GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

S	1 

SENATE BILL 1080

Short Title:  Structural Pest Control Amendments.	(Public)

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Sponsors: Senator Albertson.

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Referred to:  Agriculture/Environment/Natural Resources.

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April 15, 1999

A BILL TO BE ENTITLED
AN ACT TO AMEND THE STRUCTURAL PEST CONTROL LAW.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 106-65.24 reads as rewritten:
"§ 106-65.24.  Definitions.
As used in this Article:
(1)	'Animal' means all vertebrate and invertebrate species, including but not limited to man and other mammals, birds, fish, and shellfish.
(1a)	'Applicant for a certified applicator's identification card' means any person making application to use restricted use pesticides in any phase of structural pest control.
(2)	'Applicant for a license' means any person in charge of any individual, firm, partnership, corporation, association, or any other organization or any combination thereof, making application for a license to engage in structural pest control, control of structural pests or household pests, or fumigation operations, or any person qualified under the terms of this Article.
(3)	'Attractants' means substances, under whatever name known, which may be toxic to insects and other pests but are used primarily to induce insects and other pests to eat poisoned baits or to enter traps.
(3a)	Repealed by Session Laws 1989, c. 725.
(3b)	'Branch Office' means any office under the management of a licensee that is neither a home office nor a call office.
(3c)	'Call office' means any office or telephone answering service other than a licensee's home office which is used by a licensee to conduct structural pest control work and which employs no more than one individual engaged in structural pest control work.
(4)	'Certified applicator' means any individual who is certified under G.S. 106-65.25 as authorized to use or supervise the use of any pesticide which is classified for restricted use.
(5)	'Commissioner' means the Commissioner of Agriculture of the State of North Carolina.
(6)	'Committee' means the Structural Pest Control Committee.
(6a)	'Deviation' means failure of the licensee or certified applicator or registered technician card holder to follow any rule adopted by the Committee under provisions of this Article.
(7)	'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, virus, or other microorganism on or in living man or other living animals); but not including equipment used for the application of pesticides when sold separately therefrom.
(8)	Repealed by Session Laws 1975, c. 570, s. 4.
(8a)	'Director' means the Director of the Structural Pest Control Division of the Department of Agriculture and Consumer Services.
(9)	'Employee' means any person employed by a licensee with the exceptions of clerical, janitorial, or office maintenance employees, or those employees performing work completely disassociated with the control of insect pests, rodents or the control of wood-destroying organisms.
(9a)	'Enforcement agency' means the Structural Pest Control Division of the Department of Agriculture and Consumer Services.
(10)	'Fumigants' means any substance which by itself or in combination with any other substance emits or liberates a gas or gases, fumes or vapors and which gas or gases, fumes or vapors when liberated and when used will destroy vermin, rodents, insects, and other pests; but may be lethal, poisonous, noxious, or dangerous to human life.
(11)	'Fungi' means wood-decaying fungi.
(11a)	'Home office' means the office identified to the enforcement agency by a licensee as the place of business to which his or her license is located or assigned.
(12)	'Insect' means any of the numerous small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class Insects, comprising six-legged, usually winged forms, as for example, beetles, bugs, bees, 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 sowbugs.
(13)	'Insecticides' means substances, not fumigants, under whatever name known, used for the destruction or control of insects and similar pests.
(14)	'Label' means the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers.
(14a)	The term 'labeling' means all labels and other written, printed, or graphic matter:
a.	Upon the pesticide (or device) or any of its containers or wrappers;
b.	Accompanying the pesticide (or device) at any time;
c.	To which reference is made on the label or in literature accompanying the pesticide (or device) except when accurate nonmisleading reference is made to current official publications of the United States Department of Agriculture or Interior, the United States Public Health Service, state experiment stations, state agricultural colleges, or other similar federal institutions or official agencies of this State or other states authorized by the law to conduct research in the field of pesticides.
(15)	'Licensee' means any person qualified for and holding a license for any phase of structural pest control pursuant to this Article.
(16)	'Person' means any individual, partnership, association, corporation, or any organized group of persons whether incorporated or not.
(17)	'Pest' means any living organism, including but not limited to, insects, rodents, birds, and fungi, which the Commissioner declares to be a pest.
(18)	'Pesticide' means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest.
(19)	'Registered pesticide' means a pesticide which has been registered by federal and/or State agency responsible for registering pesticides.
(19a)	'Registered technician' means any individual who is required to be registered with the Structural Pest Control Division under G.S. 106-65.31.
(20)	'Repellents' means substances, not fumigants, under whatever name known, which may be toxic to insects and related pests, but are generally employed because of capacity for preventing the entrance or attack of pests.
(21)	'Restricted use pesticide' means a pesticide which has been designated as such by the federal and/or State agency responsible for registering pesticides.
(22)	'Rodenticides' means substances, not fumigants, under whatever name known, whether poisonous or otherwise, used for the destruction or control of rodents.
(23)	'Structural pest control' means the control of wood-destroying organisms or household pests (including, but not limited to, animals such as moths, cockroaches, ants, beetles, flies, mosquitoes, ticks, wasps, bees, fleas, mites, silverfish, millipedes, centipedes, sowbugs, crickets, termites, wood borers, etc.), including the identification of infestations or infections, the making of inspections, the use of pesticides, including insecticides, repellents, attractants, rodenticides, fungicides, and fumigants, as well as all other substances, mechanical devices or structural modifications under whatever name known, for the purpose of preventing, controlling and eradicating insects, vermin, rodents and other pests in household structures, commercial buildings, and other structures (including household structures, commercial buildings and other structures in all stages of construction), and outside areas, as well as all phases of fumigation, including treatment of products by vacuum fumigation, and the fumigation of railroad cars, trucks, ships, and airplanes, or any one or any combination thereof.
(24)	'Under the direct supervision of a certified applicator' means, unless otherwise prescribed by its labeling, 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."
Section 2.  G.S. 106-65-25 reads as rewritten:
"§ 106-65.25. Phases of structural pest control; prohibited acts; license required; exceptions.
(a)	The Committee shall classify license phases to be issued under this Article.  Separate phases or subphases shall be specified for:
(1)	Control of household pests by any method other than fumigation ('P' phase);
(2)	Control of wood-destroying organisms by any method other than fumigation ('W' phase); and
(3)	Fumigation ('F' phase).
(b)	It shall be unlawful for any person to:
(1)	Advertise as, offer to engage in, or engage in or supervise work as a manager, owner, or owner-operator in any phase of structural pest control or otherwise act in the capacity of a structural pest control licensee unless the person is licensed pursuant to this Article or has engaged the services of a licensee as a full-time regular employee who is responsible for the structural pest control performed by the company.  A license is required for each phase of structural pest control.  
(2)	Hold more than one license for each phase of structural pest control.  
(3)	Use a restricted use pesticide in any phase of structural pest control, whether it be on the person's own property or on the property of another, unless the person:
a.	Qualifies as a certified applicator for that phase of structural pest control; or
b.	Is under the direct supervision of a certified applicator who possesses a valid certified applicator's identification card for that phase of structural pest control.
(4)	Use or supervise the use of restricted use pesticides in demonstrating or supervising a demonstration to the public of the proper use and techniques of the application of pesticides or conducting field research with pesticides unless:
a.	The person possesses a valid certified applicator's identification card;
b.	The person is conducting laboratory research involving restricted use pesticides; or
c.	The person is a doctor of medicine or a doctor of veterinary medicine applying restricted use pesticides as drugs or medication during the course of his or her normal professional practice.
	This subdivision applies to all persons, including cooperative extension specialists demonstrating pesticide products, individuals demonstrating methods used in public programs, and local, State, federal, commercial, and other persons conducting field research on, or using, restricted use pesticides.
(c)	It shall be unlawful for any licensee to do any of the following:
(1)	Establish, be in charge of, or manage any branch office unless the office is the home office of another licensee and the structural pest control is performed under the license of that licensee.
(2)	Fail to supervise the structural pest control performed out of the licensee's home office or any office under the licensee's management.
(3)	Allow his or her license to be used by any person or company for which he or she is not a full-time regular employee actively and personally engaged in the supervision of the structural pest control performed under the license.
(4)	Use any pesticide, material, or device prohibited by the Committee or use any approved pesticide, material, or device in a manner prohibited by the Committee.
(5)	Use or supervise the use of restricted use pesticides in a phase of structural pest control for which the person is not licensed or qualified as a certified applicator unless the person's use is under the supervision of a licensee or certified applicator certified in that phase of structural pest control.
(c1)	A person holding a license in any phase of structural pest control shall be responsible for the supervision of the work performed under that license.  Each branch office of a business establishment engaged in structural pest control shall be managed by a person licensed pursuant to this Article.  Both the licensee under whose license the structural pest control is performed and any licensee who manages or otherwise supervises the office may be held responsible for any violations of this Article or of any rule adopted by the Committee.  The Committee may adopt rules that permit a licensee to establish no more than two branch offices in addition to a home office.  The rules shall include provisions to ensure that the licensee can adequately supervise all structural pest control performed from the offices and under his or her license.
(d)	A license is not required for any person (or the person's full-time regular employees) doing structural pest control on the person's own property.  No fee may be charged for structural pest control performed by any such person.
						(g)	Any person issued a license for any one or any combination of the phases of structural pest control shall be deemed to be a 'certified applicator' to use or supervise the use of restricted use pesticides so long as the pesticides are being used only in the phase of structural pest control for which the person is licensed.
(h)	Licenses and certified applicator's identification cards may only be issued to individuals.  License certificates and certified applicator's identification cards shall be issued in the name of the individual, shall bear the name and address of the individual's business or employer's business and shall indicate the phase or phases for which the individual is qualified and such other information as the Committee may specify."
Section 3.  G.S. 106-65.26(d) reads as rewritten:
"(d)	All applicants for license must have practical experience and knowledge of practical and scientific facts underlying the practice of structural pest control, control of wood-destroying organisms, or fumigation. No applicant is entitled to take an examination for the issuance of a license pursuant to this Article who has within five years of the date of application been convicted, entered a plea of guilty or of nolo contendre, or forfeited bond in any State or federal court, for a violation of G.S. 106-65.25(b), any felony, or any crime involving moral turpitude."
Section 4.  G.S. 106-65.28(a) reads as rewritten:
"(a)	Any license or certified applicator's identification card or registered technician's identification card may be denied, revoked or suspended by a majority vote of the Committee for any one or more of the following causes:
(1)	Misrepresentation for the purpose of defrauding; deceit or fraud; the making of a false statement with knowledge of its falsity for the purpose of inducing others to act thereon to their damage; or the use of methods or materials which are not reasonably suitable for the purpose contracted.
(2)	Failure of the licensee or certified applicator to give the Committee, the Commissioner, or their authorized representatives, upon request, true information regarding methods and materials used, or work performed.
(3)	Failure of the licensee or certified applicator to make registrations herein required or failure to pay the registration fees.
(4)	Any misrepresentation in the application for a license or certified applicator's identification card or registered technician's identification card.
(5)	Violation of any provision of this Article or any rule adopted pursuant to this Article.
(6)	Aiding or abetting a licensed or unlicensed person or a certified applicator or a noncertified person to evade the provisions of this Article, combining or conspiring with such a licensed or unlicensed person or a certified applicator or noncertified person to evade the provisions of this Article, or allowing one's license, certified applicator's identification card or registered technician's identification card, to be used by any person other than the individual to whom it has been issued.
(7)	Impersonating any State, county or city inspector or official.
(8)	Storing or disposing of containers or pesticides by means other than those prescribed on the label or adopted regulations.
(9)	Using any pesticide in a manner inconsistent with its labeling.
(10)	Payment, or the offer to pay, by any licensee to any party to a real estate transaction of any commission, bonus, rebate, or other thing of value as compensation or inducement for the referral to such licensee of structural pest control work arising out of such transaction.
(11)	Falsification of records required to be kept by this Article or the rules and regulations of the Committee.
(12)	Failure of a licensee or certified applicator to pay the original or renewal license or identification card fee when due and continuing to operate as a licensee or a certified applicator.
(13)	Conviction of a felony or conviction of a violation of G.S. 106-65.28 within five years preceding the date of application for a license or a certified applicator's identification card or conviction of any said crimes while such license or card is in effect.
(14)	Applying any substance that:
a.	Has the active ingredients contained in a pesticide that is registered pursuant to G.S. 143-442, but
b.	Is not registered as a pesticide pursuant to G.S. 143-442.
(15)	Combining any substance whose application is prohibited under subdivision (14) of this subsection with any other substance to apply as a pesticide or to apply for any other reason, whether the combination occurs before, during, or after the application.
(16)	Assaulting, resisting, impeding, intimidating, or interfering with any State employee while that employee is engaged in the performance of his or her duties under this Article.
(17)	Performing structural pest control in a faulty, careless, or negligent manner."
Section 5.  G.S. 106-65.28 is amended by adding a new subsection to read:
"( g)	Any pesticide, material, or device for which such information is requested by the Committee pursuant to G.S. 106-65.29(9a) and denied by the registrant or manufacturer shall not be used in any structural pest control performed for compensation and may only be used by an individual performing structural pest control on the individual's own property."
Section 6.  G.S. 106-65.29 reads as rewritten:
"§ 106-65.29.  Rules and regulations.
In order to ensure that persons licensed and certified under this Article are capable of performing a high quality of workmanship, the Committee may adopt rules with respect to:
(1)	The amount and kind of training required of an applicant for a license and certified applicator's card to engage in any one or more of the three phases of structural pest control, and the amount and kind of training required of an applicant for a registered technician's identification card.
(2)	The type, frequency and passing score of any examination given an applicant for a license and certified applicator's card under this Article.
(3)	The amount, kind and frequency of continuing education required of a licensee and certified applicator.
(4)	The methods and materials to be used in performing any work authorized by the issuance of a license and certified applicator's card under this Article.
(5)	The business records to be made and maintained by licensees and certified applicators under this Article necessary for the Committee to determine whether the licensee and certified applicator is performing a high quality of workmanship.
(6)	The credentials and identification required of licensees and certified applicators, their employees and equipment, including service vehicles, when engaged in any work defined under this Article.
(7)	Safety methods and procedures for structural pest control work.
(8)	Fees for reinspection following a finding of a deviation, as defined by the Committee.
(9)	Fees for training materials provided by the Committee or the Division.  Such fees may be placed in a revolving fund to be used for training and continuing education purposes and shall not revert to the General Fund.
(9a)	Efficacy data and other technical information to be submitted by registrants and manufacturers of pesticides and other materials or devices for review and approval, in order for the Committee and the enforcement agency to ensure the efficacy of pesticides and other materials or devices used in structural pest control in this State.  This subdivision does not require either the Committee or the enforcement agency to disclose any information that is confidential information within the meaning of G.S. 132-1.2.
(10)	The policies and programs set forth in this Article."
Section 7.  G.S. 106-65.30 reads as rewritten:
"§ 106-65.30.  Inspectors; inspections and reports of violations; designation of resident agent.
(a)	For the enforcement of the provisions of this Article the Commissioner is authorized to appoint one or more qualified inspectors and such other employees as are necessary in order to carry out and enforce the provisions of this Article. The inspectors shall be known as 'structural pest control inspectors.' The Commissioner shall enforce compliance with the provisions of this Article by making or causing to be made periodical and unannounced inspections of work done by licensees and certified applicators under this Article who engage in or supervise any one or more phases of structural pest control as defined in G.S. 106-65.25. The Commissioner shall cause the prompt and diligent investigation of all reports of violations of the provisions of this Article and all rules adopted pursuant to this Article.  In order to carry out the provisions of this Article, inspectors designated by the Commissioner may enter upon any public or private premises at reasonable times for any one or more of the following purposes:
(1)	To have access to inspect the business premises, premises to which a pesticide has been applied, any equipment subject to this Article, or the premises in which the equipment is kept or stored.
(2)	To sample areas to which a pesticide has reportedly been applied.
(3)	To sample pesticides that have been applied, are being applied, or are to be applied.
(4)	To inspect storage or disposal areas.
(5)	To inspect or investigate complaints of injury to humans, plants, animals, or property.
(6)	To have access to, inspect, or copy any records as may be required by the Committee or maintained by any person licensed or certified under this Article.
(b)	Should the Commissioner or his designated agent be denied as provided under subsection (a) of this section, the Commissioner or his designated agent may apply to any court of competent jurisdiction for a search warrant authorizing access to property  for these purposes.  The court may, upon such application, issue the search warrant for the purposes requested.
(c)	Prior to the issuance or renewal of a license or certified applicator's identification card, every nonresident owner of a business performing any phase of structural pest control work shall designate in writing to the Commissioner or his authorized agent a resident agent upon whom service of notice or process may be made to enforce the provisions of this Article and rules and regulations adopted pursuant to the provisions hereof or any civil or criminal liabilities arising hereunder.
(d)	The Commissioner shall have authority to appoint personnel of the Structural Pest Control Division as special inspectors and said special inspectors are hereby vested with the authority to arrest with a warrant, or to arrest without a warrant when a violation of this Article is being committed in their presence or they have reasonable grounds to believe that a violation of this Article is being committed in their presence. Said special inspectors shall take offenders before the several courts of this State for prosecution or other proceedings. The provisions of this section do not apply to any person holding a valid structural pest control license, or a certified applicator's identification card, or a registered technician's identification card as issued under the provisions of this Article. Special inspectors shall not be entitled to the benefits of the Law Enforcement Officers' Benefit and Retirement Fund or the benefits of the Law Enforcement Officers' and Others Death Benefit Act as provided for in Articles 12 and 12A of Chapter 143 of the General Statutes, respectively."
Section 8.  G.S. 106-65.33 reads as rewritten:
"§ 106-65.33.  Violation of Article, falsification of records, or misuse of registered pesticide a misdemeanor.
(a)	Any person who shall be adjudged to have violated any provision of this Article or who falsifies any records required to be kept by this Article or by the rules and regulations pursuant to this Article or who uses a registered pesticide in a manner inconsistent with its labeling shall be guilty of a Class 2 misdemeanor.  In addition, if any person continues to violate or further violates any provision of this Article after written notice from the Committee, the court may determine that each day during which the violation continued or is repeated constitutes a separate violation subject to the foregoing penalties.
(b)	Nothing in this Article shall be construed to require the Committee or the Commissioner to initiate, or attempt to initiate, any criminal or administrative proceedings under this Article for a minor violation of this Article whenever the Committee or Commissioner determines that the public interest will be adequately served in the circumstances by a suitable written notice or warning."
Section 9.  G.S. 106-65.41 reads as rewritten:
"§ 106-65.41.  Civil penalties.
A civil penalty of not more than two thousand dollars ($2,000) may be assessed by the Committee against any person for any one or more of the causes set forth in G.S. 106-65.28(a)(1) through (12) and G.S. 106-65.28(a)(14) through (17), or who violates or directly causes a violation of any provision of this Article or any rule adopted pursuant to this Article.  In determining the amount of any penalty, the Committee shall consider the degree and extent of harm caused by the violation. No civil penalty may be assessed under this section unless the person has been given an opportunity for a hearing pursuant to Chapter 150B of the General Statutes. Assessments may be collected, following judicial review, if any, of the Committee's final decision imposing the assessment, in any lawful manner for the collection of a debt.
The clear proceeds of civil penalties assessed pursuant to this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2."
Section 10.  This act becomes effective October 1, 1999.