H. B. 4680
(By Delegate Tomblin and Dempsey)
[Introduced February 27, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend chapter sixty-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article ten, relating to
"The Cost of Doing Illegal Drug Business in West Virginia
Act"; short title; findings and declarations; creation of
drug motel and hotel facilities; drug motel and hotel
facility option for convicted drug dealers; Legislature to
appropriate funds for construction of facilities; court to
offer option; physical requirements of facility; requirement
of showing proof of financial worth; allowing offender to
serve portion of sentence at motel or hotel facility;
toll-free hotline to identify drug dealers; tax to be
imposed for drug dealing; equitable remedies in aid of
eradication of drug dealing in certain places; definitions;
nuisance defined as place where illegal activity occurs involving illegal dissemination of controlled substances;
imposition of tax; and, proceeds from tax to be distributed
to local law-enforcement agencies and state police.
Be it enacted by the Legislature of West Virginia:
That chapter sixty-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article ten, to read as
follows:
ARTICLE 10. THE COST OF DOING ILLEGAL DRUG BUSINESS IN WEST
VIRGINIA ACT.
§60A-10-1. Short title.
This act shall be known as "The Cost of Doing Illegal Drug
Business In West Virginia Act."
§60A-10-2. Findings and declarations.
The Legislature hereby finds and declares as follows:
(a) Drug dealing is an illegal profession in which vast
amounts of money are reaped by participants, making the illegal
activity vastly attractive and seductive to persons with
questionable character and scruples.
(b) Drug dealers presently enjoy more rights than persons in
legitimate businesses as the result of their clandestine
activities which are conducted in total avoidance of the red tape
and taxes imposed on legitimate businesses by governmental
agencies.
(c) There is a compelling state interest in adopting and
implementing innovative methods to tap into the vast supply of
money existing as the result of illegal drug dealing, in view of
the failure of existing laws providing for criminal and civil
fines and forfeitures to fully tap into the vast money and assets
that exist as the result of illegal drug dealing.
(d) Since drug dealers and their cronies are proficient at
hiding the illegally gained wealth they have accrued through the
heinous enterprise of drug dealing and since the current criminal
penalties are designed in such a way that the drug dealers and
their cronies receive an incentive to hide their illegally
gotten wealth, new methods for innovative sentencing and penalty
imposition need to be adopted and implemented. New incentives
need to be created that are designed to cause drug dealers to pay
large sums of their ill-gotten wealth to the state coffers as
opposed to lining the pockets of lawyers, as the current approach
to prosecuting drug dealing encourages.
§60A-10-3. Drug motel and hotel facility option for convicted
drug dealers; court to offer option; physical requirements of facility; requirement of showing proof of financial worth; allowing offender to serve portion of sentence at motel or hotel
facility.
(a) Upon any felony conviction for any offense involving a violation of any provision under this chapter involving any
controlled substance or substances in which the offender is
sentenced to a term in a regional jail or correctional facility,
the sentencing court shall provide an option to the offender, in
lieu of serving in such jail or correctional facility, of serving
in a secure facility designed in substantial part to offer
similar amenities as a motel or hotel, except that such facility
shall be surrounded by a fence or other barrier that is secure
and, that is a minimum of fifteen feet high, which shall be
manned by armed guards. The armed guards, in combination, shall
have vantage points allowing surveillance of all areas between
the physical facility and the fence or other barrier: Provided,
That the Legislature shall appropriate funds to construct and
maintain the facilities as provided for in this article:
Provided, however, That no maid service shall be offered, and
each inmate will be responsible for vacuuming, mopping or
otherwise cleaning his or her living quarters: Provided,
however, That the facility shall provide a cafeteria, recreation
facility, including a sauna, whirlpool bath to accommodate no
less than eight persons at one time, pool table or tables,
shuffle board courts and other recreational activities, to be
designated by the commissioner of corrections. The facility
shall contain rooms similar in design and size as the average
motel or hotel, moderately priced. Each room shall contain a bathroom, with a fully functional toilet and combination bath
shower and a sink. The bathroom shall be separate from the
primary living quarters of such room and shall have a door that
may be shut for privacy. Each room shall additionally have a
vanity dresser, two twin beds, telephone and a television and
television stand. The television shall offer, at a minimum,
cable television: Provided, That the commissioner of corrections
shall set a daily fee schedule that shall be imposed for the cost
of each room. He or she shall also set a fee schedule for the
singular provision of each item of recreation and the cost of any
telephone or cable television program or programs that are
provided. The fees so imposed shall be at a minimum, three times
the cost as the cost for which the particular service is being
provided by the commissioner: Provided, however, That in no
event may the imposition of any fee be more than five times the
actual cost involved in providing the service or item.
(b) In the event any convicted offender indicates a desire
to exercise the option provided for under subsection (a) of this
section, the court shall require proof of financial ability to
meet projected costs of incarceration at the hotel or motel
facility. Such proof shall be on a form to be prescribed by the
commissioner of corrections which shall require verified and
certified statements from any financial institution concerning
the holdings of any such offender for whom the financial institution is acting as a depository of moneys, things of value
or other assets. In the alternative, any third party may render
good and sufficient bond or surety sufficient to meet the
projected costs of incarceration of the offender at the secured
facility provided for herein: Provided, That the commissioner
may accommodate an offender who is unable to fully demonstrate
adequate financial solvency or net worth to justify the costs of
incarceration for an entire period for which sentence has been
imposed by providing for the incarceration of the inmate for a
portion of the sentence. In the event the offender is able to
demonstrate financial ability for less than the full period of
the imposed sentence, he or she shall be allowed to designate the
exact portion of the sentence he or she desires to serve at the
secure hotel or motel facility. Any fees imposed for the
provision of cable television, telephone, or use of recreational
facilities shall be collected in cash on the premises of the
facility before the cable television, telephone, or recreational
facility is used. Payment for room and board shall be prepaid on
an annual basis. In the event any offender elects to serve only
a portion of his or her actual sentence in a hotel or motel
facility, or otherwise becomes financially unable to continue to
serve his or her sentence in such facility, he or she shall be
removed to a secure regional jail or correctional facility to
serve the remainder of his or her sentence.
(c) The commissioner shall, additionally, devise a buy out
option which shall be available to any applicable offender after
the offender has served, at a minimum, one quarter of the actual
period of incarceration to which he or she was sentenced. The
buy-out option shall afford the offender the option of paying a
sum, three and one-half times greater than the entire cost of
incarceration remaining and which he or she would otherwise be
required to serve, as projected by the commissioner pursuant to
his or her duty to do so in determining the eligibility of an
offender to exercise the option provided for under this section.
In the event the offender exercises the option to buy out his or
her sentence but later is reincarcerated as the result of a
violation of parole, he or she shall be reincarcerated under the
remainder of the original sentence, and shall forfeit any amount
previously paid as a buy-out to the commissioner.
§60A-10-4. Toll-free hotline to identify drug dealers.
The commissioner of corrections is hereby directed to set up
a toll-free hotline which shall be available to receive calls
from the general public in order to receive information about
illegal activity involving the dissemination of controlled
substances. The toll-free hotline shall be an eight hundred
number which shall be printed prominently on the inside jacket of
each telephone directory disseminated in this state, beginning
with the printed directory which is published in one thousand nine hundred ninety-nine. The commissioner shall allow any
caller to remain anonymous, but shall propose legislative rules
designed to implement rewards and incentives for callers to
identify themselves. Any reward offered to a caller shall be
contingent upon the conviction of an identified drug dealer and
upon the monetary income derived by the apprehension and
conviction of the offender.
§60A-10-5. Tax to be imposed for drug dealing; equitable
remedies in aid of eradication of drug dealing in certain places.
(a) Definitions. -- For the purposes of this article the
terms "place," "person," "nuisance" are defined as follows:
"Place" includes any building, structure, erection or place, or
any separate part or portion thereof, or the ground itself;
"person" shall include any individual, corporation, association,
partnership, trustee, lessee, agent or assignee; "nuisance" shall
mean any place as above defined in or upon which the illegal sale
of controlled substances is conducted, permitted, continued or
exists, and the personal property and contents used in conducting
or maintaining any such place for any such purpose.
(b) Notice to collect tax. -- When a nuisance has been
found to exist by a court of competent jurisdiction, a tax equal
to thirty-one percent of the value of the sales of any controlled
substances, if ascertainable, shall be imposed against the person served or appearing and against the applicable property as set
forth herein. In the event the value of the sales is not
ascertainable but contraband in the form of controlled substances
intended for illegal sale are seized on the premises, the
commissioner of corrections shall, with the assistance of any
drug enforcement agency, ascertain the wholesale value of such
contraband, and a tax of thirty-one percent of the full wholesale
value as ascertained by the commissioner shall be imposed. But
no such tax shall be certified to the assessor or enforced
against the property, unless the record owner has appeared in the
proceeding or has been served with the summons or other notice of
the nature of the proceedings, and the provisions of existing
laws regarding the service of process shall be applied to service
in proceedings under this article. The person in whose name the
real estate affected by the action exists on the land books of
the county for purposes of taxation is presumed to be the owner
of the property, and in case of unknown persons having or
claiming any ownership, right, title, or interest in property
affected by the action, the unknown persons may be made parties
to the action by designating them in the summons and complaint as
"all other persons unknown claiming any ownership, right, title,
or interest in the property affected by the action," and service
on them is perfected by publishing the summons in the same manner
prescribed by law.
(c) Distributions of tax proceeds. -- Any moneys or other
things of value collected under the provisions of this section
shall be evenly distributed between local law-enforcement
agencies in the county in which the illegal dissemination of
controlled substances occurred and the state police. The
proceeds shall be used exclusively to hire additional law- enforcement officers or to increase salaries or employment
benefits of existing police officers.
NOTE: The purpose of this bill is to create the "The Cost
of Doing Illegal Drug Business in West Virginia Act of 1998."
The proposed legislation contains and provides for the following:
A short title; findings and declarations; creation of drug motel
and hotel facilities; drug motel and hotel facility option for
convicted drug dealers; court to offer option; Legislature to
appropriate funds for constructions of facilities; physical
requirements of facility; requirement of showing proof of
financial worth; allowing offender to serve portion of sentence
at motel or hotel facility; toll-free hotline to identify drug
dealers; tax to be imposed for drug dealing; equitable remedies
in aid of eradication of drug dealing in certain places;
definitions; nuisance defined as place where illegal activity
occurs involving illegal dissemination of controlled substances;
imposition of tax; and, proceeds from tax to be distributed to
local law-enforcement agencies and state police.
This article is new; therefore, strike-throughs and
underscoring have been omitted.