COMMITTEE SUBSTITUTE
FOR
H. B. 2133
(By Delegate Talbott
)
(Originating in the House Committee on the Judiciary)
[March 26, 2009]
A BILL to amend and reenact §22-15A-4 of the Code of West Virginia,
1931, as amended, relating to increasing the penalties for
unlawful disposal of litter; increasing and requiring jail
time; increasing fines; and increasing and mandating community
service.
Be it enacted by the Legislature of West Virginia:
That §22-15A-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL
ACTION PLAN.
§22-15A-4. 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 may place, deposit, dump, throw or cause to be placed, deposited, dumped or thrown any litter as
defined in section two of this article, in or upon any public or
private highway, road, street or alley; any private property; any
public property; or 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 is 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,
and upon conviction
thereof, he or she
is subject to a fine of shall be fined not less than
fifty $100 nor more than
$1,000, 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 sixteen nor more than twenty-four hours, or both
fined and
sentenced to community service.
(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,
and upon conviction
thereof,
he or she
is subject to a fine of shall be fined not less than $500 nor more
than $2,000,
or and in the discretion of the court, may 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 twenty-four nor more than
thirty-two forty hours or both
fined and sentenced to community
service.
(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, and upon conviction thereof, the person
is subject to a fine shall be fined not less than $2,500 or not
more than $25,000, and 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 one hundred fifty
hours nor more than three hundred hours, or confinement in a county
or regional confined in jail for not more than one year or both
fined or sentenced to community service or confinement in jail. In
addition, the 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 of said article.
(7) Any person convicted of a second or subsequent violation
of this section is subject to double the authorized range of fines
and community service for the subsection violated.
(8) The performance of the sentence of litter cleanup shall be
verified by environmental inspectors from the Department 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 an 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 originally ordered
by the court.
(10) All law-enforcement agencies, officers and environmental
inspectors shall 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 the 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 placing, depositing, dumping or throwing of these substances or
materials upon his or her property to the prosecuting attorney,
county commission, the Division of Natural Resources or the
Department of Environmental Protection, the landowner, renter or
lessee will be presumed to not have knowingly permitted the
placing, depositing, dumping or throwing of the materials or
substances.
(b) Any indication of ownership found in litter shall be is
prima facie evidence that the person identified violated the
provisions of this section. Provided, That no No inference may be
drawn solely from the presence of any logo, trademark, trade name
or other similar mass reproduced things of identifying character
appearing on the found litter.
(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 $100 nor more
than $1,000 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 in which 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 and transferred to the Department of
Environmental Protection. 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
designated 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, cleanup and 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) 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 this code.
(f) 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.
(g) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be designated
by the secretary by rule promulgated pursuant to subdivision
(eight), subsection (a), section three 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 the
litter receptacles. After receiving two written warnings from any
law-enforcement officer or officers to comply with this subsection
or the rules of the secretary, any state agency or political
subdivision that fails to place and maintain the litter receptacles
upon its premises in violation of this subsection or the rules of
the secretary shall be fined $15 per day of the violation.