SB152 SUB1
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 152

(By Senator Unger, Hunter, Mitchell, Snyder and Redd)

____________

[Originating in the Committee on the Judiciary;

reported February 9, 2000.]

____________


A BILL to repeal section twenty-eight, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty one, as amended; to amend article fourteen, chapter seventeen-c of said code by adding thereto a new section, designated section fourteen; and to amend and reenact sections twenty-four and twenty-six, article seven chapter seven of said code, all relating to the crime of littering; making it a crime to throw litter from a motor vehicle or other conveyance; assessing three points against driver license; creating presumption of responsibility when more than one person is in vehicle; requiring division of motor vehicles promulgate a rule; defining terms; making it a misdemeanor to litter on public or private property or waters of the state; creating fines and community service penalties for certain violations; establishing jail sentence for certain violations; providing that landowners, renters and lessees are not restricted in lawful use of property creating exceptions for permitted industrial discharges; prohibiting litter near waters of the state and providing exception; providing for verification of community service litter cleanup; establishing presumption of intent if litter is thrown from motor vehicle, boat, airplane or other conveyance; providing for enforcement; creating presumption of ownership if identifying information found in litter; creating exemption for logos and trademarks; increasing civil penalties for litter conviction; directing moneys from civil penalties to go to litter control fund and county and regional solid waste authorities; and requiring solid waste authorities expend funds for litter prevention, cleanup and enforcement.

Be it enacted by the Legislature of West Virginia:
That section twenty-eight, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that article fourteen, chapter seventeen-c of said code be amended by adding thereto a new section, designated section fourteen; and that sections twenty- four and twenty-six, article seven, chapter twenty of said code by amended and reenacted, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS, LAWS OF THE ROAD

ARTICLE 14. MISCELLANEOUS RULES
§17C-14-14. Unlawful to litter from motor vehicle; penalty; rulemaking.

(a) It shall be unlawful for any driver or passenger of a motor vehicle or other conveyance to place, deposit, dump, throw or cause to be placed, deposited, dumped or thrown any litter from a motor vehicle or other conveyance in or upon any public or private highway, road, street, alley; any private property; any public property; the waters of the State or within one hundred feet of the waters of this state, except in a proper litter or other solid waste receptacle.
(b) For purposes of this section litter means all waste material including, but not limited to, any garbage, refuse, trash, disposable package, container, can, bottle, paper, ashes, cigarette or cigar butt, carcass of any dead animal or any part thereof, or any other offensive or unsightly matter, but not including the wastes of primary processes of mining, logging, sawmilling, farming or manufacturing.
(c) In addition to any penalty imposed for littering under the provisions of article seven, chapter twenty of this code, any driver, operator or owner of a motor vehicle or other conveyance convicted of violating this section shall have three points assessed against his or her driver's license.
(d) The commissioner shall assess points against the driver's license of any person found guilty of violating this section upon receiving notice from a circuit clerk, magistrate court or municipal court of this state of the conviction. Circuit clerks, magistrate courts and municipal courts of this state have a mandatory duty to promptly notify the commissioner of such convictions.
(e) When there is more than one occupant in a motor vehicle or other conveyance and it can not be determined which occupant is responsible for violating this section, in the absence of the owner, the driver or operator shall be presumed to be responsible for the violation.
(f) The commissioner of the division of motor vehicles shall propose or amend rules for legislative promulgation, in accordance with the provisions of article three, chapter twenty- nine-a of this code, to effecuate the purposes of this section.
CHAPTER 20. NATURAL RESOURCES.

ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-24. Definitions.

As used in sections twenty-five and twenty-six of this article, unless the context requires a different meaning:
 (a) "Collected for commercial purposes" means taking solid waste for disposal from any person for remuneration regardless of whether or not the person taking the solid waste is a common carrier by motor vehicle governed by article two, chapter twenty- four-a of this code.
(b) "Court" means any circuit, magistrate or municipal court.
(c) "Litter" means all waste material including, but not limited to, any garbage, refuse, trash, disposable package, container, can, bottle, paper, ashes, cigarette or cigar butt, carcass of any dead animal or any part thereof, or any other offensive or unsightly matter, but not including the wastes of primary processes of mining, logging, sawmilling, farming or manufacturing.
(d) "Litter receptacle" means those containers suitable for the depositing of litter at each respective public area designated by the director's regulations promulgated pursuant to subdivision eight, subsection (a), section twenty-five of this article.
(e) "Public area" means an area outside of a municipality, including public road and highway rights-of-way, parks and recreation areas owned or controlled by this state or any county thereof, or an area held open for unrestricted access by the general public.
(f) "Waters of the state" means generally without limitation, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding reservoirs, springs, wells, watercourses and wetlands.
§20-7-26. Unlawful disposal of litter; civil and criminal penalty; litter control fund; evidence; notice violations; litter receptacle placement; penalty; duty to enforce violations.

(a) (1) No person shall place, deposit, dump, throw or cause 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, alley; any private property; any public property; the waters of the State or within one hundred feet of the waters of this state, except in a proper litter or other solid waste receptacle.
(2) It shall be unlawful for any person to place, deposit, dump, throw or cause to be placed, deposited, dumped or thrown any litter from a motor vehicle or other conveyance or to perform any act which constitutes a violation of the motor vehicle laws contained in section fourteen, article fourteen, chapter seventeen-c of this code.
(3) If any litter is placed, deposited, dumped, discharged, thrown or caused to be placed, deposited, dumped or thrown; from a motor vehicle, boat, airplane or other conveyance it is prima facie evidence that the owner or the operator of the motor vehicle, boat, airplane or other conveyance intended to violate the provisions of this section.
(4) Any person who violates the provisions of this section by placing, depositing, dumping or throwing or causing to be placed, deposited, dumped or thrown any litter, not collected for commercial purposes, in an amount not exceeding one hundred pounds in weight or twenty-seven cubic feet in size is guilty of a misdemeanor. Upon conviction he or she shall be subject to a fine of not less than fifty dollars nor more than one thousand dollars, or in the discretion of the court, sentenced to perform community service by cleaning up litter from any public highway, road, street, alley or any other public park or public property, or waters of the State, as designated by the court, for not less than eight nor more than sixteen hours, or both.
(5) Any person who violates the provisions of this section by placing, depositing, dumping or throwing or causing to be placed, deposited, dumped or thrown any litter, not collected for commercial purposes, in an amount greater than one hundred pounds in weight or twenty-seven cubic feet in size, but less than five hundred pounds in weight or two hundred sixteen cubic feet in size is guilty of a misdemeanor. Upon conviction he or she shall be subject to a fine of not less than five hundred dollars nor more than two thousand dollars, or in the discretion of the court, be sentenced to perform community service by cleaning up litter from any public highway, road, street, alley or any other public park or public property, or waters of the State, as designated by the court, for not less than sixteen nor more than thirty-two hours, or both.
(6) Any person who violates the provisions of this section by placing, depositing, dumping or throwing or causing to be placed, deposited, dumped or thrown any litter in an amount greater than five hundred pounds in weight or two hundred sixteen cubic feet in size or any amount which had been collected for commercial purposes, is guilty of a misdemeanor. Upon conviction the person shall be subject to a fine not less than twenty five hundred dollars or not more than twenty-five thousand dollars, or confinement in a county or regional jail for not more than one year or both. In addition, such violator may be guilty of creating or contributing to an open dump as defined in section two, article fifteen, chapter twenty-two of this code and subject to the enforcement provisions of section fifteen, article fifteen, chapter twenty-two of this code.
(7) Any person convicted of a second or subsequent violation of this section shall be subject to double the authorized range of fines and community service for the subsection violated.
(8) The sentence of litter cleanup shall be verified by conservation officers from the division of natural resources or environmental inspectors from the division of environmental protection. Any defendant receiving the sentence of litter cleanup shall provide within a time to be set by the court written acknowledgment from a conservation officer or environmental inspector that the sentence has been completed and the litter has been disposed of lawfully.
(9) Any person who has been found by the court to have willfully failed to comply with the terms of a litter cleanup sentence imposed by the court pursuant to this section is subject to, at the discretion of the court, double the amount of the original fines and community service penalties.
(10) All law enforcement agencies, officers and environmental inspectors, are hereby authorized, empowered and directed to enforce compliance with this section within the limits of each agency's statutory authority.
(11) No portion of this section restricts an owner, renter or lessee in the lawful use of his or her own private property or rented or leased property or to prohibit the disposal of any industrial and other wastes into waters of this state in a manner consistent with the provisions of article eleven, chapter twenty-two of this code. But if any owner, renter or lessee, private or otherwise, knowingly permits any such materials or substances to be placed, deposited, dumped or thrown in such location that high water or normal drainage conditions will cause any such materials or substances to wash into any waters of the state it is prima facie evidence that such owner, renter or lessee intended to violate the provisions of this section: Provided, That if a landowner, renter or lessee, private or otherwise, reports any such placing, depositing, dumping or throwing of any such substances or materials upon his or her property to the prosecuting attorney, county commission, or the division of natural resources or the division of environmental protection, then the landowner, renter or lessee will be presumed to not have knowingly permitted such placing, depositing, dumping or throwing of such materials or substances.
(b) Any indication of ownership found in litter shall be prima facie evidence that the person so identified violated the provisions of this section: Provided, That no inference shall be drawn solely from the presence of any logo, trademark, trade name or other similar mass reproduced things of 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 a civil penalty in the sum of not less than one hundred dollars nor more than one thousand dollars as costs for cleanup, investigation and prosecution of the case, in addition to any other court costs that the court is otherwise required by law to impose upon a convicted person.
The clerk of the circuit court, magistrate court or municipal court wherein these additional costs are imposed shall, on or before the last day of each month, transmit fifty percent of a civil penalty received pursuant to this section 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. 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) The remaining fifty percent of each civil penalty collected pursuant to this section shall be transmitted to the county or regional solid waste authority in the county where the litter violation occurred. Moneys shall be expended by the county or regional solid waste authority for the purpose of litter prevention, litter cleanup and litter enforcement. The county commission shall cooperate with the county or regional solid waste authority serving the respective county to develop a coordinated litter control program pursuant to section eight, article four, chapter twenty-two-c of this code.
(e) (1) The commissioner of the division 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 summary of this section and section fourteen, article fourteen, chapter seventeen-c of the code.
(2) The commissioner of the division 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.
(f) 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 its own expense upon its 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 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.

Note: The purpose of this bill is to strengthen the litter laws of the State, encourage compliance with the law, provide more enforcement options and provide additional money to county or regional solid waste authorities for litter control, education and enforcement. The bill revises the litter law by combining the sections on litter on the land and water.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
West Virginia Code §20-7-26 has been substantially rewritten, therefore strike-throughs and underscoring have been omitted.
§17C-14-14 is new; therefore, strike-throughs and underscoring have been omitted.