Senate Bill No. 197
(By Senators Ball, Kessler, Schoonover, Deem, Snyder and Love)
__________
[Introduced January 22, 1999;
referred to the Committee on the Judiciary.]
A BILL to amend and reenact section nine, article thirteen-a,
chapter sixteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to public
service districts; and providing that unpaid charges for
services do not become a lien against the owner of real
property, nor is the owner liable for the charges unless the
owner contracted directly with the provider for the services.
Be it enacted by the Legislature of West Virginia:
That section nine, article thirteen-a, chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 13A. PUBLIC SERVICE DISTRICTS FOR WATER, SEWERAGE AND GAS
SERVICES.
§16-13A-9. Rules; service rates and charges; discontinuance of
service; failure to cure delinquency; civil actions; deferral of filing fees and costs in magistrate court action;
limitations with respect to foreclosure; lien for delinquent
service rates or charges; required water and sewer
connections.
(a) The board may make, enact and enforce all needful rules
and regulations in connection with the acquisition, construction,
improvement, extension, management, maintenance, operation, care,
protection and the use of any public service properties owned or
controlled by the district, and the board shall establish rates and
charges for the services and facilities it furnishes, which shall
be sufficient at all times, notwithstanding the provisions of any
other law or laws, to pay the cost of maintenance, operation and
depreciation of
such the public service properties and principal of
and interest on all bonds issued, other obligations incurred under
the provisions of this article and all reserve or other payments
provided for in the proceedings which authorized the issuance of
any bonds hereunder. The schedule of
such the rates and charges
may be based upon either:
(a) (1) The consumption of water or gas
on premises connected with
such the facilities, taking into
consideration domestic, commercial, industrial and public use of
water and gas; or
(b) (2) the number and kind of fixtures connected with
such the facilities located on the various premises; or
(c)
(3) the number of persons served by
such the facilities; or
(d) (4)
any combination thereof; or
(e) (5) may be determined on any other
basis or classification which the board may determine to be fair
and reasonable, taking into consideration the location of the
premises served and the nature and extent of the services and
facilities furnished. Where water, sewer and gas services are all
furnished to any premises, the schedule of charges may be billed as
a single amount for the aggregate thereof. The board shall require
all users of services and facilities furnished by the district to
designate on every application for service whether the applicant is
a tenant or an owner of the premises to be served. If the
applicant is a tenant, he or she shall state the name and address
of the owner or owners of the premises to be served by the
district. All new applicants for service shall deposit a minimum
of fifty dollars with the district to secure the payment of service
rates and charges in the event they become delinquent as provided
in this section. In any case where a deposit is forfeited to pay
service rates and charges which were delinquent at the time of
disconnection or termination of service, no reconnection or
reinstatement of service may be made by the district until another
minimum deposit of fifty dollars has been remitted to the district.
Whenever any rates, rentals or charges for services or facilities
furnished remain unpaid for a period of thirty days after the same
become due and payable, the property and the owner thereof, as well
as the user of the services and facilities provided are delinquent
and the owner, user and property are liable at law until such time
as all such rates and charges are fully paid: Provided, That the
property owner shall be given notice of any said delinquency by
certified mail, return receipt requested. The board may, under
reasonable rules promulgated by the public service commission, shut
off and discontinue water or gas services to all delinquent users
of either water or gas facilities, or both: Provided, however,
That upon written request of the owner or owners of the premises,
the board shall shut off and discontinue water and gas services
where any rates, rentals, or charges for services or facilities
remain unpaid by the user of the premises for a period of sixty
days after the same became due and payable.
(b) Whenever any rates and charges for services or facilities
furnished remain unpaid for a period of thirty days after they
become due and payable, the user of the services and facilities
provided is delinquent and shall be held liable at law until such
time as all the rates and charges are fully paid.
(c) All rates or charges whenever delinquent, as provided by
ordinance of the public service district, are liens of equal
dignity, rank and priority with the lien on the premises of state,
county, school and municipal taxes for the amount thereof upon the
real property served, and the public service district has plenary
power and authority from time to time to enforce the lien in a
civil action to recover the money due for the services rendered
plus court fees and costs and reasonable attorney fees: Provided,
That an owner of real property may not be held liable for the
delinquent rates or charges for services or facilities of a tenant,
nor may any lien attach to real property for the reason of
delinquent rates or charges for services or facilities of a tenant
of the real property, unless the owner has contracted directly with
the public service district to purchase the services or facilities.
(d) Public service districts are hereby granted a deferral of
filing fees or other fees and costs incidental to the bringing and
maintenance of an action in magistrate court for the collection of
the delinquent rates and charges. If the public service district
collects the delinquent account, plus fees and costs, from its
customer or other responsible party, the public service district
shall pay to the magistrate court the filing fees or other fees and
costs which were previously deferred.
(e) No public service district may foreclose upon the premises
served by it for delinquent rates, fees or charges for which a lien
is authorized by this section except through the bringing and
maintenance of a civil action for such purpose brought in the
circuit court of the county wherein the public service district
lies. In every such action, the court is required to make a
finding based upon the evidence and facts presented that the public
service district had exhausted all other remedies for the
collection of debts with respect to the delinquencies prior to the
bringing of the action. In no event may foreclosure procedures be
instituted by any public service district or on its behalf unless
the delinquency had been in existence or continued for a period of
two years from the date of the first delinquency for which
foreclosure is being sought.
(f) In the event that any publicly or privately owned utility,
city, incorporated town, other municipal corporation or other
public service district included within the district owns and
operates separately either water facilities or sewer facilities,
and the district owns and operates the other kind of facilities,
either water or sewer, as the case may be, then the district and
such the publicly or privately owned utility, city, incorporated
town or other municipal corporation or other public service district shall covenant and contract with each other to shut off
and discontinue the supplying of water service for the nonpayment
of sewer service fees and charges:
Provided, That any contracts
entered into by a public service district pursuant to this section
shall be submitted to the public service commission for approval.
Any public service district providing water and sewer service to
its customers has the right to terminate water service for
delinquency in payment of either water or sewer bills. Where one
public service district is providing sewer service and another
public service district or a municipality included within the
boundaries of the sewer district is providing water service, and
the district providing sewer service experiences a delinquency in
payment, the district or the municipality included within the
boundaries of the sewer district that is providing water service,
upon the request of the district providing sewer service to the
delinquent account, shall terminate its water service to the
customer having the delinquent sewer account:
Provided, however,
That any termination of water service
must shall comply with all
rules and orders of the public service commission.
(g) Any district furnishing sewer facilities within the
district may require, or may by petition to the circuit court of the county in which the property is located, compel or may require
the
bureau of public division of health to compel all owners,
tenants or occupants of any houses, dwellings and buildings located
near any
such sewer facilities, where sewage will flow by gravity
or be transported by
such any other methods approved by the
bureau
of public division of health, including, but not limited to, vacuum
and pressure systems, approved under the provisions of section
nine, article one, chapter sixteen of this code, from
such the
houses, dwellings or buildings into
such the sewer facilities, to
connect with and use
such the sewer facilities, and to cease the
use of all other means for the collection, treatment and disposal
of sewage and waste matters from
such the houses, dwellings and
buildings where there is
such gravity flow or transportation by
such any other methods approved by the
bureau of public division of
health including, but not limited to, vacuum and pressure systems,
approved under the provisions of section nine, article one, chapter
sixteen of this code, and
such the houses, dwellings and buildings
can be adequately served by the sewer facilities of the district,
and it is hereby
found, determined and declared that the mandatory
use of
such the sewer facilities provided for in this
paragraph
section is necessary and essential for the health and welfare of
the inhabitants and residents of
such the districts and of the state:
Provided, That if the public service district determines
that the property owner
must shall connect with the sewer
facilities even when sewage from
such the dwellings may not flow to
the main line by gravity and the property owner
must shall incur
costs for any changes in the existing dwellings' exterior plumbing
in order to connect to the main sewer line, the public service
district board shall authorize the district to pay all reasonable
costs for
such the changes in the exterior plumbing, including, but
not limited to, installation, operation, maintenance and purchase
of a pump, or any other method approved by the
bureau of public
division of health; maintenance and operation costs for
such the
extra installation should be reflected in the users charge for
approval of the public service commission. The circuit court shall
adjudicate the merits of
such the petition by summary hearing to be
held not later than thirty days after service of petition to the
appropriate owners, tenants or occupants.
(h) Whenever any district has made available sewer facilities
to any owner, tenant or occupant of any house, dwelling or building
located near
such the sewer facility, and the engineer for the
district has certified that
such the sewer facilities are available
to and are adequate to serve
such the owner, tenant or occupant,
and sewage will flow by gravity or be transported by
such any other methods approved by the
bureau of public division of health from
such the house, dwelling or building into
such the sewer
facilities, the district may charge, and
such the owner, tenant or
occupant shall pay the rates and charges for services established
under this article only after thirty-day notice of the availability
of the facilities has been received by the owner.
(i) All delinquent fees, rates and charges of the district for
either water facilities, sewer facilities or gas facilities are
liens on the premises served of equal dignity, rank and priority
with the lien on such premises of state, county, school and
municipal taxes. In addition to the other remedies provided in
this section, public service districts are hereby granted a
deferral of filing fees or other fees and costs incidental to the
bringing and maintenance of an action in magistrate court for the
collection of delinquent water, sewer or gas bills. If the
district collects the delinquent account, plus reasonable costs,
from its customer or other responsible party, the district shall
pay to the magistrate the normal filing fee and reasonable costs
which were previously deferred. In addition, each Each public
service district may exchange with other public service districts
a list of delinquent accounts.
(j) Anything in this section to the contrary notwithstanding, any establishment, as defined in section three, article eleven,
chapter twenty-two, now or hereafter operating its own sewage
disposal system pursuant to a permit issued by the division of
environmental protection, as prescribed by section eleven, article
eleven, chapter twenty-two of this code, is exempt from the
provisions of this section.
NOTE: The purpose of this bill is to eliminate landlord
liability for a tenant's delinquent utility accounts.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
This bill was recommended by the Joint Standing Committee on
the Judiciary for introduction and passage during the 1999
legislative session.