H. B. 2088

(By Delegates Amores and Faircloth)
[Introduced January 9, 2003; referred to the
Committee on the Judiciary.]

A BILL to amend article four, chapter sixty-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section four hundred eleven, relating to prohibiting the manufacture, distribution, dispensation or possession of a controlled substance, marijuana or counterfeit substance within one thousand feet of a park or housing project; providing criminal penalties; providing that a conviction under this section may not merge with a conviction under any other section; providing that a map of a park or housing area produced by any municipal agency and certified as a true copy by the custodian shall be prima facie evidence of the boundaries of the park or housing project; authorizing regulations requiring the posting of signs designating the areas within one thousand feet of parks and housing projects; and providing affirmative defenses to a violation of this section.

Be it enacted by the Legislature of West Virginia:
That article four, chapter sixty-a 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 hundred eleven

, to read as follows:

ARTICLE 4. OFFENSES AND PENALTIES.

§60A-4-411. Manufacturing, distributing, dispensing or possessing controlled substance, marijuana or counterfeit substance within one thousand feet of park or housing project prohibited; nonmerger of offenses; evidence of property location and boundaries; posting of property; affirmative defenses.
(a) No person may manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within one thousand feet of any real property which has been dedicated and set apart by the governing authority of any municipality or county for use as a park, playground, recreation center or for any other recreation purposes, unless the manufacture, distribution or dispensing is otherwise allowed by law.
(b) No person may manufacture, distribute, dispense or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on or within one thousand feet of any real property of any publicly owned or publicly operated housing project, unless the manufacture, distribution or dispensing is otherwise allowed by law. For the purposes of this section, the term "housing project" means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low or moderate-income families pursuant to section one, article fifteen, chapter sixteen of this code.
(c) Any person who violates or conspires to violate subsections (a) and (b) of this section is guilty of a felony and, upon conviction, shall receive the following punishment:
(1) Upon a first conviction, imprisonment for not more than twenty years or a fine of not more than twenty thousand dollars, or both; or
(2) Upon a second or subsequent conviction, imprisonment for not less than five years nor more than forty years or a fine of not more than forty thousand dollars, or both. The court shall impose a minimum sentence of five years which may not be suspended unless otherwise provided by law; and
(3) A sentence imposed under this section shall be served consecutively to any other sentence imposed.
(d) A conviction arising under this section may not merge with a conviction arising under any other provision of this article.
(e) In a prosecution under this section, a map produced or reproduced by any municipal or county agency or department for the purpose of depicting the location and boundaries of the area on or within one thousand feet of the real property of any publicly owned or publicly operated housing project or the real property set apart for use as a park, playground, recreation center or for any other recreational purposes, or a true copy of the map, shall, if certified as a true copy by the custodian of the record, be admissible and is prima facie evidence of the location and boundaries of the area, if the governing body of the municipality or county has approved the map as an official record of the location and boundaries of the area. A map approved under this section may be revised from time to time by the governing body of the municipality or county. The original of every map approved or revised under this subsection or a true copy of the original map shall be filed with the municipality or county and shall be maintained as an official record of the municipality or county. This subsection does not preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense. This subsection does not preclude the use or admissibility of a map or diagram other than the one which has been approved by the municipality or county.
(f) The governing authority of a municipality or county may adopt regulations requiring the posting of signs designating the areas within one thousand feet of any lands or buildings set apart for use as parks, playgrounds, recreation centers or any other recreation purposes as "Drug-Free Recreation Zones" and designating the areas within one thousand feet of the real property of any publicly owned or publicly operated housing project as "Drug-Free Residential Zones."
(g) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely within a private residence, that no person seventeen years of age or younger was present in the private residence at any time during the commission of the offense, and that the prohibited conduct was not carried on for purposes of financial gain. Nothing in this subsection establishes an affirmative defense with respect to any offense under this chapter other than the offense provided in subsections (a) and (b) of this section.

NOTE: The purpose of this bill is to prohibit the manufacture, distribution, dispensation or possession of controlled substances, marijuana or counterfeit substances within one thousand feet of a park or housing project; provide that a conviction under this section may not merge with an offense under any other section; provide that a map of a park or housing area produced by any municipal agency and certified as a true copy by the custodian is prima facie evidence of the boundaries of the area; authorizing regulations requiring the posting of signs designating the areas within one thousand feet of parks and housing projects; and providing for affirmative defenses to the offenses created by this section.

This section is new; therefore, strike-throughs and underscoring have been omitted.