Senate Bill No. 130

(By Senator Bailey)


[Introduced January 13, 2003; referred to the Committee on Natural Resources; and then to the Committee on 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 the "West Virginia Wild Game Breeder's and Dealer's Licensing Act"; 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:
§19-10C-1. Short title.
This article may 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 must be made on forms provided by the commissioner and must be filed on or before the thirtieth day of June of each year with the commissioner. A fee of fifty dollars must be remitted with each application. Any license not renewed by the first day of July of any year expires.
(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 has 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 is 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 exist:
(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 are 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 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 of Agriculture.

This article is new; therefore, strike-throughs and underscoring have been omitted.