COMMITTEE SUBSTITUTE

FOR

H. B. 4622

(By Delegates Linch, Warner and Cann)


(Originating in the Committee on the Judiciary)


[March 5, 1998]


A BILL to amend article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section four-a; and to amend article twelve, chapter eight of said code by adding thereto a new section, designated section five-c, all relating to authorizing county commissions and municipalities to enact ordinances prohibiting disturbances of the peace; authorizing county commissions and municipalities to make commission of such disturbances a misdemeanor; and providing penalties therefor.

Be it enacted by the Legislature of West Virginia:
That article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section four-a; and that article twelve, chapter eight of said code be amended by adding thereto a new section, designated section five-c, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-4a. County commission authority to enact ordinance; ordinance provisions; defining terms; restricting disturbances of the peace; and establishing penalties for violations.

(a) In addition to all other powers which county commissions now possess by law, county commissions may adopt the ordinance provided in subsection (b) of this section.
(b) The ordinance which county commissions may adopt pursuant to the power granted them under subsection (a) of this section shall be as follows:
"Section 1. Definitions.
For purposes of this ordinance:
(1) "Disturbance of the peace" means the commission of any act or series of acts in such a manner as to unreasonably disturb or alarm the public, including but not limited to any malicious and willful disturbance of the peace, quiet or dignity of any neighborhood, family or person, by:
(A) Causing loud or unusual noise intended to cause annoyance or alarm to another person;
(B) Engaging in tumultuous or offensive conduct, including unnecessarily loud, offensive or insulting language;
(C) Threatening, quarreling, challenging to fight or fighting;
(D) Interrupting any lawful assembly of people;
(E) Maintaining a commercial establishment which is contrary to the peace, quiet or dignity of a neighborhood, family or person: Provided, That if the complainant resides in a residential area and is complaining of a violation of this paragraph (E) by a commercial establishment located in such residential area which was initially established prior to the development of residential housing in such residential area, the commercial establishment shall not be deemed to violate this paragraph (E); or
(F) Maintaining farm animals or domesticated pets in such a way as to constitute a disturbance of the peace or quiet of a neighborhood, family or person.
(2) "Person" means any individual, partnership, firm, association, corporation or other legal entity.
Section 2. Injunctive relief.
The circuit court shall have jurisdiction to issue an injunction to enforce the purposes of this ordinance upon petition by the prosecuting attorney or any citizen of the county who can show a good faith and valid reason for making such application. No bond shall be required unless for good cause shown.
Section 3. Activities prohibited; penalties.
Any person who causes a disturbance of the peace and who persists in the disturbance of the peace after being requested to desist by a law-enforcement officer acting in his or her lawful capacity is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five hundred dollars. A person convicted of a second or subsequent offense under this ordinance is guilty of a misdemeanor, and, upon conviction thereof, shall be (i) fined not more than one thousand dollars; (ii)imprisoned in the county jail not more than six months or, in lieu of such term of imprisonment, sentenced to a like term of community service pursuant to the provisions of subdivision (3), subsection (a), section one-a, article eleven-a, chapter sixty- two of this code; or (iii) both (A) fined and (B) either imprisoned or sentenced to community service.
Section 4. Prosecution by presentment or indictment.
No person may be prosecuted for an offense under this ordinance except by indictment or information.
Section 5. Employees acting within scope of employment shall not be prosecuted.
No employee shall be guilty of a violation of this ordinance when such employee is acting within the scope of his regular employment, unless such employee has a proprietary interest in the conduct which is found to constitute a disturbance of the peace or is a shareholder, partner, officer or member of a business entity which has a proprietary interest in the conduct which is found to constitute a disturbance of the peace.
Section 6. Exceptions.
Nothing in this ordinance shall be construed so as to apply to any person exercising a right secured by the constitution or laws of this state or of these United States."
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.
§8-12-5c. Municipal authority to enact ordinance; ordinance provisions; defining terms; restricting disturbances of the peace; and establishing penalties for violations.

(a) Notwithstanding the provisions of section one, article eleven of this chapter, in addition to all other powers which municipalities now possess by law, every municipality may adopt the ordinance provided in subsection (b) of this section.
(b) The ordinance which municipalities may adopt pursuant to the power granted them under subsection (a) of this section shall be as follows:
"Section 1. Definitions.
For purposes of this ordinance:
(1) "Disturbance of the peace" means the commission of any act or series of acts in such a manner as to unreasonably disturb or alarm the public, including but not limited to any malicious and willful disturbance of the peace, quiet or dignity of any neighborhood, family or person, by:
(A) Causing loud or unusual noise intended to cause annoyance or alarm to another person;
(B) Engaging in tumultuous or offensive conduct, including unnecessarily loud, offensive or insulting language;
(C) Threatening, quarreling, challenging to fight or fighting;
(D) Interrupting any lawful assembly of people;
(E) Maintaining a commercial establishment which is contrary to the peace, quiet or dignity of a neighborhood, family or person: Provided, That if the complainant resides in a residential area and is complaining of a violation of this paragraph (E) by a commercial establishment located in such residential area which was initially established prior to the development of residential housing in such residential area, the commercial establishment shall not be deemed to violate this paragraph (E); or
(F) Maintaining farm animals or domesticated pets in such a way as to constitute a disturbance of the peace or quiet of a neighborhood, family or person.
(2) "Person" means any individual, partnership, firm, association, corporation or other legal entity.
Section 2. Injunctive relief.
The circuit court shall have jurisdiction to issue an injunction to enforce the purposes of this ordinance upon petition by the attorney for the municipality or a representative thereof or any citizen of the municipality who can show a good faith and valid reason for making such application. No bond shall be required unless for good cause shown.
Section 3. Activities prohibited; penalties.
Any person who causes a disturbance of the peace and who persists in the disturbance of the peace after being requested to desist by a law-enforcement officer acting in his or her lawful capacity is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five hundred dollars. A person convicted of a second or subsequent offense under this ordinance is guilty of a misdemeanor, and, upon conviction thereof, shall be (i) fined not more than one thousand dollars; (ii)imprisoned in the county or municipal jail not more than six months or, in lieu of such term of imprisonment, sentenced to a like term of community service pursuant to the provisions of subdivision (3), subsection (a), section one-a, article eleven-a, chapter sixty-two of this code; or (iii) both (A) fined and (B) either imprisoned or sentenced to community service.
Section 4. Employees acting within scope of employment shall not be prosecuted.
No employee shall be guilty of a violation of this ordinance when such employee is acting within the scope of his regular employment, unless such employee has a proprietary interest in the conduct which is found to constitute a disturbance of the peace or is a shareholder, partner, officer or member of a business entity which has a proprietary interest in the conduct which is found to constitute a disturbance of the peace.
Section 5. Exceptions.
Nothing in this ordinance shall be construed so as to apply to any person exercising a right secured by the constitution or laws of this state or of these United States."


NOTE: The purpose of this bill is to authorize county commissions and municipalities to enact ordinances prohibiting disturbances of the peace.

These sections are new; therefore, strike-throughs and underscoring have been omitted.