94.10 Nursery stock; inspection and licensing.
(1) Definitions. In this section:
(a) “Christmas tree grower" means a person who grows evergreen trees in this state for eventual cutting and sale as Christmas trees.
(b) “Nonprofit organization" means an organization described in section 501 (c) of the Internal Revenue Code that is exempt from federal income tax under section 501 (a) of the Internal Revenue Code.
(c) “Nursery" means premises in this state on which a person propagates or grows nursery stock for sale. “Nursery" does not include heeling-in grounds or other premises where a person holds nursery stock for purposes other than propagation or growth.
(d) “Nursery dealer" means a person who sells, offers for sale, or distributes nursery stock from one or more locations in this state, except that “nursery dealer" does not include any of the following:
1. An employee of a person licensed under sub. (2).
2. A nursery grower licensed under sub. (3) who only sells, offers for sale, or distributes nursery stock that the nursery grower has grown.
(e) “Nursery grower" means a person who owns or operates a nursery in this state, except that “nursery grower" does not include an employee of a person licensed under sub. (3).
(f) “Nursery stock" means plants and plant parts that can be propagated or grown, except that “nursery stock" does not include seeds, sod, cranberry cuttings, annuals, or cut Christmas trees.
(g) “Officially inspected source" means any of the following:
1. A nursery dealer licensed under sub. (2).
2. A nursery grower licensed under sub. (3).
3. A source outside this state that the department recognizes under sub. (10) as an officially inspected source.
(j) “Sell" means to transfer ownership, for consideration.
(2) Nursery dealer; annual license.
(a) License required. Except as provided in par. (f), no person may operate as a nursery dealer without an annual license from the department. A nursery dealer license expires on February 20. A nursery dealer license may not be transferred to another person.
(b) Applying for a license. A person applying for a nursery dealer license under par. (a) shall apply on a form provided by the department. An applicant shall provide all of the following to the department:
1. The applicant's legal name and address and any other name under which the applicant does business.
2. The address of each location in this state at which the applicant proposes to hold nursery stock for sale or distribution.
3. The license fee required under par. (c).
4. The surcharge required under par. (d), if any.
5. Other information reasonably required by the department for licensing purposes, including information related to the types and sources of nursery stock that the applicant sells or distributes from locations in this state.
(c) License fee. Except as otherwise provided by the department by rule, a nursery dealer shall pay the following annual license fee, based on the nursery dealer's annual purchases determined under par. (e):
1. If the nursery dealer has annual purchases of no more than $5,000, $30.
2. If the nursery dealer has annual purchases of more than $5,000 but not more than $20,000, $50.
3. If the nursery dealer has annual purchases of more than $20,000 but not more than $100,000, $100.
4. If the nursery dealer has annual purchases of more than $100,000 but not more than $200,000, $150.
5. If the nursery dealer has annual purchases of more than $200,000 but not more than $500,000, $200.
6. If the nursery dealer has annual purchases of more than $500,000 but not more than $2,000,000, $300.
7. If the nursery dealer has annual purchases of more than $2,000,000 but not more than $3,000,000, $400.
8. If the nursery dealer has annual purchases of more than $3,000,000, the amount of the nursery dealer's annual purchases times 0.0005.
(cm) Fee exemption. Notwithstanding par. (c), the department may not require an individual who is eligible for the veterans fee waiver program under s. 45.44 to pay a nursery dealer license fee.
(d) Surcharge for operating without a license. In addition to the fee required under par. (c), an applicant for a nursery dealer license shall pay a surcharge equal to the amount of that fee if the department determines that, within 365 days before submitting the application, the applicant operated as a nursery dealer without a license in violation of par. (a). Payment of the surcharge does not relieve the applicant of any other penalty or liability that may result from the violation, but does not constitute evidence of a violation of par. (a).
(e) Annual purchases; nursery dealer.
1. For the purposes of par. (c) the amount of a nursery dealer's annual purchases is the total cost that the nursery dealer incurred during the nursery dealer's last completed fiscal year for all nursery stock that the nursery dealer acquired for sale or distribution from locations in this state, except as provided in subd. 2. The amount of a nursery dealer's annual purchases does not include the cost of nursery stock that the nursery dealer grows under a license under sub. (3) or an equivalent license in another state.
2. If a nursery dealer made no purchases of nursery stock during the nursery dealer's last completed fiscal year, the amount of annual purchases is the nursery dealer's good faith prediction of purchases described in subd. 1. during the nursery dealer's current fiscal year.
(f) Exemptions. Paragraph (a) does not apply to any of the following:
1. A person who sells or distributes nursery stock only at retail and whose total sales from all locations in this state during the license year do not exceed $250.
2. A person who sells or distributes nursery stock solely for the benefit of a nonprofit organization, for a total of not more than 7 consecutive days in this state during the license year.
(3) Nursery grower; annual license.
(a) License required. Except as provided in par. (f), no person may operate as a nursery grower without an annual license from the department. A nursery grower license expires on February 20. A nursery grower license may not be transferred to another person.
(b) Applying for a license. A person applying for a nursery grower license under par. (a) shall apply on a form provided by the department. An applicant shall provide all of the following to the department:
1. The applicant's legal name and address and any other name under which the applicant does business.
2. The address of each location in this state at which the applicant operates a nursery or holds nursery stock for sale or distribution.
3. The license fee required under par. (c).
4. The surcharge required under par. (d), if any.
5. Other information reasonably required by the department for licensing purposes, including information related to the types of nursery stock that the applicant grows in this state.
(c) License fee. Except as otherwise provided by the department by rule, a nursery grower shall pay the following annual license fee, based on the nursery grower's annual sales determined under par. (e):
1. If the nursery grower has annual sales of no more than $5,000, $40.
2. If the nursery grower has annual sales of more than $5,000 but not more than $20,000, $75.
3. If the nursery grower has annual sales of more than $20,000 but not more than $100,000, $125.
4. If the nursery grower has annual sales of more than $100,000 but not more than $200,000, $200.
5. If the nursery grower has annual sales of more than $200,000 but not more than $500,000, $350.
6. If the nursery grower has annual sales of more than $500,000 but not more than $2,000,000, $600.
7. If the nursery grower has annual sales of more than $2,000,000, $1,200.
(cm) Fee exemption. Notwithstanding par. (c), the department may not require an individual who is eligible for the veterans fee waiver program under s. 45.44 to pay a nursery grower license fee.
(d) Surcharge for operating without a license. In addition to the fee required under par. (c), an applicant for a nursery grower license shall pay a surcharge equal to the amount of that fee if the department determines that, within 365 days before submitting that application, the applicant operated as a nursery grower without a license in violation of par. (a). Payment of the surcharge does not relieve the applicant of any other penalty or liability that may result from the violation, but does not constitute evidence of a violation of par. (a).
(e) Annual sales; nursery grower.
1. For the purposes of par. (c) the amount of a nursery grower's annual sales is the nursery grower's gross receipts, during the nursery grower's last completed fiscal year, from the sale, consignment, or other distribution of nursery stock that the nursery grower grew at nurseries in this state, except as provided in subd. 2.
2. If, during a nursery grower's last completed fiscal year, the nursery grower made no sales of nursery stock that the nursery grower grew at nurseries in this state, the amount of annual sales is the nursery grower's good faith prediction of sales described in subd. 1. during the nursery grower's current fiscal year.
(f) Exemptions. Paragraph (a) does not apply to any of the following:
1. A nursery grower who sells or distributes nursery stock only at retail and whose total sales from all locations in this state during the license year do not exceed $250.
2. A person who sells or distributes nursery stock solely for the benefit of a nonprofit organization, for a total of not more than 7 consecutive days in this state during the license year.
(3g) Christmas tree grower; annual license.
(a) License required. Except as provided in par. (e), no person may operate as a Christmas tree grower without an annual license from the department. A Christmas tree grower license expires on February 20. A Christmas tree grower license may not be transferred to another person.
(b) Applying for a license. A person applying for a Christmas tree grower license under par. (a) shall apply on a form provided by the department. An applicant shall provide all of the following to the department:
1. The applicant's legal name and address and any other name under which the applicant does business.
2. The address of each location in this state at which the applicant grows evergreen trees for eventual sale as Christmas trees or at which the applicant holds Christmas trees for sale.
3. The license fee required under par. (c).
4. Other information reasonably required by the department for licensing purposes.
(c) License fee. Except as otherwise provided by the department by rule, a Christmas tree grower shall pay the following annual license fee, based on the Christmas tree grower's annual sales determined under par. (d):
1. If the Christmas tree grower has annual sales of no more than $5,000, $20.
2. If the Christmas tree grower has annual sales of more than $5,000 but not more than $20,000, $55.
3. If the Christmas tree grower has annual sales of more than $20,000 but not more than $100,000, $90.
4. If the Christmas tree grower has annual sales of more than $100,000 but not more than $200,000, $150.
5. If the Christmas tree grower has annual sales of more than $200,000 but not more than $500,000, $250.
6. If the Christmas tree grower has annual sales of more than $500,000 but not more than $2,000,000, $450.
7. If the Christmas tree grower has annual sales of more than $2,000,000, $900.
(cm) Fee exemption. Notwithstanding par. (c), the department may not require an individual who is eligible for the veterans fee waiver program under s. 45.44 to pay a Christmas tree grower license fee.
(d) Annual sales; Christmas tree grower.
1. For the purposes of par. (c) the amount of a Christmas tree grower's annual sales is the Christmas tree grower's gross receipts, during the Christmas tree grower's last completed fiscal year, from the sale, consignment, or other distribution of Christmas trees that the Christmas tree grower grew at locations in this state, except as provided in subd. 2.
2. If, during a Christmas tree grower's last completed fiscal year, the Christmas tree grower made no sales of Christmas trees that the Christmas tree grower grew at locations in this state, the amount of annual sales is the Christmas tree grower's good faith prediction of sales described in subd. 1. during the Christmas tree grower's current fiscal year.
(e) Exemption. Paragraph (a) does not apply to a Christmas tree grower who sells or distributes Christmas trees only at retail and whose total Christmas tree sales in this state during the license year do not exceed $250.
(3m) Notice of new locations.
(a) The holder of a nursery dealer license shall notify the department in writing before adding, during a license year, any new location at which the license holder will hold nursery stock for sale. The license holder shall specify the address of the new location in the notice.
(b) The holder of a nursery grower license shall notify the department in writing before adding, during the license year, any new location at which the license holder will operate a nursery or hold nursery stock for sale. The license holder shall specify the address of the new location in the notice.
(c) The holder of a Christmas tree grower license shall notify the department in writing before adding, during the license year, any new location at which the license holder will grow evergreen trees for eventual sale as Christmas trees or hold Christmas trees for sale.
(4) Records.
(a) Nursery stock received. Each nursery dealer, nursery grower, and Christmas tree grower shall keep a record of every shipment of nursery stock received by the nursery dealer, nursery grower, or Christmas tree grower. The nursery dealer, nursery grower, or Christmas tree grower shall include all of the following in the record:
1. A description of the types of nursery stock, and the quantity of nursery stock of each type, included in the shipment.
2. The name and address of the source of the shipment.
(b) Nursery stock shipped. Each nursery grower and nursery dealer shall keep a record of every shipment of nursery stock that the nursery grower or nursery dealer sells or distributes to another nursery grower, nursery dealer, or Christmas tree grower. The nursery grower or nursery dealer shall include all of the following in the record:
1. A description of the types of nursery stock, and the quantity of nursery stock of each type, included in the shipment.
2. The name and address of the nursery grower, nursery dealer, or Christmas tree grower receiving the shipment.
(c) Records retained and made available. A person who is required to keep records under par. (a) or (b) shall retain those records for at least 3 years and shall make those records available for inspection and copying by the department upon request.
(5) Labeling nursery stock.
(a) Nursery stock shipped to grower or dealer. No person may sell or distribute any shipment of nursery stock to a nursery grower or nursery dealer, and no nursery grower or nursery dealer may accept a shipment of nursery stock, unless that shipment is labeled with all of the following:
1. The name and address of the person selling or distributing the shipment to the nursery grower or nursery dealer.
2. A certification, by the person under subd. 1., that all of the nursery stock included in the shipment is from officially inspected sources.
(b) Unlabeled shipments. Each nursery grower, nursery dealer, and Christmas tree grower shall promptly report to the department any shipment of nursery stock tendered to the nursery grower, nursery dealer, or Christmas tree grower that is not fully labeled according to par. (a).
(c) Nursery stock sold at retail. A person selling nursery stock at retail shall ensure that the nursery stock is labeled with the common or botanical name of the nursery stock.
(6) Care of nursery stock.
(a) Adequate facilities. A nursery grower or nursery dealer shall maintain facilities that are reasonably adequate for the care and keeping of nursery stock held for sale, so that the nursery grower or nursery dealer can keep the nursery stock in healthy condition pending sale.
(b) Reasonable examinations. Nursery growers and nursery dealers shall make reasonable examinations of nursery stock held for sale to determine whether that nursery stock is capable of reasonable growth, is infested with injurious pests or is infected with disease.
(7) Prohibitions.
(a) Nursery dealers. No nursery dealer may misrepresent that the nursery dealer is a nursery grower.
(b) Nursery growers and dealers. No nursery grower or nursery dealer may do any of the following:
1. Sell, offer to sell or distribute any nursery stock that the nursery grower or nursery dealer knows, or has reason to know, is infested with plant pests or infected with plant diseases that may be spread by the sale or distribution of that nursery stock.
1m. Obtain, hold, sell, offer to sell or distribute nursery stock from any source other than an officially inspected source.
2. Sell, offer to sell or distribute any nursery stock that the nursery grower or nursery dealer knows, or has reason to know, will not survive or grow.
3. Misrepresent the name, origin, grade, variety, quality, or hardiness of any nursery stock or make any other false or misleading representation in the advertising or sale of nursery stock.
4. Conceal nursery stock to avoid inspection by the department, falsify any record required under this section or make any false or misleading statement to the department.
(c) Christmas tree grower. No Christmas tree grower may obtain nursery stock from any source other than an officially inspected source.
(8) Department inspection. The department may inspect nurseries and premises at which nursery stock is held for sale or distribution. The department may inspect premises at which evergreen trees are grown for eventual sale as Christmas trees and premises at which Christmas trees are held for sale or distribution.
(9) Department orders.
(a) Holding orders and remedial orders. An authorized employee or agent of the department may, by written notice, order a nursery grower or nursery dealer to do any of the following:
1. Temporarily hold nursery stock pending inspection by the department.
2. Remedy violations of this section.
3. Refrain from importing weeds or pests that threaten agricultural production or the environment in this state.
4. Permanently withhold nursery stock from sale or distribution, if the sale or distribution would violate this section or an order issued under this section and the violation cannot be adequately remedied in another manner.
5. Destroy or return, without compensation from the department, nursery stock that is sold or distributed in violation of this section, or an order issued under this section, if the violation cannot be adequately remedied in another manner.
(b) Hearing. If the recipient of an order under par. (a) requests a hearing on that order, the department shall hold an informal hearing within 10 days unless the recipient of the order consents to a later date for an informal hearing. The request for a hearing is not a request under s. 227.42 (1). If a contested matter is not resolved at the informal hearing, the recipient of the order is entitled to a class 2 contested case hearing under ch. 227. The department is not required to stay an order under par. (a) pending the outcome of any hearing under this paragraph.
(10) Reciprocal agreements with other states.
(a) General. The department may enter into reciprocal agreements with other states to facilitate interstate shipments of nursery stock.
(b) Officially inspected sources. As part of an agreement under par. (a), the department may recognize sources of nursery stock in another state as officially inspected sources.
(c) Inspection and certification standards. An agreement under par. (a) may specify standards and procedures for all of the following:
1. Inspecting officially inspected sources of nursery stock.
2. Inspecting and certifying interstate shipments of nursery stock.
History: 1975 c. 394 ss. 20, 22; 1975 c. 421; Stats. 1975 s. 94.10; 1983 a. 189; 1989 a. 31; 1993 a. 16; 1995 a. 27; 1999 a. 9; 2007 a. 62; 2011 a. 209; 2015 a. 197 s. 51.