Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                  Enrolled Senate Bill 164
           By Senators Hunt and Deeds [Passed March 9, 2024; in effect 90 days from passage]
     Enr SB 164
  AN ACT to amend and reenact §61-3B-2, §61-3B-3, §61-3B-6, and §61-3B-7 of the Code of West
         Virginia, 1931, as amended; and to amend said code by adding thereto a new section,
         designated §61-3B-8, all relating generally to trespass; clarifying protected activities
         relating to trespass on property other than a structure or conveyance; making double
         damages applicable to all violations of the article including cleanup costs; authorizing
         courts presiding in cases for misdemeanor violations of the article to defer entry of
         judgment and dismiss the charges if payment of ordered damages is made within six
         months after conviction; and creating criminal penalties.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE                            3B.                                                  TRESPASS.
     §61-3B-2. Trespass in structure or conveyance.
         (a) Any person who knowingly enters in, upon, or under a structure or conveyance without
  being authorized, licensed, or invited, or having been authorized, licensed, or invited is requested
  to depart by the owner, tenant, or the agent of the owner or tenant, and refuses to do so, is guilty of
  a misdemeanor, and, upon conviction thereof, shall be fined not more than $100.
         (b) Notwithstanding the provisions of subsection (a) of this section, any person who,
  without permission, knowingly and willfully enters a structure which has a clear posting that the
  structure has been condemned by any municipal or county government as unfit for human
  habitation or use, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more
  than $100, or confined in jail not more than six months, or both fined and confined: Provided, That
 for any first violation of this subsection offense of trespass on condemned property, a court may
 substitute community service or pretrial diversion in lieu of a fine or confinement for trespassing on
 condemned property.
        (c) If the offender is armed with a firearm or other dangerous weapon while in the structure
 or conveyance, with the intent to do bodily injury to a human being in the structure or conveyance
 at the time the offender knowingly trespasses, the offender, notwithstanding the provisions of §61-
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 7-1 of this code, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less
 than $100 nor more than $1,000, or be confined in jail for not more than one year, or both fined and
 confined.
     §61-3B-3.     Trespass on     property other than structure or    conveyance.
          (a) It is an unlawful trespass for any person to knowingly, and without being authorized,
  licensed, or invited, to enter or remain on any property, other than a structure or conveyance, as to
  which notice against entering or remaining is either given by actual communication to such person
  or by posting, fencing, or cultivation.
          (b) First offense conviction. — Upon a first trespassing conviction pursuant to subsection
  (a) of this section, the person is guilty of a misdemeanor and shall be fined not less than $100 nor
  more than $500.
          (c) Second offense conviction. — Upon a second trespassing conviction pursuant to
  subsection (a) of this section, the person is guilty of a misdemeanor and shall be fined not less
 than $500 nor more than $1,000.
         (d) Third offense conviction. — Upon a third and subsequent trespassing conviction
 pursuant to subsection (a) of this section, the person is guilty of a misdemeanor and shall be fined
 not less than $1,000 nor more than $1,500.
         (e) If the offender defies an order to leave, personally communicated to him or her by the
 owner, tenant, or agent of the owner or tenant, or if the offender opens any door, fence, or gate,
 and thereby exposes animals, crops, or other property to waste, destruction, or freedom, or
 causes any damage to property by such trespassing on property other than a structure or
 conveyance, he or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not
 less than $100 nor more than $500, confined in jail for not more than six months, or both fined and
 confined.
         (f) If the offender is armed with a firearm or other dangerous weapon with the unlawful and
 felonious intent to do bodily injury to a human being during his or her commission of the offense of
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 trespass on property other than a structure or conveyance, the offender, notwithstanding §61-7-1
 of this code, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not
 more than six months, fined not less than $100 nor more than $1,000, or both confined and fined.
        (g) Nothing in this section shall be construed to prevent lawful assembly and petition for the
 lawful redress of grievances, during any dispute, including, but not limited to, activities protected
 by the West Virginia Constitution, or the United States Constitution, or any statute of this state or
 the United States.
     §61-3B-6.                       Mine trespass;                       penalties.
         (a) A person who willfully enters an underground coal mine, whether active workings,
  inactive workings, or abandoned workings, without permission, is guilty of a felony and, upon
  conviction thereof, shall be imprisoned in a correctional facility not less than one year and nor
  more than 10 years and shall be fined not less than $5,000 nor more than $10,000: Provided, That
  for any conviction pursuant to this subsection, any inactive or abandoned underground workings
  must be either: (1) Sealed; or (2) clearly identified by signage at some conspicuous place near the
  entrance of the mine that includes a notice that the unauthorized entry into the mine is a felony
  criminal offense.
         (b) A person who willfully enters a surface coal mine, whether active workings, inactive
 workings, or abandoned workings, without permission, and with the intent to commit a felony or
 any larceny, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not
 less than one week and not more than one month and shall be fined not less than $1,000 nor more
 than $5,000. For a second conviction, pursuant to this subsection, the person shall be guilty of a
 felony and shall be imprisoned in a correctional facility not less than one year and not more than
 five years and shall be fined not less than $5,000 nor more than $10,000. For a third or subsequent
 conviction, pursuant to this subsection, the person shall be guilty of a felony and shall be
 imprisoned in a correctional facility not less than five years and not more than 10 years and shall
 be fined not less than $10,000 nor more than $25,000.
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         (c) If a person violates subsections (a) or (b) of this section, and during any rescue efforts
 for that person there occurs an injury that causes substantial physical pain, illness, or any
 impairment of physical condition to any person other than himself or herself, then that person is
 guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one
 week and not more than one year and shall be fined not less than $1,000 nor more than $5,000:
 Provided, That the jail term shall include actual confinement of not less than seven days.
        (d) If a person violates subsections (a) or (b) of this section, and during any rescue efforts
 for that person there occurs an injury that creates a substantial risk of death, causes serious or
 prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the
 function of any bodily organ to any person other than himself or herself, then that person is guilty of
 a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not less than
 two nor more than 10 years and shall be fined not less than $5,000 nor more than $10,000.
        (e) If a person violates subsections (a) or (b) of this section, and during any rescue efforts
 of such person, the death of any other person occurs, then that person is guilty of a felony and,
 upon conviction thereof, shall be imprisoned in a correctional facility for not less than three nor
 more than 15 years and shall be fined not less than $10,000 nor more than $25,000.
         (f) The terms "mine", "active workings", "inactive workings", and "abandoned workings"
 have the same meaning ascribed to them as set forth in §22A-1-2 of this code.
         (g) Nothing in this section shall be construed to prevent lawful assembly and petition for
 the lawful redress of grievances, during any dispute, including, but not limited to, activities
 protected by the West Virginia Constitution, or the United States Constitution, or any statute of this
 state or the United States.
     §61-3B-7.     Animal or    crop facilities trespass;   penalties;   injunctive relief.
         (a) As used in this section:
         (1) "Animal" means poultry, livestock, domestic animals, and captive cervids owned and
  possessed by persons licensed pursuant to §19-2H-1 et seq. of this code. The term does not
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  include an animal used for illegal gaming.
          (2) "Animal or crop facility" means a facility that is used in the production, management,
  sale, or processing of animals or crops. The term includes, but is not limited to:
          (A) A building, greenhouse, structure, laboratory, pasture, field, paddock, pond,
  impoundment, or premises where animals or crops are located;
          (B) A managed bee colony;
         (C) A livestock market;
         (D) A facility used for the preparation of, or processing of, animals, crops, or value-added
 foods for sale; and
         (E) A facility used to carry out any agritourism activity, as that term is defined and used in
 §19-36-1 et seq. of this code.
         (3) "Crop" means a shrub, vine, tree, seedling, shoot, slip, or other plant capable of
 producing food, fiber, medicine, nursery stock, floral products, or aesthetic beauty.
         (b) Any person who willfully trespasses on the property of another which constitutes an
 animal or crop facility with the intent to commit larceny, destroy property, or disrupt the operation of
 the facility is guilty of willful trespass upon an animal or crop facility.
         (c) Any person who conspires with one or more persons to violate subsection (b) of this
 section and commits an overt act in furtherance thereof is guilty of conspiracy to willfully trespass
 upon an animal or crop facility.
         (d) Any person who violates subsection (b) of this section is guilty of a misdemeanor and,
 upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail
 not more than 30 days, or both fined and confined.
         (e) Notwithstanding the provisions of subsection (d) of this section, any person convicted
 of a second or subsequent violation of subsection (b) or a violation of subsection (c) of this section
 is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than
 $10,000 or imprisoned in a state correctional facility for not less than one nor more than five years,
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 or both fined and imprisoned.
         (f) The owner or operator of an animal or crop facility may bring an action for injunctive
 relief against a person who engages in, or threatens to engage in, conduct that constitutes a
 violation of this section:
         (1) The action may be brought in the circuit court of any county in which any part of the
 conduct or threatened conduct occurs or is threatened to occur.
         (2) The circuit court may grant any appropriate injunctive relief to prevent or abate the
 conduct or threatened conduct, including a temporary restraining order, preliminary injunction, or
 permanent injunction.
         (3) The circuit court may issue injunctive relief without the owner or operator of an animal
 or crop facility giving security for its issuance.
     §61-3B-8.            Liability for damages;      deferred judgment;       dismissal.
          (a) As applicable to this article, notwithstanding and in addition to any other penalties
  provided by law, any person who performs or causes damage to property in the course of a willful
  trespass shall be liable to the property owner in the amount of twice the amount of such damage,
  including the cost of cleanup.
          (b) Notwithstanding any provision of this code to the contrary, a court presiding over a
  misdemeanor violation of this article may defer entry of the judgment of conviction for a period not
  to exceed six months and if the damages authorized by subsection (a) of this section are paid
  within that time period, dismiss the charge.
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Statutes affected: 
Introduced Version: 61-3B-3, 61-3B-6, 61-3B-7, 61-3B-8
Enrolled Version: 61-3B-2, 61-3B-3, 61-3B-6, 61-3B-7, 61-3B-8