COMMITTEE SUBSTITUTE
FOR
H. B. 2222
(By Delegates Campbell and Mahan)
(Originating in the Committee on the Judiciary)
[February 27, 2001]
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 the crime
of littering; providing for the assessment of points against
an individual's driver's license for certain offenses; and
picking up litter as a mandatory sentence.
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, 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 a
place as may be 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
Additionally, the
court
must 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,
the
carcass
or any part
of
any
or
any part thereof,
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 a fine.
(2) Upon his or her second conviction, such the person shall
be fined not less than two hundred fifty dollars nor more than
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, the court may Additionally, the court must 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,
the
carcass
or any part
of
any
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 a fine
For purposes of this subdivision, the term "court" shall include includes circuit and magistrate courts.
(3) Upon such a 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 confined in the county or regional
jail not less than forty-eight hours nor more than one year:
Provided,
That a person shall
At the request of
the defendant or in the discretion of the court, the court may
Additionally, the court must 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,
the
carcass
or any part
of
any
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 the 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 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 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 any
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 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 the 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, investigation
and prosecution in such the case, in addition to any other court
costs that the court is otherwise required by law to impose upon
such the
convicted person.
The clerk of the circuit court, magistrate court or
municipal court wherein such in which 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 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 a summary of subsection (a) of this section
which includes the elements and penalties for the first, second
and third offense of littering.
(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) 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 the
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 the
violation.
(f) 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) Any law-enforcement officer who shall observe observes
a person violating the provisions of this section has a mandatory
duty to arrest or otherwise prosecute the violator to the limits
provided herein
(h) Pursuant to the rule-making authority granted to the
division of motor vehicles by chapter twenty-nine-a of this code,
the division of motor vehicles shall propose rules for
legislative approval, which assign point values for the willful
violation of the provisions of subsection (a) by the operator or
driver of a motor vehicle in the same manner as points are
assigned for other motor vehicle violations. The point value so
assigned shall be assessed against the driver's license of an
operator or driver of a motor vehicle that is convicted of a willful violation of subsection (a).
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.