H. B. 2290
(By Delegate Williams)
[Introduced January 19, 1999; referred to the
Committee on Agriculture and Natural Resources then
Finance.]
A BILL to amend chapter nineteen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article ten-c, relating to
a short title; legislative findings; definitions; license
and fees for the breeding, rearing, dealing, taking and
killing of gamestock; enclosures and pens for gamestock;
removal of gamestock from licensed premises and
identification of the removed gamestock; records of
transactions; inspection of records and facilities by the
commissioner of agriculture; investigation of complaints;
orders and hearings; suspensions, revocations and refusals
of licenses; importing gamestock into the state; health
inspection requirements; requirement for a health
certificate; commissioner of agriculture to enforce and
propose rules to administer the article; and criminal and civil penalties for violation of this article or
commissioner's rules.
Be it enacted by the Legislature of West Virginia:
That chapter nineteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article ten-c, to read
as follows:
ARTICLE 10C. THE WEST VIRGINIA WILD GAME BREEDER'S AND DEALER'S
LICENSING ACT.
§19-10C-1. Short title.
This article shall be known and cited as "The West Virginia
Wild Game Breeder's and Dealer's Licensing Act."
§19-10C-2. Legislative purpose.
The Legislature finds that the farming and agricultural
processing industries are very important to the economy of this
state, and that a sound economy is in the public interest and
promotes the general welfare of the people of this state. The
Legislature further finds that there exists a viable economic
market and need for the farming, breeding and dealing of wild
game and the agricultural products which are produced therefrom.
§19-10C-3. Definitions.
(a) General. -- When used in this article, or in the
administration of this article, terms defined in subsection (b) of this section, have the meanings ascribed to them by this
section, unless a different meaning is clearly required by the
context in which the term is used.
(b) Terms defined:
(1) "Commissioner" means the commissioner of agriculture of
the state of West Virginia and duly authorized representatives.
(2) "Department" means the department of agriculture of the
state of West Virginia.
(3) "Gamestock" means deer, wild turkey and elk (game
animals and fur-bearing animals as further defined in section
two, article one, chapter twenty).
(4) "Gamestock dealer" means a person other than a
game-stock producer who buys, receives or assembles gamestock for
resale, either for his or her own account or that of another
person.
(5) "Gamestock producer" means a person selling gamestock
which he or she has raised or gamestock which he or she has
additionally purchased and summered or wintered.
(6) "Person" means an individual, partnership, corporation,
association or other legal entity.
(7) "License" means a game breeder's or dealer's license
issued pursuant to this section.
§19-10C-4. License required; fee; lawful acts of a licensed person; taking or killing of gamestock.
(a) It is unlawful for any person except a gamestock
producer to engage in the business of buying, receiving or
assembling gamestock for resale, or selling gamestock in this
state without being licensed as a gamestock dealer and producer
by the commissioner. All applications for a gamestock dealer and
producer's license or renewal of the license shall be made on
forms provided by the commissioner and shall be filed on or
before June thirtieth of each year with the commissioner. A fee
of fifty dollars shall be remitted with each application. Any
license not renewed by the first day of July of any year shall
expire.
(b) A person who has secured a license may possess,
propagate, use, buy, sell, trap, kill, consume, ship, or
transport any or all of the gamestock designated in that license,
and offspring, products, carcasses, pelts, or other parts of the
gamestock as provided in this article.
(c) Gamestock covered by a license may be taken or killed
in any manner and at any time.
§19-10C-5. Islands, enclosures, and pens used for gamestock
purposes.
All enclosures and pens used for any gamestock purposes
shall be of a character and in a location that the department approves as satisfactory to keep in complete and continuous
captivity the stock covered by the license, and shall be
constructed in a manner to prevent the entrance of wild stock of
the same species.
§19-10C-6. Removal from licensed premises; identification.
(a) Gamestock, including the parts or products of game, may
be removed from licensed premises only when identified as
required by the department. This identification may be by bill
of sale, invoice, seals, tags, bands, or appropriate stamp mark
affixed to carcasses and their parts or to wrappers, crates, or
other containers. Required tags and seals shall be provided to
the license holder by the department at reasonable cost. The use
of seals, bands, and tags may not be required on consignments of
gamestock sent to the department or to other state institutions
to be used for scientific purposes.
(b) Live gamestock may be removed from licensed premises
only by licensed game breeders, shooting game preserve operators,
or persons holding permits authorizing possession of the game.
Wild turkey or wild turkey hybrids may not be removed from
licensed premises unless they are pinioned.
(c) Fertile eggs from wild turkeys or wild turkey hybrids
may not be removed from licensed premises.
§19-10C-7. Records of transactions; inspection by commissioner.
(a) Every licensed gamestock dealer and producer shall make
and retain for at least two years written gamestock sales records
in the form and manner prescribed by the commissioner, including,
but not limited to, records indicating the identification numbers
or letters, sex, brand and approximate weight of all gamestock
bought, sold, received, exchanged or otherwise transferred, and
the names and addresses of all owners, sellers, consignors or
buyers with whom he or she has in any manner exchanged gamestock,
with the date of exchanges.
(b) If the commissioner has reasonable cause to believe any
gamestock in this state are diseased in a manner that constitutes
a health hazard to other gamestock or livestock, wherever
located, he or she may request in writing the gamestock sales
records of any gamestock dealer and producer in the state for the
purpose of tracing or discovering the diseased gamestock, the
source of the disease, and all other gamestock which may be
affected by the disease. A gamestock dealer and producer shall
comply with the request within twenty-four hours.
(c) The commissioner has the authority to enter premises and
buildings occupied by a gamestock dealer and producer at any
reasonable time in order to examine books and records maintained
by the gamestock dealer and producer.
(d) The commissioner may require gamestock dealers and
producers to file in such form as he or she may prescribe, regular or special reports, or answers in regard to specific
questions, for the purpose of providing information concerning
gamestock movement and animal disease control.
§19-10C-8. Investigation of complaints; orders of the
commissioner; hearing; review.
(a) The commissioner of agriculture is hereby invested with
the authority to, and shall upon the verified written complaint
of any person or by his or her own initiative, investigate the
actions of any gamestock dealer and producer, or any person who
assumes to act in that capacity. Upon verification of the
complaint that there is probable cause, the commissioner shall
consider all of the facts and then issue an order.
(b) The order by the commissioner shall be served upon all
persons affected thereby by registered mail. Within ten days of
receipt of the order, any party adversely affected thereby may,
in writing, request a hearing before the commissioner. The
hearing and any judicial review thereof shall be conducted in
accordance with the applicable provisions of articles five and
six, chapter twenty-nine-a of this code. The effect of any order
shall be suspended during the course of any hearing or subsequent
appeals.
§19-10C-9. Refusals, suspensions or revocation of licenses.
The commissioner may refuse to grant or may suspend or
revoke a gamestock dealer and producer's license when it is
determined from the evidence that there is reasonable cause to
believe that any of the following situations exists:
(a) Where the applicant or licensee has violated the laws of
the state or official rules governing the interstate or
intrastate movement, shipment or transportation of gamestock or
livestock.
(b) Where there have been false or misleading statements as
to the health or physical condition of the animals with regard to
the official tests or quality of the animals, or the practice of
fraud or misrepresentation in connection therewith; in the buying
or receiving of animals; or in the receiving, selling,
exchanging, soliciting or negotiation of the sale, resale,
exchange, weighing or shipment of animals.
(c) Where the applicant or licensee acts as a dealer for a
person attempting to conduct business in violation of this
article, after the notice of violation has been given the
licensee by the commissioner.
(d) Where the applicant or licensee fails to practice
measures of sanitation, disinfection and inspection of premises
or vehicles used for the feeding, propagation, yarding, holding
or transportation of gamestock or livestock.
(e) Where there has been a failure to keep records required by the commissioner, or where there is a refusal on the part of
the applicant or licensee to produce records of transactions in
the carrying on of the business for which the license is granted.
(f) Where the licensee fails to maintain a bond or to adjust
a bond upon thirty days notice, or refuses or neglects to pay the
fees or inspection charges required to be paid.
(g) Where the licensee is convicted of a violation of the
game laws of this state.
§19-10C-10. Bringing animals into state; health certificate.
It is unlawful for any person or his or her agents or
employees knowingly to drive, cause to be driven, bring or cause
to be brought into this state any gamestock infected with any
communicable disease. All gamestock being brought into the state
for any purpose, by any means of transportation, shall be subject
to the restrictions imposed by section eleven of this article,
unless the animal is accompanied by a certificate of good health
issued by the state veterinarian or other accredited authority of
the state from which the animal originates, or the certificate of
a veterinary inspector of the bureau of animal industry of the
United States department of agriculture, setting forth that the
animal is free from all communicable diseases and does not
originate from a district of quarantine or infection, and showing
inspection to have been made within a period of thirty days prior
to the arrival of the animal: Provided, That in the case of deer and elk the duration of the period of test shall be sixty days or
such other period as conforms to the legislative rules of the
commissioner. The certificate shall be made in triplicate, the
original to be retained by the owner or person in charge of the
animal, and by him or her attached to the bill of lading
accompanying shipment of the animal, the duplicate to be
forwarded to the commissioner, and the triplicate to be retained
by the veterinarian making the inspection.
§19-10C-11. Animals entering state without health certificate.
It is the duty of the owner or owners of any gamestock,
which is to enter this state without a certificate of health, to
notify the commissioner in writing stating when, where and how
the animal is to be brought into this state. The notice must
reach the commissioner before the animal arrives at the point of
destination. Any animal entering the state without a certificate
of health may be placed in quarantine by the commissioner under
such rules as he or she may approve, and held therein at the
expense of the owner, and if the animal is found infected with
any communicable disease, it shall, at the option of the owner,
be killed, without compensation to the owner, or continued in
quarantine at the expense of the owner. The expenses incurred in
providing the animal or animals with proper quarters, food and
water may be recovered by the commissioner from the owner in a
suit in the name of the state, as other debts are by law collectible. It is unlawful to remove any such domestic animal
from quarantine unless it has passed a satisfactory examination,
and the tuberculin test and the brucellosis, bangs or contagious
abortion test, and unless the charge for the quarters, feed,
water and attendance have been paid to the person entitled
thereto.
§19-10C-12. Fees paid into special fund in state treasury.
All funds collected under this article shall be paid into
the state treasury and credited to a special fund to be
appropriated by order of the commissioner for the enforcement of
this article.
§19-10C-13. Commissioner to enforce article; rules.
The commissioner shall administer and enforce the provisions
of this article and has the authority to propose rules for
legislative approval, after a public hearing, following due
notice in conformance with the provisions of the state
administrative procedures as set forth in chapter twenty-nine-a
of this code, to carry out the provisions of this article.
§19-10C-14. Penalties.
(a) Criminal penalties.
-- Any person who violates any of
the provisions of this article or rule adopted hereunder is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one hundred dollars nor more than one thousand dollars for the first offense, and upon conviction of
each subsequent offense, shall be fined not less than five
hundred dollars nor more than five thousand dollars. Magistrates
have concurrent jurisdiction with circuit courts to enforce the
provisions of this article.
(b) Civil penalties.
(1) Any person violating a provision of this article or rule
adopted hereunder may be assessed a civil penalty by the
commissioner. In determining the amount of any civil penalty,
the commissioner shall give due consideration to the history of
previous violations by any person, the seriousness of the
violation, and the demonstrated good faith of any person charged
in attempting to achieve compliance with this article before and
after written notification of the violation.
(2) The commissioner may assess a penalty of not more than
five hundred dollars for the first offense, and not less than
five hundred dollars nor more than five thousand dollars for the
second and subsequent offenses.
(3) The civil penalty is payable to the state of West
Virginia and is collectible in any manner now or hereafter
provided for collection of a debt. Any person liable to pay the
civil penalty and neglecting or refusing to pay the penalty,
shall be assessed interest at ten percent from the date the
penalty was assessed. The penalty and interest constitute a lien in favor of the state of West Virginia and shall attach on the
person's property when the lien is properly recorded in the
county where the property is situated. There shall be no cost as
a condition precedent to recording.
(c) Notwithstanding any other provision of law to the
contrary, the commissioner may propose rules for legislative
approval in accordance with the provisions of chapter
twenty-nine-a of this code, which permit consent agreements or
negotiated settlements for the civil penalties assessed as a
result of violation of the provisions of this article, and which
deal with the civil penalties and procedures thereunder.
(d) No state court may allow for the recovery of damages for
any administrative action taken if the court finds that there was
a probable cause for such action.
§19-10C-15. Construction.
The provisions of this article are remedial and shall be
liberally construed and applied so as to promote the purposes set
out in the various sections of the article.
NOTE: The purpose of this bill is to establish a licensed,
regulated means for the farming of certain wild game, to be
administered by the commissioner.
This article is new; therefore, strike-throughs and
underscoring have been omitted.