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.