38-24B-1      Definitions.
38-24B-2      Promulgation of rules.
38-24B-3      Pests as public nuisances--Permitting existence of pests prohibited--Distributing infested plant products prohibited--Violation as misdemeanor.
38-24B-4      Misrepresentation of nursery stock and plants offered for distribution--Violation as misdemeanor.
38-24B-5      License required to sell or distribute nursery stock--Violation as misdemeanor.
38-24B-6      Application for license.
38-24B-7      Issuance of license--Annual fee.
38-24B-7.1      Certificate of inspection_Fee.
38-24B-8      Separate certificate for each sale location--Display--Violation as misdemeanor.
38-24B-9      License for out-of-state nurseryman--Fee--Waiver.
38-24B-10      Inspection and certification sales by nonprofit organizations--Violations as misdemeanors.
38-24B-11      Certain applicants prohibited from receiving license or certificate of inspection.
38-24B-12      Growers and dealers--Certificate of inspection--Fees.
38-24B-13      Revocation of license--Hearing--Notice--Temporary cease and desist order.
38-24B-14      Term of license.
38-24B-15      Importation of plants--Certificate or copy to be attached--Violation as misdemeanor.
38-24B-16      Accepting plants for shipment without certificate prohibited--Carrier to report imported plants without indicia of inspection--Quarantine--Disposition--Violation as misdemeanor.
38-24B-17      Inspection of nurseries, places of possible pest infestation and nursery stock--Hindering as misdemeanor.
38-24B-18      Withholding certificate where pests discovered--Prohibiting distribution of infested or defective stock.
38-24B-19      Finding of pest infestation--Notice--Orders to prevent spread and to treat or destroy plant material--Notice of orders--Violation as misdemeanor.
38-24B-20      Treatment or destruction by secretary on failure of owner--Strict liability for costs--Assessment, collection, and disposition.
38-24B-21      Damages for loss of infested or defective stock prohibited.
38-24B-22      Seller to furnish documents showing point of origin of stock--Violation as misdemeanor.
38-24B-23      Seller of infested stock to furnish names and addresses of buyers--Violation as misdemeanor.
38-24B-24      Use of information.
38-24B-25      Agreements for certification of out-of-state and foreign nurserymen.
38-24B-26      Shipments of stock received from foreign country--Notice--Quarantine.
38-24B-27, 38-24B-28. Repealed.
38-24B-29      Violation of chapter--Revocation of license--Liability for damages.
38-24B-30      Nursery fund established--Purpose--Appropriations.

38-24B-1. Definitions.

Terms, as used in this chapter, mean:

(1)    "Annual plants," ornamental or vegetable plants which are commonly grown in movable containers and transplanted to out of doors locations and which do not live for more than one growing season;

(2)    "Dealer," any person who is not a resident nurseryman:

(a)    Who buys nursery stock for the purpose of reselling or reshipping;

(b)    Who makes landscape plans using nursery stock and negotiates in the purchase of nursery stock for clients; or

(c)    Who contracts to furnish and plant nursery stock;

(3)    "Decorative plants," indoor plants which are commonly grown and sold in movable containers, and which are not adapted for cultivation out of doors because of climatic conditions and natural peculiarities of habit or growth and because of the purpose of their cultivation;

(4)    "Department," the State Department of Agriculture and Natural Resources;

(5)    "Nursery," any grounds or premises on which nursery stock is being grown, fumigated, packed, displayed, or stored, if such stock is or will either be sold or offered for sale or distribution;

(6)    "Nurseryman," any person who owns, leases, manages, or is in charge of a nursery;

(7)    "Nursery stock," trees, shrubs, or other plants having a persistent woody stem; all herbaceous perennials; and parts of either of those which are capable of propagation, except for seeds, true bulbs, rhizomes, corms, and tubers while in a dormant condition;

(8)    "Pest," any animal, plant, insect, infectious transmissible or contagious disease, or other organism which is or may be dangerous or detrimental to the plant industry of the state;

(9)    "Regulated pest," any pest which the secretary determines is sufficiently detrimental to the plant industry of the state to warrant control or eradication measures;

(10)    "Related plant products," seed, true bulbs, rhizomes, corms, roots, and tubers of nursery stock while in a dormant condition and nonviable plant to include forced blooming plants and Christmas trees;

(11)    "Resident nurseryman," any nurseryman in this state who grows all or a portion of the nursery stock that the nurseryman sells or distributes;

(12)    "Secretary," the state secretary of agriculture and natural resources;

(13)    "Sod," grassy surface soil held together by matted roots of grass cultivars, mixtures, or blends of grass cultivars and used in residential and commercial landscape;

(14)    "Viable," capable of germination or living and developing under normal growing conditions into a plant which would be typical in height, spread, caliper, dimension, condition, quality, and age for a plant of that species.

Source: SL 1985, ch 313, § 1; SL 1986, ch 335, §§ 1, 2; SL 2001, ch 215, § 26; SL 2017, ch 181, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-2. Promulgation of rules.

The secretary of agriculture and natural resources may promulgate rules pursuant to the provisions of chapter 1-26 to establish:

(1)    Standards for inspection and sampling;

(2)    Standards for inspection performance;

(3)    Forms for requests for inspection;

(4)    Procedures for issuing and revoking certificates of inspections;

(5)    Restrictions for the movement of plants and hosts;

(6)    Treatment provisions of infested hosts or premises;

(7)    Provisions for issuance of special phytosanitary certificates;

(8)    Provisions for quarantine or destruction of pests and hosts;

(9)    Reporting requirements on suspected plants; and

(10)    Criteria for the implementation and administration of the fee schedule contained in § 38-24B-7.

Source: SL 1985, ch 313, § 2; SL 1986, ch 326, § 57; SL 2009, ch 197, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-3. Pests as public nuisances--Permitting existence of pests prohibited--Distributing infested plant products prohibited--Violation as misdemeanor.

A pest is declared to be a public nuisance. No person may knowingly permit pests to exist in or on his premises. No person may sell, offer for sale, or distribute any nursery stock, decorative plants, annual plants, sod, or related plant products infested with a pest. A violation of this section is a Class 1 misdemeanor.

Source: SL 1985, ch 313, § 3; SL 1986, ch 335, § 3.

38-24B-4. Misrepresentation of nursery stock and plants offered for distribution--Violation as misdemeanor.

No person may intentionally misrepresent the grade, character, variety, hardiness, or quality of nursery stock in a nursery or of nursery stock, decorative plants, annual plants, sod, or related plant products offered for sale or distribution. A violation of this section is a Class 1 misdemeanor.

Source: SL 1985, ch 313, § 4; SL 1986, ch 335, § 4.

38-24B-5. License required to sell or distribute nursery stock--Violation as misdemeanor.

No person may sell, offer for sale, or distribute any nursery stock until the person has obtained a license from the secretary. A violation of this section is a Class 2 misdemeanor.

Source: SL 1985, ch 313, § 5; SL 2016, ch 202, § 3.

38-24B-6. Application for license.

Any nurseryman desiring to sell or ship nursery stock in the state shall make application before the first day of March to the department for a license.

Source: SL 1985, ch 313, § 6; SL 2016, ch 202, § 4.

38-24B-7. Issuance of license--Annual fee.

The department shall issue a license to any nurseryman, operating as a resident nurseryman or dealer, who completes the application provided by the department and pays the license fee. The annual fee for the license is as follows:

(1)    Resident nurseryman: two hundred dollars. However, the fee for a resident nurseryman with less than five thousand dollars in gross sales on nursery stock is forty-two dollars and fifty cents;

(2)    Nursery stock dealer with less than five thousand dollars annual gross sales of nursery stock: seventy dollars;

(3)    Nursery stock dealer with more than five thousand but less than twenty thousand dollars annual gross sales of nursery stock: one hundred fifteen dollars; or

(4)    Nursery stock dealer with more than twenty thousand dollars annual gross sales of nursery stock: two hundred dollars.

Source: SL 1985, ch 313, § 7; SL 2001, ch 215, § 27; SL 2009, ch 197, § 2; SL 2016, ch 202, § 1; SL 2017, ch 181, § 2.

38-24B-7.1. Certificate of inspection--Fee.

The department shall issue a certificate of inspection to any nurseryman or dealer whose nursery stock has been officially inspected and found to be viable and free from pests. The inspection fee shall be two hundred and fifteen dollars per inspection.

Source: SL 2016, ch 202, § 2; SL 2017, ch 181, § 3.

38-24B-8. Separate license for each sale location--Display--Violation as misdemeanor.

A separate license shall be obtained from the department for each location before selling, offering, or exposing nursery stock for sale. The license shall be displayed in a prominent manner wherever nursery stock is offered for sale. A violation of this section is a Class 2 misdemeanor.

Source: SL 1985, ch 313, § 8; SL 2016, ch 202, § 5.

38-24B-9. License for out-of-state nurseryman--Fee--Waiver.

Any nurseryman whose location is outside the state may obtain a license to sell nursery stock within the state by filing a certified copy of the official inspection certificate and paying a two hundred fifty dollar fee to the secretary of agriculture and natural resources. The secretary may waive the payment of the fee if the applicant's state does not require a fee by South Dakota applicants for a like certificate in that state.

Source: SL 1985, ch 313, § 9; SL 2001, ch 215, § 28; SL 2009, ch 197, § 3; SL 2017, ch 181, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-10. Inspection and certification sales by nonprofit organizations--Violations as misdemeanors.

A sale or trade of nursery stock may be made by garden clubs and other nonprofit organizations only if notification of the time and place of the sale is given to the Department of Agriculture and Natural Resources at least ten days prior to the time of the intended sale. The notice shall be in writing and, if, upon receipt of the notice, the department finds the plants free from pests, it may issue a certificate of inspection. This certificate of inspection is issued without fee. A violation of this section is a Class 2 misdemeanor.

Source: SL 1985, ch 313, § 10; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-11. Certain applicants prohibited from receiving license or certificate of inspection.

No certificate of inspection or license may be issued to an applicant who purchases nursery stock from an uncertified nursery in this state or from a nonresident nursery or nursery stock dealer whose stock has not been inspected and certified by the regulatory official of the state of origin.

Source: SL 1985, ch 313, § 11; SL 2016, ch 202, § 6.

38-24B-12. Growers and dealers--Certificate of inspection--Fees.

Any grower or dealer of decorative plants, annual plants, sod, or related plant products may apply to the department for a certificate of inspection. The department may issue a certificate of inspection to the person whose decorative plants, annual plants, sod, or related plant products have been officially inspected and found free from pests. The fee for inspection and certification is one hundred forty dollars plus five dollars for each acre of growing field and five dollars for each ten thousand square feet of growing greenhouse.

Source: SL 1985, ch 313, § 12; SL 1986, ch 335, § 5; SL 2001, ch 215, § 29; SL 2009, ch 197, § 4; SL 2016, ch 202, § 7.

38-24B-13. Revocation of license--Hearing--Notice--Temporary cease and desist order.

The secretary may revoke a license for cause following a hearing pursuant to chapter 1-26. The secretary may issue a temporary cease and desist order pending the hearing. At least ten days notice shall be given prior to conducting a hearing pursuant to this section.

Source: SL 1985, ch 313, § 13; SL 2016, ch 202, § 8.

38-24B-14. Term of license.

A license issued pursuant to the provisions of this chapter is in effect for a period not to exceed one year and expires on December thirty-first of the year issued.

Source: SL 1985, ch 313, § 14; SL 2001, ch 215, § 37; SL 2016, ch 202, § 9; SL 2017, ch 181, § 5.

38-24B-15. Importation of plants--Certificate or copy to be attached--Violation as misdemeanor.

Any person who engages in the selling and shipping of nursery stock, decorative plants, annual plants, or sod into this state or the selling and shipping of nursery stock out of this state shall attach to the bill of lading or to the outside of each package, box, bale, or carload lot so shipped or delivered, a tag or poster on which appears an exact copy of his valid certification of inspection. The use of tags or posters bearing an invalid or altered certificate or the misuse of any valid certificate or tag is unlawful. To accommodate multiple shipments, the certificate may be reproduced or an unlike copy, approved by the department, may be used. A violation of this section is a Class 2 misdemeanor.

Source: SL 1985, ch 313, § 15.

38-24B-16. Accepting plants for shipment without certificate prohibited--Carrier to report imported plants without indicia of inspection--Quarantine--Disposition--Violation as misdemeanor.

No person may accept for shipment any nursery stock, decorative plants, annual plants, or sod which is intended for resale or redistribution without a valid certificate affixed to the bill of lading or on the outside of the package, bale, box, or car containing the shipment showing that the contents have been inspected by an official state or federal inspector. In case any nursery stock, decorative plants, annual plants, or sod which is intended for resale or redistribution is shipped into this state from another state or country, without a valid certificate of inspection the fact shall be promptly reported to the Department of Agriculture and Natural Resources by the person carrying that shipment. The secretary of agriculture and natural resources may quarantine such shipment and order it held for inspection. Following inspection, the secretary may direct that the shipment be removed from the state or destroyed pursuant to this chapter. A violation of this section is a Class 2 misdemeanor.

Source: SL 1985, ch 313, § 16; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-17. Inspection of nurseries, places of possible pest infestation and nursery stock--Hindering as misdemeanor.

The Department of Agriculture and Natural Resources may annually inspect all nurseries in this state. The department may inspect any field, orchard, garden, plantation, park, cemetery, packing ground, building, cellar, and all places, public or private, which may be infested or infected with a pest. The department may inspect or reinspect at any time or place any nursery stock shipped in or into this state and treat it as provided in this chapter. No person may hinder, obstruct, or defeat the inspection by misrepresentation or concealment of facts or conditions or make a false declaration of acreage or cause any concealment of nursery stock from inspection. Any person hindering, obstructing, or defeating an inspection required by this section is guilty of a Class 1 misdemeanor.

Source: SL 1985, ch 313, § 17; SL 1986, ch 335, § 6; SL 2015, ch 203, § 21; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-18. Withholding certificate where pests discovered--Prohibiting distribution of infested or defective stock.

If any pests are discovered in any nursery, the certificate of inspection shall be withheld until the pest has been abated, as provided in this chapter. The secretary of agriculture and natural resources may prohibit the sale or distribution of any nursery stock if upon inspection it is found to be so infested by pests or to be nonviable or damaged or desiccated so as to be incapable of normal growth if given reasonable care. The secretary may order it removed from sale, treated, or destroyed.

Source: SL 1985, ch 313, § 18; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-19. Finding of pest infestation--Notice--Orders to prevent spread and to treat or destroy plant material--Notice of orders--Violation as misdemeanor.

If the Department of Agriculture and Natural Resources finds on examination any nursery, nursery stock, orchard, small-fruit plantation, park, cemetery, or any private or public premises infested with pests, he shall notify in writing the owner or person having charge of such premises, to that effect. The department may prohibit and prevent the removal, shipment, or transportation of plant material and any other material from any private or public property for such periods and under such conditions as necessary in order to prevent the further spread of the infestation or infection. During the existence of such order no person may remove or ship any such material, except by special permission or direction of the secretary. The owner or person having charge of the premises shall within reasonable time after such notice treat them as the secretary of agriculture and natural resources directs or cause the removal and destruction of such plant material, if incapable of successful treatment. The secretary may also order treatment of any fields, premises, building, packing materials, or vehicles used in transporting infected material. Any notice or order issued by the secretary shall be delivered by personal service to the owner or person having charge of the premises or by certified mail to the last known address of the owner. A violation of this section is a Class 1 misdemeanor.

Source: SL 1985, ch 313, § 19; SL 1986, ch 335, § 7; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-20. Treatment or destruction by secretary on failure of owner--Strict liability for costs--Assessment, collection, and disposition.

If the owner or person in charge of any premises refuses or neglects to comply with the orders of the secretary of agriculture and natural resources, within a reasonable period of time and after receiving a written notice, the secretary may proceed to treat or destroy the infested or infected plants or plant material, fields, premises, buildings, packing materials, or vehicles used in transporting such material. The owner or person in charge is strictly liable to the secretary for the actual and necessary expense associated therewith. That liability may be assessed against the premises and collected as taxes are collected. The department shall keep an accurate account in itemized form and certify it to the county auditor of the county where the land is situated. The county auditor shall place that amount upon the next tax list to be prepared in the county, in a separate column to be headed "For the destruction of diseased plants." The county treasurer shall remit all moneys collected under this chapter to the state treasurer who shall deposit it in the general fund. The amount certified shall be collected as other taxes are collected and is subject to all the penalties provided for the nonpayment of taxes, and the entry of such expense upon the tax list is presumptive evidence of the liability of the land to the tax.

Source: SL 1985, ch 313, § 20; SL 1986, ch 335, § 8; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-21. Damages for loss of infested or defective stock prohibited.

No damages may be awarded to the owner for the loss of any infested or infected, nonviable, damaged or desiccated nursery stock, decorative plant, annual plant, sod, or related plant products under this chapter.

Source: SL 1985, ch 313, § 21.

38-24B-22. Seller to furnish documents showing point of origin of stock--Violation as misdemeanor.

Any person selling nursery stock, decorative plants, annual plants, sod, or related plant products in this state shall, if requested, furnish the Department of Agriculture and Natural Resources with copies of his order forms, contracts, invoices, and agreements which would verify the point of origin of such nursery stock, decorative plants, annual plants, sod, or related plant products. A violation of this section is a Class 2 misdemeanor.

Source: SL 1985, ch 313, § 22; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-23. Seller of infested stock to furnish names and addresses of buyers--Violation as misdemeanor.

Any person offering for sale in this state nursery stock, decorative plant, annual plant, sod, or related plant product that is known to be infested or infected with pests shall furnish the Department of Agriculture and Natural Resources within thirty days of such sale a list of all persons, together with their post office addresses as far as known to him to whom he has sold or delivered such nursery stock, decorative plants, annual plants, sod, or related plant products. A violation of this section is a Class 2 misdemeanor.

Source: SL 1985, ch 313, § 23; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-24. Use of information.

The information furnished pursuant to §§ 38-24B-22 and 38-24B-23 is for the sole use of the secretary of agriculture and natural resources in carrying out the provisions of this chapter.

Source: SL 1985, ch 313, § 24; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.

38-24B-25. Agreements for certification of out-of-state and foreign nurserymen.

The secretary of agriculture and natural resources may enter into an agreement with any agency of another state or with the United States Department of Agriculture and Natural Resources which is responsible for the inspection and certification of nursery stock, decorative plants, annual plants, sod, or related plant products in lieu of individual certification of out-of-state or foreign nurserymen pursuant to § 38-24B-9. However, no agreement may prohibit the secretary from revoking the certification of an out-of-state or foreign nurseryman pursuant to the provisions of this chapter.

Source: SL 1985, ch 313, § 25; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.

38-24B-26. Shipments of stock received from foreign country--Notice--Quarantine.

Any person receiving, directly or indirectly, any shipment of nursery stock from any foreign country shall notify the Department of Agriculture and Natural Resources of the arrival of such shipment, the contents thereof, and the name of the consignor and shall hold the shipment unopened until inspected or released by the department. The nursery stock may be required to be grown under the provision of a post-entry quarantine agreement as determined by the department. If any infested or infected stock is discovered in the shipment, the shipment is subject to the provisions of this chapter.

Source: SL 1985, ch 313, § 26; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.