H. B. 2702
(By Delegates Louisos and Petersen)
[Introduced March 24, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section twenty-six, article seven,
chapter twenty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and
reenact section nine, article nine of said chapter, all
relating to littering.
Be it enacted by the Legislature of West Virginia:
That section twenty-six, article seven, chapter twenty of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; and that section nine,
article nine of said chapter 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
penalties; litter control fund; evidence; notice of
violations; litter receptacle placement; penalties;
duty to enforce violations.
(a) (1) Any person who places, deposits, dumps or throws orcauses 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 dollars nor
more than five hundred dollars:
Provided,
That a person shall
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, the court may 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
not less than eight hours nor more than sixteen hours in lieu of
other such fine. For purposes of this subdivision, the term
"court" shall include circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be
fined not less than two hundred fifty dollars nor more than one
thousand dollars and imprisoned in the county jail not less thantwenty-four hours nor more than six months:
Provided,
That a
person shall 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, the court may 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 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" shall
include circuit and magistrate courts.
(3) Upon such person's third and successive conviction, he
or she shall be fined not less than five hundred dollars nor more
than two thousand dollars and imprisoned in the county jail not
less than forty-eight hours nor more than one year:
Provided,
That a person shall 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, the court may
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 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" shall include circuit and magistrate courts.
(4) The alternative sentence of litter pickup herein set
forth shall be verified by the conservation officers or
environmental inspectors from the division of natural resources,
office of environmental enforcement or a regional engineering
technician from the division of natural resources, 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 acknowledgement 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
sentence imposed by the court pursuant to this section shall be
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 be 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 be 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 evidence creating a
rebuttable inference it was deposited improperly by the person
whose identity is indicated: and any person who improperly
disposes of litter shall be subject to either a civil fine of up
to five hundred 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 shall be deposited to the
litter control fund
Provided,
That no inference shall 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 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 uponsuch convicted person.
The clerk of the circuit court, magistrate court or
municipal court wherein such additional costs are imposed shall,
on or before the last day of each month, transmit all such costs
received under 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 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
of subsection (a) of this section.
(2) The commissioner 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 his own
expense upon his 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 be construed to
restrict a private owner in the use of his own private property
in any manner otherwise authorized by law.
(g) Any law-enforcement officer who shall observe a person
violating the provisions of this section shall have a mandatory
duty to 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.
ARTICLE 9. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§20-9-9. Mandatory disposal; proof required; penalty imposed;
requiring solid waste management board and the public
service commission to file report.
(a) Each person occupying a residence or operating a
business establishment in this state shall either:
(1) Subscribe to and use a solid waste collection service
and pay the fees established therefor; or
(2) Provide proper proof that said person properly disposes
of solid waste at approved solid waste facilities or in any other
lawful manner. The director of the division of natural resources
shall promulgate rules pursuant to chapter twenty-nine-a of this
code regarding an approved method or methods of supplying such
proper proof. A civil penalty of one hundred fifty dollars shall
be assessed to the person not receiving solid waste collection
services in addition to the unpaid fees for every year that a fee
is not paid. Any person found to be in violation of this section
shall be guilty of a misdemeanor and shall be fined not more than
five hundred dollars or imprisoned in the county or regional jail
not more than thirty days or both fined and imprisoned. As an
alternative sentence, the person may be required to pick up
litter on public property or participate in an approved cleanup
program for not less than eight hours nor more than forty hours.
(b) The solid waste management board in consultation and
collaboration with the public service commission shall prepare
and submit, no later than the first day of October, one thousandnine hundred ninety-two, a report concerning the feasibility of
implementing a mandatory fee for the collection and disposal of
solid waste in West Virginia:
Provided,
That such plan shall
consider such factors as affordability, impact on open dumping
and other relevant matters. The report shall be submitted to the
governor, the president of the Senate and the speaker of the
House of Delegates.
(c) The public service commission in consultation and
collaboration with the division of human services shall prepare
and submit, no later than the first day of October, one thousand
nine hundred ninety-two, a report concerning the feasibility of
reducing solid waste collection fees to individuals who directly
pay such fees and who receive public assistance from state or
federal government agencies and are therefore limited in their
ability to afford to pay for solid waste disposal. This report
shall consider the individual's health and income maintenance and
other relevant matters. This report shall also include
recommended procedures for individuals or households to qualify
for and avail themselves of a reduction in fees. This report
shall be submitted to the governor, the president of the Senate
and the speaker of the House of Delegates.
Note: The purpose of this bill is to delete civil penalties
and to provide a misdemeanor penalty for violations of West
Virginia Code §20-9-9.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new languagethat would be added.