Senate Bill No. 152

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

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[Introduced January 20, 2000; referred to the Committee on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact sections twenty-six and twenty-eight, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the crime of littering; increasing fines and civil penalties for litter conviction; mandatory trash pickup upon conviction of littering; directing commissioner of motor vehicles to propose rules for legislative approval devising point system to be assessed against driver's license upon conviction for littering; and moneys from civil penalties to go to litter control fund and county litter fund instead of only to litter control fund.

Be it enacted by the Legislature of West Virginia:
That sections twenty-six and twenty-eight, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§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) 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 place as may be set aside for such 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 one hundred dollars nor more than five hundred one thousand 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 In addition to the fine imposed, the court may shall 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 is not less than eight hours nor more than sixteen hours. in lieu of a fine For purposes of this subdivision, the term "court" includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be fined not less than two hundred fifty five hundred dollars nor more than one two thousand 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 In addition to the fine imposed, the court may shall 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 is not less than sixteen hours nor more than thirty-two hours. in lieu of a fine For purposes of this subdivision, the term "court" shall include circuit, and magistrate and municipal courts.
(3) Upon such person's third and successive conviction, he or she shall be fined not less than five hundred one thousand dollars nor more than two five thousand dollars and confined in the county or regional 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 In addition to the fine and jail sentence imposed, the court may shall 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 Upon a third conviction, the alternative sentence of litter pickup shall be is not less than thirty-two hours nor more than sixty-four hours. in lieu of such fine or incarceration, but not both For purposes of this subdivision, the term "court" includes circuit and magistrate courts.
(4) The alternative sentence of litter pickup herein set forth shall be verified by the conservation officers from the division of natural resources or environmental inspectors from the division of environmental protection or a regional engineering technician from the division of environmental protection 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 acknowledgment from said 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 a litter pickup sentence imposed by the court pursuant to this section is subject at the discretion of the court to up to twice the original penalty provisions available to the court at the time of conviction.
(6) If any litter is thrown or cast from a motor vehicle or boat, such 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 is dumped or discharged from a motor vehicle or boat, such action is prima facie evidence that the owner and driver of such 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 is subject to either a civil fine penalty of up to five hundred one thousand 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 civil penalties assessed pursuant to this subsection shall be deposited to the litter control fund and the respective county litter fund as set forth in subsections (c) and (d) of this section: 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 a civil penalty of five hundred dollars as costs for clean-up, investigation and prosecution in such case, in addition to any other court costs that the court is otherwise required by law to impose upon such convicted person.
The clerk of the circuit court, magistrate court or municipal court wherein such additional costs civil penalty are is imposed shall, on or before the last day of each month, transmit all such costs fifty percent of a civil penalty received under this subsection 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. 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) The remaining fifty percent of a civil penalty received pursuant to this section shall be transmitted to the county commission in the county where the litter violation occurred and shall be deposited in fund designated the "county litter fund." Moneys deposited in the county litter fund may only be expended by the county commission for the purpose of litter prevention, litter clean-up and litter enforcement. The county commission shall confer on a regular basis with the regional or county solid waste authority serving that respective county to develop a coordinated litter control program.
(d) (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 copy summary of subsection (a) of this section, which shall include the elements of first, second and third offense littering and the possible penalties.
(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.
(e) (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 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 day of such violation.
(f) (g) No portion of this section shall may be construed to restrict a private owner in the use of the owner's own private property in any manner otherwise authorized by law.
(g) (h) Any law-enforcement officer who shall observe observes a person violating the provisions of this section has a mandatory duty to shall arrest or otherwise prosecute the violator to the limits provided herein. The West Virginia division of highways shall investigate and cause to be prosecuted violations of this section occurring upon the highways of the state as the term "highways" is defined in chapter seventeen of this code.
(i) The commissioner of the division of motor vehicles shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code implementing a system of point values for violations of the provisions of subsection (a) of this section in the same manner as points are assigned for motor vehicle violations. The point values so assigned shall be assessed against the driver's license of any person convicted of a violation of subsection (a) of this section.
§20-7-28. Litter along streams, criminal penalties, enforcement.

(a) It is unlawful to place, deposit, dump or throw, or cause to be placed, deposited, dumped or thrown, any litter as defined in section twenty-four of this article and also any garbage, refuse, trash, can, bottle, paper, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter into any river, stream, creek, branch, brook, lake or pond, or upon the surface of any land within one hundred yards thereof, or in such location that high water or normal drainage conditions will cause any such materials or substances to be washed into any river, stream, creek, branch, brook, lake or pond.
(b) No portion of this section restricts an owner, renter or lessee in the 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 river, stream, creek, branch, brook, lake or pond, 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.
(c) In addition to enforcement by the director, the director of the division of environmental protection, the chief of the office of water resources of the division of environmental protection, and the division of natural resources' chief law-enforcement officer, the provisions of this section may be enforced by all other proper law-enforcement agencies.
(d) (1) Any person violating any provision of this section is guilty of a misdemeanor and, upon his or her first conviction, shall be fined not less than fifty one hundred dollars nor more than five hundred one thousand dollars. At the request of the defendant or in the discretion of the court In addition to the fine imposed, the court may shall sentence the defendant to pick up and remove from any area of a bank of any river, stream, creek, branch, brook, lake or pond, or other property with prior permission of the owner, the area to be specified 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 is not less than eight hours nor more than sixteen hours. in lieu of a fine For purposes of this subdivision, the term "court" includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be fined not less than two hundred fifty five hundred dollars nor more than one two thousand dollars. and imprisoned in the county jail not less than twenty-four hours nor more than six months. At the request of the defendant or in the discretion of the court In addition to the fine imposed, the court may shall sentence the defendant to pick up and remove from any area of a bank of any river, stream, creek, branch, brook, lake or pond, or other property with prior permission of the owner, the area to be specified 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 is not less than sixteen hours nor more than thirty-two hours. in lieu of such fine or incarceration, but not both For purposes of this subdivision, the term "court" includes circuit, and magistrate and municipal courts.
(3) Upon such person's third and successive conviction, he or she shall be fined not less than five hundred one thousand dollars nor more than two five thousand dollars and confined in the county or regional jail not less than forty-eight hours nor more than one year. At the request of the defendant or in the discretion of the court In addition to the fine and jail sentence imposed, the court may shall sentence the defendant to pick up and remove from any area of a bank of any river, stream, creek, branch, brook, lake or pond, or other property with prior permission of the owner, the area to be specified 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 is not less than thirty-two hours nor more than sixty-four hours. in lieu of such fine or incarceration, but not both For purposes of this subdivision, the term "court" includes circuit and magistrate courts.
(4) The alternative sentence of litter pickup herein set forth shall be verified by division of natural resources conservation officers or by environmental inspectors from the division of environmental protection or a regional engineering technician from the pollution prevention and open dumps program (PPOD) of the division of environmental protection, 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 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 a litter pickup sentence imposed by the court pursuant to this section is subject at the discretion of the court to up to twice the original penalty provisions available to the court at the time of conviction.

NOTE: The purpose of this bill is to strengthen the penalties for the offense of littering. The Commissioner of Motor Vehicles is directed to propose rules establishing littering as a crime for which points are assessed against an individual's driver's license upon conviction, and litter pickup is made a mandatory part of the sentence. Fines and civil penalties are also increased. Fifty percent of the civil penalties assessed for cleanup, etc., will be transmitted to the county commission in the county where the litter violation occurred to be deposited in a county litter fund for use in litter prevention, litter cleanup and litter enforcement. The remaining fifty percent of civil penalties assessed will go to the state litter control fund, instead of the one hundred percent that currently goes to the fund.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.