Senate Bill No. 408
(By Senators Jenkins, Plymale and Beach)
[Introduced January 24, 2012; referred to the Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-59, relating to crimes against property involving graffiti; imposing liability on parent or legal guardian of a person under eighteen for violations; requiring driver’s license restrictions; authorizing a court to require restitution; providing criminal and civil penalties; and authorizing property owners to initiate civil actions to recover damages.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §61-3-59, to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
(a) As used in this section, “graffiti” means any unauthorized inscription, word, figure or design that is marked, etched, scratched, drawn, painted on or affixed to the public or private property, real or personal, of another, which defaces the property. As used in this section, “value of the loss” is determined by the cost of repair, replacement or restoration of the defaced property.
(b) A person who places graffiti on or otherwise defaces the public or private property, real or personal, of another, without the permission of the owner where the value of the loss is less than $500, is guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall be confined in jail not less than twenty-four hours nor more than six months and fined not more than $1,000. For a second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not less than forty-eight hours nor more than six months and fined not more than $2,000. For third and subsequent offenses, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not less than one nor more than three years and fined not more than $10,000.
(c) A person who places graffiti on or otherwise defaces the public or private property, real or personal, of another, without the permission of the owner where the value of the loss is greater than $500, is guilty of a felony and, upon conviction, shall be imprisoned in a correctional facility for not less than one nor more than three years and fined not more than $10,000.
(d) If a person commits more than one offense under this section, pursuant to a scheme or continuing course of conduct, the value of all property damaged or destroyed by that person in the commission of those offenses shall be aggregated for the purpose of determining the penalty prescribed in this section.
(e) The court may, in addition to any other fine or penalty imposed, order a person who violates this section to pay restitution.
(f) A person convicted under any provision in this section shall be sentenced to not more than one hundred hours of court-approved community service. The court may order the person to repair, replace, clean up or keep free of graffiti the property damaged or destroyed by the person or any other public or private property, with approval of the owner, located in the county where the offence occurred.
(g) The parent or legal guardian of a person under eighteen years of age who violates this section is liable for all fines and penalties imposed against the person. If the parent or legal guardian is unable to pay the fine and penalties resulting from a violation of this section because of financial hardship, the court may require the parent or legal guardian to perform community service.
(h) If a person who is eighteen years of age or older is found guilty of violating this section, the court shall, in addition to any other penalty imposed, issue an order suspending the driver's license of the person for not less than six months and not more than two years. The court shall require the person to surrender all driver's licenses then held by the person. If the person does not possess a driver's license, the court shall issue an order prohibiting the person from applying for a driver's license for not less than six months and not more than two years. The court shall, within five days after issuing the order, forward to the Division of Motor Vehicles any licenses together with a copy of the order.
(i) A criminal penalty imposed pursuant to this section is in addition to any civil penalty or other remedy available pursuant to this section or another statute for the same conduct.
(j) The owner of public or private property that has been damaged by graffiti may bring a civil action against the person who placed the graffiti on the property. The court may award to the property owner damages in an amount up to three times the amount of any loss in value to the property or up to three times the cost of restoring the property plus attorney's fees and costs, or both, which may be recovered from the offender or, if the offender is less than eighteen years of age, from the parent or legal guardian of the offender.
NOTE: The purpose of this bill is to provide criminal penalties for the intentional defacement of public and private property due to graffiti and provide a civil remedy for victims.
This section is new; therefore, strike-throughs and underscoring have been omitted.