in their application by prescribing the marketing areas or portions of the state in which a particular order shall be effective, provided that no marketing order shall be issued by the commission unless it embraces all persons of a like class who are engaged in a specific and distinctive agricultural industry or trade within this state.

(Ga. L. 1961, p. 301, § 17; Ga. L. 1968, p. 398, § 11; Ga. L. 1969, p. 763, § 18; Code 1981, § 2-8-16 ; Code 1981, § 2-8-24 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-25. Seasonal marketing regulations authorized; notice of issuance; liberal interpretation of Code section.

  1. The Commissioner, upon recommendation of the commission concerned, and each commission, without prior notice to and public hearing for the producers or handlers of the commodity directly affected, may issue and make effective seasonal marketing regulations or modifications thereof, provided that the marketing order, made effective after due notice, public hearing, and written assent as required by this article, (1) provides for the issuance or modification of such seasonal marketing regulations without requiring such prior notice and public hearing, and (2) sets forth the limits within which such seasonal marketing regulations may be made effective or subsequently modified by the Commissioner or the commission; and provided, further, that the commission finds that such seasonal marketing regulations or modifications thereof are reasonable and proper and a practical means of carrying out the marketing provisions authorized in such marketing order or agreement and will effectuate the declared purposes and policies of this article with respect to such agricultural commodity. Notice of the issuance and the effective date of any such seasonal marketing regulations or modifications thereof shall be given by the Commissioner or the commission to all producers and handlers directly affected by any such regulations in the manner and within the time specified in the applicable marketing order or, in absence of such, as may be specified by the commission or as specified in the administrative rules and regulations made effective for such marketing order pursuant to subsection (f) of Code Section 2-8-23.
  2. It is recognized that with respect to some agricultural commodities, marketing, weather, and other conditions may change so rapidly as to require changes in seasonal marketing regulations from week to week or more often. It is intended that this Code section be interpreted liberally so that the Commissioner or the commission may be enabled to carry out the marketing regulations and procedures authorized in this Code section in a practical and effective manner. (Ga. L. 1961, p. 301, § 14; Ga. L. 1968, p. 398, § 7; Ga. L. 1969, p. 763, § 14; Code 1981, § 2-8-17 ; Code 1981, § 2-8-25 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-26. Applicability of marketing orders.

Whenever producers or handlers of an agricultural commodity regulated by a marketing order issued by any commission pursuant to this article are required to comply with minimum quality, condition, size, or maturity regulations, no person, except as otherwise provided in such order, shall process, distribute, or otherwise handle any of such agricultural commodity from any source, whether produced within or without this state, which commodity does not meet such minimum requirements applicable to producers or handlers of such commodity in this state, provided that such regulations shall not apply to any commodity which has been produced outside of this state and is in transit on the effective date of the regulations.

(Ga. L. 1961, p. 301, § 17; Ga. L. 1968, p. 398, § 11; Ga. L. 1969, p. 763, § 18; Code 1981, § 2-8-18 ; Code 1981, § 2-8-26 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-27. Assessments to defray expenses; borrowing in anticipation of collections; use and repayment of contributions in lieu of advance deposits; collection and enforcement of assessments generally; disposition and investment of proceeds; audit.

  1. For the purpose of providing funds to defray the necessary expenses incurred by the Commissioner or the commission in the formulation, issuance, administration, and enforcement of each marketing order issued under this article, each such marketing order shall provide for the levying and collection of assessments in sufficient amounts to defray such expenses. Each marketing order shall indicate the maximum rate of any such assessment which may be collected and the proportion, if any, payable by each producer and handler directly regulated or affected by such marketing order. In administering such marketing order, the commission shall adopt, from time to time, budgets to cover necessary expenses and the assessment rate necessary to provide sufficient funds. If the commission finds that each such budget and assessment rate are proper and equitable and will provide sufficient moneys to defray the necessary expenses, it may approve such budget and rate of assessment and order that each producer and handler so assessed shall pay to the Commissioner or the commission, at such times and in such installments as the commission may prescribe, an assessment, based upon the units in which such agricultural commodity is marketed or upon any other uniform basis which the commission determines to be reasonable and equitable, but in amounts which (1) in the case of producers will not exceed 2 1/2 percent of the gross dollar volume of sales of the commodity affected by all such producers regulated by such marketing order, or (2) in the case of processors, distributors, or other handlers will not exceed 2 1/2 percent of the gross dollar volume of purchases of the commodity affected by the marketing order from producers or of the gross dollar volume of sales of the commodity affected by the marketing order and handled by all such processors, distributors, or other handlers regulated by such marketing order during the marketing season or seasons during which such marketing order is effective.
  2. Each marketing order which authorizes the carrying out of advertising and sales promotion plans shall provide for the levying and collection of assessments in sufficient amounts to defray the expenses of such activities. Each such marketing order shall indicate the maximum rate of any such assessment and the proportion, if any, payable by each producer and handler directly regulated or affected by such marketing order. The commission shall adopt budgets to cover such expenses and establish the assessment rate necessary to provide sufficient funds. If the commission finds that each such budget and assessment rate are proper and equitable and will provide sufficient moneys to defray such expenses, they may approve such budget and approve and levy such assessment. Any assessments so established shall be based upon the units in which such agricultural commodity is marketed or upon any other uniform basis which the commission determines to be proper and equitable. Any assessment rates established under this subsection shall be in amounts not to exceed 4 percent of the gross dollar volume of sales by all producers or by all processors, distributors, or other handlers of such agricultural commodity regulated by such marketing order during the marketing season or seasons during which such marketing order is effective.
  3. In lieu of the assessments to defray the costs of formulation, issuance, administration, and enforcement of the marketing order and of advertising or sales promotion provided for in subsections (a) and (b) of this Code section, if the marketing order contains provisions for advertising or sales promotion as authorized in this article, the commission may approve and fix one assessment not exceeding 6 1/2 percent of the gross dollar volume of sales of such commodity by all producers or by all processors, distributors, or other handlers of such agricultural commodity regulated by such marketing order during the marketing season or seasons during which such marketing order is effective. The method and manner of assessment and collection thereof and the limitations and restrictions applicable thereupon shall conform in all respects with subsection (b) of this Code section, except as to the maximum amount of such assessment. In such case, the commission shall approve the proportions of such assessments which may be expended to defray the costs of formulation, issuance, administration, and enforcement of the marketing order and of such advertising or sales promotion program, provided that the proportion of such assessments which may be allocated in such manner to defray the cost of such administrative activities for such marketing order shall in no case exceed the maximum amount authorized in subsection (a) of this Code section.
  4. In the event that any commission has reason to believe that the administration of a marketing order will be facilitated or the attainment of the purposes and objectives of the marketing order will be promoted thereby, the commission is authorized to borrow money, with or without interest, to carry out any provision of any marketing order authorized by this article and may hypothecate anticipated assessment collections applicable to such respective provisions.
  5. In lieu of requiring advance deposits for defraying administrative or advertising and sales promotion expenses until such time as sufficient moneys are collected for such purposes from the payment of assessments established pursuant to this Code section, the Commissioner is authorized to receive and disburse for such purposes contributions made by producers, processors, distributors, or other handlers. Neither the commission nor the Commissioner shall be held responsible for the repayment of such contributions, provided that whenever collections from the payment of established assessments credited to the respective marketing order accounts are sufficient so to warrant, the commission shall recommend and the Commissioner shall repay contributions or shall authorize the application of such contributions to the assessment obligations of the persons who made such contributions.
  6. Each and every handler of the agricultural commodities for which an assessment has been established by or pursuant to this article shall, at the time of purchase of any such commodity from the producer thereof, collect from such producer the assessment established by or in accordance with this article and remit the same to the Commissioner for the use of the commission for which the same was levied. The liability of such handler under this article shall not be discharged except upon receipt of such sums by the Commissioner. For the purpose of this subsection, to ensure compliance with this Code section, and for the administrative convenience of the Commissioner in enforcing payment and collection of such assessments, delivery by a producer to a handler for processing of any agricultural commodity upon which an assessment has been established shall be deemed a sale of such commodity within the meaning of this Code section; and the assessment shall thereupon attach and become due, regardless of whether such handler actually purchases such agricultural commodity for himself or only processes same for a consideration payable by the producer or another person and such agricultural commodity is thereafter sold to another person, provided that upon collection of such assessment by the handler to whom such agricultural commodity is so delivered for processing only, no further or additional assessment shall attach or become due by reason of the subsequent sale by such producer of such processed agricultural commodity to another person or handler.
  7. The Commissioner may prescribe such rules as may be necessary and reasonable for the orderly reporting and transmitting of assessments by handlers and may take all legal action necessary to enforce payment of the same by handlers. The Commissioner is authorized to issue executions for the same in like manner as executions are issued for ad valorem property taxes due the state. It shall be the duty of each and every sheriff of this state and their lawful deputies, upon the request of the Commissioner, to levy and collect such executions and to make their return thereof to the Commissioner in like manner as such tax executions are levied and return thereof made to county tax collectors and tax commissioners. The Commissioner shall likewise be authorized to collect, by execution as above provided or otherwise, directly from the producer against whom any assessment levied under this Code section may be found due whenever it is determined that such producer has sold such affected commodity or commodities giving rise to such liability to a person other than to a handler who has collected such assessment and is required by this Code section to remit the same to the Commissioner. Furthermore, the Commissioner may proceed against such producer and the purchaser of such commodity simultaneously if the purchaser is a handler required to collect such assessment, until satisfaction is obtained.
  8. Any moneys collected by the Commissioner or the commission pursuant to this article shall be deposited in a bank or other depository approved by the commission and shall be disbursed by the Commissioner only for the necessary expenses incurred by the commission and the Commissioner, as approved by the commission. Funds so collected shall be deposited and disbursed in conformity with appropriate rules and regulations prescribed by the Commissioner. All such expenditures by the Commissioner shall be audited at least annually by the state auditor and a copy of such audit shall be delivered within 30 days after the completion thereof to the Governor, the Commissioner, and the affected commission. If any such commission is abolished, any funds remaining in its hands at such time shall be used to pay the existing obligations of such commission and the expenses incurred in winding up the affairs of such commission. Any excess remaining shall escheat to the state and shall be paid by the Commissioner into the state treasury as unclaimed trust funds.
  9. Moneys deposited by the Commissioner pursuant to this Code section which the commission determines are available for investment may be invested or reinvested by the Commissioner as provided for funds of this state or of any retirement system created by law, provided that all moneys invested shall be invested in those areas of production that will provide a return at the highest bank interest rate available. It shall be the duty of the commission annually to review these investments and determine that this Code section is complied with. (Ga. L. 1961, p. 301, § 16; Ga. L. 1968, p. 398, § 10; Ga. L. 1969, p. 763, § 17; Code 1981, § 2-8-19 ; Code 1981, § 2-8-27 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

"Producer" is responsible for assessments levied by commission. 1976 Op. Att'y Gen. No. 76-4.

Funds expended for student scholarships in dairy science curricula prohibited. - Fiscal resources of the Georgia Agricultural Commodity Commission for Milk may not be expended to fund student scholarships in the dairy science curricula at the University of Georgia or to participate in funding a private scholarship foundation for students matriculating in such curricula. 1976 Op. Att'y Gen. No. 76-115.

Contributions to Southeastern Legal Foundation activities. - Funds of the commissions may not be expended for contributions to and support of the activities of the Southeastern Legal Foundation since the Foundation is a private enterprise undertaken by and serving private groups and individuals. 1976 Op. Att'y Gen. No. 76-102.

2-8-28. Collection of assessments by civil action; penalty for delinquent payment.

  1. Any assessment levied or established in accordance with this article in such specified amount as may be determined by the Commissioner or the commission pursuant to this article shall constitute a personal debt of every person so assessed and shall be due and payable to the Commissioner when payment is called for by the Commissioner. In the event of the failure of such person to pay any such assessment upon the date determined by the Commissioner, the Commissioner may file an action against such person in a court of competent jurisdiction for the collection thereof.
  2. In the event that any producer or handler duly assessed pursuant to this article fails to pay to the Commissioner the amount so assessed on or before the date specified by the Commissioner, the Commissioner is authorized to add to such unpaid assessment an amount not exceeding 10 percent of such unpaid assessment to defray the cost of enforcing the collection of such unpaid assessment.
  3. The provisions of subsection (a) of this Code section with respect to collection of assessments by action are in addition to and cumulative of the provisions of this article authorizing the issuance of executions for assessments by the Commissioner. The 10 percent penalty authorized to be assessed upon delinquent assessments under subsection (b) of this Code section may likewise be included in any execution issued by the Commissioner. Such remedies may be pursued concurrently until satisfaction is obtained upon either. Any penalty recovered shall become a part of the principal assessment levied and shall be for the use of the commission entitled thereto as are other moneys received under this article. (Ga. L. 1961, p. 301, § 20; Ga. L. 1968, p. 398, § 14; Ga. L. 1969, p. 763, § 21; Code 1981, § 2-8-20 ; Code 1981, § 2-8-28 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

JUDICIAL DECISIONS

Cited in Dunn v. Campbell, 219 Ga. 412 , 134 S.E.2d 20 (1963).

2-8-29. Maintenance and inspection of books and records and provision of information; confidentiality of information; hearings, testimony, and subpoenas.

  1. The Commissioner may require any and all processors or distributors subject to the provisions of any marketing order issued pursuant to this article:
    1. To maintain books and records reflecting their operations under the marketing order;
    2. To furnish to the Commissioner or his duly authorized or designated representatives such information as may from time to time be requested by them relating to operations under the marketing order; and
    3. To permit inspection by the Commissioner or his duly authorized or designated representatives of such portions of such books and records as relate to operations under the marketing order.
  2. Information obtained by any person under this Code section shall be confidential and shall not be disclosed by him to any other person, except to a person with like right to obtain the information or to any attorney employed to give legal advice thereupon or by court order.
  3. In order to carry out the purposes of this Code section, the Commissioner may hold hearings, take testimony, administer oaths, subpoena witnesses, and issue subpoenas for the production of books, records, or documents of any kind. (Ga. L. 1961, p. 301, § 22; Ga. L. 1969, p. 763, § 23; Code 1981, § 2-8-21 ; Code 1981, § 2-8-29 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-30. Use of grade or quality designations by persons not complying with order or regulations prohibited.

Whenever the use by a producer or handler of a particular emblem, label, certificate, or other distinctive designation of grade, quality, or condition, other than grade or other quality designations then in effect pursuant to state or federal grade standards, is made contingent upon compliance with certain production or handling regulations authorized by a marketing order issued and made effective under this article, it shall be unlawful and a violation of this article for any person who is not participating in and complying with such order or regulations to use such designation of grade, quality, or condition.

(Ga. L. 1961, p. 301, § 18; Ga. L. 1968, p. 398, § 12; Ga. L. 1969, p. 763, § 19; Code 1981, § 2-8-22 ; Code 1981, § 2-8-30 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-31. Inspections; holding of commodity; warning notice; notice of noncompliance; time for correction of deficiencies; petition to divert or destroy; show cause order; disposition of noncomplying commodity; penalty provisions not waived by disposal.

  1. Any authorized inspector or other authorized person discharging his duties in the checking of compliance with any marketing order made effective pursuant to this article may enter during normal business hours and inspect any premises, enclosure, building, or conveyance where he has reason to believe any agricultural commodity subject to a marketing order is produced, stored, being prepared for market, or marketed and may inspect or cause to be inspected such representative samples of the commodity as may be necessary to determine whether or not any lot of such commodity is in compliance with applicable regulations of any marketing order made effective pursuant to this article.
  2. Any authorized inspector or other authorized person in the discharge of his duties, if he has reason to believe that a lot of any agricultural commodity subject to a marketing order issued under this article is not in compliance with the requirements of such marketing order or of marketing rules and regulations issued pursuant thereto, as to quality, condition, size, maturity, pack, labeling, or markings, may hold such lot for a reasonable period of time sufficient to enable such officer to ascertain by an authorized inspection whether such lot complies with such marketing requirements, but in any event not to exceed 24 hours in the case of perishables or 72 hours in the case of nonperishables, except as provided in this Code section.
    1. Following inspection, an inspector or other authorized person may affix to any lot which is determined to be in noncompliance an official notice, warning tag, or other appropriate marking warning that the lot is held and stating the reasons therefor. It shall be unlawful for any person, other than an authorized inspector or enforcing officer, to detach, alter, deface, or destroy any such official notice, warning tag, or marking so affixed to any such lot or to remove or dispose of such lot in any manner or under conditions other than as prescribed in such notice of noncompliance, except upon written permission of an authorized enforcing officer or by order of a court of competent jurisdiction.
    2. The Commissioner or the authorized person by whom such lot is being held shall serve the person in possession of such lot with a notice of noncompliance. Such notice shall be served in person or by mail to the last known address of the person in possession. It shall be the duty of the person in possession to notify the owner of the lot or other persons having an interest therein of the serving of such notice of noncompliance.
    3. Such notice of noncompliance shall include a description of the lot and the place where and reasons for which it is held and shall cite the applicable marketing order or marketing rules and regulations and the Code section upon which the notice of noncompliance is based.
    1. The owner of a lot shall have, in the case of a perishable commodity, not more than 48 hours and, in the case of a nonperishable commodity, not more than 72 hours from the time of the service of a notice of noncompliance for reconditioning or for the correction of the deficiencies noted in the notice of noncompliance. If such lot is reconditioned or the deficiencies are corrected, the enforcing officer shall remove the warning tags or markings and release the lot for marketing, provided that with the consent of the owner of the lot, the enforcing officer is authorized to divert the lot to other lawful uses or to destroy the lot.
      1. If the owner of the lot fails or refuses to give consent to its diversion to other lawful uses or to its destruction or if the lot has not been reconditioned or the deficiencies otherwise corrected so as to bring the lot into compliance within the time specified in the notice, then the enforcing officer shall proceed as provided in this subsection.
      2. The Commissioner may file a verified petition in the superior court of the county where the agricultural commodity is held or the county of the residence of the owner thereof requesting permission to divert such lot to any other available lawful use or to destroy such lot. Such verified petition shall show the condition of the lot; that the lot is situated within the territorial jurisdiction of the court in which the petition is being filed or that the owner thereof resides within the jurisdiction of the court; that the lot is held and the notice of noncompliance has been served as provided in this Code section; that the lot has not been reconditioned as required; the name and address of the owner and the person in possession of the lot; and that the owner has refused permission to divert or to destroy the lot. Upon the filing of such verified petition the court may issue an order to show cause, returnable five days after service upon the owner, why the lot shall not be reconditioned or the deficiencies corrected or why the lot shall not be diverted to other lawful uses or destroyed. The owner of the lot may, prior to the date when the order to show cause is returnable, either recondition or correct the deficiencies in the lot so as to bring the lot into compliance or file at or before the hearing on the order an answer with the court showing why the lot should not be reconditioned or the deficiencies corrected so as to bring it into compliance or showing why the lot should not be diverted to other lawful uses or destroyed.
      3. If, at the expiration of the five days, the owner of the lot has failed or refused to recondition or to correct the deficiencies so as to bring the lot into compliance, the court may enter judgment ordering that the lot be reconditioned, diverted to any other lawful uses, or destroyed in the manner directed by the court or that the lot be relabeled, denatured, or otherwise processed or that the lot be sold or released upon such condition as the court in its discretion may impose, provided that the lot may not be sold or released into the regular channels of trade.
      4. In the event of the sale of any lot by order of the court, the costs of storage, handling, and reconditioning or disposal shall be deducted from the proceeds of the sale and the balance, if any, shall be paid into the court for the account of the owner of any such lot.
  3. Disposal of any lot or portion of any lot pursuant to this Code section, whether such disposal is by arrangement with an enforcing officer or by court order, shall not waive any of the penalty provisions of this article.
  4. This Code section shall apply to any lot of any agricultural commodity regulated by a marketing order wherever or in the possession of whomever such lot may be in the marketing channels within this state. (Ga. L. 1961, p. 301, §§ 18, 19; Ga. L. 1968, p. 398, §§ 12, 13; Ga. L. 1969, p. 763, §§ 19, 20; Code 1981, § 2-8-23 ; Code 1981, § 2-8-31 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-32. Civil penalties; notice and hearing; recovery procedure; disposition of proceeds.

Any person who violates any provision of this article or any marketing order duly issued by any commission and in effect under this article or who violates any rule or regulation issued by the Commissioner pursuant to this article or of any marketing order duly issued and effective under this article shall be civilly liable to such commission for a penalty in an amount not to exceed $500.00 for each and every violation thereof, the amount of such penalty to be fixed by the Commissioner after notice and hearing as provided by Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for contested cases and recoverable by a civil action brought in the name of the Commissioner for the use and benefit of the affected commission or by execution issued in like manner as for assessments provided by Code Section 2-8-27. Any moneys recovered pursuant to this Code section shall be deposited and disbursed in accordance with subsection (e) of Code Section 2-8-27 as are other moneys.

(Ga. L. 1961, p. 301, § 18; Ga. L. 1968, p. 398, § 12; Ga. L. 1969, p. 763, § 19; Code 1981, § 2-8-24 ; Code 1981, § 2-8-32 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-33. Action for civil penalty or injunctive relief; costs.

  1. The Attorney General of this state shall, upon complaint by the Commissioner, or may, upon his own initiative if after examination of the complaint and evidence he believes a violation has occurred, bring an action in the superior court in the name of the Commissioner for civil penalties or for injunctive relief, including specific performance of any obligation imposed by a marketing order or any rule or regulation issued under this article, or both, against any person violating any provisions of this article or of any marketing order or any rule or regulation duly issued by the Commissioner or any commission under this article.
  2. If it appears to the court, upon any application for a temporary restraining order, upon the hearing of any order to show cause why a preliminary injunction should not be issued, or upon the hearing of any motion for a preliminary injunction, or if the court finds in any such action that any defendant therein is violating or has violated any provision of this article or of any marketing order or any rule or regulation duly issued by the Commissioner or any commission under this article, then the court shall enjoin the defendant from committing further violations and may compel specific performance of any obligation imposed by a marketing order or any rule or regulation issued by the Commissioner or commission under this article. It shall not be necessary in such event to allege or prove lack of an adequate remedy at law.
  3. In any action brought by the Attorney General to enforce any of the provisions of this article or of any marketing order issued by the Commissioner or any commission and effective under this article or of any rule or regulation issued by the Commissioner or any commission pursuant to any marketing order, the judgment, if in favor of the Commissioner or the commission, may provide that the defendant pay to the Commissioner or to the commission concerned with the administration of such marketing order the costs incurred by the Commissioner or by the commission in the prosecution of such action. (Ga. L. 1961, p. 301, § 18; Ga. L. 1968, p. 398, § 12; Ga. L. 1969, p. 763, § 19; Code 1981, § 2-8-25 ; Code 1981, § 2-8-33 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-34. Referral for institution of legal proceedings; administrative hearing; cease and desist order.

  1. The Commissioner on his own motion may, and upon the complaint of any interested party charging a violation of any provision of this article or of any provision of any marketing order or any rule or regulation issued by the Commissioner or commission and effective under this article shall, either refer the matter directly to the Attorney General of this state or to any prosecuting attorney of this state for the institution of legal proceedings thereupon or, if the Commissioner deems it necessary or advisable, immediately call an administrative hearing, pursuant to the provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," governing contested cases, to consider the charges set forth in such verified complaint.
  2. In case the matter is referred directly by the Commissioner to the Attorney General or any prosecuting attorney, it shall be the duty of such officer, if after examination of the complaint and the evidence he believes that a violation has occurred, to bring an appropriate action or actions in a court or courts of competent jurisdiction in this state.
  3. After an administrative hearing, if the Commissioner finds that a violation has occurred, he shall enter his findings and notify the parties to such complaint. In his discretion, the Commissioner shall either refer the matter to the Attorney General for the institution of legal proceedings or notify such parties to cease and desist from further violation. Upon the refusal or failure of such parties to comply or if he finds that the facts or circumstances warrant immediate prosecution, the Commissioner shall file a complaint with the Attorney General or with any prosecuting attorney of this state requesting that such officer commence any or all actions authorized in this article against such respondent or respondents in a court of competent jurisdiction. (Ga. L. 1961, p. 301, § 18; Ga. L. 1968, p. 398, § 12; Ga. L. 1969, p. 763, § 19; Code 1981, § 2-8-26 ; Code 1981, § 2-8-34 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-35. Furnishing of false report, statement, record, or marketing order; refusal to furnish certain information.

  1. Any person who willfully renders or furnishes a false or fraudulent report, statement, or record required pursuant to this article or any marketing order effective under this article shall be guilty of a misdemeanor.
  2. Any person engaged in the handling or processing of any agricultural commodity or in the wholesale or retail trade thereof who fails or refuses to furnish, upon request, information concerning the name and address of the person from whom he has received an agricultural commodity regulated by a marketing order issued and in effect under this article and the quantity of such commodity received shall be guilty of a misdemeanor. (Ga. L. 1961, p. 301, § 18; Ga. L. 1969, p. 763, § 19; Code 1981, § 2-8-27 ; Code 1981, § 2-8-35 , as redesignated by Ga. L. 1989, p. 1420, § 1; Ga. L. 1990, p. 8, § 2.)

2-8-36. Criminal penalty.

Any person who violates any provision of this article or any provision of any marketing order duly issued by any commission under this article shall be guilty of a misdemeanor.

(Ga. L. 1961, p. 301, §§ 18, 25; Ga. L. 1968, p. 398, § 12; Ga. L. 1969, p. 763, §§ 19, 26; Code 1981, § 2-8-28 ; Code 1981, § 2-8-36 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

2-8-37. Penalties and remedies concurrent, alternative, and cumulative.

The penalties and remedies prescribed in this article with respect to any violation mentioned shall be concurrent and alternative. Neither singly nor combined shall such penalties and remedies be exclusive; rather, either singly or combined, such penalties and remedies shall be cumulative with any and all other civil, criminal, or alternative rights, remedies, forfeitures, or penalties provided or allowed by law with respect to any such violation.

(Ga. L. 1961, p. 301, § 18; Ga. L. 1969, p. 763, § 19; Code 1981, § 2-8-29 ; Code 1981, § 2-8-37 , as redesignated by Ga. L. 1989, p. 1420, § 1; Ga. L. 1990, p. 8, § 2.)

2-8-38. Applicability of article to retailers.

This article shall not be applicable to any retailer of agricultural commodities except to the extent that any retailer also engages in the processing or distribution of agricultural commodities as defined in this article.

(Ga. L. 1961, p. 301, § 24; Ga. L. 1969, p. 763, § 25; Code 1981, § 2-8-30 ; Code 1981, § 2-8-38 , as redesignated by Ga. L. 1989, p. 1420, § 1.)

ARTICLE 3 AGRICULTURAL COMMODITY COMMISSION FOR PEANUTS

2-8-50. Applicability of article.

This article shall apply only to the Agricultural Commodity Commission for Peanuts.

(Code 1981, § 2-8-50 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-51. Definitions.

As used in this article, the term:

  1. "Advertising and sales promotion" means, in addition to the ordinarily accepted meaning thereof, trade promotion and activities for the prevention, modification, or removal of trade barriers which restrict the normal flow of peanuts to market and may include the presentation of facts to and negotiations with state, federal, or foreign governmental agencies on matters which affect the marketing of peanuts included in any marketing order made effective pursuant to this article.
  2. "Commission" means the Agricultural Commodity Commission for Peanuts created under this article.
  3. "Distributor" means any person who engages in the operation of selling, marketing, or distributing peanuts which he has produced or has purchased or acquired from a producer or which he is marketing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise, but shall not include a retailer as defined in this Code section, except a retailer who purchases or acquires from, or handles on behalf of, any producer peanuts not theretofore subjected to regulation by the marketing order covering peanuts.
  4. "Handler" means any person engaged within this state as a distributor in the business of distributing peanuts or any person engaged as a processor in the business of processing peanuts.
  5. "Marketing order" means an order issued pursuant to this article prescribing rules and regulations governing the processing, distributing, or handling in any manner of peanuts within this state or establishing an assessment for financing the programs established under this article.
  6. "Person" means an individual, firm, corporation, association, or any other business unit or any combination thereof and includes any state agency which engages in any of the commercial activities regulated pursuant to this article.
  7. "Peanuts" means peanuts and peanut products produced in this state or any class, variety, or utilization thereof, either in their natural state or as processed by a producer for the purpose of marketing such product or by a processor as defined in this Code section.
  8. "Processor" means any person engaged within this state in the operation of receiving, grading, packing, canning, extracting, preserving, grinding, crushing, or changing the form of peanuts for the purpose of preparing peanuts for market or of marketing such peanuts or engaged in any other activities performed for the purpose of preparing such peanuts for market or of marketing such peanuts but shall not include a person engaged in manufacturing another and different product from peanuts, so changed in form. The term "processor" shall not include an agent of the processor nor any person who receives peanuts for or on the account of another person.
  9. "Producer" means any person engaged within this state in the business of producing or causing to be produced for market peanuts as defined in this Code section.
  10. "Producer marketing" or "marketed by producers" means any or all operations performed by any producer in preparing for market and includes selling, delivering, or disposing of, for commercial purposes, peanuts which he has produced to any handler as defined in this Code section.
  11. "Retailer" means any person who purchases or acquires peanuts for resale at retail to the general public for consumption off the premises; however, such person shall also be included within the definition of "distributor," as set forth in this Code section, to the extent that he engages in the business of a distributor as defined in this Code section.
  12. "Seasonal marketing regulations" means marketing regulations, applicable to a particular marketing order, made effective as prescribed in this article for the purpose of carrying into effect, by administrative order, the marketing regulatory authorizations and the provisions of such marketing order, as such authorizations or provisions may be applicable to or required by changing economic or marketing conditions and requirements from time to time during each marketing season in which such marketing order may operate. Such seasonal marketing regulations shall not extend beyond the marketing order concerned; nor shall they modify or change the language of such marketing order.
  13. "To distribute" means to engage in the business of a distributor as defined in this Code section.
  14. "To handle" means to engage in the business of a handler as defined in this Code section.
  15. "To process" means to engage in the business of a processor as defined in this Code section. (Code 1981, § 2-8-51 , enacted by Ga. L. 1989, p. 1420, § 1; Ga. L. 1990, p. 8, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

"Handler" construed. - Inasmuch as the Seed Commission is a public corporation and state instrumentality which engages in the operation of selling peanuts which it has purchased from a producer, the commission is a "handler" to whom the Peanut Commission may look for payment of the assessment established by Marketing Order No. 3. 1990 Op. Att'y Gen. No. 90-33.

2-8-52. Commission continued in existence; powers and duties; continuation of certain rules, regulations, and orders; periodic determination as to continuation of commission.

  1. The Agricultural Commodity Commission for Peanuts which was initially established August 1, 1961, pursuant to the "Georgia Agricultural Commodities Promotion Act," (Ga. L. 1961, p. 301), as amended, is continued in existence and is ratified and confirmed as a public corporation and instrumentality of the State of Georgia from and since such date. The Agricultural Commodity Commission for Peanuts shall be organized and constituted, have corporate existence, and possess powers and duties as stated in this article and shall be governed and controlled by this article.
  2. Marketing Order No. 3 for Peanuts which was adopted by the Agricultural Commodity Commission for Peanuts and which was continued in existence until June 30, 1991, shall continue in effect under the provisions of this article until such date.
  3. All rules, regulations, and orders of the Agricultural Commodity Commission for Peanuts in force and effect on July 1, 1989, shall remain in effect until otherwise amended or repealed pursuant to this article.
  4. Prior to April 30, 1991, and each three years thereafter, balloting shall be conducted in accordance with Code Section 2-8-63 to determine whether the commission shall continue to exist and operate under this article. (Code 1981, § 2-8-52 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-53. Membership of commission; division of peanut-producing counties into districts; election of members; compensation and expenses; certification of members to Secretary of State.

  1. The Agricultural Commodity Commission for Peanuts shall be composed of five members, who shall be peanut producers to be elected in the manner provided in subsection (b) of this Code section.
    1. For the purpose of electing the five members of the Agricultural Commodity Commission for Peanuts, the commission shall divide those counties within this state in which peanuts are produced into five districts, each of which shall have approximately equal quota pound production of peanuts. Any county in which peanuts are not produced shall not be included in any of the five districts. Such districts in existence on July 1, 1989, shall remain as constituted on such date until otherwise changed by the commission.
    2. The five producer members of the Agricultural Commodity Commission for Peanuts who are serving as such on July 1, 1989, shall continue as members for the remainder of their unexpired terms. Prior to the expiration of a term of office, it shall be the duty of the commission to conduct an election for a successor. Except as otherwise provided in this Code section, elections shall be called and conducted in the manner specified by the commission. One member shall be elected from each district by the producers of peanuts residing in such district. To be eligible for election, a person must be a peanut producer. No producer of peanuts residing within the district shall be denied the right to seek election to membership on the commission.
    3. A person must receive a majority of the votes cast for a position in order to be elected to such position; provided, however, if only one person qualifies for such position, no election shall be required and that person shall automatically become a member of the commission.  If no person receives a majority of the votes cast for such position, a run-off election shall be conducted by the commission.  Any member may succeed himself as a member of a commission.  Members shall have terms of office of three years each and until their respective successors are elected and qualified.
    4. Vacancies in the membership of the commission shall be filled by election in the same manner as the original election of such members. Any person elected to fill a vacancy shall be elected for the remainder of the unexpired term.
  2. The members of the commission shall receive compensation and reimbursement of expenses as shall be provided by the commission, and such funds shall be payable from the funds of the commission. The commission shall keep comprehensive and detailed records of all compensation and expense reimbursement paid to each member of the commission. In connection with the audits provided for in subsection (h) of Code Section 2-8-67, the state auditor shall annually prepare a comprehensive and detailed report of the compensation and reimbursement paid to each member of the commission and shall provide a copy of such report to the commission; and such report shall be available to any producer of peanuts upon written request of any such producer.
  3. It shall be the duty of the commission to certify to the Secretary of State the membership of the commission and each change in membership as the same occurs. (Code 1981, § 2-8-53 , enacted by Ga. L. 1989, p. 1420, § 1; Ga. L. 1991, p. 997, § 1.)

2-8-54. Authority; legal representation; acceptance and use of donations, gifts, and other property; exercise of powers of corporations; continuation of existence of commission; authority to lease or purchase property.

  1. The commission is authorized to appoint advisory boards, special committees, and individuals, including technical and clerical personnel, to advise, aid, and assist the commission in the performance of its duties. Compensation for such services shall be fixed by the commission and may be paid from the funds of the commission. The Attorney General shall represent the commission in legal matters and shall be the attorney for the commission. If the Attorney General determines that outside legal counsel is necessary or desirable in connection with any legal matter of the commission, he shall so inform the commission and, upon approval of the commission, he shall employ such outside counsel. Compensation for such outside counsel shall be agreed upon between such counsel and the Attorney General, subject to the approval of the commission. Such compensation shall be paid from the funds of the commission. Neither Code Section 16-10-9 nor any other law shall prohibit or be applicable to the employment of such counsel.
  2. The commission is authorized to accept donations, gifts, and other property and to use the same for commission purposes. The commission may exercise the powers and authority conferred by law upon corporations.
  3. The commission shall continue as a public corporation and instrumentality of the State of Georgia until abolished by law or until terminated by referendum.
  4. The commission is authorized to acquire, lease as lessee, purchase, hold, own, and use any franchise or real or personal property, whether tangible or intangible, or any interest therein and, whenever the same is no longer required for purposes of the commission, to sell, lease as lessor, transfer, or dispose thereof or to exchange the same for other property or rights which are useful for its purposes. (Code 1981, § 2-8-54 , enacted by Ga. L. 1989, p. 1420, § 1; Ga. L. 1999, p. 765, § 1.)

2-8-55. Commission as public corporation; name used in contracts and legal proceedings; chairman; quorum; oath of office; certification of election.

The commission shall be a public corporation and an instrumentality of the State of Georgia. By that name, style, and title, the commission may contract and be contracted with, implead and be impleaded, and complain and defend in all courts. The commission shall name its chairman and determine a quorum for the transaction of business. The commission shall assume the duties and exercise the authority provided in this article without further formality than that provided in this article. Each member of the commission shall be a public officer and shall take an oath of office faithfully to perform his duties. Such oath shall be administered by the Governor or some other person qualified to administer oaths. The fact of a member's election shall be certified to the Secretary of State, who shall issue the appropriate commission under the seal of his office.

(Code 1981, § 2-8-55 , enacted by Ga. L. 1989, p. 1420, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Commission's property exempt from ad valorem taxes. - Because the property owned by the Agricultural Commodity Commission for Peanuts is public property, not used for the purpose of private or corporate profit and income, it is exempt from city and county ad valorem taxes. 1963-65 Op. Att'y Gen. p. 390.

2-8-56. Receipt, collection, and disbursal of funds.

The commission is authorized and it shall be its duty to receive, collect, and disburse the funds of the commission.

(Code 1981, § 2-8-56 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-57. Funds held in trust; deposit, accounting, and disbursal of funds; exemption from requirements applicable to state funds.

Funds received by the commission under this article shall be held in trust for the commission. Such funds shall be deposited, accounted for, and disbursed in the same manner as the funds of this state but shall not be required to be deposited in the state treasury and appropriated therefrom as are other state funds. It is the express intent and purpose of this article to authorize the receipt, collection, and disbursement by the commission of such funds as trust funds of the commission without complying with the requirement applicable to funds collected for the use and benefit of the state.

(Code 1981, § 2-8-57 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-58. Bond of persons handling funds under article; signing of checks, drafts, and negotiable instruments; election, powers, and duties of treasurer.

Any persons who handle funds under this article shall be bonded with good and sufficient surety in an amount determined by the commission for the accounting of any and all funds coming into their hands. All checks, drafts, and negotiable instruments which are drawn on or payable from the funds of the Agricultural Commodity Commission for Peanuts shall be signed by either the chairman or treasurer of the commission. It shall be the duty of the commission to elect annually a treasurer from among the membership of the commission. The treasurer shall have such powers and perform such duties as shall be provided by the commission.

(Code 1981, § 2-8-58 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-59. Liability of commission members.

The members and employees of the commission shall not be held responsible individually in any way whatsoever to any producer, processor, distributor, or other handler or to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of the commission. The liability of the members of the commission shall be several and not joint and no member shall be liable for the default of any other member.

(Code 1981, § 2-8-59 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-60. Authority to confer with and make information available to governmental authorities of this state, other states, and the United States.

The commission is authorized to confer with and to make any information obtained pursuant to this article available to the duly constituted governmental authorities of this state, of other states, of political subdivisions of this state or other states, and of the United States who, by reason of their duties, have legitimate concern with the subject and to cooperate with all such authorities for the purpose of obtaining administrative uniformity and achieving the objectives of this article.

(Code 1981, § 2-8-60 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-61. Issuance, administration, and enforcement of marketing orders; notice and hearing as to proposed order; information from persons who may be affected by order.

  1. The commission is authorized to issue, administer, and enforce the provisions of marketing orders regulating producer marketing or the handling of peanuts within this state.
    1. Whenever the commission has reason to believe that the issuance of a marketing order or amendments to an existing marketing order will tend to effectuate the declared policy of this article with respect to peanuts, it shall, either upon its own motion or upon the application of any producer of peanuts or any organization of such persons, give due notice of and an opportunity for a public hearing upon a proposed marketing order or amendments to an existing marketing order.
    2. Notice of any hearing called for such purpose shall be given by the commission by publishing a notice of such hearing for a period of not less than five days in a newspaper of general circulation published in the capital of the state and in such other newspapers as the commission may prescribe. No such public hearing shall be held prior to five days after the last day of such period of publication. The commission shall also mail a copy of such notice of hearing and a copy of such proposed marketing order or proposed amendments to all producers of peanuts whose names and addresses appear upon lists of such persons on file with the commission and who may be directly affected by the provisions of such proposed marketing order or such proposed amendments. Such notice of hearing shall in all respects comply with the requirements of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
    3. The hearing shall be public and all testimony shall be received under oath. A full and complete record of the proceedings at such hearing shall be made and maintained on file in the office of the commission. The hearing shall, in all respects, be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The hearing may be conducted by the commission or by a member of the commission, as may be designated by the commission in each instance, but no decision shall be made based on hearings conducted other than by the commission itself, at which a majority of the members thereof are present, until the members of the commission have been afforded an opportunity to review the hearing record. Where the commission conducts hearings, its recommendation shall be based on the findings reached after a review of the record of the hearing.
    1. In order to provide the commission with accurate and reliable information with respect to the persons who may be directly affected by any proposed marketing order for peanuts when such information is not then on file with the commission, the commission is authorized and directed, whenever the commission has reason to believe that the issuance of a marketing order will tend to effectuate the declared policy of this article or upon receipt of a written application for a hearing pursuant to subsection (b) of this Code section, to notify all handlers of peanuts, by publication of a notice as required in paragraph (2) of this subsection, to file with the commission within ten days from the last date of such publication a report, properly certified, showing:
      1. The correct name and address of such handler;
      2. The quantities of peanuts affected by the proposed marketing order handled by such handler in the marketing season next preceding the filing of such report;
      3. The correct names and addresses of all producers of peanuts who may be directly affected by such proposed marketing order, from whom such handler received peanuts in the marketing season next preceding the filing of such report; and
      4. The quantities of peanuts received by such handler from each such producer in the marketing season next preceding the filing of such report.
    2. The notice to handlers requiring them to file a report shall be published by the commission for a period of not less than five days in a newspaper of general circulation published in the capital of the state and in such other newspaper or newspapers as the commission may prescribe. The commission shall also mail a copy of such notice to all handlers of peanuts whose names and addresses appear upon the lists on file with the commission who may be directly affected by such proposed marketing order.
    3. Each handler of peanuts directly affected by a proposed marketing order shall file his verified report with the commission within the time specified in paragraph (1) of this subsection. Failure or refusal of any handler to file such report shall not invalidate any proceeding taken or marketing order issued. The commission is authorized and directed to proceed upon the basis of such information and reports as may otherwise be available.
    4. From the reports so filed and the information so received or available to the commission, including any proper corrections, the commission shall prepare a list of the names and addresses of such producers and the volume of peanuts produced or marketed by all such producers and a list of the names and addresses of such handlers and the volume of peanuts handled by all such handlers, directly affected by such proposed marketing order or amendments thereto, in the preceding marketing season. Such lists shall constitute complete and conclusive lists for use in any finding made by the commission pursuant to subsection (a) of Code Section 2-8-63 and such findings shall be conclusive.
    5. The information contained in the individual reports of handlers filed with the commission pursuant to this Code section shall not be made public in such form. The information contained in such reports may be prepared in combined form for use by the commission, its agents, or other interested persons in the formulation, administration, and enforcement of a marketing order or may be made available pursuant to court order. Such information shall not be made available to anyone for private purposes. (Code 1981, § 2-8-61 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-62. Recommendation of promulgation of marketing order; permissible provisions of orders; effectiveness of orders heretofore adopted and in effect on July 1, 1989.

  1. If, upon the basis of the record of testimony and documentary evidence received at the hearing provided for in Code Section 2-8-61 and the facts officially noticed therein from official publications or institutions of recognized standing, the commission determines that the issuance of a marketing order or an amendment will tend to effectuate the intent and purpose of this article, it may recommend the promulgation of a marketing order or amendment with respect to the matters specified in the hearing notice and supported by the record, containing any or all of the following provisions, but no others:
    1. Provisions regulating the period or periods during which peanuts or any grade, size, or quality of peanuts may be processed, distributed, or otherwise marketed within this state by any and all persons engaged in such processing, distributing, or marketing within this state; such periods shall be established by the commission so as to conform to the better principles of sound agricultural practices with respect to production of the peanuts in order to secure, so far as is commercially practical, a sufficient supply of good quality of each grade of peanuts proportionate to normal market demand and to prevent disruptive marketing practices likely to result in oversupply or scarcity, which create unnecessarily inflated prices to consumers and handlers, depressed prices to producers, or salability of products of inferior grade and quality due to unavailability of good quality products;
    2. Provisions establishing or providing for establishing, with respect to peanuts, either as delivered by producers to handlers or processors or as handled, processed, or otherwise prepared for market or as marketed by producers, handlers, or processors:
      1. Grading standards of quality, condition, size, maturity, or pack, which standards may include minimum standards, provided that the standards so established shall not be established below any minimum standards prescribed by law for peanuts; and
      2. Uniform inspection and grading of peanuts in accordance with the standards so established.
    3. Provisions for the establishment of plans for advertising and sales promotion to maintain present markets or to create new or larger markets for peanuts grown in this state or for the prevention, modification, or removal of trade barriers which obstruct the normal flow of peanuts to market. The commission is authorized to prepare, issue, administer, and enforce plans for promoting the sale of peanuts, provided that any such plan shall be directed toward promoting and increasing the sale, use, and utilization of peanuts without reference to a particular brand or trade name; and provided, further, that no advertising or sales promotion program shall be issued by the commission which makes use of false or unwarranted claims in behalf of any such product or disparages the quality, value, sale, or use of any other agricultural commodity;
    4. Provisions prohibiting unfair trade practices by which any producer or handler tends toward establishment of monopoly, unfairly discriminates among customers as to price or quality, or engages in fraudulent, deceptive, or misleading representations, concealment, or other similar sharp business practices which are harmful to his or its customers, injurious to competitors, likely to bring into disrepute persons generally engaged in production and handling of peanuts, or detrimental to the intent and purpose of this article;
    5. Provisions for carrying on research studies in promoting the production, marketing, sale, use and utilization, processing, and improvement of peanuts or any combination thereof and for the expenditure of moneys for such purposes. In any research carried on under this paragraph, the dean of the College of Agricultural and Environmental Sciences of the University of Georgia and the commission shall cooperate in selecting the research project or projects to be carried on from time to time. Insofar as practicable such projects shall be carried out by the College of Agricultural and Environmental Sciences but, if the dean of the college and the commission determine that the college has no facilities for a particular project or that some other research agency has better facilities therefor, the project may be carried out by other research agencies selected by the commission;
    6. Provisions establishing or providing authority for establishing, either as peanuts are produced or are delivered by producers to handlers or as peanuts are handled or otherwise prepared for market or as peanuts are marketed by producers or handlers, an educational program designed to acquaint producers, handlers, or other interested persons with quality improvement, including sanitation practices, procedures, or methods as applied to peanuts;
    7. Provisions for the promotion of the marketing of surplus peanuts through the establishment of surplus, stabilization, or by-product pools for peanuts or any grade, size, quality, or condition thereof, providing for the sale of the peanuts in any such pool and for the equitable distribution among the persons participating therein of the net returns derived from the sale of such peanuts. Whenever the marketing order authorizes the establishment of any such pool or pools, the commission shall have the power to receive such peanuts from each producer or handler, to handle the same according to the grade, size, quality, or condition thereof, and to account to each producer or handler participating therein upon a pro rata basis for the net proceeds derived from the sale thereof. Whenever the marketing order authorizes the establishment of a surplus, stabilization, or by-product pool, the commission shall have authority to promote the marketing of surplus peanuts by making arrangements for and operating any necessary facilities for the storing, financing, grading, hauling, packing, servicing, processing, preparing for market, selling, and disposing of the contents of any pools provided for in this paragraph. Whenever the marketing order authorizes the establishment of any type of pool authorized in this paragraph, the commission shall have authority to create, by a uniform assessment upon producers, or to maintain and disburse, upon some other uniform and equitable basis, an equalization fund to be used for the removal of any inequalities between producers or handlers participating in any pool; and
    8. Provisions for the establishment and management of a stabilization fund to compensate producers of peanuts for peanuts which must be diverted or which fail to qualify for marketing or sale in regular marketing channels due to grade, quality, or size regulations. The commission shall be authorized to provide, by regulations, for the administration of such stabilization fund, including regulations as to the type, quality or grade of peanuts, the amount of stabilization support, reporting, and qualifying procedures. Whenever the marketing order authorizes the establishment of any type of stabilization fund authorized in this paragraph, the commission shall have the authority to create such fund by a uniform assessment upon producers of peanuts and to maintain and disburse such stabilization fund in accordance with the purposes set out in this paragraph.
  2. All provisions authorized by this Code section which are contained in marketing orders and amendments thereto heretofore adopted by the Agricultural Commodity Commission for Peanuts and in effect on July 1, 1989, shall be and remain of full force and effect until repealed or modified by the commission as provided in this article. (Code 1981, § 2-8-62 , enacted by Ga. L. 1989, p. 1420, § 1; Ga. L. 1995, p. 10, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Hiring of person to explain impact of federal actions. - Agricultural Commodity Commission for Peanuts is authorized to hire person to perform function of meeting with federal officials to explain impact of proposed federal actions on peanut producers in Georgia. 1980 Op. Att'y Gen. No. 80-161 (rendered under O.C.G.A. § 2-8-22 ).

2-8-63. Finding of assent or approval of producers required for marketing order to become effective; commission authorized to issue orders regulating peanuts; amendments; notice; rules and regulations; expiration and extension of orders.

    1. No marketing order or major amendment thereto, directly affecting producers or producer marketing, issued pursuant to this article, shall be made effective by the commission until the finding of one or more of the following:
      1. That such marketing order or amendment thereto has been assented to in writing by not less than 65 percent of the producers who are engaged within the area specified in such marketing order or amendment thereto in the production for market or the producer marketing of not less than 51 percent of the peanuts specified therein in commercial quantities;
      2. That such marketing order or amendment thereto has been assented to in writing by producers who produce not less than 65 percent of the volume of peanuts and by 51 percent of the total number of producers so engaged; or
      3. That such marketing order or amendment thereto has been approved or favored by producers in a referendum among producers directly affected if the valid votes cast in such referendum in favor of such marketing order or amendment thereto represent not less than 51 percent of the total number of producers of peanuts of record with the commission who marketed not less than 51 percent of the total quantity of the peanuts marketed in the next preceding marketing season by the total number of producers of record with the commission.
    2. Whenever any marketing order or any major amendment to any marketing order is issued by the commission, the commission shall determine whether assent, approval, or favor thereto of the producers shall be by written assents or by referendum.
    3. If the commission determines that a referendum shall be had, the commission shall establish a referendum period of 30 days. At the close of such referendum period, the commission shall count and tabulate the ballots filed during such period. If from such tabulation the commission finds that the number of producers voting in favor of such marketing order or amendment thereto is not less than 51 percent of the total number of producers of record with the commission and that such producers who voted in favor of the marketing order or amendment thereto marketed not less than 51 percent of the total volume of peanuts marketed by all producers of record with the commission during the marketing season next preceding such referendum, the commission may make such marketing order or amendment thereto effective. The commission is authorized to prescribe such additional procedures as may be necessary to conduct such referendum.
    4. At a public hearing held to consider a proposed marketing order or major amendments to an existing marketing order which directly affect producers or producer marketing, the commission shall also receive testimony or evidence from which it can determine whether the assent, approval, or favor of such producers shall be determined by written assents or by referendum as prescribed in this Code section. Upon the conclusion of any hearing which involves a marketing order or a major amendment thereto directly affecting producers or producer marketing, the commission shall make a finding, based upon the testimony and evidence received, whether producer assent, approval, or favor shall be determined by written assents or by referendum. If the commission finds that a referendum shall be had, it shall direct that a referendum be held in accordance with this subsection.
    5. Any referendum or assent in writing to a marketing order under paragraphs (3), (5), and (6) of subsection (a) of Code Section 2-8-62 shall be held pursuant to this Code section; and upon the approval thereof by two-thirds of those voting therein, where the total vote cast thereon represents not less than 25 percent of those eligible to vote or where the total vote cast thereon represents not less than 25 percent of the total amount of peanuts, such marketing order may be declared by the commission to be approved.
    6. In the event of the failure of any proposed marketing order to be approved, no additional referendum thereon shall be held during a period of 12 months from the date of the close of the previous referendum period.
  1. Subject to the provisions, restrictions, and limitations imposed in this article, the commission may issue marketing orders regulating producer marketing and the processing, distributing, or handling in any manner of peanuts by any and all persons engaged in such producer marketing, processing, distributing, or handling of peanuts within this state.
    1. Upon the recommendation of not less than three members of the commission, the commission may make effective minor amendments to a marketing order. The commission may require a public hearing upon minor amendments if in its opinion the substance of such minor amendments so warrants. The commission, however, shall not be required to submit minor amendments for written assents or referendum approval.
    2. In making effective major amendments to a marketing order, the commission shall follow the same procedures prescribed in this article for the institution of a marketing order. For the purpose of this article, a major amendment to a marketing order shall include, but shall not be limited to, any amendment which adds to or deletes from any such marketing order any of the following types of regulations or authorizations:
      1. Authority for regulating the period or periods during which peanuts or any grade, size, or quality of such peanuts may be processed, distributed, or otherwise marketed within this state;
      2. Authority for the establishment of uniform grading and inspection of peanuts and the establishment of grading standards of quality, condition, size, or pack of such peanuts;
      3. Authority for the establishment of plans for advertising and sales promotion of peanuts;
      4. Authority to prohibit unfair trade practices;
      5. Authority for carrying out research studies in the production, processing, or distribution of peanuts;
      6. Authority to increase an assessment rate beyond the maximum rate authorized by the marketing order in effect; or
      7. Authority to extend the application of the provisions of any marketing order to portions or uses of peanuts not previously subject to such provisions or to restrict or extend the application of such provisions upon the producers or handlers of such portions or uses of such peanuts.
    3. Modification of any provisions of any marketing order in effect, for the purpose of clarifying the meaning or application of such provisions or of modifying administrative procedures for carrying out such provisions, are declared not to be a major amendment of such marketing order.
  2. Upon the issuance of any order making effective a marketing order or any suspension, amendment, or termination thereof, a notice thereof shall be posted on a public bulletin board maintained at the offices of the commission; and a copy of such notice shall be published as the commission may prescribe. No marketing order nor any suspension, amendment, or termination thereof shall become effective until the termination of a period of five days from the date of such posting and publication. It shall also be the duty of the commission to mail a copy of the notice of such issuance to all persons directly affected by the terms of such marketing order, suspension, amendment, or termination whose names and addresses are on file in the office of the commission and to every person who files in the office of the commission a written request for such notice.
  3. The commission shall have the power, consistent with this article and in accordance with marketing orders and agreements made effective under this article, to establish such general rules and regulations for uniform application to all marketing orders issued under this article as may be necessary to facilitate the administration and enforcement of such marketing orders. The provisions of subsection (d) of this Code section relative to posting, publication, and time of taking effect shall be applicable to any such general rule or regulation established pursuant to this subsection and applicable to marketing orders generally. Such notice shall be furnished by the commission for each marketing order in active operation.
  4. The commission shall have the power, consistent with this article, to establish administrative rules and regulations for each marketing order issued and made effective as may be necessary to facilitate the supervision, administration, and enforcement of each such order. The provisions of subsection (d) of this Code section relative to posting, publication, mailing of notice, and time of taking effect shall be applicable to any such administrative rules and regulations.
  5. Unless extended as provided in this Code section, all marketing orders issued under the authority of this article shall expire, terminate, and become of no force and effect at the expiration of three years from the date of the issuance of the original marketing order or, if such marketing order has been extended, at the expiration of three years after the date of any such extension.
  6. In the event either one of the following conditions is complied with, a marketing order shall be extended for a period of three years after the date of its original expiration:
    1. Assent has been given in writing to such marketing order by not less than two-thirds of the producers participating; or
    2. Approval or favor of such marketing order has been given by producers in a referendum among producers directly affected if at least 66 2/3 percent of the votes cast in such referendum favor the extension of such marketing order.
  7. If the commission determines that a referendum shall be held, the commission shall establish a referendum period of 30 days, such referendum period to terminate at least 30 days prior to the expiration date of the marketing order which is the subject of such referendum. At the close of such referendum period, the commission shall count and tabulate the ballots cast during such period. If from such tabulation the commission finds that the number of producers voting in favor of the extension of such marketing order is not less than 66 2/3 percent of the total number of ballots cast, then such marketing order shall be extended for a period of three years after the expiration date. If it is found from the tabulation of such referendum that the number of producers who had voted in favor of the extension of such marketing order is less than the required 66 2/3 percent of the total number of ballots cast, then the marketing order shall expire, terminate, and be of no force and effect as provided in subsection (g) of this Code section. (Code 1981, § 2-8-63 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-64. Limiting of application of marketing order to certain marketing areas or portions of state.

Marketing orders issued by the commission under this article may be limited in their application by prescribing the marketing areas or portions of the state in which a particular order shall be effective, provided that no marketing order shall be issued by the commission unless it embraces all persons of a like class who are engaged in a specific and distinctive agricultural industry or trade within this state.

(Code 1981, § 2-8-64 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-65. Seasonal marketing regulations; legislative findings; interpretation of Code section.

  1. The commission without prior notice to and public hearing for the producers or handlers of the peanuts directly affected, may issue and make effective seasonal marketing regulations or modifications thereof, provided that the marketing order, made effective after due notice, public hearing, and written assent as required by this article, (1) provides for the issuance or modification of such seasonal marketing regulations without requiring such prior notice and public hearing, and (2) sets forth the limits within which such seasonal marketing regulations may be made effective or subsequently modified by the commission; and provided, further, that the commission finds that such seasonal marketing regulations or modifications thereof are reasonable and proper and a practical means of carrying out the marketing provisions authorized in such marketing order or agreement and will effectuate the declared purposes and policies of this article with respect to peanuts. Notice of the issuance and the effective date of any such seasonal marketing regulations or modifications thereof shall be given by the commission to all producers and handlers directly affected by any such regulations in the manner and within the time specified in the applicable marketing order or, in absence of such, as may be specified by the commission or as specified in the administrative rules and regulations made effective for such marketing order pursuant to subsection (f) of Code Section 2-8-63.
  2. It is recognized that with respect to some peanuts, marketing, weather, and other conditions may change so rapidly as to require changes in seasonal marketing regulations from week to week or more often. It is intended that this Code section be interpreted liberally so that the commission may be enabled to carry out the marketing regulations and procedures authorized in this Code section in a practical and effective manner. (Code 1981, § 2-8-65 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-66. Applicability of orders regulating minimum quality, condition, size, or maturity.

Whenever producers or handlers of peanuts regulated by a marketing order issued by the commission pursuant to this article are required to comply with minimum quality, condition, size, or maturity regulations, no person, except as otherwise provided in such order, shall process, distribute, or otherwise handle any of such peanuts from any source, whether produced within or outside this state, which peanuts do not meet such minimum requirements applicable to producers or handlers of such peanuts in this state, provided that such regulations shall not apply to any peanuts which have been produced outside of this state and are in transit on the effective date of the regulations.

(Code 1981, § 2-8-66 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-67. Assessments to defray expenses of marketing orders; budgets for administration; authority to borrow money; contributions in lieu of advance deposits; collection of assessments; rules; enforcement of payment; deposit and disbursement of moneys; investment of moneys.

  1. For the purpose of providing funds to defray the necessary expenses incurred by the commission in the formulation, issuance, administration, and enforcement of each marketing order issued under this article, each such marketing order shall provide for the levying and collection of assessments in sufficient amounts to defray such expenses. Each marketing order shall indicate the maximum rate of any such assessment which may be collected and the proportion, if any, payable by each producer and handler directly regulated or affected by such marketing order. In administering such marketing order, the commission shall adopt, from time to time, budgets to cover necessary expenses and the assessment rate necessary to provide sufficient funds. If the commission finds that each such budget and assessment rate are proper and equitable and will provide sufficient moneys to defray the necessary expenses, it may approve such budget and rate of assessment and order that each producer and handler so assessed shall pay to the commission, at such times and in such installments as the commission may prescribe, an assessment, based upon the units in which peanuts are marketed or upon any other uniform basis which the commission determines to be reasonable and equitable, but in amounts which (1) in the case of producers will not exceed 2 1/2 percent of the gross dollar volume of sales of the peanuts affected by all such producers regulated by such marketing order, or (2) in the case of processors, distributors, or other handlers will not exceed 2 1/2 percent of the gross dollar volume of purchases of peanuts affected by the marketing order from producers or of the gross dollar volume of sales of peanuts affected by the marketing order and handled by all such processors, distributors, or other handlers regulated by such marketing order during the marketing season or seasons during which such marketing order is effective.
  2. Each marketing order which authorizes the carrying out of advertising and sales promotion plans shall provide for the levying and collection of assessments in sufficient amounts to defray the expenses of such activities. Each such marketing order shall indicate the maximum rate of any such assessment and the proportion, if any, payable by each producer and handler directly regulated or affected by such marketing order. The commission shall adopt budgets to cover such expenses and establish the assessment rate necessary to provide sufficient funds. If the commission finds that each such budget and assessment rate are proper and equitable and will provide sufficient moneys to defray such expenses, they may approve such budget and approve and levy such assessment. Any assessments so established shall be based upon the units in which peanuts are marketed or upon any other uniform basis which the commission determines to be proper and equitable. Any assessment rates established under this subsection shall be in amounts not to exceed 4 percent of the gross dollar volume of sales by all producers or by all processors, distributors, or other handlers of peanuts regulated by such marketing order during the marketing season or seasons during which such marketing order is effective.
  3. In lieu of the assessments to defray the costs of formulation, issuance, administration, and enforcement of the marketing order and of advertising or sales promotion provided for in subsections (a) and (b) of this Code section, if the marketing order contains provisions for advertising or sales promotion as authorized in this article, the commission may approve and fix one assessment not exceeding 6 1/2 percent of the gross dollar volume of sales of such peanuts by all producers or by all processors, distributors, or other handlers of such peanuts regulated by such marketing order during the marketing season or seasons during which such marketing order is effective. The method and manner of assessment and collection thereof and the limitations and restrictions applicable thereupon shall conform in all respects with subsection (b) of this Code section, except as to the maximum amount of such assessment. In such case, the commission shall approve the proportions of such assessments which may be expended to defray the costs of formulation, issuance, administration, and enforcement of the marketing order and of such advertising or sales promotion program, provided that the proportion of such assessments which may be allocated in such manner to defray the cost of such administrative activities for such marketing order shall in no case exceed the maximum amount authorized in subsection (a) of this Code section.
  4. In the event that the commission has reason to believe that the administration of a marketing order will be facilitated or the attainment of the purposes and objectives of the marketing order will be promoted thereby, the commission is authorized to borrow money, with or without interest, to carry out any provision of any marketing order authorized by this article and may hypothecate anticipated assessment collections applicable to such respective provisions.
  5. In lieu of requiring advance deposits for defraying administrative or advertising and sales promotion expenses until such time as sufficient moneys are collected for such purposes from the payment of assessments established pursuant to this Code section, the commission is authorized to receive and disburse for such purposes contributions made by producers, processors, distributors, or other handlers. The commission shall not be held responsible for the repayment of such contributions, provided that whenever collections from the payment of established assessments credited to the respective marketing order accounts are sufficient so to warrant, the commission shall repay contributions or shall authorize the application of such contributions to the assessment obligations of the persons who made such contributions.
  6. Each and every handler of peanuts for which an assessment has been established by or pursuant to this article shall, at the time of purchase of any such peanuts from the producer thereof, collect from such producer the assessment established by or in accordance with this article and remit the same to the commission. The liability of such handler under this article shall not be discharged except upon receipt of such sums by the commission. For the purpose of this subsection, to ensure compliance with this Code section, and for the administrative convenience of the commission in enforcing payment and collection of such assessments, delivery by a producer to a handler for processing of any peanuts upon which an assessment has been established shall be deemed a sale of such peanuts within the meaning of this Code section; and the assessment shall thereupon attach and become due, regardless of whether such handler actually purchases such peanuts for himself or only processes same for a consideration payable by the producer or another person and such peanuts are thereafter sold to another person, provided that upon collection of such assessment by the handler to whom such peanuts are so delivered for processing only, no further or additional assessment shall attach or become due by reason of the subsequent sale by such producer of such processed peanuts to another person or handler.
  7. The commission may prescribe such rules as may be necessary and reasonable for the orderly reporting and transmitting of assessments by handlers and may take all legal action necessary to enforce payment of the same by handlers. The commission is authorized to issue executions for the same in like manner as executions are issued for ad valorem property taxes due the state. It shall be the duty of each and every sheriff of this state and their lawful deputies, upon the request of the commission, to levy and collect such executions and to make their return thereof to the commission in like manner as such tax executions are levied and return thereof made to county tax collectors and tax commissioners. The commission shall likewise be authorized to collect, by execution as provided in this subsection or otherwise, directly from the producer against whom any assessment levied under this Code section may be found due whenever it is determined that such producer has sold such affected peanuts giving rise to such liability to a person other than to a handler who has collected such assessment and is required by this Code section to remit the same to the commission. Furthermore, the commission may proceed against such producer and the purchaser of such peanuts simultaneously if the purchaser is a handler required to collect such assessment, until satisfaction is obtained.
  8. Any moneys collected by the commission pursuant to this article shall be deposited in a bank or other depository approved by the commission and shall be disbursed by the commission only for the necessary expenses incurred by the commission, as approved by the commission. Funds so collected shall be deposited and disbursed in conformity with appropriate rules and regulations prescribed by the commission. All such expenditures by the commission shall be audited at least annually by the state auditor and a copy of such audit shall be delivered within 30 days after the completion thereof to the Governor and the commission. If the commission is abolished, any funds remaining in its hands at such time shall be used to pay the existing obligations of the commission and the expenses incurred in winding up the affairs of the commission. Any excess remaining shall escheat to the state and shall be paid into the state treasury as unclaimed trust funds.
  9. Moneys deposited by the commission pursuant to this Code section which the commission determines are available for investment may be invested or reinvested by the commission as provided for funds of this state or of any retirement system created by law, provided that all moneys invested shall be invested in those areas of production that will provide a return at the highest bank interest rate available. It shall be the duty of the commission annually to review these investments and determine whether they are in compliance with this Code section. (Code 1981, § 2-8-67 , enacted by Ga. L. 1989, p. 1420, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Seed peanut producers subject to assessment. - Persons who produce seed peanuts for the Seed Commission are producers subject to a per/ton assessment, by the Peanut Commission, to defray expenses of marketing orders. 1990 Op. Att'y Gen. No. 90-33.

Commission without authority to exempt producers. - The Peanut Commission has no authority to exempt producers of seed peanuts from the per/ton assessment established in Marketing Order No. 3. 1990 Op. Att'y Gen. No. 90-33.

2-8-68. Assessment constitutes personal debt; action for collection; fee for late payment; remedies cumulative.

  1. Any assessment levied or established in accordance with this article in such specified amount as may be determined by the commission pursuant to this article shall constitute a personal debt of every person so assessed and shall be due and payable to the commission when payment is called for by the commission. In the event of the failure of such person to pay any such assessment upon the date determined by the commission, the commission may file an action against such person in a court of competent jurisdiction for the collection thereof.
  2. In the event that any producer or handler duly assessed pursuant to this article fails to pay to the commission the amount so assessed on or before the date specified by the commission, the commission is authorized to add to such unpaid assessment an amount not exceeding 10 percent of such unpaid assessment to defray the cost of enforcing the collection of such unpaid assessment.
  3. The provisions of subsection (a) of this Code section with respect to collection of assessments by action are in addition to and cumulative of the provisions of this article authorizing the issuance of executions for assessments by the commission. The 10 percent penalty authorized to be assessed upon delinquent assessments under subsection (b) of this Code section may likewise be included in any execution issued by the commission. Such remedies may be pursued concurrently until satisfaction is obtained upon either. Any penalty recovered shall become a part of the principal assessment levied and shall be for the use of the commission as are other moneys received under this article. (Code 1981, § 2-8-68 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-69. Books and records of processors and distributors; furnishing information to commission; inspection of books and records; confidentiality; enforcement.

  1. The commission may require any and all processors or distributors subject to the provisions of any marketing order issued pursuant to this article:
    1. To maintain books and records reflecting their operations under the marketing order;
    2. To furnish to the commission or its duly authorized or designated representatives such information as may from time to time be requested by them relating to operations under the marketing order; and
    3. To permit inspection by the commission or its duly authorized or designated representatives of such portions of such books and records as relate to operations under the marketing order.
  2. Information obtained by any person under this Code section shall be confidential and shall not be disclosed by him to any other person, except to a person with like right to obtain the information or to any attorney employed to give legal advice thereupon or by court order.
  3. In order to carry out the purposes of this Code section, the commission may hold hearings, take testimony, administer oaths, subpoena witnesses, and issue subpoenas for the production of books, records, or documents of any kind. (Code 1981, § 2-8-69 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-70. Use of designations of grade, quality, or condition without complying with regulations or marketing order.

Whenever the use by a producer or handler of a particular emblem, label, certificate, or other distinctive designation of grade, quality, or condition, other than grade or other quality designations then in effect pursuant to state or federal grade standards, is made contingent upon compliance with certain production or handling regulations authorized by a marketing order issued and made effective under this article, it shall be unlawful and a violation of this article for any person who is not participating in and complying with such order or regulations to use such designation of grade, quality, or condition.

(Code 1981, § 2-8-70 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-71. Entry and inspection of premises to check compliance with marketing order; holding of lot of peanuts to ascertain compliance; affixing of notice of noncompliance; service of notice of noncompliance; correction of deficiencies; disposal of lot; applicability.

  1. Any authorized inspector or other authorized person discharging his duties in the checking of compliance with any marketing order made effective pursuant to this article may enter during normal business hours and inspect any premises, enclosure, building, or conveyance where he has reason to believe any peanuts subject to a marketing order are produced, stored, being prepared for market, or marketed and may inspect or cause to be inspected such representative samples of the peanuts as may be necessary to determine whether or not any lot of such peanuts is in compliance with applicable regulations of any marketing order made effective pursuant to this article.
  2. Any authorized inspector or other authorized person in the discharge of his duties, if he has reason to believe that a lot of any peanuts subject to a marketing order issued under this article is not in compliance with the requirements of such marketing order or of marketing rules and regulations issued pursuant thereto, as to quality, condition, size, maturity, pack, labeling, or markings, may hold such lot for a reasonable period of time sufficient to enable such officer to ascertain by an authorized inspection whether such lot complies with such marketing requirements, but in any event not to exceed 72 hours, except as provided in this Code section.
    1. Following inspection, an inspector or other authorized person may affix to any lot which is determined to be in noncompliance an official notice, warning tag, or other appropriate marking warning that the lot is held and stating the reasons therefor. It shall be unlawful for any person, other than an authorized inspector or enforcing officer, to detach, alter, deface, or destroy any such official notice, warning tag, or marking so affixed to any such lot or to remove or dispose of such lot in any manner or under conditions other than as prescribed in such notice of noncompliance, except upon written permission of an authorized enforcing officer or by order of a court of competent jurisdiction.
    2. The commission or the authorized person by whom such lot is being held shall serve the person in possession of such lot with a notice of noncompliance. Such notice shall be served in person or by mail to the last known address of the person in possession. It shall be the duty of the person in possession to notify the owner of the lot or other persons having an interest therein of the serving of such notice of noncompliance.
    3. Such notice of noncompliance shall include a description of the lot and the place where and reasons for which it is held and shall cite the applicable marketing order or marketing rules and regulations and the Code section upon which the notice of noncompliance is based.
    1. The owner of a lot shall have not more than 72 hours from the time of the service of a notice of noncompliance for reconditioning or for the correction of the deficiencies noted in the notice of noncompliance. If such lot is reconditioned or the deficiencies are corrected, the enforcing officer shall remove the warning tags or markings and release the lot for marketing, provided that with the consent of the owner of the lot, the enforcing officer is authorized to divert the lot to other lawful uses or to destroy the lot.
      1. If the owner of the lot fails or refuses to give consent to its diversion to other lawful uses or to its destruction or if the lot has not been reconditioned or the deficiencies otherwise corrected so as to bring the lot into compliance within the time specified in the notice, then the enforcing officer shall proceed as provided in this subsection.
      2. The commission may file a verified petition in the superior court of the county where the peanuts are held or the county of the residence of the owner thereof requesting permission to divert such lot to any other available lawful use or to destroy such lot. Such verified petition shall show the condition of the lot; that the lot is situated within the territorial jurisdiction of the court in which the petition is being filed or that the owner thereof resides within the jurisdiction of the court; that the lot is held and the notice of noncompliance has been served as provided in this Code section; that the lot has not been reconditioned as required; the name and address of the owner and the person in possession of the lot; and that the owner has refused permission to divert or to destroy the lot. Upon the filing of such verified petition the court may issue an order to show cause, returnable five days after service upon the owner, why the lot shall not be reconditioned or the deficiencies corrected or why the lot shall not be diverted to other lawful uses or destroyed. The owner of the lot may, prior to the date when the order to show cause is returnable, either recondition or correct the deficiencies in the lot so as to bring the lot into compliance or file at or before the hearing on the order an answer with the court showing why the lot should not be reconditioned or the deficiencies corrected so as to bring it into compliance or showing why the lot should not be diverted to other lawful uses or destroyed.
      3. If, at the expiration of the five days, the owner of the lot has failed or refused to recondition or to correct the deficiencies so as to bring the lot into compliance, the court may enter judgment ordering that the lot be reconditioned, diverted to any other lawful uses, or destroyed in the manner directed by the court or that the lot be relabeled or otherwise processed or that the lot be sold or released upon such condition as the court in its discretion may impose, provided that the lot may not be sold or released into the regular channels of trade.
      4. In the event of the sale of any lot by order of the court, the costs of storage, handling, and reconditioning or disposal shall be deducted from the proceeds of the sale and the balance, if any, shall be paid into the court for the account of the owner of any such lot.
  3. Disposal of any lot or portion of any lot pursuant to this Code section, whether such disposal is by arrangement with an enforcing officer or by court order, shall not waive any of the penalty provisions of this article.
  4. This Code section shall apply to any lot of peanuts regulated by a marketing order wherever or in the possession of whomever such lot may be in the marketing channels within this state. (Code 1981, § 2-8-71 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-72. Civil penalty; fixing amount of penalty; civil action; disposition of moneys.

Any person who violates any provision of this article or any marketing order duly issued by the commission and in effect under this article or who violates any rule or regulation issued by the commission pursuant to this article or of any marketing order duly issued and effective under this article shall be civilly liable to the commission for a penalty in an amount not to exceed $500.00 for each and every violation thereof, the amount of such penalty to be fixed by the commission after notice and hearing as provided by Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for contested cases and recoverable by a civil action brought in the name of the commission or by execution issued in like manner as for assessments provided by Code Section 2-8-67. Any moneys recovered pursuant to this Code section shall be deposited and disbursed in accordance with subsection (e) of Code Section 2-8-67 as are other moneys.

(Code 1981, § 2-8-72 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-73. Action by Attorney General for civil penalties or injunctive relief; remedies court may impose; payment of costs.

  1. The Attorney General of this state shall, upon complaint by the commission, or may, upon his own initiative if after examination of the complaint and evidence he believes a violation has occurred, bring an action in the superior court in the name of the commission for civil penalties or for injunctive relief, including specific performance of any obligation imposed by a marketing order or any rule or regulation issued under this article, or both, against any person violating any provisions of this article or of any marketing order or any rule or regulation duly issued by the commission under this article.
  2. If it appears to the court, upon any application for a temporary restraining order, upon the hearing of any order to show cause why a preliminary injunction should not be issued, or upon the hearing of any motion for a preliminary injunction, or if the court finds in any such action that any defendant therein is violating or has violated any provision of this article or of any marketing order or any rule or regulation duly issued by the commission under this article, then the court shall enjoin the defendant from committing further violations and may compel specific performance of any obligation imposed by a marketing order or any rule or regulation issued by the commission under this article. It shall not be necessary in such event to allege or prove lack of an adequate remedy at law.
  3. In any action brought by the Attorney General to enforce any of the provisions of this article or of any marketing order issued by the commission and effective under this article or of any rule or regulation issued by the commission pursuant to any marketing order, the judgment, if in favor of the commission, may provide that the defendant pay to the commission the costs incurred by the commission in the prosecution of such action. (Code 1981, § 2-8-73 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-74. Referral of complaints to Attorney General or prosecuting attorney; hearing to consider charges; cease and desist order.

  1. The commission on its own motion may, and upon the complaint of any interested party charging a violation of any provision of this article or of any provision of any marketing order or any rule or regulation issued by the commission and effective under this article shall, either refer the matter directly to the Attorney General of this state or to any prosecuting attorney of this state for the institution of legal proceedings thereupon or, if the commission deems it necessary or advisable, immediately call an administrative hearing, pursuant to the provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," governing contested cases, to consider the charges set forth in such verified complaint.
  2. In case the matter is referred directly by the commission to the Attorney General or any prosecuting attorney, it shall be the duty of such officer, if after examination of the complaint and the evidence he believes that a violation has occurred, to bring an appropriate action or actions in a court or courts of competent jurisdiction in this state.
  3. After an administrative hearing, if the commission finds that a violation has occurred, it shall enter its findings and notify the parties to such complaint. In its discretion, the commission shall either refer the matter to the Attorney General for the institution of legal proceedings or notify such parties to cease and desist from further violation. Upon the refusal or failure of such parties to comply or if the commission finds that the facts or circumstances warrant immediate prosecution, the commission shall file a complaint with the Attorney General or with any prosecuting attorney of this state requesting that such officer commence any or all actions authorized in this article against such respondent or respondents in a court of competent jurisdiction. (Code 1981, § 2-8-74 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-75. False or fraudulent reports, statements, and records; failure or refusal to give name and address of person from whom peanuts received.

  1. Any person who willfully renders or furnishes a false or fraudulent report, statement, or record required pursuant to this article or any marketing order effective under this article shall be guilty of a misdemeanor.
  2. Any person engaged in the handling or processing of peanuts or in the wholesale or retail trade thereof who fails or refuses to furnish, upon request, information concerning the name and address of the person from whom he has received peanuts regulated by a marketing order issued and in effect under this article and the quantity of such peanuts received shall be guilty of a misdemeanor. (Code 1981, § 2-8-75 , enacted by Ga. L. 1989, p. 1420, § 1; Ga. L. 1990, p. 8, § 2.)

2-8-76. Criminal penalty.

Any person who violates any provision of this article or any provision of any marketing order duly issued by the commission under this article shall be guilty of a misdemeanor.

(Code 1981, § 2-8-76 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-77. Construction of penalty and remedy provisions.

The penalties and remedies prescribed in this article with respect to any violation mentioned shall be concurrent and alternative. Neither singly nor combined shall such penalties and remedies be exclusive; rather, either singly or combined, such penalties and remedies shall be cumulative with any and all other civil, criminal, or alternative rights, remedies, forfeitures, or penalties provided or allowed by law with respect to any such violation.

(Code 1981, § 2-8-77 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-78. Applicability to retailers of peanuts.

This article shall not be applicable to any retailer of peanuts except to the extent that any retailer also engages in the processing or distribution of peanuts as defined in this article.

(Code 1981, § 2-8-78 , enacted by Ga. L. 1989, p. 1420, § 1.)

2-8-79. Applicability of "Georgia Administrative Procedure Act."

The promulgation, adoption, and amendment of rules and regulations by the commission shall be subject to the requirements of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

(Code 1981, § 2-8-79 , enacted by Ga. L. 1989, p. 1420, § 1.)

ARTICLE 4 AGRICULTURAL COMMODITY COMMISSION FOR GEORGIA GROWN PRODUCTS

Editor's notes. - The former article consisted of Code Sections 2-8-90 through 2-8-114, relating to the Agricultural Commodity Commission for Beef, and was based on Code 1981, §§ 2-8-90 through 2-8-114, enacted by Ga. L. 2004, p. 948, § 1-1, and was repealed by Ga. L. 2004, p. 948, § 3-1, effective July 1, 2006.

2-8-90. Definitions.

As used in this article, the term:

  1. "Advertising and sales promotion" means, in addition to the ordinarily accepted meaning thereof, trade promotion and activities for the prevention, modification, or removal of trade barriers which restrict the normal flow of Georgia grown products to market and may include the presentation of facts to and negotiations with state, federal, or foreign governmental agencies on matters which affect the marketing of Georgia grown products.
  2. "Commission" means the Agricultural Commodity Commission for Georgia Grown Products created under this article.
  3. "Georgia grown products" means any agricultural, horticultural, floricultural, silvicultural, or vegetable products commercially produced in this state.
  4. "Person" means an individual, firm, corporation, association, or any other business unit or any combination thereof and includes any state agency which engages in any of the commercial activities regulated pursuant to this article.
  5. "Processor" means any person engaged within this state in the operation of receiving, grading, packing, canning, extracting, preserving, grinding, crushing, milling, or changing the form of a Georgia grown product for the purpose of preparing for market or marketing such product or engaged in any other activities performed for the purpose of preparing for market or marketing such product.
  6. "Producer" means any person engaged within this state in the business of producing or causing to be produced for market Georgia grown products. (Code 1981, § 2-8-90 , enacted by Ga. L. 2013, p. 74, § 1/HB 298; Ga. L. 2014, p. 866, § 2/SB 340.)

Law reviews. - For article, "Agricultural Commodities Promotion," see 30 Ga. St. U. L. Rev. 1 (2013).

2-8-91. Authority of Commissioner.

The Commissioner shall be authorized to exercise supervisory jurisdiction over the administration and enforcement of this article. In the performance of this duty, the Commissioner is authorized to utilize the personnel and facilities of the department.

(Code 1981, § 2-8-91 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-92. Creation.

There is created the Agricultural Commodity Commission for Georgia Grown Products.

(Code 1981, § 2-8-92 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-93. Composition; membership.

  1. The commission shall be composed of:
    1. The Commissioner of Agriculture, ex officio;
    2. The president of the Georgia Farm Bureau, ex officio;
    3. One member elected by the Senate Agriculture and Consumer Affairs Committee with a quorum present and a majority of those present concurring, who shall be a producer or processor and shall not be a member of the General Assembly;
    4. One member elected by the House Committee on Agriculture and Consumer Affairs who shall be a producer or processor and shall not be a member of the General Assembly; and
    5. Five additional members, all of whom shall be appointed by the members of the commission specified in paragraphs (1) through (4) of this subsection.
  2. The initial two members elected by the agriculture and consumer affairs committees of the General Assembly shall be elected and qualified to take office for a term ending upon the election of their successors during the regular 2016 session of the General Assembly. Their successors shall be elected during the 2016 regular session of the General Assembly; and thereafter future successors shall be elected during each regular session of the General Assembly convening in even-numbered years. Such members shall serve from the date of their election until their successors are elected and qualified. Such members shall be entitled to vote on matters pertaining to the organization of the commission and upon the selection and nomination of the appointed members of the commission, but shall not be entitled to vote upon any matter pertaining to the policy provisions of the commission, nor shall they be entitled to vote upon the expenditure of any funds of the commission.
  3. For purposes of the appointment of additional members of the commission as provided in this Code section, a list of nominees shall be requested from producers and processors. Initial appointments shall be made for three members for a term of three years each from the effective date of their appointment and until their successors are appointed and qualified and two members for a term of two years each from the effective date of their appointment and until their successors are appointed and qualified. Thereafter, successors shall be appointed for a term of three years each from the effective date of their appointment and until their successors are appointed and qualified. Vacancies shall be filled by appointment in like manner, for the unexpired term, except that vacancies in the office of a member elected by a legislative committee shall be filled for the unexpired term by the legislative committee which made the previous appointment. Any appointed member shall be eligible for reappointment.
    1. The members who are state officers shall be compensated as provided by law. Each such member shall be reimbursed by his or her respective department or from the funds of the commission for actual and necessary expenses incurred in the performance of his or her duties.
    2. The two members elected by the agriculture and consumer affairs committees of the General Assembly, as provided by subsection (a) of this Code section, shall be entitled to receive, for attending meetings of the commission, the same expenses and travel allowances which members of the General Assembly receive for attending meetings of legislative interim committees. Such expenses and allowances shall be paid from funds appropriated or otherwise available to the legislative branch of state government.
    3. The appointed members of the commission shall receive compensation and reimbursement of expenses as shall be provided by the commission, and such funds shall be payable from the funds of the commission.
  4. Each member of the commission shall be a public officer and shall take an oath of office faithfully to perform his or her duties. The fact of a member's appointment shall be certified to the Secretary of State, who shall issue the appropriate commission under the seal of his or her office. (Code 1981, § 2-8-93 , enacted by Ga. L. 2013, p. 74, § 1/HB 298; Ga. L. 2014, p. 866, § 2/SB 340.)

2-8-94. Public corporation and instrumentality of the State of Georgia.

The commission, with its name annexed thereto, shall be a public corporation and an instrumentality of the State of Georgia. By that name, style, and title, the commission may contract and be contracted with, implead and be impleaded, and complain and defend in all courts.

(Code 1981, § 2-8-94 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-95. Powers, duties, and authority of commission.

  1. The commission is authorized to accept donations, gifts, grants, and other funds or property and to use the same for commission purposes. The commission may exercise the powers and authority conferred by law upon corporations.
  2. Funds received by the Commissioner under this article shall be held in trust for the commission. Such funds shall be deposited, accounted for, and disbursed in the same manner as the funds of this state but shall not be required to be deposited in the state treasury and appropriated therefrom as are other state funds. It is the express intent and purpose of this article to authorize the receipt, collection, and disbursement by the Commissioner of such funds as trust funds of the commission without complying with the requirement applicable to funds collected for the use and benefit of the state.
  3. The Commissioner is authorized and it shall be his or her duty to receive, collect, and disburse the funds of the commission qualifying and operating under this article. The Commissioner shall disburse funds of the commission only upon the written authorization of the commission.
  4. Any person who handles funds under this article shall be bonded with good and sufficient surety in an amount determined by the Commissioner for the accounting of any and all funds coming into his or her hands. (Code 1981, § 2-8-95 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-96. Immunity from liability.

The members and employees of the commission and the Commissioner shall be immune from liability to the same extent as the state and state officers and employees under Article 2 of Chapter 21 of Title 50, "The Georgia Tort Claims Act."

(Code 1981, § 2-8-96 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-97. Authority of Commissioner to issue, administer, and enforce provisions of marketing orders; hearings.

  1. The Commissioner, upon the approval and request of the commission, is authorized to issue, administer, and enforce the provisions of marketing orders.
    1. Whenever the Commissioner has reason to believe that the issuance of a marketing order or amendments to an existing marketing order will tend to effectuate the declared policy of this article with respect to any Georgia grown product, he or she shall, either upon his or her own motion, upon the motion of the commission, upon the application of any producer, or any organization of such persons, give due notice of and an opportunity for a public hearing upon a proposed marketing order or amendments to an existing marketing order.
    2. Notice of any hearing called for such purpose shall be given by the Commissioner or the commission by publishing a notice of such hearing for a period of not less than five days in a newspaper of general circulation published in the capital of this state and in such other newspapers as the Commissioner may prescribe. No such public hearing shall be held prior to five days after the last day of such period of publication. Such notice of hearing shall in all respects comply with the requirements of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
    3. The hearing shall be public and all testimony shall be received under oath. A full and complete record of the proceedings at such hearing shall be made and maintained. The hearing shall, in all respects, be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The hearing may be conducted by the commission, by a member of the commission, or by the Commissioner, as may be designated by the commission in each instance, but no decision shall be made based on hearings conducted other than by the commission itself, at which a majority of the members thereof are present, until the members of the commission have been afforded an opportunity to review the hearing record. Where the commission conducts hearings, its recommendation shall be based on the findings reached after a review of the record of the hearing. (Code 1981, § 2-8-97 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-98. Recommendation of promulgation of a marketing order.

If, upon the basis of the record of testimony and evidence received at the hearing provided for in Code Section 2-8-97, the commission determines that the issuance of a marketing order or amendment will tend to effectuate the intent and purpose of this article, it may recommend the promulgation of a marketing order containing any one or more of the following provisions, but no others:

  1. Provisions for the establishment of plans for advertising and sales promotion to maintain present markets or to create new or larger markets for Georgia grown products in this state or for the prevention, modification, or removal of trade barriers which obstruct the normal flow of Georgia grown products to market. The commission is authorized to prepare, issue, administer, and enforce plans for promoting the sale of Georgia grown products, provided that any such plan shall be directed toward promoting and increasing the sale, use, and utilization of Georgia grown products only, without reference to any other brand or trade name; and provided, further, that no advertising or sales promotion program shall be issued by the commission which makes use of false or unwarranted claims on behalf of or disparages the quality, value, sale, or use of any other commodity;
  2. Provisions for carrying on research studies in promoting the production, marketing, sale, use and utilization, and improvement of Georgia grown products or any combination thereof and for the expenditure of moneys for such purposes; and
  3. Provisions establishing or providing authority for establishing an educational program designed to acquaint producers or the general public about Georgia grown products. (Code 1981, § 2-8-98 , enacted by Ga. L. 2013, p. 74, § 1/HB 298; Ga. L. 2014, p. 866, § 2/SB 340.)

2-8-99. Amendments to marketing orders; notice; rules and regulations; termination of orders.

    1. Upon the recommendation of not fewer than three of the appointed members of the commission, the Commissioner or the commission may make effective minor amendments to a marketing order. The Commissioner or the commission may require a public hearing upon minor amendments if in the Commissioner's or the commission's opinion the substance of such minor amendments so warrants.
    2. In making effective major amendments to a marketing order, the Commissioner or the commission shall follow the same procedures prescribed in this article for the institution of a marketing order. For the purpose of this article, a major amendment to a marketing order shall include, but shall not be limited to, any amendment which adds to or deletes from any such marketing order any of the following types of regulations or authorizations:
      1. Authority for the establishment of plans for advertising and sales promotion of Georgia grown products;
      2. Authority to increase an assessment rate beyond the maximum rate authorized by the marketing order in effect;
      3. Extension of the termination date of any marketing order; or
      4. Authority for carrying out research studies in the production or distribution of Georgia grown products.
    3. Modification of any provisions of any marketing order in effect, for the purpose of clarifying the meaning or application of such provisions or of modifying administrative procedures for carrying out such provisions, are declared not to be a major amendment of such marketing order.
  1. Upon the issuance of any order making effective a marketing order or any suspension, amendment, or termination thereof, a notice thereof shall be posted on a public bulletin board maintained at the Department of Agriculture; and a copy of such notice shall be published as the Commissioner or the commission may prescribe. No marketing order nor any suspension, amendment, or termination thereof shall become effective until the termination of a period of five days from the date of such posting and publication.
  2. The Commissioner or the commission shall have the power, consistent with this article and in accordance with marketing orders and amendments made effective under this article, to establish such general rules and regulations for uniform application to all marketing orders issued pursuant to this article as may be necessary to facilitate the administration and enforcement of such marketing orders. The provisions of subsection (b) of this Code section relative to posting, publication, and time of taking effect shall be applicable to any such general rule or regulation established pursuant to this subsection and applicable to marketing orders generally. Such notice shall be furnished by the Commissioner or the commission for each marketing order in active operation.
  3. Upon the recommendation of the commission, the Commissioner shall have the power, consistent with this article, to establish administrative rules and regulations for each marketing order issued and made effective as may be necessary to facilitate the supervision, administration, and enforcement of each such order. The provisions of subsection (b) of this Code section relative to posting, publication, mailing of notice, and time of taking effect shall be applicable to any such administrative rules and regulations.
  4. Unless extended as provided in this article, all marketing orders issued under the authority of this article shall terminate at the expiration of one year from the date of the issuance of the original marketing order or, if such marketing order has been extended, at the expiration of one year after the date of any such extension. (Code 1981, § 2-8-99 , enacted by Ga. L. 2013, p. 74, § 1/HB 298; Ga. L. 2014, p. 866, § 2/SB 340.)

2-8-100. Levying and collection of assessments.

  1. For the purpose of providing funds to defray the necessary expenses incurred by the commission in the formulation, issuance, administration, and enforcement of any marketing order which authorizes the carrying out of advertising and sales promotion plans, such order shall provide for the levying of assessments upon producers or processors utilizing the Georgia grown trademark. Such orders shall be in sufficient amounts to defray the expenses of such activities. Each such order shall indicate the maximum rate of any such assessment. The commission shall adopt budgets to cover such expenses and establish the assessment rate necessary to provide sufficient funds. If the commission finds that each such budget and assessment rate is proper and equitable and will provide sufficient moneys to defray such expenses, they may approve such budget and approve and levy such assessment.
  2. The commission may prescribe such rules as may be necessary and reasonable for the orderly collection of assessments and may take all legal action necessary to enforce payment of such assessments. (Code 1981, § 2-8-100 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-101. Limitations on application of marketing orders.

Marketing orders issued by the commission may be limited in their application by prescribing the marketing areas or portions of this state in which a particular order shall be effective, provided that no marketing order shall be issued by the commission unless it embraces all persons of a like class.

(Code 1981, § 2-8-101 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-102. Deposit and disbursement of funds; investment.

  1. Any moneys collected by the commission or the Commissioner pursuant to this article shall be deposited in a bank or other depository approved by the commission and shall be disbursed by the Commissioner only for the necessary expenses incurred by the commission and the Commissioner, as approved by the commission. Funds so collected shall be deposited and disbursed in conformity with appropriate rules and regulations prescribed by the Commissioner. All such expenditures by the Commissioner shall be audited at least annually by the state auditor and a copy of such audit shall be delivered within 30 days after the completion thereof to the Governor, the Commissioner, and the commission. If ever the commission is abolished by law, any funds remaining in its hands at such time shall be used to pay the existing obligations of the commission and the expenses incurred in winding up the affairs of the commission. Any excess remaining shall escheat to the state and shall be paid by the Commissioner into the state treasury as unclaimed trust funds.
  2. Moneys deposited by the Commissioner pursuant to this Code section which the commission determines are available for investment may be invested or reinvested by the Commissioner as provided for funds of this state or of any retirement system created by law, provided that all moneys invested shall be invested in those areas of production that will provide a return at the highest bank interest rate available. It shall be the duty of the commission to annually review these investments and determine that such investments comply with this Code section. (Code 1981, § 2-8-102 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-103. Duties of Attorney General.

  1. The Attorney General of this state shall represent the commission in legal matters and shall be the attorney for the commission.
  2. The Attorney General shall, upon complaint by the commission, bring an action in the superior court in the name of the commission for civil penalties or for injunctive relief, including specific performance of any obligation imposed by a marketing order or any rule or regulation issued under this article, or both, against any person violating any provisions of this article or of any marketing order or any rule or regulation duly issued by the commission under this article. It shall not be necessary in such event to allege or prove lack of an adequate remedy at law. (Code 1981, § 2-8-103 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-104. Violations.

Any person who violates any provision of this article or any provision of any marketing order duly issued by the commission under this article shall be guilty of a misdemeanor.

(Code 1981, § 2-8-104 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

2-8-105. Rules and regulations.

The commission is empowered to make all necessary rules and regulations for the purpose of carrying out the purposes of this article. The promulgation, adoption, and amendment of rules and regulations by the commission shall be subject to the requirements of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

(Code 1981, § 2-8-105 , enacted by Ga. L. 2013, p. 74, § 1/HB 298.)

ARTICLE 5 AGRICULTURAL COMMODITY COMMISSION FOR EQUINES

Editor's notes. - Ga. L. 2006, p. 632, § 3/SB 380, not codified by the General Assembly, provides that the enactment of this article became effective January 1, 2007, only upon ratification of a constitutional amendment by the voters at the 2006 general election. The constitutional amendment (Ga. L. 2006, p. 1112) was approved by a majority of the qualified voters voting at the general election held on November 7, 2006.

2-8-120. Applicability.

This article shall apply only to the Agricultural Commodity Commission for Equines.

(Code 1981, § 2-8-120 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2006, "Commodity" was substituted for "Commodities".

2-8-121. Definitions.

As used in this article, the term:

  1. "Advertising and sales promotion" means, in addition to the ordinarily accepted meaning thereof, trade promotion and activities for the prevention, modification, or removal of trade barriers which restrict the normal flow of equines to market and may include the presentation of facts to and negotiations with state, federal, or foreign governmental agencies on matters which affect the marketing of any equines.
  2. "Commission" means the Agricultural Commodity Commission for Equines created under this article.
  3. "Equine" means any member of the Equidae family, including horses, mules, hinnies, and asses.
  4. "Person" means an individual, firm, corporation, association, or any other business unit or any combination thereof and includes any state agency which engages in any of the commercial activities regulated pursuant to this article.
  5. "Producer" means any person who owns one or more equines or is engaged within this state in the business of buying, selling, boarding, holding, training, breeding, riding, pulling vehicles with, or otherwise utilizing equines for similar purposes. (Code 1981, § 2-8-121 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-122. Commissioner's authority.

The Commissioner shall be authorized to exercise supervisory jurisdiction over the administration and enforcement of this article. In the performance of this duty, the Commissioner is authorized to utilize the personnel and facilities of the department.

(Code 1981, § 2-8-122 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-123. Commission created.

There is created the Agricultural Commodity Commission for Equines.

(Code 1981, § 2-8-123 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-124. Commission membership; nomination and election of commission members.

  1. The commission shall be composed of:
    1. The Commissioner of Agriculture, ex officio;
    2. The president of the Georgia Farm Bureau, ex officio;
    3. One member elected by the Senate Agriculture and Consumer Affairs Committee with a quorum present and a majority of those present concurring, who shall be a producer and shall not be a member of the General Assembly;
    4. One member elected by the House of Representatives Committee on Agriculture and Consumer Affairs with a quorum present and a majority of those present concurring, who shall be a producer and shall not be a member of the General Assembly; and
    5. Five additional members, all of whom shall be appointed by the members of the commission specified in paragraphs (1) through (4) of this subsection. At least four of such appointees shall be producers.
  2. The initial two members elected by the agriculture and consumer affairs committees of the General Assembly shall be elected and qualified to take office for a term beginning on January 1, 2007, and ending upon the election of their successors during the regular 2009 session of the General Assembly. Their successors shall be elected during the 2009 regular session of the General Assembly; and thereafter future successors shall be elected during each regular session of the General Assembly convening in odd-numbered years. Such members shall be selected so that one member is from the northern part of Georgia and one member is from the southern part. For purposes of this selection the northern part of Georgia shall be that area north of and including Richmond, McDuffie, Warren, Hancock, Baldwin, Jones, Bibb, Crawford, Upson, Talbot, and Muscogee counties; and the southern part shall be that area south of such counties. The chairpersons of the Senate and House committees shall by agreement determine which committee will choose the member from the northern part and which committee will choose the member from the southern part. Such members shall serve from the date of their election until their successors are elected and qualified.
  3. For purposes of the appointment of additional members of the commission as provided in this Code section, a list of nominees shall be requested from producers of equines. Initial appointments shall be made for three members for a term of three years each from the effective date of their appointment and until their successors are appointed and qualified and two members for a term of two years each from the effective date of their appointment and until their successors are appointed and qualified. Thereafter, successors shall be appointed for a term of three years each from the effective date of their appointment and until their successors are appointed and qualified. Vacancies shall be filled by appointment in like manner, for the unexpired term, except that vacancies in the office of a member elected by a legislative committee shall be filled for the unexpired term by the legislative committee which made the previous appointment. Any appointed member shall be eligible for reappointment.
    1. The members who are state officers shall be compensated as provided by law. Each such member shall be reimbursed by his or her respective department or from the funds of the commission for actual and necessary expenses incurred in the performance of his or her duties. Each such member who is a state officer may designate a representative of his or her department to act for the officer in performing any duties under this article.
    2. The two members elected by the agriculture and consumer affairs committees of the General Assembly, as provided by subsection (a) of this Code section, shall be entitled to receive, for attending meetings of the commission, the same expenses and travel allowances which members of the General Assembly receive for attending meetings of legislative interim committees. Such expenses and allowances shall be paid from funds appropriated or otherwise available to the legislative branch of state government.
    3. The appointed members of the commission shall receive compensation and reimbursement of expenses as shall be provided by the commission, and such funds shall be payable from the funds of the commission.
  4. It shall be the duty of the Commissioner to certify to the Secretary of State the membership of the commission and each change in membership as the same occurs.
  5. The commission is authorized to appoint advisory boards, special committees, and individuals, including technical and clerical personnel, to advise, aid, and assist the commission in the performance of its duties. Compensation for such services shall be fixed by the commission and may be paid from the funds of the commission. The Attorney General shall represent the commission in legal matters and shall be the attorney for the commission. If the Attorney General determines that outside legal counsel is necessary or desirable in connection with any legal matter of the commission, he or she shall so inform the commission and, upon approval of the commission, shall employ such outside counsel. Compensation for such outside counsel shall be agreed upon between such counsel and the Attorney General, subject to the approval of the commission. Such compensation shall be paid from the funds of the commission. Neither Code Section 16-10-9 nor any other law shall prohibit or be applicable to the employment of such counsel.
  6. Any other provision of this article to the contrary notwithstanding, a member of any federation or organization of producers shall be eligible to be appointed as a member of the commission with respect to any equine produced by such federation or organization or handled by it for its members who produce it.
  7. The commission is authorized to accept donations, gifts, grants, revenue derived from the sale of special license plates as may be otherwise provided by law, and other funds or property and to use the same for commission purposes. The commission may exercise the powers and authority conferred by law upon corporations.
  8. The two members elected by the agriculture and consumer affairs committees of the General Assembly, as provided by subsection (a) of this Code section, as members of the commission shall be entitled to vote on matters pertaining to the organization of the commission and upon the selection and nomination of the appointed members of the commission. Such two members shall not be entitled to vote upon any matter pertaining to the policy provisions of the commission nor shall they be entitled to vote upon the expenditure of any funds of the commission.
  9. The commission shall continue as a public corporation and instrumentality of the State of Georgia until abolished by law. (Code 1981, § 2-8-124 , enacted by Ga. L. 2006, p. 632, § 2/SB 380; Ga. L. 2017, p. 774, § 2/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "appointed member" for "appointive member" in subsection (c) and substituted "appointed members" for "appointive members" in paragraph (d)(3) and subsection (i).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2006, "qualified" was substituted for "qualification" in the first sentence of subsection (b).

2-8-125. Commission to be a public corporation and instrumentality of the state; powers; transaction of commission business.

The commission, with its name annexed thereto, shall be a public corporation and an instrumentality of the State of Georgia. By that name, style, and title, the commission may contract and be contracted with, implead and be impleaded, and complain and defend in all courts. The commission shall name its chairperson and determine a quorum for the transaction of business. The commission shall assume the duties and exercise the authority provided in this article without further formality than that provided in this article. Each member of the commission shall be a public officer and shall take an oath of office faithfully to perform his or her duties. Such oath shall be administered by the Commissioner or some other person qualified to administer oaths. The fact of a member's appointment shall be certified to the Secretary of State, who shall issue the appropriate commission under the seal of his or her office.

(Code 1981, § 2-8-125 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2006, "each" was deleted preceding "the commission" in the fifth sentence.

2-8-126. Receipt, collection, and disbursement of funds.

The Commissioner is authorized and it shall be his or her duty to receive, collect, and disburse the funds of the commission qualifying and operating under this article. The Commissioner shall disburse funds of the commission only upon the written authorization of the commission.

(Code 1981, § 2-8-126 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-127. Funds received under this article to be held in trust for the commission.

Funds received by the Commissioner under this article shall be held in trust for the commission. Such funds shall be deposited, accounted for, and disbursed in the same manner as the funds of this state but shall not be required to be deposited in the state treasury and appropriated therefrom as are other state funds. It is the express intent and purpose of this article to authorize the receipt, collection, and disbursement by the Commissioner of such funds as trust funds of the commission without complying with the requirement applicable to funds collected for the use and benefit of the state.

(Code 1981, § 2-8-127 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-128. Persons handling funds to be bonded.

Any person who handles funds under this article shall be bonded with good and sufficient surety in an amount determined by the Commissioner for the accounting of any and all funds coming into his or her hands.

(Code 1981, § 2-8-128 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-129. Committee members and employees not responsible individually for errors in judgment, mistakes or other acts.

The members and employees of the commission and the Commissioner shall not be held responsible individually in any way whatsoever to any producer, distributor, or other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of the commission. The liability of the members of the commission shall be several and not joint and no member shall be liable for the default of any other member.

(Code 1981, § 2-8-129 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-130. Commission authorized to share information with state and federal government agencies.

The Commissioner and the commission are authorized to confer with and to make any information obtained pursuant to this article available to the duly constituted governmental authorities of this state, of other states, of political subdivisions of this state or other states, and of the United States who, by reason of their duties, have legitimate concern with the subject and to cooperate with all such authorities for the purpose of obtaining administrative uniformity and achieving the objectives of this article.

(Code 1981, § 2-8-130 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-131. Issuance, administration, and enforcement of marketing orders; hearing.

  1. The Commissioner, upon the approval and request of the commission, is authorized to issue, administer, and enforce the provisions of marketing orders.
    1. Whenever the Commissioner has reason to believe that the issuance of a marketing order or amendments to an existing marketing order will tend to effectuate the declared policy of this article with respect to any equines, he or she shall, either upon his or her own motion, upon the motion of the commission, or upon the application of any producer, or any organization of such persons, give due notice of and an opportunity for a public hearing upon a proposed marketing order or amendments to an existing marketing order.
    2. Notice of any hearing called for such purpose shall be given by the Commissioner or the commission by publishing a notice of such hearing for a period of not less than five days in a newspaper of general circulation published in the capital of the state and in such other newspapers as the Commissioner may prescribe. No such public hearing shall be held prior to five days after the last day of such period of publication. Such notice of hearing shall in all respects comply with the requirements of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
    3. The hearing shall be public and all testimony shall be received under oath. A full and complete record of the proceedings at such hearing shall be made and maintained on file in the office of the Commissioner or the commission. The hearing shall, in all respects, be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The hearing may be conducted by the commission, by a member of the commission, or by the Commissioner, as may be designated by the commission in each instance, but no decision shall be made based on hearings conducted other than by the commission itself, at which a majority of the members thereof are present, until the members of the commission have been afforded an opportunity to review the hearing record. Where the commission conducts hearings, its recommendation shall be based on the findings reached after a review of the record of the hearing. (Code 1981, § 2-8-131 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-132. Provisions for establishment of advertising, research, and education programs.

If, upon the basis of the record of testimony and documentary evidence received at the hearing provided for in Code Section 2-8-131 and the facts officially noticed therein, the commission determines that the issuance of a marketing order or an amendment will tend to effectuate the intent and purpose of this article, it may recommend the promulgation of a marketing order containing any one or more of the following provisions, but no others:

  1. Provisions for the establishment of plans for advertising and sales promotion to maintain present markets or to create new or larger markets for equine grown in this state or for the prevention, modification, or removal of trade barriers which obstruct the normal flow of equines to market. The commission is authorized to prepare, issue, administer, and enforce plans for promoting the sale of equines, provided that any such plan shall be directed toward promoting and increasing the sale, use, and utilization of equines without reference to a particular producer or breed; and provided, further, that no advertising or sales promotion program shall be issued by the Commissioner or the commission which makes use of false or unwarranted claims on behalf of any equines or disparages the quality, value, sale, or use of any other agricultural commodity;
  2. Provisions for carrying on research studies in promoting the production, marketing, sale, use and utilization, and improvement of equines or any combination thereof and for the expenditure of moneys for such purposes. In any research carried on under this paragraph, the Commissioner and the commission shall cooperate in selecting the research project or projects to be carried on from time to time. Such projects shall be carried out by postsecondary educational institutions or private organizations selected by the commission;
  3. Provisions establishing or providing authority for establishing an educational program designed to acquaint producers or the general public about the equine industry and its associated issues. (Code 1981, § 2-8-132 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-133. Amendments to, rules and regulations governing, and expiration and termination of marketing orders.

    1. Upon the recommendation of not less than three of the appointed members of the commission, the Commissioner or the commission may make effective minor amendments to a marketing order. The Commissioner or the commission may require a public hearing upon minor amendments if in the Commissioner's or the commission's opinion the substance of such minor amendments so warrants.
    2. In making effective major amendments to a marketing order, the Commissioner or the commission shall follow the same procedures prescribed in this article for the institution of a marketing order. For the purpose of this article, a major amendment to a marketing order shall include, but shall not be limited to, any amendment which adds to or deletes from any such marketing order any of the following types of regulations or authorizations:
      1. Authority for the establishment of plans for advertising and sales promotion of equines; or
      2. Authority for carrying out research studies in the production or distribution of equines.
    3. Modification of any provisions of any marketing order in effect, for the purpose of clarifying the meaning or application of such provisions or of modifying administrative procedures for carrying out such provisions, are declared not to be a major amendment of such marketing order.
  1. Upon the issuance of any order making effective a marketing order or any suspension, amendment, or termination thereof, a notice thereof shall be posted on a public bulletin board maintained at the Department of Agriculture; and a copy of such notice shall be published as the Commissioner or the commission may prescribe. No marketing order nor any suspension, amendment, or termination thereof shall become effective until the termination of a period of five days from the date of such posting and publication.
  2. The Commissioner or the commission shall have the power, consistent with this article and in accordance with marketing orders and agreements made effective under this article, to establish such general rules and regulations for uniform application to all marketing orders issued pursuant to this article as may be necessary to facilitate the administration and enforcement of such marketing orders. The provisions of subsection (b) of this Code section relative to posting, publication, and time of taking effect shall be applicable to any such general rule or regulation established pursuant to this subsection and applicable to marketing orders generally. Such notice shall be furnished by the Commissioner or the commission for each marketing order in active operation.
  3. Upon the recommendation of the commission, the Commissioner shall have the power, consistent with this article, to establish administrative rules and regulations for each marketing order issued and made effective as may be necessary to facilitate the supervision, administration, and enforcement of each such order. The provisions of subsection (b) of this Code section relative to posting, publication, mailing of notice, and time of taking effect shall be applicable to any such administrative rules and regulations.
  4. Unless extended as provided in this Code section, all marketing orders issued under the authority of this article shall expire, terminate, and become of no force and effect at the expiration of three years from the date of the issuance of the original marketing order or, if such marketing order has been extended, at the expiration of three years after the date of any such extension. (Code 1981, § 2-8-133 , enacted by Ga. L. 2006, p. 632, § 2/SB 380; Ga. L. 2017, p. 774, § 2/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "appointed members" for "appointive members" in paragraph (a)(1).

2-8-134. Limited application of marketing orders.

Marketing orders issued by the commission may be limited in their application by prescribing the marketing areas or portions of the state in which a particular order shall be effective, provided that no marketing order shall be issued by the commission unless it embraces all persons of a like class.

(Code 1981, § 2-8-134 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

2-8-135. Commission authorized to borrow funds for certain purposes; disposition of funds collected pursuant to this article.

  1. In the event that the commission has reason to believe that the administration of a marketing order will be facilitated or the attainment of the purposes and objectives of the marketing order will be promoted thereby, the commission is authorized to borrow money, with or without interest, to carry out any provision of any marketing order authorized by this article and may hypothecate anticipated funds due to the commission as otherwise provided by law and applicable to such respective provisions.
  2. In lieu of requiring advance deposits for defraying administrative or advertising and sales promotion expenses until such time as sufficient moneys are collected for such purposes from any funds due to the commission as otherwise provided by law, the Commissioner is authorized to receive and disburse for such purposes contributions made by producers or distributors. Neither the commission nor the Commissioner shall be held responsible for the repayment of such contributions, provided that whenever collections from the payment of any funds due to the commission and credited to the respective marketing order accounts are sufficient so to warrant, the commission shall recommend and the Commissioner shall repay contributions.
  3. Any moneys collected by the commission or the Commissioner pursuant to this article shall be deposited in a bank or other depository approved by the commission and shall be disbursed by the Commissioner only for the necessary expenses incurred by the commission and the Commissioner, as approved by the commission. Funds so collected shall be deposited and disbursed in conformity with appropriate rules and regulations prescribed by the Commissioner. All such expenditures by the Commissioner shall be audited at least annually by the state auditor and a copy of such audit shall be delivered within 30 days after the completion thereof to the Governor, the Commissioner, and the commission. If ever the commission is abolished by law, any funds remaining in its hands at such time shall be used to pay the existing obligations of the commission and the expenses incurred in winding up the affairs of the commission. Any excess remaining shall escheat to the state and shall be paid by the Commissioner into the state treasury as unclaimed trust funds.
  4. Moneys deposited by the Commissioner pursuant to this Code section which the commission determines are available for investment may be invested or reinvested by the Commissioner as provided for funds of this state or of any retirement system created by law, provided that all moneys invested shall be invested in those areas of production that will provide a return at the highest bank interest rate available. It shall be the duty of the commission annually to review these investments and determine that such investments comply with this Code section. (Code 1981, § 2-8-135 , enacted by Ga. L. 2006, p. 632, § 2/SB 380.)

ARTICLE 6 AGRICULTURAL COMMODITY COMMISSION FOR PROPANE

Effective date. - This article became effective April 18, 2019.

2-8-200. Definitions.

As used in this article, the term:

  1. "Commission" means the Agricultural Commodity Commission for Propane created under this article.
  2. "Dealer" means any person to whom the office of the Commissioner of Insurance issues a liquid propane license. The term shall not include any person who offers for retail sale propane in containers of less than 50 pounds water capacity and whose business does not involve the filling or transportation of such containers.
  3. "Distributor" means any person engaged in the business of selling propane to a dealer in the state.
  4. "Marketing order" means an order issued pursuant to this article establishing an assessment for financing the programs established under this article.
  5. "Person" means an individual, sole proprietorship, partnership, limited partnership, firm, corporation, limited liability company, association, or any other business entity, or any combination thereof. (Code 1981, § 2-8-200 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-201. Creation.

The Agricultural Commodity Commission for Propane is hereby created. The commission shall be organized and constituted, have corporate existence, possess powers and duties, and be governed and controlled as provided in this article.

(Code 1981, § 2-8-201 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-202. Membership; vacancies; compensation; certification of membership; naming of chairperson; quorum.

  1. The commission shall be composed of:
    1. Three members elected by the House Committee on Agriculture and Consumer Affairs with a quorum present and a majority of those present concurring, each of whom shall be a dealer or distributor and shall not be a member of the General Assembly;
    2. Three members elected by the Senate Agriculture and Consumer Affairs Committee with a quorum present and a majority of those present concurring, each of whom shall be a dealer or distributor and shall not be a member of the General Assembly; and
    3. One member elected by a majority of the members of the commission as specified in paragraphs (1) and (2) of this subsection, who shall be a dealer or distributor and shall not be a member of the General Assembly.
  2. Vacancies in the membership of the commission shall be filled in the same manner as that of the original election of such members. Any person selected to fill a vacancy shall serve for the remainder of the unexpired term.
  3. There shall be no compensation or reimbursement of expenses for members of the commission.
  4. It shall be the duty of the commission to certify to the Secretary of State the membership of the commission and each change in membership as the same occurs.
  5. The commission shall name its chairperson and determine a quorum for the transaction of business. (Code 1981, § 2-8-202 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-203. Use of outside resources; representation by Attorney General; acceptance of donations and gifts; property interests.

  1. The commission is authorized to appoint advisory boards, special committees, and individuals, including technical and clerical personnel, to advise, aid, and assist the commission in the performance of its duties. Compensation for such services shall be fixed by the commission and shall be paid from the funds of the commission.
  2. The Attorney General shall represent the commission in legal matters and shall be the attorney for the commission. If the Attorney General determines that outside legal counsel is necessary or desirable in connection with any legal matter of the commission, he or she shall so inform the commission and, upon approval of the commission, shall employ such outside counsel. Compensation for such outside counsel shall be agreed upon between such counsel and the Attorney General, subject to the approval of the commission. Such compensation shall be paid from the funds of the commission. Neither Code Section 16-10-9 nor any other law shall prohibit or be applicable to the employment of such counsel.
  3. The commission is authorized to accept donations, gifts, and other property and to use the same for commission purposes.
  4. The commission is authorized to acquire, lease as lessee, purchase, hold, own, and use any franchise or real or personal property, whether tangible or intangible, or any interest therein and, whenever the same is no longer required for purposes of the commission, to sell, lease as lessor, transfer, or dispose thereof or exchange the same for other property or rights which are useful for its purposes. (Code 1981, § 2-8-203 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-204. Status of commission; oath of office.

The commission shall be a public corporation and an instrumentality of the State of Georgia. By that name, style, and title, the commission may contract and be contracted with, implead and be impleaded, and complain and defend in all courts. The commission shall assume the duties and exercise the authority provided in this article without further formality than that provided in this article. Each member of the commission shall be a public officer and shall take an oath of office to faithfully perform his or her duties. Such oath shall be administered by the Governor or some other person qualified to administer oaths.

(Code 1981, § 2-8-204 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-205. Funding obligations.

The commission is authorized, and it shall be its duty to receive, collect, and disburse the funds of the commission.

(Code 1981, § 2-8-205 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-206. Funds held in trust; accounting.

Funds received by the commission under this article shall be held in trust for the commission. Such funds shall be deposited, accounted for, and disbursed in the same manner as that of the funds of this state but shall not be required to be deposited in the state treasury and appropriated therefrom. It is the express intent and purpose of this article to authorize the receipt, collection, and disbursement by the commission of such funds as trust funds of the commission without complying with the requirement applicable to funds collected for the use and benefit of the state.

(Code 1981, § 2-8-206 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-207. Bonding requirements for those handling finances.

Any persons who handle funds under this article shall be bonded with good and sufficient surety in an amount determined by the commission for the accounting of such funds. All checks, drafts, and negotiable instruments which are drawn on or payable from the funds of the commission shall be signed by the chairperson of the commission.

(Code 1981, § 2-8-207 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-208. No individual liability.

The members and employees of the commission shall not be held individually responsible to any dealer or distributor or to any other person for errors in judgment, mistakes, or other acts as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. No such member, person, or employee shall be held individually responsible for any act or omission of any other member of the commission. The liability of the members of the commission shall be several and not joint, and no member shall be liable for the default of any other member.

(Code 1981, § 2-8-208 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-209. Marketing orders; public hearings.

  1. The commission is authorized to issue, administer, and enforce marketing orders.
    1. Whenever the commission has reason to believe that the issuance of a marketing order will tend to effectuate the declared policy of this article with respect to propane, it shall give due notice of and an opportunity for a public hearing thereon.
    2. Notice of any hearing called for such purpose shall be given by the commission by publishing a notice of such hearing for a period of not less than five days in a newspaper of general circulation published in the City of Atlanta and in such other newspapers as the commission may prescribe. No such public hearing shall be held prior to five days after the last day of such period of publication. The commission shall also mail a copy or communicate electronically such notice of hearing and a copy of such proposed marketing order or proposed amendments to all dealers and distributors of propane whose names and addresses are on file with the commission. Such notice of hearing shall in all respects comply with the requirements of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
    3. The hearing shall be public, and all testimony shall be received under oath. A full and complete record of the proceedings at such hearing shall be made and maintained on file in the office of the commission. The hearing shall, in all respects, be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The hearing may be conducted by the commission or by a member of the commission, as may be designated by the commission in each instance, but no decision shall be made based on hearings conducted other than by the commission itself, at which a majority of the members thereof are present, until the members of the commission have been afforded an opportunity to review the hearing record. When the commission conducts hearings, its recommendation shall be based on the findings reached after a review of the record of such hearings. (Code 1981, § 2-8-209 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-210. Recommendation for promulgation of marketing order; prohibition against lobbying; administrative expenses; costs.

If, upon the basis of the record of testimony and documentary evidence received at the hearing as provided for in Code Section 2-8-209 and the facts officially noticed therein from official publications or institutions of recognized standing, the commission determines that the issuance of a marketing order will tend to effectuate the intent and purpose of this article, it may recommend the promulgation of a marketing order with respect to the matters specified in the hearing notice and supported by the record; such order shall account for provisions to promote propane education, training, safety compliance, equipment replacement for low-income customers, marketing, advertising, promotion, and customer rebates to encourage energy-efficient appliance and equipment purchases by residential, commercial, industrial, motor fuel or agricultural consumers. No funds collected pursuant to this article shall be used in any manner for lobbying or for influencing state or federal legislation. No more than 10 percent of the funds collected and no less than the actual administrative expense pursuant to this article shall be used for administrative expenses relating to the expenditure of the funds. The commission may advance costs of conducting referenda pursuant to this article and reimburse those costs from the assessment funds.

(Code 1981, § 2-8-210 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-211. Requirement for referendum; voters and voting rights; approval; record keeping; confidentiality.

    1. No marketing order issued pursuant to this article shall be made effective by the commission until a referendum thereon is held.
    2. The commission shall determine:
      1. The amount of the proposed assessment established by the marketing order;
      2. The time and place of the referendum;
      3. Procedures for conducting the referendum and the counting of votes;
      4. The proposed effective date for the imposition of the assessment established by the marketing order, which shall be no be less than 90 days from the date the referendum ballot is required to be returned to the commission in order to be considered on the question presented; and
      5. Any other matters pertaining to the referendum.
  1. The amount of the proposed assessment established by the marketing order shall be stated on the referendum ballot. The amount may not exceed four-tenths of one cent for each gallon of propane sold in this state by distributors to dealers.
  2. All dealers may vote in the referendum. Each dealer shall have one vote. Any dispute over eligibility to vote or any other matter relating to the referendum shall be resolved by the commission. The commission shall make reasonable efforts to provide all dealers with notice of the referendum and an opportunity to vote.
  3. A proposed assessment shall become effective if more than 50 percent of the eligible dealers in the state vote and more than 50 percent of the eligible votes cast by the dealers are cast in favor of the assessment. If the assessment is approved by the referendum, then the commission shall notify the department of the amount and the effective date of the assessment. The department shall notify all dealers of the assessment.
    1. Each distributor, as the owner of propane at the time of odorization, or at the time of import of odorized propane, shall make the assessment based on the volume of odorized propane sold in this state and placed in commerce in this state.
    2. Each distributor shall collect the assessment from the dealer to whom the sale is made and shall remit to the commission the sum of the amount of the assessment multiplied by the number of gallons of propane sold to any dealer during the assessment period.
  4. A distributor shall keep records of the number of gallons of propane sold to dealers. All documents or records regarding purchases and sales shall be made available to the commission upon its written request for the purpose of determining the distributor's compliance with the provisions of this article. The commission shall keep the records confidential and shall not disclose the records except to its accountants, attorneys, or financial advisors without a court order directing it to do so. (Code 1981, § 2-8-211 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-212. Opt out by dealers.

A dealer can opt out of this article only once per year between September 1 and September 30. Any dealer who opts out of this article in accordance with this Code section shall not be eligible to receive the benefit of any marketing order for a period of one year following the date of his or her request to opt out under this Code section and shall not be entitled to the payment of any interest by the commission on the amount refunded.

(Code 1981, § 2-8-212 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2019, "this Code section" was substituted for "this subsection" near the beginning of the second sentence.

2-8-213. Referendum vote on continuation of commission.

A referendum shall be held once every five years to vote on the continuation of the commission. For the results to be valid, at least 50 percent of the eligible dealers in this state must vote, and if more than 50 percent of the dealers voting vote in favor of continuing the commission, then the commission will continue for another five years.

(Code 1981, § 2-8-213 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-214. Assessments as personal debt; cumulative nature of penalties.

  1. Any assessment established in accordance with this article shall constitute a personal debt of every person so assessed and shall be due and payable to the commission when payment is called for by the commission. If such person fails to pay any such assessment, the commission may file an action against such person in a court of competent jurisdiction for the collection thereof.
  2. In the event that any person duly assessed pursuant to this article fails to pay to the commission the amount so assessed, the commission shall be authorized to add to such unpaid assessment an amount not exceeding 10 percent of such unpaid assessment to defray the cost of enforcing the collection of the unpaid assessment.
  3. The provisions of this Code section shall be cumulative, and any other remedies may be pursued concurrently until satisfaction is obtained. Any penalty recovered shall become a part of the principal assessment levied and shall be for the use of the commission. (Code 1981, § 2-8-214 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-215. Civil penalty for violations.

Any person who violates any provision of this article or any marketing order duly issued and effective under this article shall be civilly liable to the commission for a penalty in an amount not to exceed $500.00 for each and every violation thereof, the amount of such penalty to be fixed by the commission after notice and hearing as provided by Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for contested cases and recoverable by a civil action brought in the name of the commission. Any moneys recovered pursuant to this Code section shall be applied for the use of the commission.

(Code 1981, § 2-8-215 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2019, the subsection designation "(a)" was deleted from the beginning of this Code section since there was no subsection (b).

2-8-216. Actions brought by Attorney General; injunctions and specific performance; incurring and payment of costs.

  1. The Attorney General of this state shall, upon complaint by the commission, or may, after examining the complaint and the evidence and believing that a violation has occurred, bring an action in the superior court in the name of the commission for civil penalties or for injunctive relief, including the specific performance of any marketing order duly issued by the commission under this article.
  2. If there is an application for a preliminary injunction, a hearing of any order to show cause why such injunction should not be issued, or a hearing of any motion for a preliminary injunction suggesting that, or if the court finds in any such action that a defendant therein is violating or has violated any provision of this article or of any marketing order duly issued by the commission under this article, then the court shall enjoin the defendant from committing further violations and may compel specific performance of any obligation imposed by a marketing order issued by the commission under this article. It shall not be necessary in such event to allege or prove lack of an adequate remedy at law.
  3. In any action brought by the Attorney General to enforce any of the provisions of this article or of any marketing order issued by the commission and effective under this article or of any rule or regulation issued by the commission pursuant to any marketing order, a judgment in favor of the commission may provide that the defendant pay the commission the costs it incurred in the prosecution of such action. (Code 1981, § 2-8-216 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-217. Attorney General or prosecuting attorney to bring actions; administrative hearings; response to finding violation.

  1. The commission on its own motion or upon the complaint of any interested party may refer to the Attorney General of this state or to any prosecuting attorney of this state any charges of a violation of any provision of this article or of any marketing order or any rule or regulation issued by the commission and effective under this article for the institution of legal proceedings thereupon or, if the commission deems it necessary or advisable, immediately call an administrative hearing, pursuant to the provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," governing contested cases, to consider the charges set forth in such verified complaint.
  2. In case the matter is referred directly by the commission to the Attorney General or any prosecuting attorney, it shall be the duty of such officer, if after examination of the complaint and the evidence he or she believes that a violation has occurred, to bring an appropriate action or actions in a court or courts of competent jurisdiction.
  3. After an administrative hearing, if the commission finds that a violation has occurred, it shall enter its findings and notify the parties to such complaint. In its discretion, the commission shall either refer the matter to the Attorney General for the institution of legal proceedings or notify such parties to cease and desist from further violation. Upon the refusal or failure of such parties to comply or if the commission finds that the facts or circumstances warrant immediate prosecution, the commission shall file a complaint with the Attorney General or with any prosecuting attorney of this state, requesting that such officer commence any or all actions authorized in this article against such respondent or respondents in a court of competent jurisdiction. (Code 1981, § 2-8-217 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

2-8-218. Falsification of reports, statements, or records; penalty.

  1. Any person who willfully renders or furnishes a false or fraudulent report, statement, or record required pursuant to this article or any marketing order effective under this article shall be guilty of a misdemeanor.
  2. Any person who violates any provision of this article or any provision of any marketing order duly issued by the commission under this article shall be guilty of a misdemeanor.
  3. The penalties and remedies prescribed in this article with respect to any violation mentioned shall be concurrent and alternative. Neither singly nor combined shall such penalties and remedies be exclusive; rather, either singly or combined, such penalties and remedies shall be cumulative with any and all other civil, criminal, or alternative rights, remedies, forfeitures, or penalties provided or allowed by law with respect to any such violation. (Code 1981, § 2-8-218 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required for violating subsection (a). - Offenses arising from a violation of subsection (a) of O.C.G.A. § 2-8-218 are offenses for which fingerprinting is required. 2019 Op. Att'y Gen. No. 19-3.

Fingerprinting not required for violating subsection (b). - Offenses arising from a violation of subsection (b) of O.C.G.A. § 2-8-218 are not offenses for which fingerprinting is required. 2019 Op. Att'y Gen. No. 19-3.

2-8-219. Regulatory authority.

The department shall promulgate rules for the administration and enforcement of this article. The promulgation, adoption, and amendment of rules and regulations by the commission shall be subject to the requirements of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act".

(Code 1981, § 2-8-219 , enacted by Ga. L. 2019, p. 91, § 1/HB 512.)

CHAPTER 8A EMERGING CROPS FUND ACT

Sec.

Editor's notes. - This chapter became effective January 1, 1991, by reason of the amendment to Ga. Const. 1983, Art. III, Sec. IX, Para. VI, which was ratified by a majority of the voters voting in the general election on November 6, 1990.

2-8A-1. Short title.

This chapter shall be known and may be cited as the "Emerging Crops Fund Act."

(Code 1981, § 2-8A-1 , enacted by Ga. L. 1990, p. 1696, § 1; Ga. L. 2013, p. 671, § 1/SB 91.)

2-8A-2. Purpose of chapter.

The purpose of this chapter is to promote economic development by encouraging the production of plant or animal crops in Georgia which are produced commercially and to make available to consumers emerging crops grown in Georgia.

(Code 1981, § 2-8A-2 , enacted by Ga. L. 1990, p. 1696, § 1; Ga. L. 2013, p. 671, § 1/SB 91.)

2-8A-3. Definitions.

As used in this chapter, the term:

  1. "Emerging crop" means a plant or animal crop for which consumers have a demand.
  2. "Farmer" means a resident of Georgia who engages in or wishes to engage in the commercial production of an emerging crop on land in Georgia. This term shall include individuals, family-farm corporations meeting the requirements of paragraph (2) of subsection (b) of Code Section 48-5-7.1, and partnerships in which all of the partners are either individuals or family-farm corporations meeting such requirements.
  3. "Fund" means the Emerging Crops Fund established in Code Section 2-8A-5.
  4. "Georgia Development Authority" or "authority" means the Georgia Development Authority provided for in Chapter 10 of Title 50.
  5. "Interest loan" means a loan made from the fund to pay the interest on a loan made by a lender to a farmer to finance the costs of production of an emerging crop.
  6. "Lender" means a commercial bank, savings bank, savings and loan association, federal land bank, farm credit bank, production credit association, or other farm credit agency which is domiciled or qualified to do business in Georgia or the Farmers Home Administration. (Code 1981, § 2-8A-3 , enacted by Ga. L. 1990, p. 1696, § 1; Ga. L. 2013, p. 671, § 1/SB 91.)

2-8A-4. Crops included as emerging crops.

Reserved. Repealed by Ga. L. 2013, p. 671, § 1/SB 91, effective May 6, 2013.

Editor's notes. - This Code section was based on Code 1981, § 2-8A-4 , enacted by Ga. L. 1990, p. 1696, § 1.

2-8A-5. Fund established.

  1. Pursuant to Article III, Section IX, Paragraph VI(j) of the Constitution of Georgia, there is established as a separate fund of the Georgia Development Authority a fund to be known as the "Emerging Crops Fund," which shall be used to make interest loans on loans made to farmers for costs of production of emerging crops on land in Georgia. The fund shall be administered by the Georgia Development Authority. The Georgia Development Authority shall by rules or regulations develop definitions, guidelines, standards, requirements, and procedures for making interest loans as authorized in this chapter. Funds for the Emerging Crops Fund and for the administration of said fund shall be provided from the following sources:
    1. Appropriations by the General Assembly, and funds appropriated to the Emerging Crops Fund shall be presumptively concluded to have been committed to the purpose for which appropriated and shall not lapse;
    2. The repayment of interest loans made from the fund; and
    3. Any interest or earnings made from the investment of funds of the Emerging Crops Fund.
  2. The Georgia Development Authority shall maintain the Emerging Crops Fund entirely separate from any other funds of the authority, and no funds available to the authority to carry out its purposes under Chapter 10 of Title 50 shall be used for the purposes of the Emerging Crops Fund. The source of funds provided for in subsection (a) of this Code section shall be the only source of funds for the Emerging Crops Fund.
  3. Except as limited by subsection (b) of this Code section, the Georgia Development Authority may exercise any power possessed by the authority under Chapter 10 of Title 50 to carry out the provisions of this chapter. (Code 1981, § 2-8A-5 , enacted by Ga. L. 1990, p. 1696, § 1; Ga. L. 2013, p. 671, § 1/SB 91.)

2-8A-6. Application for interest loan; maximum amount; maximum rate of interest; security.

Any lender which has made or makes a loan to a farmer to finance the costs of production of an emerging crop on land in Georgia may make application to the Georgia Development Authority for an interest loan to pay interest on the loan during the period from the beginning of production to harvest or initial sale of the product, which payment shall be made from the fund. The maximum amount of interest loans from the fund for the benefit of any one farmer shall be $50,000.00; provided, however, that the Georgia Development Authority in administering the fund shall give priority to smaller interest loans. During the period that the Georgia Development Authority pays the interest on a loan from the fund, the maximum rate of interest which may be charged on the loan by the lender shall be as established from time to time by the Georgia Development Authority. By payment of the interest on a loan, neither the Georgia Development Authority nor the State of Georgia shall be a guarantor of the loan. The Georgia Development Authority shall, by rule or regulation, require such security or lien as may be necessary to provide adequate security for the authority as condition for making an interest loan as authorized by this chapter.

(Code 1981, § 2-8A-6 , enacted by Ga. L. 1990, p. 1696, § 1; Ga. L. 2013, p. 671, § 1/SB 91.)

2-8A-7. Repayment of interest loan.

Repayment of an interest loan made from the fund shall be deferred for a period of time not more than five years or the time when the emerging crop should reach maturity, whichever is later. The schedule for repayment of the interest loan shall be a period of time equal to two times the period that interest is paid on the loan from the fund for that emerging crop. No interest shall be charged on interest loans from the fund, and only the amount actually loaned from the fund shall be required to be repaid. Repayment of interest loans from the fund shall be made to the lender, which shall remit the amounts collected to the Georgia Development Authority for deposit into the fund.

(Code 1981, § 2-8A-7 , enacted by Ga. L. 1990, p. 1696, § 1; Ga. L. 2013, p. 671, § 1/SB 91.)

CHAPTER 9 DEALERS IN AGRICULTURAL PRODUCTS

General Provisions.

Grain Dealers.

ARTICLE 1 GENERAL PROVISIONS

Administrative Rules and Regulations. - Dealers in agriculture products, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-30.

Cross references. - Exemption from municipal property taxes and license fees for sale or introduction into municipality of agricultural product raised in state, § 48-5-356 .

Law reviews. - For article, "Perishable Agricultural Commodities Act," see 4 Ga. St. B. J. 20 (1999).

2-9-1. Definitions.

As used in this article, the term:

  1. "Agricultural products" includes fruits, vegetables, pecans, and cotton but does not include dairy products, tobacco, grains, eggs, and other basic farm crops.
  2. "Dealer in agricultural products" means any person, association, itinerant dealer, partnership, or corporation engaged in the business of buying, receiving, selling, exchanging, negotiating, or soliciting the sale, resale, exchange, or transfer of any agricultural products purchased from the producer or his or her agent or representative or received on consignment from the producer or his or her agent or representative or received to be handled on a net return basis from the producer. The term "dealer in agricultural products" also includes any person buying, selling, processing, or shelling pecan nuts, including any and every kind and variety of pecan nuts.
  3. "Net return basis" means a purchase for sale of agricultural products from a producer or shipper at a price which is not fixed or stated at the time the agricultural products are shipped from the point of origin. The term includes all purchases made "at the market price," "at net worth," and on similar terms indicating that the buyer is the final arbiter of the price to be paid.
  4. "On consignment" means any receiving or sale of agricultural products for the account of a person, other than the seller, wherein the seller acts as the agent for the owner.
  5. "Producer" means any producer of agricultural products.

    (Ga. L. 1956, p. 617, § 1; Ga. L. 1957, p. 7, § 1; Ga. L. 1962, p. 127, § 1; Ga. L. 1962, p. 636, § 1; Ga. L. 1978, p. 1450, § 1; Ga. L. 1991, p. 1053, § 1; Ga. L. 1992, p. 2149, § 1; Ga. L. 1999, p. 800, § 1; Ga. L. 2000, p. 1510, § 1; Ga. L. 2013, p. 797, § 1/HB 268.)

JUDICIAL DECISIONS

Recovery under contract when not a licensed dealer. - Georgia Supreme Court held that if a dealer failed to obtain a license as required by O.C.G.A. § 2-9-2 , the dealer may not recover under a contract to the extent that the contract relates to business coming within the terms of the Georgia Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1 et seq. San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

Failure to obtain a license. - Georgia Supreme Court held that a dealer that fails to obtain a license as described by the district court did not qualify as a dealer in agricultural products under the Georgia Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1 et seq., and was not exempt under O.C.G.A. § 2-9-1 5(a)(1), with the limited exception of specific transactions in the sale of agricultural products grown by the dealer. San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Section inapplicable to sale of baby chicks. - The sale of baby chicks by those persons engaged therein is not subject to this section. 1958-59 Op. Att'y Gen. p. 3.

Lumber is not an "agricultural product" within the meaning of the Georgia State Warehouse Act. 1958-59 Op. Att'y Gen. p. 12.

Nursery products are not "agricultural products." - Nursery products such as ornamental garden shrubs, are not "agricultural products." 1969 Op. Att'y Gen. No. 69-407.

RESEARCH REFERENCES

ALR. - State statute in relation to inspection and grading of grain as unlawful burden on interstate commerce, 19 A.L.R. 164 .

Validity of discrimination in license statute or ordinance in favor of farmers selling their own products and against other persons dealing in farm products, 123 A.L.R. 1051 .

2-9-2. License required.

It shall be unlawful for any dealer in agricultural products who comes within the terms of this article to engage in such business in this state without a state license issued by the Commissioner.

(Ga. L. 1956, p. 617, § 3.)

JUDICIAL DECISIONS

Recovery under contract for unlicensed dealer. - Georgia Supreme Court held that if a dealer failed to obtain a license as required by O.C.G.A. § 2-9-2 , the dealer may not recover under a contract to the extent that the contract relates to business coming within the terms of the Georgia Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1 et seq. San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

Failure to obtain a license. - Georgia Supreme Court held that a dealer that fails to obtain a license as described by the district court did not qualify as a dealer in agricultural products under the Georgia Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1 et seq., and was not exempt under O.C.G.A. § 2-9-1 5(a)(1), with the limited exception of specific transactions in the sale of agricultural products grown by the dealer. San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

RESEARCH REFERENCES

ALR. - Constitutionality, construction, and application of statutes relating to the purchase of farm and dairy products from producers for purposes of resale, 117 A.L.R. 347 .

Validity of discrimination in license statute or ordinance in favor of farmers selling their own products and against other persons dealing in farm products, 123 A.L.R. 1051 .

2-9-3. Application for license.

Every dealer in agricultural products desiring to transact business in this state shall file an application for such license with the Commissioner. The application shall be on a form furnished by the Commissioner and, together with such other information as the Commissioner shall require, shall state:

  1. The kind or kinds of agricultural products the applicant proposes to handle;
  2. The full name or title of the applicant or, if the applicant is an association or partnership, the name of each member of such association or partnership or, if the applicant is a corporation, the name of each officer of the corporation;
  3. The names of the local agent or agents of the applicant, if any; and
  4. The municipalities within which places of business of the applicant will be located, together with the street or mailing address of each such place of business.

    (Ga. L. 1956, p. 617, § 4.)

JUDICIAL DECISIONS

Failure to obtain a license. - Georgia Supreme Court held that a dealer that fails to obtain a license as described by the district court did not qualify as a dealer in agricultural products under the Georgia Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1 et seq., and was not exempt under O.C.G.A. § 2-9-1 5(a)(1), with the limited exception of specific transactions in the sale of agricultural products grown by the dealer. San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

Failure to obtain a license. - Georgia Supreme Court held that if a dealer failed to obtain a license as required by O.C.G.A. § 2-9-2 , it may not recover under a contract to the extent that the contract relates to business coming within the terms of the Georgia Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1 et seq. San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

RESEARCH REFERENCES

ALR. - Right to enjoin business competitor from unlicensed or otherwise illegal acts or practices, 90 A.L.R.2d 7.

2-9-4. Issuance of license.

Unless the Commissioner refuses the application on one or more of the grounds provided in Code Section 2-9-7, he or she shall issue to such applicant, upon the execution and delivery of a bond as provided in Code Section 2-9-5, a state license entitling the applicant to conduct business as a dealer in agricultural products. An annual fee not to exceed $400.00 shall be required before a license is issued. Such license shall be valid until revoked or suspended as provided in this article, or until the annual license renewal fee is unpaid.

(Ga. L. 1956, p. 617, § 5; Ga. L. 2013, p. 797, § 2/HB 268.)

2-9-5. Bond - Required.

Before any license is issued the applicant shall make and deliver to the Commissioner a surety bond executed by a surety corporation authorized to transact business in this state and approved by the Commissioner. Any and all bond applications shall be accompanied by a certificate of "good standing" issued by the Commissioner of Insurance. If any company issuing a bond shall be removed from doing business in this state, it shall be the duty of the Commissioner of Insurance to notify the Commissioner of Agriculture within 30 days. The bond shall be in such amount as the Commissioner may determine, not exceeding an amount equal to the maximum amount of products purchased from or sold for Georgia producers or estimated to be purchased or sold in any month by the applicant; provided, however, that the minimum amount of such bond shall be $10,000.00 and the maximum amount of such bond shall be $230,000.00; provided, further, that in the case of pecans, such bond shall not exceed $500,000.00. Such bond shall be upon a form prescribed or approved by the Commissioner and shall be conditioned to secure the faithful accounting for and payment to producers or their agents or representatives of the proceeds of all agricultural products handled or sold by such dealer. However, in lieu of a surety bond, the Commissioner may accept a cash bond, which shall in all respects be subject to the same claims and actions as would exist against a surety bond. Whenever the Commissioner shall determine that a previously approved bond has for any cause become insufficient, the Commissioner may require an additional bond or bonds to be given, conforming with the requirements of this Code section. Unless the additional bond or bonds are given within the time fixed by written demand therefor, or if the bond of a dealer is canceled, the license of such person shall be immediately revoked by operation of law without notice or hearing and such person shall be ineligible to reapply for such license for a period of four years after such revocation.

(Ga. L. 1956, p. 617, § 6; Ga. L. 1991, p. 1053, § 2; Ga. L. 1992, p. 2149, § 2; Ga. L. 1999, p. 800, § 2; Ga. L. 2000, p. 1510, § 2; Ga. L. 2013, p. 797, § 3/HB 268.)

JUDICIAL DECISIONS

Cited in San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

RESEARCH REFERENCES

ALR. - Validity of statute or ordinance which requires liability or indemnity insurance or bond as condition of license for conducting business or profession, 120 A.L.R. 950 .

2-9-6. Bond - Breach of conditions; complaint to Commissioner; hearing and settlement; action on bond; pro rata distribution of insufficient bond proceeds.

  1. Any person claiming that he or she has been damaged by a breach of the conditions of a bond given by a licensee as provided in Code Section 2-9-5 may enter a complaint to the Commissioner. Such complaint shall be a written statement of the facts constituting the complaint and must be made within 180 days of the alleged breach. If the Commissioner determines that the complaint is prima facie a breach of the bond, and the matter can not be amicably resolved within 15 days, the Commissioner shall publish a solicitation for additional complaints regarding breaches of the bond for a period of not less than five consecutive issues in a newspaper of general circulation and in such other publications as the Commissioner shall prescribe. Additional complaints must be filed within 60 days following initial public notification of a breach of the bond. Civil actions on the breach of such bond shall not be commenced less than 120 days nor more than 547 days from the initial date of public notification of such breach of the bond.
  2. Upon the filing of such complaint in the manner provided in this Code section, the Commissioner shall investigate the charges made and at his discretion order a hearing before him, giving the party complained of notice of the filing of such complaint and the time and place of such hearing. At the conclusion of the hearing the Commissioner shall report his findings and render his conclusion upon the matter complained of to the complainant and respondent in each case, who shall have 15 days thereafter in which to make effective and satisfy the Commissioner's conclusions.
  3. If such settlement is not effected within such time, the Commissioner or the producer may bring an action to enforce the claim. If the producer is not satisfied with the ruling of the Commissioner, he may commence and maintain an action against the principal and surety on the bond of the parties complained of as in any civil action.
  4. If the bond or collateral posted is insufficient to pay in full the valid claims of producers, the Commissioner may direct that the proceeds of such bond shall be divided pro rata among such producers.

    (Ga. L. 1956, p. 617, § 7; Ga. L. 1982, p. 3, § 2; Ga. L. 1996, p. 335, § 1; Ga. L. 1998, p. 556, § 1.)

2-9-7. Denial, suspension, or revocation of license - Grounds generally.

The Commissioner may decline to grant a license or may suspend or revoke a license already granted if he is satisfied that the applicant or licensee has:

  1. Suffered a money judgment to be entered against him upon which execution has been returned unsatisfied;
  2. Made false charges for handling or services rendered;
  3. Failed to account promptly and properly or to make settlements with any producer;
  4. Made any false statement or statements as to condition, quality, or quantity of goods received or held for sale when he could have ascertained the true condition, quality, or quantity by reasonable inspection;
  5. Made any false or misleading statement or statements as to market conditions or service rendered;
  6. Been guilty of a fraud in the attempt to procure or in the procurement of a license; or
  7. Directly or indirectly sold agricultural products received on consignment or on a net return basis for his own account, without prior authority from the producer consigning the same or without notifying such producer.

    (Ga. L. 1956, p. 617, § 11.)

JUDICIAL DECISIONS

Cited in San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

2-9-8. Denial, suspension, or revocation of license - Notice and hearing.

Before the Commissioner refuses a license or suspends or revokes any license, he shall give the applicant or licensee ten days' notice, by registered or certified mail or statutory overnight delivery, of a time and place of hearing. At such hearing the applicant or licensee shall be privileged to appear in person or by or with counsel and to produce witnesses. If the Commissioner finds that the applicant or licensee has committed any violation of this article or any of the rules or regulations promulgated hereunder, the Commissioner may refuse, suspend, or revoke such license. He shall give immediate notice of his action to the applicant or licensee.

(Ga. L. 1956, p. 617, § 12; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Cross references. - Authority of Commissioner to impose penalty in lieu of other action, § 2-2-10 .

2-9-9. Consignment records; settlement with producer.

  1. Every dealer in agricultural products, upon the receipt of agricultural products on a consignment basis and as he handles and disposes of the same, shall make and preserve for at least one year a record thereof, specifying:
    1. The name and address of the producer consigning such agricultural products;
    2. The date of receipt;
    3. The kind and quality of such products;
    4. The amount of goods sold;
    5. The name and address of the purchaser, provided that where sales total less than $5.00 in value, such sales may be made to the order of "cash";
    6. The selling price; and
    7. The items of expenses connected therewith.
  2. An "account of sales," together with payment in settlement for such shipment, shall be mailed to the producer within 48 hours after the sale of such agricultural products, unless otherwise agreed in writing.

    (Ga. L. 1956, p. 617, § 8.)

JUDICIAL DECISIONS

Cited in San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

2-9-9.1. Bale identification numbers on ginned cotton.

Upon ginning cotton into bales, the ginner shall assign each bale a permanent bale identification number. No bale shall be removed from a gin except when accompanied by a cotton bale voucher issued by the gin, containing the permanent bale identification number and issued in the name of the cotton producer. Except for removal to a bonded warehouse in the name of the cotton producer, transfers or sales from the cotton producer after ginning shall be endorsed by his or her signature on the cotton bale voucher or forms authorized by the Commissioner of Agriculture.

(Code 1981, § 2-9-9.1 , enacted by Ga. L. 1999, p. 800, § 3.)

JUDICIAL DECISIONS

Cited in San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

2-9-10. Investigations.

  1. Upon the complaint of any interested person or upon his own initiative, the Commissioner shall have the power to investigate:
    1. The record of any applicant or licensee;
    2. Any transaction involving the solicitation, receipt, sale, or attempted sale of agricultural products;
    3. The failure to pay proper and true accounts and settlements at prompt and regular intervals;
    4. The making of false statements as to condition, quality, or quantity of goods received or in storage;
    5. The making of false statements as to market conditions with intent to deceive;
    6. The failure to make payment for goods received; or
    7. Other alleged injurious transactions.
  2. For the purposes specified in subsection (a), the Commissioner or his agents may examine the ledgers, books of accounts, memoranda, and other documents which relate to the transaction involved, at the place or places of business of the applicant or licensee, and may take testimony thereon under oath.

    (Ga. L. 1956, p. 617, § 9.)

2-9-11. Inspections of damaged shipments; certificate.

Whenever produce is shipped to or received by a licensed dealer for handling, purchase, or sale in this state at any market point and the dealer finds the produce to be in a spoiled, damaged, unmarketable, or unsatisfactory condition, unless both parties waive inspection before sale or other disposition thereof, the dealer shall cause the produce to be examined by an inspector assigned by the Commissioner for that purpose. The inspector shall execute and deliver a certificate to the applicant stating the day, the time, and the place of the inspection and the condition of the produce and shall mail or deliver a copy of such certificate to the shipper.

(Ga. L. 1956, p. 617, § 10.)

Cross references. - Duty of railroad companies to furnish refrigerator cars to growers of peaches, apples, and other produce for transportation of such products, § 46-9-90 et seq.

2-9-11.1. Ownership of agricultural product harvested by dealer, agent or employee, or independent contractor retained by dealer; prompt payment; certificate of receipt and quality.

  1. In the absence of a written contract between the producer and a dealer in agricultural products to the contrary, any agricultural product which is harvested by a dealer, an agent or employee of a dealer, or an independent contractor retained by a dealer or which is delivered to a dealer or an agent or employee thereof on the farm or at a facility of the dealer shall become the property of the dealer at the time of delivery and the dealer shall become obligated to pay the agreed-upon price as provided in subsection (b) of this Code section.
  2. A dealer in agricultural products shall make prompt payment for agricultural products purchased in this state.  Prompt payment shall mean payment 20 days following delivery, as provided in subsection (a) of this Code section, unless explicitly stated otherwise in a written contract agreed to by the producer and dealer in agricultural products.
  3. Unless explicitly stated otherwise in a written contract, at the time of delivery as specified in subsection (a) of this Code section, the dealer and the producer in agricultural products shall jointly issue a certificate of receipt and quality to the producer or the producer's agent. The certificate of receipt and quality shall contain information, including but not limited to the:
    1. Name and address of the dealer in agricultural products;
    2. Name and address of the producer;
    3. Delivery date and time of receipt;
    4. Description of the product as to identity, quantity, quality, condition, and grade of the product;
    5. Price per unit; and
    6. Terms of the transaction.

      Information contained in the certificate of receipt and quality pertaining to quality, quantity, and price shall be presumed to be satisfied unless such agricultural product is inspected and a certificate stating the product is in a different condition is issued by an inspector pursuant to Code Section 2-9-11 within 48 hours of delivery of the agricultural product to the dealer.

  4. This Code section does not preclude the producer from commencing and maintaining an action against the dealer as in any civil action. (Code 1981, § 2-9-11.1 , enacted by Ga. L. 1992, p. 1282, § 1; Ga. L. 1993, p. 440, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1992, "agreed-upon" was substituted for "agreed upon" in subsection (a).

2-9-12. Sale or possession of substandard products prohibited.

  1. It shall be unlawful for any dealer in agricultural products to sell, offer for sale, or possess any agricultural product that does not comply with the standards of quality established by the Commissioner under authority of law or with the laws and rules and regulations pertaining to such product.
  2. It is the intent and purpose of this Code section to prevent the sale of agricultural products that do not comply with the laws, standards of quality, and rules and regulations pertaining thereto.

    (Ga. L. 1962, p. 127, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 48 et seq.

ALR. - State statute in relation to inspection and grading of grain as unlawful burden on interstate commerce, 19 A.L.R. 164 .

2-9-13. Rules and regulations.

The Commissioner shall adopt and enforce rules and regulations deemed necessary to carry out this article.

(Ga. L. 1956, p. 617, § 13.)

2-9-14. Injunctions.

In addition to the other remedies provided in this article and notwithstanding the existence of any adequate remedy at law, the Commissioner is authorized to apply to the superior court, which court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction, or both, restraining any person from violating or continuing to violate this article or from failing or refusing to comply with this article or any rule or regulation adopted by the Commissioner as provided in this article. Such injunction shall be issued without bond.

(Ga. L. 1956, p. 617, § 15.)

2-9-15. Applicability of article.

  1. This article shall not apply to:
    1. Farmers or groups of farmers in the sale of agricultural products grown by themselves;
    2. Persons who buy for cash, paying at the time of purchase in United States currency, certified check, cashier's check, or the equivalent; or
    3. Holders of food sales establishment licenses issued pursuant to Article 2 of Chapter 2 of Title 26, the "Georgia Food Act," who conduct no business at the wholesale level and who have fewer than ten employees.
  2. No warehouse that is in full compliance with the provisions of Article 1 of Chapter 4 of Title 10 shall be required to obtain a license or maintain a surety bond under this article.

    (Ga. L. 1956, p. 617, § 2; Ga. L. 1978, p. 1450, § 2; Ga. L. 1991, p. 1053, § 3; Ga. L. 1992, p. 2149, § 3; Ga. L. 2000, p. 1510, § 3; Ga. L. 2013, p. 797, § 4/HB 268.)

JUDICIAL DECISIONS

Failure to obtain a license. - Georgia Supreme Court held that a dealer that fails to obtain a license as described by the district court did not qualify as a dealer in agricultural products under the Georgia Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1 et seq., and was not exempt under O.C.G.A. § 2-9-1 5(a)(1), with the limited exception of specific transactions in the sale of agricultural products grown by the dealer. San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

Georgia Supreme Court held that if a dealer failed to obtain a license as required by O.C.G.A. § 2-9-2 , the dealer may not recover under a contract to the extent that the contract relates to business coming within the terms of the Georgia Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1 et seq. San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

RESEARCH REFERENCES

ALR. - Validity of discrimination in license statute or ordinance in favor of farmers selling their own products and against other persons dealing in farm products, 123 A.L.R. 1051 .

2-9-16. Penalty.

Any dealer in agricultural products who violates any of the provisions of this article or who interferes with an agent of the Commissioner in the enforcement of this article shall be guilty of a misdemeanor.

(Ga. L. 1956, p. 617, § 15.)

JUDICIAL DECISIONS

Cited in San Miguel Produce, Inc. v. L. G. Herndon Jr. Farms, Inc., Ga. , 843 S.E.2d 403 (2020).

ARTICLE 2 GRAIN DEALERS

Cross references. - Labeling and sale of seeds, § 2-11-20 et seq.

Adoption and enforcement of standards for grain moisture testing equipment, §§ 10-2-15 , 10-2-16 .

Georgia State Warehouse Act, T. 10, C. 4, Art. I.

Grains and bread generally, § 26-2-290 et seq.

Administrative Rules and Regulations. - Grain dealers, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-25.

2-9-30. Definitions.

As used in this article, the term:

  1. "Grain" means all products commonly classified as grain, including, but not limited to, wheat, corn, oats, barley, rye, field peas, soybeans, clover, and grain sorghum. The term does not include grain which has been produced or packaged for purchase or distribution as seed.
  2. "Grain dealer" means any person, association, itinerant dealer, partnership, or corporation engaged in the business of buying, receiving, selling, exchanging, negotiating, or soliciting the sale, resale, exchange, or transfer of any grain purchased from the producer or his or her agent or representative, received on consignment from the producer or his or her agent or representative, or received to be handled on a net return basis from the producer.
  3. "On consignment" means any receipt or sale of grain for the account of a person other than the seller in which the seller acts as the agent for the owner.
  4. "Producer" means any producer of grain.

    (Ga. L. 1976, p. 512, § 1; Ga. L. 2013, p. 797, § 5/HB 268.)

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

RESEARCH REFERENCES

ALR. - State statute in relation to inspection and grading of grain as unlawful burden on interstate commerce, 19 A.L.R. 164 .

Nature and validity of "hedging" transactions on the commodity market, 20 A.L.R. 1422 .

Validity of discrimination in license statute or ordinance in favor of farmers selling their own products and against other persons dealing in farm products, 123 A.L.R. 1051 .

Right to enjoin business competitor from unlicensed or otherwise illegal acts or practices, 90 A.L.R.2d 7.

2-9-31. License required.

It shall be unlawful for any dealer in grain who comes within the terms of this article to engage in such business in this state without a state license issued by the Commissioner.

(Ga. L. 1976, p. 512, § 3.)

Cross references. - Annual license fee for grain dealers, commercial feed dealers, and grain warehousemen, § 2-1-5 .

Administrative Rules and Regulations. - License requirements, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Grain Dealers, Subject 40-25-2.

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

Federally licensed warehousemen do not have to acquire separate bonding and licensing mandated by § 2-9-34 and this section, but are accorded the exemption provided by § 2-9-44(3) . 1978 Op. Att'y Gen. No. 78-11.

RESEARCH REFERENCES

ALR. - Validity of discrimination in license statute or ordinance in favor of farmers selling their own products and against other persons dealing in farm products, 123 A.L.R. 1051 .

2-9-32. Application for license.

  1. Every grain dealer desiring to transact business in this state shall file an application for a license with the Commissioner. The application shall be on a form furnished by the Commissioner and, together with such other information as the Commissioner shall require, shall state:
    1. The name of the business;
    2. The business address of the applicant;
    3. The complete telephone number of the applicant;
    4. The type of ownership, whether individual, partnership, corporation, or other;
    5. The name of the owner or, if a partnership or corporation, the name of the partners or stockholders;
    6. The names of the certified public weighers;
    7. The name of the manager; and
    8. The dollar value of business transacted from producers for the highest month during the preceding calendar year.
    1. Each applicant for a license or renewal shall furnish with his application a current financial statement which shall include:
      1. A balance sheet;
      2. A profit and loss statement of income;
      3. A statement of retained earnings; and
      4. A statement of changes in financial position.
    2. The chief executive officer for the business shall certify under penalties of perjury that the statements as prepared accurately reflect the financial condition of the business as of the date named and fairly represent the results of operations for the period named.
    3. Except as otherwise provided in this paragraph, each applicant shall have the financial statements required in paragraph (1) of this subsection audited by an independent certified public accountant. Alternatively, financial statements audited or reviewed by an independent public accountant will be accepted with the understanding that the applicant will be subject to an additional on-site examination by the Commissioner and to an audit by the Commissioner. Audits and reviews by independent certified public accountants and independent public accountants specified in this Code section shall be made in accordance with standards established by the American Institute of Certified Public Accountants. The accountant's certification, assurances, opinion, comments, and notes on such statements, if any, shall be furnished along with the statements. Applicants who cannot immediately meet these requirements may apply to the Commissioner for a temporary waiver of this provision. The Commissioner may grant such waiver for a temporary period not to exceed 180 days if the applicants can furnish evidence of good and substantial reasons therefor. This paragraph shall not be applicable to any applicant who maintains a bond in the maximum amount required by subsection (a) of Code Section 2-9-34.

      (Ga. L. 1976, p. 512, § 4; Ga. L. 1983, p. 831, § 1; Ga. L. 1988, p. 748, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

2-9-33. Issuance, renewal, and expiration of license.

Unless the Commissioner refuses the application on one or more of the grounds provided in Code Section 2-9-36, he or she shall issue to an applicant, upon the execution and delivery of a bond as provided in Code Section 2-9-34, a state license entitling the applicant to conduct business as a dealer in grain. A fee in an amount fixed by rule or regulation of the Commissioner at not less than $100.00 nor more than $150.00 per annum shall be charged for such license. All such licenses shall be renewed annually on or before June 30. Any license which is not renewed on or before such date shall expire on June 30. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.

(Ga. L. 1976, p. 512, § 5; Ga. L. 1985, p. 643, § 1; Ga. L. 1992, p. 2132, § 1; Ga. L. 2010, p. 9, § 1-6/HB 1055.)

Cross references. - Annual license fee for grain dealers, commercial feed dealers, and grain warehousemen, § 2-1-5 .

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

2-9-34. Bond - Required.

  1. Before any license is issued, the applicant shall make and deliver to the Commissioner a surety bond in the amount of 20 percent of the average of the highest dollar volume of grain purchases from producers made in any single month for each of the three preceding calendar years or such shorter period of years as the applicant has done business as a grain dealer, provided that the minimum amount of such bond shall be $20,000.00 and the maximum amount of such bond shall be $300,000.00. If a licensed grain dealer operates his or her grain-dealing activities at more than one physical location, he or she shall furnish a surety bond for each location of grain-dealing activities, each bond to be computed as stated in this Code section and each bond to be subject to the minimum and maximum amounts stated in this Code section. The bonds shall be executed by a surety corporation authorized to transact business in this state and approved by the Commissioner. Any and all bond applications shall be accompanied by a certificate of "good standing" issued by the Commissioner of Insurance. If any company issuing a bond shall be removed from doing business in this state, it shall be the duty of the Commissioner of Insurance to notify the Commissioner of Agriculture within 30 days. Such bonds shall be upon forms prescribed by the Commissioner and shall be conditioned to secure the faithful accounting for and payment to the producers or their agents or representatives of the proceeds of all grain handled or sold by such dealer. Whenever the Commissioner shall determine that a previously approved bond has for any cause become insufficient, the Commissioner may require an additional bond or bonds to be given, conforming with the requirements of this Code section. Unless the additional bond or bonds are given within the time fixed by written demand therefor, or if the bond of a dealer is canceled, the license of such person shall be immediately revoked by operation of law without notice or hearing.
  2. In lieu of a surety bond, the Commissioner may accept a cash bond which shall be subject in all respects to the same claims and actions as would exist against a surety bond.
  3. If the surety bond or cash bond of a licensed grain dealer is canceled, the license of such grain dealer shall immediately be revoked by operation of law without notice or hearing.

    (Ga. L. 1976, p. 512, § 6; Ga. L. 1977, p. 245, § 2; Ga. L. 1981, p. 927, § 1; Ga. L. 1983, p. 3, § 3; Ga. L. 1983, p. 831, § 2; Ga. L. 1985, p. 643, § 2; Ga. L. 1999, p. 800, § 4; Ga. L. 2013, p. 797, § 6/HB 268.)

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

Federally licensed warehousemen do not have to acquire separate bonding and licensing mandated by § 2-9-31 and this section, but are accorded the exemption provided by § 2-9-44(3) . 1978 Op. Att'y Gen. No. 78-11.

RESEARCH REFERENCES

ALR. - Validity of statute or ordinance which requires liability or indemnity insurance or bond as condition of license for conducting business or profession, 120 A.L.R. 950 .

2-9-35. Bond - Breach of conditions; complaint to Commissioner; hearing and settlement; action on bond; pro rata distribution of insufficient bond proceeds.

  1. Any person claiming that he or she has been damaged by a breach of the conditions of a bond given by a licensee as provided in Code Section 2-9-34 may enter a complaint to the Commissioner. Such complaint shall be a written statement of the facts constituting the complaint and must be made within 180 days of the alleged breach. If the Commissioner determines that the complaint is prima facie a breach of the bond, and the matter can not be amicably resolved within 15 days, the Commissioner shall publish a solicitation for additional complaints regarding breaches of the bond for a period of not less than five consecutive issues in a newspaper of general circulation and in such other publications as the Commissioner shall prescribe. Additional complaints must be filed within 60 days following initial public notification of a breach of the bond. Civil actions on the breach of such bond shall not be commenced less than 120 days nor more than 547 days from the initial date of public notification of such breach of the bond.
  2. Upon the filing of the complaint in the manner provided in this Code section, the Commissioner shall investigate the charges made and, at his discretion, order a hearing before him or his hearing officer, giving all parties concerned notice of the filing of such complaint and the time and place of such hearing. At the conclusion of the hearing, the Commissioner shall report his findings and render his conclusion upon the matter complained of to the complainant and respondent in the case, who shall have 15 days following such report in which to make effective and satisfy the Commissioner's conclusions.
  3. If such settlement is not effected within such time, the Commissioner or the producer may institute appropriate legal proceedings to enforce the claim. If the producer is not satisfied with the ruling of the Commissioner, he may commence and maintain an action against the principal and surety on the bond of the parties complained of, as in any civil action.
  4. If the bond or collateral posted is insufficient to pay the valid claims of producers in full, the Commissioner may direct that the proceeds of the bond shall be divided pro rata among the producers.

    (Ga. L. 1976, p. 512, § 9; Ga. L. 1985, p. 643, § 3; Ga. L. 1998, p. 556, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

2-9-36. Denial, suspension, or revocation of license - Grounds.

The Commissioner may decline to grant a license or may suspend or revoke a license already granted if he is satisfied that the applicant or licensee has:

  1. Suffered a money judgment to be entered against him upon which execution has been returned unsatisfied;
  2. Made false charges for handling or services rendered;
  3. Failed to account promptly and properly or to make settlements with any producer;
  4. Made any false statement or statements as to the condition, quality, or quantity of grain received or held for sale, when he could have ascertained the true condition, quality, or quantity by reasonable inspection;
  5. Made any false or misleading statement or statements as to market conditions or service rendered;
  6. Been guilty of a fraud in the attempt to procure or in the procurement of a license;
  7. Directly or indirectly sold grain received on consignment or on a net return basis for his own account, without prior authority from the producer consigning the same or without notifying such producer; or
  8. Through any other action, violated this article.

    (Ga. L. 1976, p. 512, § 12.)

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

2-9-37. Denial, suspension, or revocation of license - Notice and hearing.

Before the Commissioner refuses or revokes any license, he shall give the applicant or licensee ten days' notice, by registered or certified mail or statutory overnight delivery, of a time and place of hearing. At such hearing the applicant or licensee shall be privileged to appear in person or by or with counsel and to produce witnesses. If the Commissioner finds the applicant or licensee to be in violation of this article, the Commissioner may refuse, suspend, or revoke such license. He shall give immediate notice of his action to the applicant or licensee.

(Ga. L. 1976, p. 512, § 13; Ga. L. 1981, p. 927, § 2; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Cross references. - Authority of Commissioner to impose penalty in lieu of other action, § 2-2-10 .

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

2-9-38. Grain to be weighed by certified public weigher.

All grain purchased from a producer by a dealer licensed under this article shall be weighed by a certified public weigher licensed in accordance with Article 2 of Chapter 2 of Title 10, relating to certified public weighers.

(Ga. L. 1976, p. 512, § 7; Ga. L. 1992, p. 6, § 2.)

2-9-39. Scales.

Each grain dealer under this article must be equipped with or have available to him suitable scales which are in good order and so arranged that all grain can be weighed by the dealer. The scales belonging to or used by such grain dealer shall be subject to examination by representatives of the Commissioner and to disapproval by the Commissioner. If the Commissioner disapproves of any weighing apparatus, it shall not be used in ascertaining the weight of grain for the purpose of this article until such disapproval is withdrawn.

(Ga. L. 1976, p. 512, § 8.)

Cross references. - Weights and measures generally, T. 10, C. 2.

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

2-9-40. Consignment records; settlement with producer.

  1. Upon the receipt of grain products on a consignment basis and as he handles and disposes of the grain products, every grain dealer shall make a record thereof and shall preserve such record for at least one year. The record shall specify:
    1. The name and address of the producer consigning such grain;
    2. The date of receipt;
    3. The kind and quality of the grain;
    4. The amount sold;
    5. The name and address of the purchaser, provided that where sales total less than $5.00 in value, such sales may be made to the order of "cash";
    6. The selling price; and
    7. The items of expenses connected therewith.
  2. An "account of sales," together with payment in settlement for the shipment, shall be mailed to the producer within 48 hours after the sale of the grain, unless otherwise agreed to in writing.

    (Ga. L. 1976, p. 512, § 10.)

2-9-41. Investigations.

  1. Upon the complaint of any interested person or upon his own initiative, the Commissioner shall have the power to investigate:
    1. The record of any applicant or licensee;
    2. Any transaction involving the solicitation, receipt, sale, or attempted sale of grain;
    3. The failure to pay proper and true accounts and settlements at prompt and regular intervals;
    4. The making of false statements as to condition, quality, or quantity of grain received or in storage;
    5. The making of false statements as to market conditions with intent to deceive;
    6. The failure to make payment for grain received; or
    7. Other alleged injurious transactions.
  2. For such purposes, the Commissioner or his agents may examine the ledgers, books of accounts, memoranda, and other documents which relate to the transaction involved, at the place or places of business of the applicant, licensee, or unlicensed person, partnership, corporation, or other entity, and may take testimony thereon under oath.

    (Ga. L. 1976, p. 512, § 11; Ga. L. 1988, p. 748, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehousing Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 et seq. (see now O.C.G.A. § 10-4-1 et seq.) and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

2-9-42. Rules and regulations.

The Commissioner shall adopt and enforce rules and regulations deemed necessary to carry out this article.

(Ga. L. 1976, p. 512, § 14.)

2-9-42.1. Publication of names, locations, and manner of payment by licensed grain dealers.

The Commissioner may publish in print or electronically the names and locations of licensed grain dealers and the names and locations of those operations certifying that payment will be made on a cash or certified check basis.

(Ga. L. 1981, p. 927, § 3; Ga. L. 2010, p. 838, § 10/SB 388.)

2-9-43. Injunctions.

In addition to the other remedies provided in this article and notwithstanding the existence of any adequate remedy at law, the Commissioner is authorized to apply to the superior court, which court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction, or both, restraining any person from violating or continuing to violate this article or from failing or refusing to comply with this article or any rule or regulation adopted by the Commissioner as provided in this article. Such injunction shall be issued without bond.

(Ga. L. 1976, p. 512, § 16.)

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehouse Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 (see now O.C.G.A. § 10-4-1 et seq.), and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

2-9-44. Applicability of article.

This article shall not apply to:

  1. Farmers in the sale of grain grown by themselves;
  2. Persons who buy for cash, paying at the time of the purchase in United States currency, certified check, or cashier's check; or
  3. Persons licensed and bonded in accordance with Article 1 of Chapter 4 of Title 10, the "Georgia State Warehouse Act."

    (Ga. L. 1976, p. 512, § 2; Ga. L. 1977, p. 245, § 1; Ga. L. 1982, p. 3, § 2; Ga. L. 1983, p. 831, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Warehouse license-holder required to acquire separate "grain dealer's" license. - Individuals holding warehouse licenses issued pursuant to the Georgia State Warehouse Act, Ga. L. 1953, Nov.-Dec. Sess., p. 412, § 1 (see now O.C.G.A. § 10-4-1 et seq.), and bonded in accordance therewith must acquire a separate "grain dealer's" license and surety bond if engaging in the activities of a "grain dealer." 1976 Op. Att'y Gen. No. 76-41.

Federally licensed warehousemen do not have to acquire separate bonding and licensing mandated by §§ 2-9-31 and 2-9-34 , but are accorded the exemption provided by paragraph (3) of this section. 1978 Op. Att'y Gen. No. 78-11.

RESEARCH REFERENCES

ALR. - Validity of discrimination in license statute or ordinance in favor of farmers selling their own products and against other persons dealing in farm products, 123 A.L.R. 1051 .

2-9-45. Penalty.

Any dealer in grain who violates any of the provisions of this article or who interferes with an agent of the Commissioner in the enforcement of this article shall be guilty of a misdemeanor.

(Ga. L. 1976, p. 512, § 16.)

CHAPTER 10 MARKETING FACILITIES, ORGANIZATIONS, AND PROGRAMS

Georgia Building Authority (Markets).

Farmers' Markets.

Cooperative Marketing Associations.

Roadside Markets Incentive Program.

Cross references. - Promotion of agricultural products, Ga. Const. 1983, Art. VII, Sec. III, Para. II.

Regulation of warehouses generally, T. 10, C. 4.

ARTICLE 1 GEORGIA BUILDING AUTHORITY (MARKETS)

Cross references. - Authority of Commissioner with regard to establishment, operation, and maintenance of farmers' markets, § 2-10-50 et seq.

Georgia Building Authority, § 50-9-1 et seq.

Power of state to incur debt generally, Ga. Const. 1983, Art. VII, Sec. IV, Para. I et seq. and § 50-17-20 et seq.

2-10-1 through 2-10-39.

Reserved. Repealed by Ga. L. 2008, p. 224, § 1, effective July 1, 2008.

Editor's notes. - This article was based on Ga. L. 1955, p. 224, §§ 1-8, 10-39; Ga. L. 1957, p. 3, § 1; Ga. L. 1964, p. 85, §§ 1-3; Ga. L. 1967, p. 652, § 1; Ga. L. 1967, p. 866, §§ 1-4; Ga. L. 1972, p. 1015, § 418; Ga. L. 1982, p. 3, § 2; Ga. L. 1983, p. 3, § 46; Ga. L. 1988, p. 426, § 1.

ARTICLE 2 FARMERS' MARKETS

Cross references. - Dealers in agricultural products, T. 2, C. 9.

Administrative Rules and Regulations. - State Farmers' Market, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Agriculture, Chapter 40-9.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 22 et seq.

C.J.S. - 3 C.J.S., Agriculture, § 156 et seq.

2-10-50. Short title.

This article shall be known as the "Georgia Marketing Act of 1981."

(Ga. L. 1981, p. 1354, § 1.)

2-10-51. Purpose of article.

This article is intended to promote the handling, packing, transporting, storage, distribution, inspection, and sale of agricultural products and to assist producers and consumers in selling and purchasing such products under fair conditions. It is the further intent and purpose of this article to authorize the Commissioner to control the operation of farmers' markets.

(Ga. L. 1981, p. 1354, § 2.)

RESEARCH REFERENCES

ALR. - Constitutionality of statutes relating to grinding, packing, or branding of farm products, 73 A.L.R. 1445 .

2-10-52. Definitions.

As used in this article, the term:

  1. "Agricultural products" means fruits, vegetables, pecans, nuts, eggs, dairy products, forestry and horticultural products, fish, seafood, meat, poultry, and other such products of farm, field, and water, whether fresh, frozen, canned, or otherwise packaged.
  2. "False pack" means the topping or facing of containers with the best products exposed and poor products concealed underneath.
  3. "Farmers' market" means any place within this state where farmers or producers may sell, bring or send to sell, exhibit, or transship agricultural products; or where buyers may come to buy, inspect, or transport agricultural products; or where such products may be processed or stored for sale, either at wholesale or retail. This term shall include all real and personal property, buildings, warehouses, storage facilities, barns, exhibition halls, and other structures, facilities, utilities, parking areas, streets, tracks, and other appurtenances and facilities, including, but not limited to, restaurants, service stations, and other like facilities of every kind and character used or useful at such place in promoting the buying, selling, or exchange of agricultural products. Use of such facilities shall not be limited to the buying, selling, or exchange of agricultural products so long as their use promotes the buying, selling, or exchange of such agricultural products as determined by the Commissioner.  This definition shall include and not prohibit the sale of grocery items or other items commonly sold or offered for sale in conjunction with the sale of agricultural products.
  4. "Lease" means the creation of a written instrument (a lease) under the terms and conditions of which one party (lessor) out of its own estate grants and conveys to another party or parties (lessee or lessees) an estate for years retaining a reversion in itself after such grant and conveyance.

    (4.1) "License" means revocable written permission from the Commissioner on a form prescribed by him or her whereby a person or entity has limited authority to enter the property of a farmers' market to offer for sale and sell sundry items at such market. Such a license is a mere privilege and does not confer upon the licensee any title, interest, or estate in any such market, its premises, or any space thereof.

  5. "Person" means any individual, limited or general partnership, association, firm, company, or corporation.
  6. "Real property" means both improved and unimproved real property and shall also include space in and on the real property.
  7. "Rent" means the creation of a written instrument (a rental agreement) the terms and conditions of which create the relationship of landlord and tenant. Under such relationship no estate passes out of the landlord and the tenant has only a usufruct.
  8. "Day," "month," and "year" means "calendar day," "calendar month," and "calendar year."
  9. "State" means the State of Georgia.

    (Ga. L. 1981, p. 1354, §§ 3, 14; Ga. L. 1990, p. 320, § 1; Ga. L. 2004, p. 1066, § 1.)

RESEARCH REFERENCES

C.J.S. - 3 C.J.S., Agriculture, §§ 156 et seq., 169 et seq.

2-10-53. Powers and duties of Commissioner generally.

The Commissioner of Agriculture is charged with the duty of establishing, operating, and maintaining farmers' markets and is charged with the responsibility of enforcing this article. In addition to any other powers conferred on him by this article, he may:

  1. Investigate methods and practices in connection with the production, handling, standardizing, grading, classifying, sorting, weighing, packing, transporting, storing, inspecting, and sale of agricultural products of all kinds within the state and all matters relevant thereto;
  2. Gather, formulate, and disseminate, in such form and at such times as he deems advisable, information relating to the matters included within paragraph (1) of this Code section;
  3. Disseminate, in such form and at such times as he deems advisable, information relating to market conditions, including, but not limited to, the supply, demand, and prices for all agricultural products and such other information as may benefit the producers, purchasers, and consumers of this state;
  4. Ascertain sources of supply of agricultural products and publish in print or electronically the names and addresses of producers and consignors thereof;
  5. Assist and advise in the organization and the operation of cooperatives and other associations in order to improve relations and services among producers, distributors, and consumers;
  6. Investigate delays, embargoes, conditions, practices, charges, and rates in the transportation and handling of agricultural products and, when deemed necessary, cause proceedings to be instituted before the proper authority or tribunal to improve and adjust same and cause the proper proceedings to be instituted to prevent unlawful combinations or agreements in restraint of trade or the fixing of prices;
  7. Take such steps as he deems advisable to prevent the waste or spoilage of agricultural products;
  8. Secure the cooperation and assistance of the United States Department of Agriculture or any other agency or department of the United States or of other states;
  9. Secure the cooperation and assistance of the other departments and agencies of this state, the University of Georgia, the other colleges and universities of the University System of Georgia, and other organizations that may be of assistance; and
  10. Take such other measures as shall be proper for carrying out the purposes of this article.

    (Ga. L. 1917, p. 77, § 3; Code 1933, § 5-204; Ga. L. 1935, p. 369, §§ 2-4, 13; Ga. L. 1956, p. 215, § 1; Ga. L. 1959, p. 242, § 1; Ga. L. 1981, p. 1354, §§ 4, 5; Ga. L. 2010, p. 838, § 10/SB 388.)

JUDICIAL DECISIONS

"Farmers" construed. - It cannot be said that the General Assembly, by the mere use of the word "farmers" preceding the word "market," intended to limit to farmers the sales of farm products in the market, and to exclude other sellers therefrom, provided that their operations conserve the primary purpose of this article to aid Georgia farmers. Newton v. City of Atlanta, 189 Ga. 441 , 6 S.E.2d 61 (1939).

Creating or operating market deemed governmental functions. - Activities of the Commissioner, in creating or operating a state farmers' market, are state governmental functions. Newton v. City of Atlanta, 189 Ga. 441 , 6 S.E.2d 61 (1939); Barwick v. Roberts, 192 Ga. 783 , 16 S.E.2d 867 (1941), cert. denied, 315 U.S. 796, 62 S. Ct. 489 , 86 L. Ed. 1197 (1942).

OPINIONS OF THE ATTORNEY GENERAL

Commissioner authorized to establish and operate branch markets. - The General Assembly has invested the Commissioner with the authority to establish and operate branch farmers' markets as an auxiliary or adjunct to main farmers' markets if the Commissioner, in the exercise of a sound discretion, should determine that such a branch market is for the best interest of the state. 1945-47 Op. Att'y Gen. p. 9.

Commissioner authorized to employ reasonable means to prevent waste. - The Commissioner has the power and authority to employ reasonable means to prevent the waste or depreciation of farm products in order to benefit the producers, distributors, and consumers of this state. 1948-49 Op. Att'y Gen. p. 427.

Leasing right-of-way through market prohibited. - Absent legislative authority, the Commissioner may not lease a right-of-way through a farmers' market to a railroad. 1945-47 Op. Att'y Gen. p. 11.

Municipal regulation. - Business operated upon property of state farmers' market is exempted from municipal taxation and regulations of any kind except certain regulations as to police, fire, and health. 1954-56 Op. Att'y Gen. p. 494.

Businesses conducted in the confines of a farmer's market are subject to criminal municipal ordinances. 1950-51 Op. Att'y Gen. p. 335.

Publication of proceedings for distribution authorized. - Upon determination by the Commissioner that the proceedings of the National Association of State Departments of Agriculture are of interest to the agriculture of this state, the Commissioner is authorized to publish such proceedings for distribution. 1960-61 Op. Att'y Gen. p. 1.

Section defines subject matter included in publication. - The subject matter which may be included in a publication is defined in this section. 1945-47 Op. Att'y Gen. p. 18.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, §§ 20 et seq., 35 et seq. 52 Am. Jur. 2d, Markets and Marketing, § 33 et seq.

C.J.S. - 3 C.J.S., Agriculture, §§ 7 et seq., 20 et seq., 27 et seq., 165.

ALR. - Power, under statute for stabilization of market for agricultural crops, in respect of crop loans by public agency and the security therefor, 157 A.L.R. 338 .

Retroactive effect of zoning regulation, in absence of saving clause, on pending application for building permit, 50 A.L.R.3d 596.

Applicability of zoning regulations to governmental projects or activities, 53 A.L.R.5th 1.

2-10-54. Employees prohibited from engaging in business as dealer in agricultural products.

All full-time employees of the department whose regular work duties involve the operation of any farmers' market are prohibited from engaging in business as a "dealer in agricultural products," as that term is defined in Code Section 2-9-1, during their term of employment.

(Ga. L. 1917, p. 77, § 8; Code 1933, § 5-207; Ga. L. 1981, p. 1354, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 39 et seq.

C.J.S. - 3 C.J.S., Agriculture, § 10 et seq.

2-10-55. Authority of Commissioner to make inspections, prescribe and collect fees and charges, and assign space on farmers' markets.

  1. In addition to any powers heretofore granted, the Commissioner shall have the authority to:
    1. Inspect all agricultural products coming into Georgia markets or offered for sale within the state;
    2. Prescribe and collect reasonable fees and charges to pay the necessary costs of operating and maintaining farmers' markets; and
    3. Assign space on farmers' markets and make changes in such assignments as circumstances may require.
  2. Nothing contained in this article shall be construed to limit any power or duty conferred upon the Commissioner by existing law.

    (Ga. L. 1935, p. 369, §§ 5, 7, 8; Ga. L. 1959, p. 242, § 4; Ga. L. 1981, p. 1354, § 7.)

Cross references. - Exemption from municipal property taxes and license fees for sale or introduction into municipality of agricultural products raised in state, § 48-5-356 .

OPINIONS OF THE ATTORNEY GENERAL

Municipal regulation. - Business operated upon property of state farmers' market is exempted from municipal taxation and regulations of any kind except certain regulations as to police, fire, and health. 1954 Op. Att'y Gen. p. 494.

Those businesses or vendors operating strictly within the state farmer's market are not subject to any business license fee by the City of Forest Park. 1987 Op. Att'y Gen. No. 87-36.

Those vendors or businesses operating out of the state farmers' market in Forest Park who solicit orders and make deliveries within the City of Forest Park could conceivably be required to obtain a business license from the City of Forest Park. 1987 Op. Att'y Gen. No. 87-36.

Those businesses or vendors operating out of the state farmers' market in Forest Park who solicit orders and subsequently make deliveries in municipalities other than the City of Forest Park would be exempt from any municipal license fee provided that the county in which the municipality is located does not have a population greater than 500,000. 1987 Op. Att'y Gen. No. 87-36.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 39 et seq.

C.J.S. - 3 C.J.S., Agriculture, § 27 et seq.

2-10-56. Promulgation of rules and regulations by Commissioner.

The Commissioner is authorized to promulgate such rules and regulations as in his judgment may be necessary to conduct and operate farmers' markets properly and to implement this article. Such rules and regulations may include, but are not limited to, rules and regulations to:

  1. Establish procedures for the operation of farmers' markets;
  2. Provide for the maintenance of safety and order;
  3. Provide for health and sanitation;
  4. Establish grades and classes of agricultural products;
  5. Designate places on any market where agricultural products may be sold;
  6. Regulate or prohibit the sale of produce which is below specified grades or produce unfit for human consumption; and
  7. Regulate or prohibit the sale of any agricultural product which is below specified grades or unfit for human consumption.

    (Ga. L. 1917, p. 77, § 4; Code 1933, § 5-205; Ga. L. 1935, p. 369, § 6; Ga. L. 1959, p. 242, § 3; Ga. L. 1976, p. 678, § 3; Ga. L. 1981, p. 1354, § 8.)

Cross references. - Procedures for adoption of rules and regulations, T. 50, C. 13.

JUDICIAL DECISIONS

Cited in Wilder v. Irvin, 423 F. Supp. 639 (N.D. Ga. 1976).

OPINIONS OF THE ATTORNEY GENERAL

Municipal regulation. - Business operated upon property of state farmers' market is exempted from municipal taxation and regulations of any kind except certain regulations as to police, fire, and health. 1954-56 Op. Att'y Gen. p. 494.

Commissioner not obliged to provide formal means of administrative appeal. - The Commissioner has neither a statutory nor a constitutional obligation to provide a formal means of administratively appealing a decision to bar a party from a state-owned and regulated farmers' market. 1965-66 Op. Att'y Gen. No. 66-217.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, §