BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 144        Hearing Date:    June 9, 2015    
          
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          |Author:    |Mathis                                               |
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          |Version:   |June 1, 2015                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                                  Subject:  Dumping



          HISTORY

          Source:   Tulare County Sheriff

          Prior Legislation:  AB 1992 (Canciamilla) Chapter 416, Stats.  
          2006
                         AB 2253 (Hancock) Chapter 765, Stats. 2006
                         AB 1802 (Bogh) Chapter 137, Stats. 2004
                                 AB 1799 (Migden) Chapter 50, Stats. 1998

          Support:  Unknown

          Opposition:None known

          Assembly Floor Vote:                 78 - 0


          PURPOSE

          The purpose of this bill is to increase the fines for dumping  
          waste matter on private property under specified circumstances.

          Existing law states that it is unlawful to dump or cause to be  
          dumped waste matter in or upon a public or private highway or  
          road, including any portion of the right-of-way thereof, or in  







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          or upon private property into or upon which the public is  
          admitted by easement or license, or upon private property  
          without the consent of the owner, or in or upon a public park or  
          other public property other than property designated or set  
          aside for that purpose by the governing board or body having  
          charge of that property. (Penal Code  374.3 (a).) 


          Existing law provides it is unlawful to place, deposit, or dump,  
          or cause to be placed, deposited, or dumped, rocks, concrete,  
          asphalt, or dirt in or upon a private highway or road, including  
          any portion of the right-of-way of the private highway or road,  
          or private property, without the consent of the owner or a  
          contractor under contract with the owner for the materials, or  
          in or upon a public park or other public property, without the  
          consent of the state or local agency having jurisdiction over  
          the highway, road, or property. (Penal Code,  374.3 (b).) 


          Existing law states that a person violating dumping provisions  
          is guilty of an infraction. Each day that waste placed,  
          deposited, or dumped in violation the law is a separate  
          violation. (Penal Code,  374.3  (c).) 


          Existing law provides these provisions do not restrict a private  
          owner in the use of his or her own private property, unless the  
          placing, depositing, or dumping of the waste matter on the  
          property creates a public health and safety hazard, a public  
          nuisance, or a fire hazard, as determined by a local health  
          department, local fire department or district providing fire  
          protection services, or the Department of Forestry and Fire  
          Protection, in which case this section applies. (Penal Code,   
          374.3 (d).) 


          Existing law specifies a person convicted of dumping shall be  
          punished by a mandatory fine of not less than two hundred fifty  
          dollars ($250) nor more than one thousand dollars ($1,000) upon  
          a first conviction, by a mandatory fine of not less than five  
          hundred dollars ($500) nor more than one thousand five hundred  
          dollars ($1,500) upon a second conviction, and by a mandatory  
          fine of not less than seven hundred fifty dollars ($750) nor  
          more than three thousand dollars ($3,000) upon a third or  








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          subsequent conviction.  If the court finds that the waste matter  
          placed, deposited, or dumped was used tires, the fine prescribed  
          in this subdivision shall be doubled.  (Penal Code,  374.3.  
          (e).) 

          Existing law provides that the court may require, in addition to  
          any fine imposed upon a conviction, that, as a condition of  
          probation and in addition to any other condition of probation, a  
          person convicted under this section remove, or pay the cost of  
          removing, any waste matter which the convicted person dumped or  
          caused to be dumped upon public or private property. (Penal  
          Code,  374.3 (f).) 


          Existing law provides that except when the court requires the  
          convicted person to remove waste matter which he or she is  
          responsible for dumping as a condition of probation, the court  
          may, in addition to the fine imposed upon a conviction, require  
          as a condition of probation, in addition to any other condition  
          of probation, that a person convicted of a violation of this  
          section pick up waste matter at a time and place within the  
          jurisdiction of the court for not less than 12 hours. (Penal  
          Code,  374.3 (g).) 


          Existing law states that a person who places, deposits, or  
          dumps, or causes to be placed, deposited, or dumped, waste  
          matter in violation of this section in commercial quantities  
          shall be guilty of a misdemeanor punishable by imprisonment in a  
          county jail for not more than six months and by a fine. The fine  
          is mandatory and shall amount to not less than one thousand  
          dollars ($1,000) nor more than three thousand dollars ($3,000)  
          upon a first conviction, not less than three thousand dollars  
          ($3,000) nor more than six thousand dollars ($6,000) upon a  
          second conviction, and not less than six thousand dollars  
          ($6,000) nor more than ten thousand dollars ($10,000) upon a  
          third or subsequent conviction. ( Penal Code  374.3 (h)(1))


          Existing law defines "commercial quantities" means an amount of  
          waste matter generated in the course of a trade, business,  
          profession, or occupation, or an amount equal to or in excess of  
          one cubic yard.  This subdivision does not apply to the dumping  
          of household waste at a person's residence. (Penal Code   








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          374.3(h)(2))

          Existing law provides that a motor vehicle used for illegal  
          dumping of waste matter on public or private property is subject  
          to impoundment. (Vehicle Code  23112.7)

          This bill provides that a person who places, deposits or dumps  
          or causes to be placed, deposited or dumped, waste matter on  
          private property, including on any private highway or road,  
          without the consent of the owner shall be punished by a fine as  
          follows:
                 First conviction: infraction with a fine of not less  
               than $250 nor more than $1,000;
                 Second conviction: infraction with a fine of not less  
               than $500 nor more than $1,500;
                 Third conviction: infraction with a fine of not less  
               than $750 nor more than $3,000;
                 Fourth conviction: misdemeanor with a penalty of up to  
               30 days in county jail and a fine of $750-$3,000.  

          This bill provides that if the court finds that waste matter  
          placed, deposited or duped includes used tires the fines listed  
          above shall be doubled.

          This bill provides that a separate fine in the same amount shall  
          accrue for each day that the waste placed deposited or dumped  
          remains unabated  but shall not result in an additional  
          conviction, except that a fourth or subsequent violation shall  
          not result in the accrual of a separate fine or violation.


          COMMENTS

          1.  Need for The Bill
          
          According to the author:

               Under existing law, dumping in non-commercial  
               quantities on private property is only an infraction  
               and subject to a minor fine and no jail time.

               Illegal dumping on private property is a serious issue  
               for property owners, law enforcement agencies, and  
               communities as a whole.








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               Dumpers impose significant clean-up costs upon the  
               owners of the afflicted property. Dumping also poses a  
               costly burden on law enforcement officials whom are  
               called to respond when an incident occurs. Communities  
               also suffer more than a nuisance as property values and  
               revenues to local government suffer due to blight from  
               dumping.

               While the costs and negative outcomes associated with  
               illegal dumping on private property can be high, the  
               penalties for offenders whom are apprehended are too  
               minor to provide adequate deterrence from this  
               behavior.    

               This bill would increase the penalty for illegal  
               dumping on private property in non-commercial  
               quantities from an infraction to a misdemeanor upon  
               conviction for a 4th offense to discourage illegal  
               dumping.

          2.  Dumping in Non-Commercial Quantities
          
          Under current law dumping waste matter in commercial quantities  
          is a misdemeanor.  The dumping of other waste upon a public  
          highway or road or upon private property into which the public  
          is admitted is an infraction.  It is also an infraction to dump  
          rocks, concrete, asphalt or dirt in or upon a private highway or  
          road or private property without the consent of the owner or in  
          a public park or public property.  The infraction penalties for  
          the above are:

                 First conviction: infraction with a fine of not less  
               than $250 nor more than $1,000 (with penalty assessments  
               more than $1,000-$4,000;
                 Second conviction: infraction with a fine of not less  
               than $500 nor more than $1,500 (with penalty assessments  
               more than $2,000- $6,000);
                 Third conviction: infraction with a fine of not less  
               than $750 nor more than $3,000 (with penalty more than  
               $3,000-$12,00).

          If the tires are among the items dumped, then the above fines  
          are doubled.








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          This bill would make dumping on private property in  
          non-commercial quantities and in a manner and type not currently  
          covered an infraction with the same penalties for the first  
          through third offense that exist currently for non-commercial  
          dumping in specified circumstances and make a fourth or  
          subsequent offense a misdemeanor.  Thus, the new fines for  
          dumping on private land, that is not land upon which the public  
          is permitted and what is dumped is not rock, concrete, asphalt,  
          or dirt would be:

                 First conviction: infraction with a fine of not less  
               than $250 nor more than $1,000 (with penalty assessments  
               more than $1,000-$4,000);
                 Second conviction: infraction with a fine of not less  
               than $500 nor more than $1,500 (with penalty assessments  
               more than $2,000- $6,000);
                 Third conviction: infraction with a fine of not less  
               than $750 nor more than $3,000 (with penalty more than  
               $3,000-$12,00);
                 Fourth conviction: misdemeanor with a penalty of up to  
               30 days in county jail and a fine of $750-$3,000 (with  
               penalty assessments more than $3,000-$12,000).  

          The above fines are doubled if the things dumped include used  
          tires and accrue daily as long as the dumped material remains.

          3. Same Fines/ Same Behavior?
          
          This bill adopts a similar, but not identical, penalty structure  
          for dumping on private land as exists for dumping on public or  
          private land that the public has access to, or for dumping  
          rocks, concrete asphalt or dirt.  The penalty in this bill  
          differs in two ways:  it creates a misdemeanor for a fourth  
          offense and it allows the fine to be imposed daily as long as  
          the waste dumped remains unabated.  

          Should the fines be the same for dumping on private property as  
          they are for dumping on private property onto which the public  
          is admitted or for dumping rocks, concrete asphalt or dirt upon  
          a private highway or road?

          Should a fourth offense be a misdemeanor?









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          Should the fines accumulate per day?  Is this behavior more  
          serious than the existing dumping sections so that the daily  
          accrual is necessary?

          4. Infractions With High Fines
          
          Penalty assessments currently are 310% plus at least $79 in flat  
          fees which are higher under specified circumstances.  Thus, a  
          $1,000 fine is closer to $4,100.  According to the Senate Public  
          Safety analysis, when the penalties for dumping of  
          non-commercial quantities that this bill is based on, passed  
          with AB 1802(Bogh) in 2004, the penalty assessments were $240%  
          with a $20 additional flat fee so at the time a $1,000 fine was  
          closer to $3,400.

          A person charged with an infraction has no right to have counsel  
          appointed.  Are fines this high appropriate for an infraction?   
          Similar fines have existed but were substantially lower when  
          instituted over 10 years ago because the penalty assessments  
          were lower, does the increased penalty assessments change how  
          new fines should be created?

          A person charged with an infraction may ask for a judge trial  
          but in some counties a person must pay the entire amount of the  
          fine before he or she can have a hearing on the matter.  Thus,  
          under this bill a person who wants to challenge the charge of  
          dumping could have to pay the entire fine, which could be very  
          substantial if the items remained on the property for multiple  
          days, before having the opportunity to argue before a judge that  
          they were not the person who did the dumping.  Will this cause a  
          burden to those who have a legitimate challenge to charges?



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