If First Ward Councilman Kevin W. Johnson has his way, business owners would be guilty of a misdemeanor if someone crushes out a cigarette and leaves the butt on the sidewalk adjacent to that business.

While Johnson did not want to bring the legislation up Monday night, he is proposing an ordinance dealing with litter, which says essentially – “All businesses, campuses, governments and institutions of any kind shall provide at any point of ingress and egress to their business, campus, government and institutional entryway or office a trash receptacle designed to deposit or otherwise receive cigarette butts. Such receptacles shall be emptied regularly in a safe manner. Open receptacles are to be emptied daily. Closed receptacles are to be emptied weekly.”

While there are several sections to the proposal, it reads in part – “Whoever violates this section is guilty of a minor misdemeanor.”

Johnson said he is moving back to the downtown area and he has seen the problem first hand.

“I’m seeing it first hand constantly – the litter and trash and especially cigarette butts – it’s discouraging,” Johnson said. “Some businesses do have a smoker outside. When I do smoke and I’m outside, I still (field) strip. I was taught that in the Marine Corps. But evidently some of the people haven’t gotten the word that it takes, I don’t know, 500 years for the cellulose to break down in those things. It ends up in the Ohio and Mississippi, and at that part of the gulf there’s a huge dead section that’s full of crap and a lot of cigarette butts.”

Johnson said he wants to bring the legislation back in two weeks after receiving feedback from his proposal.

“This would impact businesses and would be a cost to businesses,” Johnson said. “I wish to talk to SOMC (Southern Ohio Medical Center) in the next couple of weeks. I want to get feedback.”

Portsmouth City Solicitor John Haas says the proposal is unconstitutional. Haas said you can’t make business owners responsible for littering by the public. He said the person who does the actual littering can be held responsible, but not the business owner.

“You can’t criminalize the business owner,” Haas said. “I understand what he’s trying to do. I understand the goal behind it. I think in a round about way, he’s trying to do some kind of a conspiracy legal theory, like criminal conspiracy, but you have to aid and abet in the planning of a crime, if you want to call littering a crime and you have to plan with another person to do that.”

Two sections of the City Charter are involved in the legislation – 521.06 – Duty to Keep Sidewalks In Repair and Clean and 521.08 – Littering and Deposit of Garbage, Rubbish, Junk, etc. On Tuesday, Johnson amended the legislation, based partly on Haas’s assessment. The new wording reads – “No owner or occupant of abutting lands shall fail to keep the sidewalks, curbs or gutters in repair and free from snow, ice or any nuisance. (ORC 723.011) Such shall include keeping the sidewalks, curbs and gutters free of trash and weeds.” Section 521.08 says – “No person, regardless of intent, shall deposit litter or cause litter to be deposited on any public property, on private property not owned by the person, or in or on waters of the state, or municipality.” It goes on to specify exceptions.

Could it be prosecuted?

“A prosecutor would never be able to meet (the standard of proof) it’s just plain unconstitutional,” Haas said.

By Frank Lewis

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Reach Frank Lewis at 740-353-3101, ext. 1928, or on Twitter @franklewis.