H. B. 2460
(By Delegates Butcher, Coleman and Dempsey)
[Introduced February 22, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections twenty-six and twenty-eight,
article seven, chapter twenty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, all
relating to the crime of littering; increasing fines;
increasing civil penalties for litter conviction; and
mandatory trash pickup upon conviction of littering.
Be it enacted by the Legislature of West Virginia:
That sections twenty-six and twenty-eight, article seven,
chapter twenty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-26. Unlawful disposal of litter; civil and criminal penalty; litter control fund; evidence; notice
violations; litter receptacle placement; penalty;
duty to enforce violations.
(a) (1) Any person who places, deposits, dumps or throws or
causes to be placed, deposited, dumped or thrown any litter as
defined in section twenty-four of this article, in or upon any
public or private highway, road, street or alley, or upon any
private property without the consent of the owner, or in or upon
any public park or other public property other than in such place
as may be set aside for such purpose by the governing body having
charge thereof, is guilty of a misdemeanor and, upon his or her
first conviction, shall be fined not less than
fifty one hundred
dollars nor more than
five hundred one thousand dollars:
Provided, That a person
shall may not be held responsible for the
actions of animals under their direct control.
At the request of
the defendant or in the discretion of the court In addition to
the fine imposed, the court
may shall sentence the defendant to
pick up and remove from any public highway, road, street, alley
or any other public park or public property as designated by the
court, any and all litter, garbage, refuse, trash, cans, bottles,
papers, ashes, carcass of any dead animal or any part thereof,
offal or any other offensive or unsightly matter placed, deposited, dumped or thrown contrary to the provisions of this
section by anyone.
prior to the date of such conviction For the
first offense, the
alternative sentence of litter pickup
shall be
is not less than eight hours nor more than sixteen hours.
in
lieu of a fine For purposes of this subdivision, the term
"court" includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be
fined not less than
two hundred fifty five hundred dollars nor
more than
one two thousand dollars:
Provided, That a person
shall may not be held responsible for the actions of animals
under their direct control.
At the request of the defendant or
in the discretion of the court In addition to the fine imposed,
the court
may shall sentence the defendant to pick up and remove
from any public highway, road, street, alley or any other public
park or public property as designated by the court, any and all
litter, garbage, refuse, trash, cans, bottles, papers, ashes,
carcass of any dead animal or any part thereof, offal or any
other offensive or unsightly matter placed, deposited, dumped or
thrown contrary to the provisions of this section by anyone.
prior to the date of such conviction For the second offense, the
alternative sentence of litter pickup
shall be is not less than sixteen hours nor more than thirty-two hours.
in lieu of a fine
For purposes of this subdivision, the term "court" shall include
circuit,
and magistrate
and municipal courts.
(3) Upon such person's third and successive conviction, he
or she shall be fined not less than
five hundred one thousand
dollars nor more than
two five thousand dollars and confined in
the county or regional jail not less than forty-eight hours nor
more than one year:
Provided, That a person
shall may not be
held responsible for the actions of animals under their direct
control.
At the request of the defendant or in the discretion of
the court In addition to the fine and jail sentence imposed, the
court
may shall sentence the defendant to pick up and remove from
any public highway, road, street, alley or any other public park
or public property as designated by the court, any and all
litter, garbage, refuse, trash, cans, bottles, papers, ashes,
carcass of any dead animal or any part thereof, offal or any
other offensive or unsightly matter placed, deposited, dumped or
thrown contrary to the provisions of this section by anyone.
prior to the date of such conviction Upon a third conviction,
the
alternative sentence of litter pickup
shall be is not less
than thirty-two hours nor more than sixty-four hours.
in lieu of such fine or incarceration, but not both For purposes of this
subdivision, the term "court" includes circuit and magistrate
courts.
(4) The
alternative sentence of litter pickup herein set
forth shall be verified by the conservation officers from the
division of natural resources or environmental inspectors from
the division of environmental protection or a regional
engineering technician from the division of environmental
protection pollution prevention and open dumps program (PPOD) of
the county in which the offense occurred. Any defendant
receiving the
herein specified alternative sentence
of litter
pickup shall provide within a time to be set by the court written
acknowledgment from said conservation officers or environmental
officers that the sentence has been completed.
(5) Any person who has been found by the court to have
willfully failed to comply with the terms of
an alternative a
litter pickup sentence imposed by the court pursuant to this
section is subject at the discretion of the court to up to twice
the original penalty provisions available to the court at the
time of conviction.
(6) If any litter is thrown or cast from a motor vehicle or boat, such action is prima facie evidence that the driver of such
motor vehicle or boat intended to violate the provisions of this
section. If any litter is dumped or discharged from a motor
vehicle or boat, such action is prima facie evidence that the
owner and driver of such motor vehicle or boat intended to
violate the provisions of this section.
(b) Any litter found on any public or private property with
any indication of ownership on it
will be is evidence creating a
rebuttable inference it was deposited improperly by the person
whose identity is indicated, and any person who improperly
disposes of litter is subject to either a civil
fine penalty of
up to
five hundred one thousand dollars for such litter or
required to pay the costs of removal of such litter if the
removal of such litter is required to be done by the division, at
the discretion of the director. All
such fines and costs civil
penalties assessed pursuant to this subsection shall be deposited
to the litter control fund:
Provided, That no inference
shall
may be drawn solely from the presence of any logo, trademark,
trade name or other similar mass reproduced identifying character
appearing on litter found.
(c) Every person who is convicted of or pleads guilty to disposing of litter in violation of subsection (a) of this
section shall pay
the sum of not less than fifty dollars nor more
than a civil penalty of five hundred dollars as costs for
clean-up, investigation and prosecution in such case, in addition
to any other court costs that the court is otherwise required by
law to impose upon such convicted person.
The clerk of the circuit court, magistrate court or
municipal court wherein such additional
costs are civil penalties
are imposed shall, on or before the last day of each month,
transmit all
such costs received under this subsection civil
penalties assessed pursuant to this subsection to the state
treasurer for deposit in the state treasury to the credit of a
special revenue fund to be known as the litter control fund which
is hereby continued. Expenditures for purposes set forth in this
section are not authorized from collections but are to be made
only in accordance with appropriation and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions set forth in article two, chapter
five-a of this code.
Provided, That for the fiscal year ending
the thirtieth day of June, one thousand nine hundred
ninety-three, expenditures shall be authorized from collections Amounts collected which are found from time to time to exceed the
funds needed for the purposes set forth in this article may be
transferred to other accounts or funds and redesignated for other
purposes by appropriation of the Legislature.
(d) (1) The commissioner of the division of motor vehicles,
upon registering a motor vehicle or issuing an operator's or
chauffeur's license, shall issue to the owner or licensee, as the
case may be, a
copy summary of subsection (a) of this section,
which shall include the elements of first, second and third
offense littering and the possible penalties.
(2) The commissioner of the division of highways shall
cause appropriate signs to be placed at the state boundary on
each primary and secondary road, and at other locations
throughout the state, informing those entering the state of the
maximum penalty provided for disposing of litter in violation of
subsection (a) of this section.
(e) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be
designated by the director by rule promulgated pursuant to
subdivision (8), subsection (a), section twenty-five of this
article, shall procure and place litter receptacles at its own expense upon its premises and shall remove and dispose of litter
collected in such litter receptacles. After receiving two
written warnings from any law-enforcement officer or officers to
comply with this subsection or the said rules of the director,
any person who fails to place and maintain such litter
receptacles upon his or her premises in violation of this
subsection or the rules of the director shall be fined fifteen
dollars per day of such violation.
(f) No portion of this section
shall may be construed to
restrict a private owner in the use of the owner's own private
property in any manner otherwise authorized by law.
(g) Any law-enforcement officer who
shall observe observes
a person violating the provisions of this section
has a mandatory
duty to shall arrest or otherwise prosecute the violator to the
limits provided herein. The West Virginia division of highways
shall investigate and cause to be prosecuted violations of this
section occurring upon the highways of the state as the term
"highways" is defined in chapter seventeen of this code.
§20-7-28. Litter along streams, criminal penalties,
enforcement.
(a) It is unlawful to place, deposit, dump or throw, or
cause to be placed, deposited, dumped or thrown, any litter as defined in section twenty-four of this article and also any
garbage, refuse, trash, can, bottle, paper, ashes, carcass of any
dead animal or any part thereof, offal or any other offensive or
unsightly matter into any river, stream, creek, branch, brook,
lake or pond, or upon the surface of any land within one hundred
yards thereof, or in such location that high water or normal
drainage conditions will cause any such materials or substances
to be washed into any river, stream, creek, branch, brook, lake
or pond.
(b) No portion of this section restricts an owner, renter
or lessee in the use of his or her own private property or rented
or leased property or to prohibit the disposal of any industrial
and other wastes into waters of this state in a manner consistent
with the provisions of article eleven, chapter twenty-two of this
code. But if any owner, renter or lessee, private or otherwise,
knowingly permits any such materials or substances to be placed,
deposited, dumped or thrown in such location that high water or
normal drainage conditions will cause any such materials or
substances to wash into any river, stream, creek, branch, brook,
lake or pond, it is prima facie evidence that such owner, renter
or lessee intended to violate the provisions of this section: Provided, That if a landowner, renter or lessee, private or
otherwise, reports any such placing, depositing, dumping or
throwing of any such substances or materials upon his or her
property to the prosecuting attorney, county commission, or the
division of natural resources or the division of environmental
protection, then the landowner, renter or lessee will be presumed
to not have knowingly permitted such placing, depositing, dumping
or throwing of such materials or substances.
(c) In addition to enforcement by the director, the
director of the division of environmental protection, the chief
of the office of water resources of the division of environmental
protection, and the division of natural resources' chief
law-enforcement officer, the provisions of this section may be
enforced by all other proper law-enforcement agencies.
(d) (1) Any person violating any provision of this section
is guilty of a misdemeanor and, upon his or her first conviction,
shall be fined not less than
fifty one hundred dollars nor more
than
five hundred one thousand dollars.
At the request of the
defendant or in the discretion of the court In addition to the
fine imposed, the court
may shall sentence the defendant to pick
up and remove from any area of a bank of any river, stream, creek, branch, brook, lake or pond, or other property with prior
permission of the owner, the area to be specified by the court,
any and all litter, garbage, refuse, trash, cans, bottles,
papers, ashes, carcass of any dead animal or any part thereof,
offal or any other offensive or unsightly matter placed,
deposited, dumped or thrown contrary to the provisions of this
section by anyone.
prior to the date of such conviction For the
first offense, the
alternative sentence of litter pickup
shall be
is not less than eight hours nor more than sixteen hours.
in
lieu of a fine For purposes of this subdivision, the term
"court" includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be
fined not less than
two hundred fifty five hundred dollars nor
more than
one two thousand dollars.
and imprisoned in the county
jail not less than twenty-four hours nor more than six months.
At the request of the defendant or in the discretion of the court
In addition to the fine imposed, the court
may shall sentence the
defendant to pick up and remove from any area of a bank of any
river, stream, creek, branch, brook, lake or pond, or other
property with prior permission of the owner, the area to be
specified by the court, any and all litter, garbage, refuse, trash, cans, bottles, papers, ashes, carcass of any dead animal
or any part thereof, offal or any other offensive or unsightly
matter placed, deposited, dumped or thrown contrary to the
provisions of this section by anyone.
prior to the date of such
conviction For the second offense, the
alternative sentence of
litter pickup
shall be is not less than sixteen hours nor more
than thirty-two hours.
in lieu of such fine or incarceration,
but not both For purposes of this subdivision, the term "court"
includes circuit,
and magistrate
and municipal courts.
(3) Upon such person's third and successive conviction, he
or she shall be fined not less than
five hundred one thousand
dollars nor more than
two five thousand dollars and confined in
the county or regional jail not less than forty-eight hours nor
more than one year.
At the request of the defendant or in the
discretion of the court In addition to the fine and jail
sentence imposed, the court
may shall sentence the defendant to
pick up and remove from any area of a bank of any river, stream,
creek, branch, brook, lake or pond, or other property with prior
permission of the owner, the area to be specified by the court,
any and all litter, garbage, refuse, trash, cans, bottles,
papers, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter placed,
deposited, dumped or thrown contrary to the provisions of this
section by anyone.
prior to the date of such conviction Upon a
third conviction the
alternative sentence of litter pickup
shall
be is not less than thirty-two hours nor more than sixty-four
hours.
in lieu of such fine or incarceration, but not both For
purposes of this subdivision, the term "court" includes circuit
and magistrate courts.
(4) The
alternative sentence of litter pickup herein set
forth shall be verified by division of natural resources
conservation officers or by environmental inspectors from the
division of environmental protection or a regional engineering
technician from the pollution prevention and open dumps program
(PPOD) of the division of environmental protection, of the county
in which the offense occurred. Any defendant receiving the
herein specified alternative sentence of litter pickup shall
provide within a time to be set by the court written
acknowledgement acknowledgment from said conservation officers or
environmental officers that the sentence has been completed.
(5) Any person who has been found by the court to have
willfully failed to comply with the terms of
an alternative a litter pickup sentence imposed by the court pursuant to this
section is subject at the discretion of the court to up to twice
the original penalty provisions available to the court at the
time of conviction.
NOTE: The purpose of this bill is to strengthen the
penalties for the offense of littering.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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