H. B. 2797
(By Delegates Faircloth, H. White and Rowe)
[Introduced March 31, 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, relating to unlawful
disposal of litter, by authorizing a law-enforcement officer
to give a perpetrator twenty-four hours to clean up the
litter in lieu of issuing a citation.
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 to read as follows:
ARTICLE 7. LAW ENFORCEMENT, PROCEDURES AND PENALTIES;
MOTORBOATING; WEST VIRGINIA LITTER CONTROL
PROGRAM.
§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 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 a
place as may be that is set aside for such that 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 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, 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 the person shallbe fined not less than two hundred fifty dollars nor more than
one thousand dollars and imprisoned in the county jail not less
than twenty-four hours nor more than six months: 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, 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 any fine or
incarceration, but not both. For purposes of this subdivision,
the term "court" shall includes circuit and magistrate courts.
(3) Upon such any 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 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, the court may
sentence the defendant to pick up and remove from any publichighway, 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 any fine or
incarceration, but not both. For purposes of this subdivision,
the term "court" shall includes 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 the 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
is subject at the discretion of the court to up to twice theoriginal penalty provisions available to the court at the time of
conviction.
(6) If any litter be is thrown or cast from a motor vehicle
or boat, such that 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 is dumped or discharged from
a motor vehicle or boat, such that action is prima facie evidence
that the owner and driver of such the 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 shall be is 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 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 five hundred dollars as costs for clean-up, investigationand prosecution in such the case, in addition to any other court
costs that the court is otherwise required by law to impose upon
such a 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 appropriatesigns 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 a day of such for the violation.
(f) No portion of this section shall may 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 observes
a person violating the provisions of this section shall have has
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 violationsof this section occurring upon the highways of the state as the
term "highways" is defined in chapter seventeen of this code.
(h) Notwithstanding any other provisions to the contrary, if
any writing or other object is found in any illegally deposited
litter which identifies the person who deposited or owned the
litter, a law-enforcement officer may give the person so
identified twenty-four hours to remove such litter in lieu of
issuing a citation.
NOTE: This bill provides that a law-enforcement officer may
give a violator of this section twenty-four hours to clean up the
litter in lieu of giving a citation.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.