1997 Regular Session
By: Senator(s) Thames, Stogner
Senate Bill 2288
(As Passed the Senate)
AN ACT TO REENACT SECTIONS 69-21-101 THROUGH 69-21-125, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE CREATION AND EMPOWERMENT OF THE STATE BOARD OF AGRICULTURAL AVIATION AND THE LICENSING OF AERIAL APPLICATORS; TO AMEND SECTION 69-21-127, MISSISSIPPI CODE OF 1972, TO EXTEND THE REPEALER ON THE PROVISIONS OF LAW WHICH CREATE AND EMPOWER THE AGRICULTURAL AVIATION BOARD; TO AMEND SECTION 69-21-153, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT PENALTY EVALUATIONS AND ASSESSMENTS SHALL BE HANDLED DIRECTLY BY THE BOARD OF AGRICULTURAL AVIATION RATHER THAN THROUGH A REVIEWING OFFICER; TO PROVIDE THE ACCUSED WITH THE OPPORTUNITY FOR AN INFORMAL SETTLEMENT CONFERENCE; TO AMEND SECTION 69-21-155, MISSISSIPPI CODE OF 1972, TO SIMPLIFY THE HEARING PROCESS BY ALLOWING THE ACCUSED TO NOTIFY THE BOARD DIRECTLY OF HIS REQUEST FOR A HEARING; TO AMEND SECTIONS 69-21-157 AND 69-21-165, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 69-21-101, Mississippi Code of 1972, is reenacted as follows:
69-21-101. This article shall be known and cited as the "Agricultural Aviation Licensing Law of 1966."
SECTION 2. Section 69-21-103, Mississippi Code of 1972, is reenacted as follows:
69-21-103. The purpose of this article is to supervise and regulate for the public good all commercial agricultural aerial application within the State of Mississippi and to establish and promote a close working relationship between agricultural aerial applicators and the Mississippi Department of Agriculture and Commerce, the licensing of all persons engaged in the aerial application of pesticides, poisons, seeds and chemicals, and the registration of all such commercial agricultural aircraft and pilots.
SECTION 3. Section 69-21-105, Mississippi Code of 1972, is reenacted as follows:
69-21-105. As used in this article, the following terms shall have the meanings hereinafter ascribed to them:
(a) "Board" shall mean the Agricultural Aviation Board of the State of Mississippi.
(b) "Person" shall mean any individual, corporation, firm, partnership, company, trust, association or other legal entity.
(c) "Aerial application" means the practice of engaging in agricultural aircraft operations for remuneration.
(d) "Agricultural aircraft operation" means
(1) Dispensing any pesticide, seed or fertilizer by aircraft;
(2) Dispensing any other substance intended for plant nourishment, soil treatment, propagation of plant life, or pest control by aircraft; or
(3) Engaging in dispensing activities directly affecting agriculture, horticulture, or forest preservation by aircraft.
(e) "Aircraft" means any contrivance now known or hereafter invented that is used or designed for navigation of or flight in the air over land and water, and that is designed for or adaptable for use in agricultural aircraft operation.
(f) "Applicator" means any person, as herein defined, who is licensed under this act to engage in agricultural aircraft operations.
(g) "Pesticide" means any substance or mixture of substances intended for defoliating or desiccating plants, or for preventing, destroying, repelling or mitigating any insects, fungi, bacteria, weeds, or other forms of plant or animal life which the board shall declare to be a pest.
(h) "Pilot" means the operator of an aircraft used in agricultural aircraft operation; provided, however, a pilot may also be a person who is licensed as an applicator under the provisions of this article.
(i) "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 Insecta, comprising six-legged, usually winged forms, as for example, beetles, bugs and flies; and to other classes of arthropods whose members are wingless and usually have more than six (6) legs, as for example, spiders, mites, ticks, centipedes and wood lice.
(j) "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.
(k) "Desiccant" means any substances or mixtures of substances intended for artificially accelerating the drying of plant tissues.
SECTION 4. Section 69-21-107, Mississippi Code of 1972, is reenacted as follows:
69-21-107. There is hereby created a State Board of Agricultural Aviation composed of five (5) members as follows: one (1) member being the chief of the Bureau of Plant Industry within the Regulatory Office of the Mississippi Department of Agriculture and Commerce; four (4) licensed pilots to be appointed by the Governor from a list of eight (8) agricultural aerial applicators submitted to the Governor by the Mississippi Aerial Applicators Association, commonly known as the Mississippi Agricultural Aviation Association. The term of office of one (1) board member shall be one (1) year; the term of office of the second board member shall be two (2) years; the term of office of the third board member shall be three (3) years; and the term of office of the fourth board member shall be four (4) years. After the initial appointment, succeeding board members shall serve a staggered four-year term of office. Each board member shall serve until his successor is appointed. The chief of the Bureau of Plant Industry, Mississippi Department of Agriculture and Commerce, shall continue to serve each term by virtue of his office.
The membership of the board shall elect a chairman at their organizational meeting who shall be one of the four (4) aerial applicators who serve on the board.
Vacancies on the said board shall be filled as herein stated by appointment of the Governor.
A quorum necessary to conduct business shall be a majority of the five (5) board members. Any member who shall not attend two (2) consecutive meetings of the board shall be subject to removal by the Governor. The chairman of the board shall notify the Governor in writing when any such member has failed to attend two (2) consecutive regular meetings.
Each member of the Agricultural Aviation Board shall receive a per diem as is authorized by law and actual expenses as provided by law incidental to attending meetings of said board, and other authorized business as provided by board authorization as spread on the board minutes. Said board shall not be paid for more than fifteen (15) meetings in any one (1) calendar year.
SECTION 5. Section 69-21-109, Mississippi Code of 1972, is reenacted as follows:
69-21-109. The board, after public hearing duly held, is hereby vested with the authority to adopt such rules and regulations as may be necessary to regulate the application of chemicals and pesticides according to the time of year, manner, form and area of application, wind velocity, and may restrict the use of certain chemicals and pesticides which create an unusual hazard to the health, safety and welfare of the public. The board shall set professional standards for applicators and pilots in the interest of the safety, welfare and general well-being of the public of Mississippi.
The board shall have authority to procure samples of spray and dust materials before and after they are mixed in order to determine the concentration of the mixtures.
The Agricultural Aviation Board shall have authority to maintain an office and employ necessary personnel within the framework of fees collected to carry out the purposes of this article.
It shall be the duty of the board to enforce this article and all rules and regulations made and adopted in compliance with this article.
The board or its representatives shall have access to any premises where there is reason to believe that a chemical or pesticide is being or has been applied by an applicator, or where any applicator is based, or preparing to apply any of the materials herein stated, for the purpose of enforcement of this article. The board shall have authority to inspect equipment used for application of chemicals and pesticides as stated in this article.
The Board of Agricultural Aviation shall maintain a close liaison and spirit of cooperation with the Mississippi Department of Agriculture and Commerce, in the supervision of aerially applied chemicals which are under their jurisdiction as provided by Sections 69-21-7 through 69-21-15. The board, further, shall closely assist the Mississippi Department of Transportation in carrying out its statutory functions to the end that aviation can continue its rapid advance.
SECTION 6. Section 69-21-111, Mississippi Code of 1972, is reenacted as follows:
69-21-111. Nothing in this article shall be construed as to confer upon the board jurisdiction of the aerial application of hormone-type herbicides which is conferred on the Mississippi Department of Agriculture and Commerce by Sections 69-21-7 through 69-21-15.
SECTION 7. Section 69-21-113, Mississippi Code of 1972, is reenacted as follows:
69-21-113. (1) It shall be unlawful and a misdemeanor for any person to act, operate or do business as an applicator or pilot, or to engage in agricultural aircraft operations, unless such person has an applicator's or pilot's license issued by the board. Such license shall be issued only upon application therefor to the board on a form of application prescribed by the board, which application shall contain information regarding the applicant's qualifications and proposed operations, and such other information as may be specified by the board.
(2) All licenses shall expire annually on the thirty-first day of March following their issuance or renewal, and shall be renewed for the ensuing year on or before that date. Any person failing to renew his license within the prescribed time shall be required to submit a new application therefor.
(3) Any person seeking to obtain a license as an applicator in this state shall submit proof of payment of all ad valorem and other taxes which might be applicable on aircraft and other equipment.
(4) All persons licensed under the provisions of this article shall be known as registered applicators or pilots, and shall be issued a certificate by the board as proof thereof.
SECTION 8. Section 69-21-115, Mississippi Code of 1972, is reenacted as follows:
69-21-115. Any person seeking to obtain a license as an applicator in this state shall submit proof of financial responsibility to the board, and upon obtaining a license, such person shall maintain proof of financial responsibility at all times while such license shall be in effect. Proof of financial responsibility may consist of:
(a) The deposit with the board of a surety bond in favor of any person or persons who may suffer damage by reason of the operation of an aerial application service, issued by a corporate surety company authorized to do business in this state, which surety bond shall be in an amount not less than the amount of financial responsibility required by the rules and regulations of the board. However, the aggregate liability of the surety to all such persons shall not, in any event, exceed the amount of such bond; or
(b) The filing of an insurance policy of an insurer or surplus line broker authorized to do business in this state insuring the licensee and any of his agents against liability resulting from the operation of an aerial application service, which insurance policy shall be in an amount deemed as acceptable to the board, but not less than Five Thousand Dollars ($5,000.00).
The board shall establish by rules and regulations the amount of financial responsibility to be required of each licensed applicator, but in no event shall the amount of financial responsibility required be less than Five Thousand Dollars ($5,000.00).
SECTION 9. Section 69-21-117, Mississippi Code of 1972, is reenacted as follows:
69-21-117. Any person who is a nonresident of this state shall obtain an applicator's license in this state, and such nonresident shall designate and maintain a resident agent in this state for service of process, and establish and maintain proof of financial responsibility and provide proof of payment of all state taxes as provided in this article and as applied to a resident aerial applicator. Nothing in this article shall be construed to prevent the board from issuing reciprocal licenses from other states that recognize and accept registered aerial applicators of the State of Mississippi.
SECTION 10. Section 69-21-119, Mississippi Code of 1972, is reenacted as follows:
69-21-119. A fee of not more than One Hundred Fifty Dollars ($150.00) for each aircraft owned, operated, used and employed in aerial application by an applicator shall be paid to the board for the issuance or required annual renewal of a license for an applicator. Each aircraft shall be identified at all times by a device supplied to the registered applicator by the board.
A fee of not more than Seventy-five Dollars ($75.00) for each pilot engaged in aerial application shall be paid to the board for the issuance or required annual renewal of a license for a pilot. Each pilot shall have in his possession at all times an identification card supplied by the board.
All funds collected under the provisions of this article shall be kept in the Treasury of the State of Mississippi and disbursed upon requisitions signed by the chairman of the board. Such funds shall be subject to audit by the Auditor of the State of Mississippi. The State Board of Agricultural Aviation shall furnish a copy of its financial statement and a copy of any proposed license fee adjustments to each aerial applicator licensed by the state not less than two (2) weeks before the annual meeting of the aerial applicators. Such financial statement shall reflect all funds collected and all disbursements made under the provisions of this article.
SECTION 11. Section 69-21-121, Mississippi Code of 1972, is reenacted as follows:
69-21-121. (1) The Agricultural Aviation Board, in exercising its authority to enforce this article and its rules and regulations made and adopted in compliance with this article, shall have the power to discipline the holder of a license after a hearing and opportunity to be heard has been given to the holder of the license. Notice of the time and place of such hearing and the grounds therefor shall be given to the holder of the license by registered or certified mail at least ten (10) days prior to the date of the hearing, and said licensee shall be disciplined as follows, to wit:
(a) By placing him upon probation, the terms of which may be set by the board;
(b) By suspending his right to do business as an applicator or pilot for a time deemed proper by the board;
(c) By revoking, cancelling or suspending his license; or
(d) By taking any other action in relation to his license as the board may deem proper under the circumstances.
(2) Such disciplinary action may be made by the board if it finds that such licensee:
(a) Is guilty of misrepresentation for the purpose of defrauding;
(b) Has made any false statements or representations in his application for issuance or renewal of a license;
(c) Has violated any of the provisions of this article or the rules and regulations promulgated thereunder by the board; or
(d) Has made any application in a faulty, careless or negligent manner.
(3) Any person aggrieved by action of the Agricultural Aviation Board, may, within thirty (30) days of such action, appeal the decision of the board to the circuit court of the regular domicile of the licensee involved; provided, however, such appeal shall be on the record of the hearing before the board and no additional evidence may be received or considered.
SECTION 12. Section 69-21-123, Mississippi Code of 1972, is reenacted as follows:
69-21-123. Any person, firm, or corporation having a right of action against an applicator, person, firm, association or corporation, or any other person, may bring suit against them or either of them for any damages caused by their negligence of the aerial application regulated by the Agricultural Aviation Board, but in no event, however, shall a surety be named in or made a party to such action. No action for such damages may be brought or maintained, however, unless the person claiming the damages shall have filed with the Mississippi Department of Agriculture and Commerce a written statement claiming that he has been damaged, on a form prescribed by the Mississippi Department of Agriculture and Commerce, within sixty (60) days after the date that the damages occurred and prior to the time that twenty-five percent (25%) of a crop damaged shall have been harvested in the event claim concerns a crop. Such statement shall contain, but shall not be limited thereto, the name of the person or persons who operated the aircraft, if known, the permit number of the aircraft, if known, the name of the owner or lessee of the land on which the crops are grown and for which damages are claimed, and the date on which it is alleged that the damage occurred. The Mississippi Department of Agriculture and Commerce, is required to prepare a form to be furnished to persons to be used in such cases, and such form shall contain such other requirements as the Mississippi Department of Agriculture and Commerce may deem proper. The Mississippi Department of Agriculture and Commerce, shall, upon receipt of such statement, notify the licensee and/or operator of the aircraft, and the owner or lessee of the land or other person who may be charged with the responsibility for the damages claimed, and furnish copies of such statements as may be requested. However, notwithstanding any other provisions of this article, any person claiming damages hereunder may give notice to the landowner or lessee of the treated crop claiming that he has been damaged within sixty (60) days after the date that the damage occurred and prior to the time that twenty-five percent (25%) of a crop damaged shall have been harvested in the event claim concerns a crop, which said notice shall preserve said persons, claiming damages, cause of action.
SECTION 13. Section 69-21-125, Mississippi Code of 1972, is reenacted as follows:
69-21-125. (1) Violation of this article or the rules and regulations promulgated thereunder shall be a misdemeanor punishable by a fine of not less than One Hundred Dollars ($100.00) and not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment. Each day's violation shall constitute a separate offense. All sums of money collected as a result of fines levied under this section shall be forwarded to the State Treasurer and disbursed upon requisitions signed by the Chairman of the Board of Agricultural Aviation to defray operating expenses of the board and for no other purpose; provided, however, all such funds shall be subject to audit by the State Auditor.
(2) In addition to the penalties herein provided, the board is hereby granted the authority to file in any court of competent jurisdiction injunctive proceedings against any person violating the provisions of this article or the rules and regulations promulgated hereunder.
(3) The Attorney General, district attorneys, and county attorneys of the state shall assist the Board of Agricultural Aviation upon their request to carry out the penalty section of this article.
SECTION 14. Section 69-21-127, Mississippi Code of 1972, is amended as follows:
69-21-127. Sections 69-21-101 through 69-21-125, Mississippi Code of 1972, which create the State Board of Agricultural Aviation and prescribe its duties and powers, shall stand repealed as of December 31, 1998.
SECTION 15. Section 69-21-153, Mississippi Code of 1972, is amended as follows:
69-21-153. (1) When any allegation or charge has been made against a person for violating the rules and regulations of the Board of Agricultural Aviation or Sections 69-21-101 through 69-21-127, * * * the Board of Agricultural Aviation * * * shall:
(a) Cause the complaint to be in writing and signed by the person making the charge;
(b) Insure that the complaint is filed in the office of the Board of Agricultural Aviation; * * *
(c) Cause the complaint to be investigated by an inspector of the Agricultural Aviation Board or the Bureau of Plant Industry; and
(d) Send a copy of the complaint and any supporting documents to the person accused along with a request for the accused to respond to the allegations within thirty (30) days. Such notification shall be accomplished by any of the methods provided for in Rule 4 of the Mississippi Rules of Civil Procedure. Upon receipt of the response and any supporting documents from the accused, the Board of Agricultural Aviation shall screen all information on file to determine the merit of the complaint or lack thereof.
(2) If the Board of Agricultural Aviation determines that the complaint lacks merit, it may recommend that the complaint be dismissed.
(3) If the Board of Agricultural Aviation determines that there are reasonable grounds to indicate that a violation has occurred or if the accused admits to the truth of the allegations upon which the complaint is based, the Board of Agricultural Aviation may recommend a fine not to exceed Twenty-five Thousand Dollars ($25,000.00) for each violation.
(4)(a) In determining the amount of the penalty, the Board of Agricultural Aviation may consider the appropriateness of such penalty to the size of the business of the person charged, the effect on the person's ability to continue in business and the gravity of the violation. Whenever the Board of Agricultural Aviation finds that the violation occurred, despite the exercise of due care, if the violation did not cause significant harm to the public health or the environment, the Board of Agricultural Aviation may issue a warning in lieu of proposing a penalty.
(b) The accused shall have thirty days (30) from receipt of the recommendation of the Board of Agricultural Aviation within which to file with the Board of Agricultural Aviation a written request for an informal settlement conference. If the accused requests a conference as provided herein, the Board of Agricultural Aviation shall meet with the accused to discuss the proposed penalty and the possibility of an agreed settlement. If, in the judgment of the Board of Agricultural Aviation, a reasonable settlement is reached, the Board of Agricultural Aviation may revise its penalty recommendation accordingly.
(c) The accused shall have thirty (30) days from the receipt of the decision of the Board of Agricultural Aviation to request a hearing.
SECTION 16. Section 69-21-155, Mississippi Code of 1972, is amended as follows:
69-21-155. (1) The Board of Agricultural Aviation shall, within thirty (30) days of notification from the accused, schedule a hearing at a date, time and place to be determined by the Board of Agricultural Aviation. For good cause shown the board may grant a continuance or continuances of such hearings. Written notice of the date, time and place of such hearing shall be mailed to the accused by registered mail, return receipt requested, no less than fifteen (15) days before the time of the hearing.
(2) A duly qualified court reporter shall be in attendance and shall make a full and complete transcript of the proceedings. The hearing shall be closed unless the accused shall request a public hearing. The Board of Agricultural Aviation shall have the right and duty to impose reasonable restrictions as it may deem necessary or appropriate to insure an orderly, expeditious and impartial proceeding, and shall admit all relevant and material evidence except evidence which is unduly repetitious. Hearsay shall be admissible to the extent permitted by the board.
(3) For purposes of such hearing, the board is hereby empowered to require the attendance of witnesses, administer oaths and hear testimony, either oral or documentary, for and against the accused. The Board of Agricultural Aviation shall have the authority to issue subpoenas to compel the attendance of witnesses and the production of books, papers, records or other documentary evidence at a hearing. Subpoenas to be issued shall be delivered to the sheriff of the county where they are to be executed and the sheriff shall cause them to be served. In case of the failure of any person to comply with any subpoena issued by the board, the board or its authorized representative may invoke the aid of any court of general jurisdiction of this state. The court may thereupon order such person to comply with the requirements of the subpoena. Failure to comply with the order of the court may be treated as contempt thereof.
(4) At the conclusion of the hearing, the Board of Agricultural Aviation upon the majority vote of the members shall issue a written opinion incorporating its findings of facts and conclusions of law and any penalty that it may assess not to exceed Twenty-five Thousand Dollars ($25,000.00) per violation. The executive officer shall notify the accused violator of the Board of Agricultural Aviation's decision.
SECTION 17. Section 69-21-157, Mississippi Code of 1972, is amended as follows:
69-21-157. Failure of the accused to request an informal settlement conference or a hearing or to respond to the complaint within thirty (30) days shall constitute a waiver of the right to a hearing, and any penalties assessed by the Board of Agricultural Aviation shall be due and payable as provided in Section 69-21-165.
SECTION 18. Section 69-21-165, Mississippi Code of 1972, is amended as follows:
69-21-165. (1) Any penalty assessed by the Board of Agricultural Aviation shall be due and payable within forty-five (45) days of the notification of the decision. All sums of money collected as a result of fines levied under this section shall be disbursed as provided in Section 69-21-125(1), Mississippi Code of 1972.
(2) In the event that the judgment is not paid within the forty-five (45) days, or within such additional time as the board may allow, the Board of Agricultural Aviation through its designated representative may file suit in the circuit court of the county where the defendant resides or in the case of a nonresident defendant in the Circuit Court of the First Judicial District of Hinds County or any other court with appropriate jurisdiction to enforce the decision of the Board of Agricultural Aviation and recover reasonable attorney's fees and all court costs.
(3) A copy of the notification sent by the Board of Agricultural Aviation to the violator shall be sufficient proof as to the judgment of the * * * board.
SECTION 19. This act shall take effect and be in force from and after July 1, 1997.