Senate Bill No. 479
(By Mr. President, Mr. Tomblin, and Delegates Anderson,
Bailey, Bowman, Chafin, Edgell, Facemyer, Jackson,
Love, McCabe, Prezioso, Sharpe, Snyder, Sprouse and Redd)
____________
[Introduced March 14, 2001; referred to the Committee
on
Government Organization; and then to the Committee on Finance
.]
____________
A BILL to amend and reenact section five, article twelve-c, chapter
eleven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section
fifteen-b, article nineteen, chapter twenty-nine of said code;
to amend and reenact section seven, article two, chapter
twenty-nine-a of said code; to amend and reenact section one
hundred eight, article one, chapter thirty-one-b of said code;
to amend and reenact section twelve, article four, chapter
thirty-three of said code; to amend and reenact section
seventeen, article two, chapter forty-seven of said code; and
to amend and reenact section two, article one, chapter
fifty-nine of said code, all relating to fees and charges for
services of the secretary of state; and the deposit of those
fees.
Be it enacted by the Legislature of West Virginia:
That section five, article twelve-c, chapter eleven of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section fifteen-b, article
nineteen, chapter twenty-nine of said code be amended and
reenacted; that section seven, article two, chapter twenty-nine-a
of said code be amended and reenacted; that section one hundred
eight, article one, chapter thirty-one-b of said code be amended
and reenacted; that section twelve, article four, chapter
thirty-three of said code be amended and reenacted; that section
seventeen, article two, chapter forty-seven of said code be amended
and reenacted; and that section two, article one, chapter
fifty-nine of said code be amended and reenacted, all to read as
follows:
CHAPTER 11. TAXATION.
ARTICLE 12C. CORPORATE LICENSE TAX.
§11-12C-5. Annual fee of secretary of state as attorney-in-fact.
Every domestic and foreign corporation, and every domestic and
foreign limited partnership shall pay an annual fee of
ten
twenty-five dollars for the services of the secretary of state as
attorney-in-fact for
such the corporation or limited partnership,
which fee
shall be is due and payable at
the initial registration of the corporation and limited partnership and every year
thereafter the same time and with the same return, collected by the
same officers, and accounted for in the same way, as the annual
license tax imposed on corporations under this article. The tax
commissioner shall
pay over to the secretary of state deposit
one-half of all attorney-in-fact fees collected under this section
in the state fund, general revenue, and one half of the fees in the
service fees and collections account established by section two,
article one, chapter fifty-nine of this code and such fees shall be
used to offset the costs of the secretary of state for his or her
services as attorney-in-fact for the operation of the office of the
secretary of state. Any balance of attorney-in-fact fees
previously collected by the commissioner on behalf of the secretary
of state as provided by chapter two hundred five, acts of the
Legislature, regular session one thousand nine hundred ninety-two,
and remaining in the account to which those deposits were made by
the commissioner on or before the thirtieth day of June, two
thousand one, shall be transferred to the service fees and
collections account established by section two, article one,
chapter fifty-nine of this code for the operation of the office of
the secretary of state. The secretary of state shall dedicate
sufficient resources from that fund or other funds to provide the services required in this article.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 19. SOLICITATION OF CHARITABLE FUNDS ACT.
§29-19-15b. Civil penalty for intentional violations.
In any action brought pursuant to the provisions of this
article, if the court finds that intentional violations have
occurred, the state, upon petition to the court and in addition to
any damages awarded any party or parties, may recover attorney fees
and a civil penalty not exceeding three times the amount collected
in
such that civil action. Any funds recovered as provided for in
this section and any other funds recovered by the state as the
result of an award for damages, penalties or settlements in
enforcing this article,
one-half shall be deposited in the state
fund, general revenue, and one-half shall be
paid into the state
treasury to the credit of a deposited in the special revenue fund
to be known as the "charitable organization fund" which is hereby
created service fees and collections account established by section
two, article one, chapter fifty-nine of this code for the operation
of the office of the secretary of state. The moneys so credited
to such fund may be used solely for the purposes of administering
and enforcing the provisions of this article. Any balance
remaining on the thirtieth day of June in the existing special revenue account entitled "charitable organization fund" as
established by chapter thirty-four, acts of the Legislature,
regular session, one thousand nine hundred ninety-two, shall be
transferred to the service fees and collections account established
by section two, article one, chapter fifty-nine of this code for
the operation of the office of the secretary of state. The
secretary of state shall dedicate sufficient resources from that
fund or other funds to provide the services required in this
article.
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.
ARTICLE 2. STATE REGISTER.
§29A-2-7. Publication of state register.
(a) The Legislature intends that the secretary of state offer
to the public convenient and efficient access to copies of the
state register or parts
thereof of the state register desired by
the citizens. The provisions of this section are enacted in order
to provide a means of doing so pending any other means provided by
law or legislative rule.
(b) All materials filed in the state register shall be indexed
daily in chronological order of filing with a brief description of
the item filed and a columnar cross index to: (1) Agency; (2)
section, article and chapter of the code to which it relates and by which it is filed in the state register; and (3)
such any other
information in the description or cross index as the secretary of
state believes will aid a citizen in using the chronological index.
(c) To give users of the code of state rules a means to know
whether the rule is being superseded by a version of the rule that
has become effective, but not yet been final-filed, prepared,
proofed and distributed, or may be superseded by a rule which is
being proposed and promulgated pursuant to article three but not
yet become final, the secretary of state shall provide with each
update of the code of state rules, a copy of the rule monitor and
its cross index which shows the rules that have become effective
but not yet distributed and the rules which may be superseded by a
rule which is being proposed. The copy of the rule monitor
distributed with the updates of the code of state rules shall state
plainly that this version of the rule monitor only shows the status
of the promulgation of rules as of the date of distribution of the
update of the code of state rules, and that to obtain the most
recent status of the rules, the user should consult the rule
monitor in the most recent publication of the state register. With
the first distribution to the loose leaf version of the code of
state rules the secretary of state shall also distribute a divider
where the current rule monitor shall be maintained. With the first distribution, the secretary of state shall also include
instructions, with a copy for insertion in or on the front of each
volume of the loose-leaf versions of the code of state rules, to
users on how the rule monitor can be utilized to determine whether
the version of the rule in the code of state rules is currently in
effect. This subsection is not to be construed to require that
subscribers to the updates of the code of state rules receive a
subscription to the state register.
(d) The secretary of state shall cause to be duplicated in
such number as
shall be is required, on white paper with two
punches suitable for fastening in two-ring binders, the permanent
biennial state register, the chronological index and other
materials filed in the register, or any part by agency or section,
article or chapter for subscription at a cost including labor,
paper and postage, sufficient in his
or her judgment to defray the
expense of
such the duplication. The secretary of state shall also
offer, at least at monthly intervals, supplements to the published
materials listed
above in this subsection. Any subscription for
monthly supplements shall be offered annually and shall include the
chronological index and materials related to
such the agency or
agencies, or section, article or chapter of the code as a person
may designate. A person may limit the request to notices only, to notices and rules, or to notices and proposed rules, or any
combination thereof.
(e) Every two years, the secretary of state shall offer for
purchase succeeding biennial permanent state registers which shall
consist of all rules effective on the date of publication selected
by the secretary of state, which date shall be at least two years
from the last
such publication date, and materials filed in the
state register relating thereto. The cost of the succeeding
biennial permanent state register and for the portion relating to
any agency or any section, article or chapter of the code which may
be designated by a person purchasing the same shall be fixed in the
same manner specified in section eleven of this article.
(f) The secretary of state may omit from any duplication made
pursuant to subsection (e) of this section any rules the
duplication of which would be unduly cumbersome, expensive or
otherwise inexpedient, if a copy of
such the rules is made
available from the original filing of
such the rule, at a price not
exceeding the cost of duplication, and if the volume from which
such the rule is omitted includes a notice in that portion of the
publication in which the rule would have been located, stating:
(1) The general subject matter of the omitted rule; (2) each
section, article and chapter of this code to which the omitted rule relates; and (3) the means by which a copy of the omitted rule may
be obtained.
(g) The secretary of state may propose changes to the
procedures outlined in
the section above subsection (f) of this
section by proposing a legislative rule under the provisions of
section nine, article three of this chapter, but may promulgate no
rules containing those changes unless authorized by the Legislature
pursuant to article three of this chapter.
(h) Beginning the first day of July, two thousand and one,
one half of the fees and amounts collected for the sale of the
state register, the code of state rules and other copies or data
provided by the division shall be deposited in the state fund,
general revenue fund, and one half of the fees in the service fees
and collections account established by section two, article one,
chapter fifty-nine of this code for the operation of the office of
the secretary of state. Any balance remaining on the thirtieth day
of June in the existing special revenue account entitled "state
register" as established by chapter one hundred twenty-one, acts of
the Legislature, regular session one thousand nine hundred
eighty-two, shall be transferred to the service fees and
collections account established by section two, article one,
chapter fifty-nine of this code for the operation of the office of the secretary of state. The secretary of state shall dedicate
sufficient resources from that fund or other funds to provide the
services required in this article.
CHAPTER 31B. UNIFORM LIMITED LIABILITY COMPANY ACT.
ARTICLE 1. GENERAL PROVISIONS.
§31B-1-108. Designated office and agent for service of process.
(a) A limited liability company and a foreign limited
liability company authorized to do business in this state shall
designate and continuously maintain in this state:
(1) An office, which need not be a place of its business in
this state; and
(2) An agent and street address of the agent for service of
process on the company.
(b) An agent must be an individual resident of this state, a
domestic corporation, another limited liability company or a
foreign corporation or foreign company authorized to do business in
this state.
(c) Every
foreign limited liability company
and every domestic
limited liability company whose principal place of business is
located outside the state shall pay an annual fee of
ten
twenty-five dollars for the services of the secretary of state as
attorney-in-fact for
such the limited liability company, which fee shall be due and payable at
the initial registration of the limited
liability company and every year thereafter the same time that the
annual report required under section two hundred eleven, article
two of this chapter is due, and
the fees shall be used
to offset
the costs of the secretary of state for his or her services as
attorney-in-fact one half of each fee shall be deposited
in the
state fund, general revenue, and one half of the fees in the
service fees and collections account established by section two,
article one, chapter fifty-nine of this code
for the operation of
the office of the secretary of state. The secretary of state shall
dedicate sufficient resources from that fund or other funds to
provide the services required in this chapter.
(d) The secretary of state shall keep a record of all
processes, notices and demands served pursuant to this section and
record the time of and the action taken regarding the service.
(e) This section does not affect the right to serve process,
notice or demand in any manner otherwise provided by law.
CHAPTER 33. INSURANCE.
ARTICLE 4. GENERAL PROVISIONS.
§33-4-12. Service of process on licensed insurers.
The secretary of state shall be, and is hereby constituted,
the attorney-in-fact of every licensed insurer, domestic, foreign, or alien, transacting insurance in this state, upon whom all legal
process in any action, suit or proceeding against it shall be
served, and he
or she may accept service of
such the process. Such
process shall be served upon the secretary of state, or accepted by
him
or her, in the same manner as provided for service of process
upon unlicensed insurers under subdivisions (2) and (3) of
subsection (b) of section thirteen of this article. Each licensed
insurer shall pay to the secretary of state an annual fee of
ten
twenty-five dollars for services as authorized agent for service of
process, which shall be used to offset the costs of the secretary
of state for his or her services as attorney-in-fact one half of
which shall be deposited
in the state fund, general revenue, and
one half of the fees in the service fees and collections account
established by section two, article one, chapter fifty-nine of this
code
for the operation of the office of the secretary of state.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 2. TRADEMARKS IN GENERAL.
§47-2-17. Fees.
(a) The secretary shall charge the following fees for services
provided pursuant to the provisions of this article:
(1) For an application fee and for a renewal fee, fifty
dollars; and
(2) For recording any instrument specified in section seven of
this article, twenty-five dollars.
(b) All fees One half of each fee shall be deposited in the
state fund, general revenue and one half of the fee shall be
deposited in a special account in the state treasury. Expenditures
from said account shall be for the purposes set forth in this
article and are not authorized from collections but are to be made
only in accordance with appropriation by the Legislature and in
accordance with the provisions of article three, chapter twelve of
this code and upon the fulfillment of the provisions set forth in
article two, chapter five-a of this code: Provided, That for the
fiscal year ending the thirtieth day of June, one thousand nine
hundred ninety-seven, expenditures are authorized from collections
rather than pursuant to an appropriation by the Legislature.
Amounts collected which are found from time to time to exceed the
funds needed for purposes set forth in this article may be
transferred to other accounts or funds and redesignated for other
purposes by appropriation of the Legislature the service fees and
collections account established by section two, article one,
chapter fifty-nine of this code
for the operation of the office of
the secretary of state. Any balance remaining on the thirtieth day
of June in the existing special revenue account entitled "trademarks" as established by chapter two hundred forty-nine, acts
of the Legislature, regular session one thousand nine hundred
ninety-six, shall be transferred to the service fees and
collections account established by section two, article one,
chapter fifty-nine of this code
for the operation of the office of
the secretary of state. The secretary of state shall dedicate
sufficient resources from that fund or other funds to provide the
services required in this article.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-2. Fees to be charged by secretary of state.
Except as may be otherwise provided in this code, the
secretary of state shall charge for services rendered in his office
the following fees to be paid by the person to whom the service is
rendered at the time it is done:
For filing, recording, indexing, preserving a record of and
issuing a certificate relating to the formation, amendment, change
of name, registration of trade name, merger, consolidation,
conversion, renewal, dissolution, termination, cancellation,
withdrawal revocation and reinstatement of business entities
organized within the state, as follows:
Articles of incorporation of for-profit corporation
50.00
Articles of incorporation of nonprofit corporation
25.00
Agreement of a general partnership
50.00
Certificate of a limited partnership
100.00
Agreement of a voluntary association
50.00
Articles of organization of a business trust
50.00
Amendment or correction of articles of incorporation,
including change of name or increase of capital stock, in addition
to any applicable license tax
25.00
Amendment or correction, including change of name, of articles
of organization of business trust, limited liability partnership,
limited liability company or professional limited liability
company, or of certificate of limited partnership or agreement of
voluntary association
25.00
Amendment and restatement of articles of incorporation,
certificate of limited partnership, agreement of voluntary
association, or articles of organization of limited liability
partnership, limited liability company or professional limited
liability company, or business trust
25.00
Registration of trade name, otherwise designated as a true
name, fictitious name or D.B.A. (doing business as) name for any
domestic business entity as permitted by law
25.00
Articles of merger of two corporations, limited partnerships,
limited liability partnerships, limited liability companies or
professional limited liability companies, voluntary associations,
or business trusts.
25.00
Plus for each additional party to the merger in excess of
two. . . .
15.00
Statement of conversion, when permitted, from one business
entity into another business entity, in addition to the cost
of filing the appropriate documents to organize the surviving
entity
25.00
Articles of dissolution of a corporation, voluntary
association or business trust, or statement of dissolution of a
general partnership
25.00
Revocation of voluntary dissolution of a corporation,
voluntary association or business trust
15.00
Articles of termination of a limited liability company,
cancellation of a limited partnership or statement of withdrawal of
limited liability partnership
25.00
Reinstatement of a limited liability company or
professional limited liability company after administrative
dissolution
25.00
For filing, recording, indexing, preserving a record of and issuing a certificate relating to the registration, amendment,
change of name, merger, consolidation, conversion, renewal,
withdrawal or termination within this state of business entities
organized in other states or countries, as follows:
Certificate of authority of for-profit corporation
100.00
Certificate of authority of nonprofit corporation
50.00
Certificate of exemption from certificate of authority
25.00
Registration of a general partnership
50.00
Registration of a limited partnership
150.00
Registration of a limited liability partnership for two-year
term
500.00
Registration of a voluntary association
50.00
Registration of a trust or business trust
50.00
Amendment or correction of certificate of authority of
a foreign corporation, including change of name or increase
of capital stock, in addition to any applicable license
tax
25.00
Amendment or correction of certificate of limited partnership,
limited liability partnership, limited liability company or
professional limited liability company, voluntary association, or
business trust
25.00
Registration of trade name, otherwise designated as a true name, fictitious name or D.B.A. (doing business as) name for any
foreign business entity as permitted by law
25.00
Amendment and restatement of certificate of authority or of
registration of a corporation, limited partnership, limited
liability partnership, limited liability company or professional
limited liability company, voluntary association, or business
trust
25.00
Articles of merger of two corporations, limited partnerships,
limited liability partnerships, limited liability companies or
professional limited liability companies, voluntary associations,
or business trusts
25.00
Plus for each additional party to the merger in excess of
two
5.00
Statement of conversion, when permitted, from one business
entity into another business entity, in addition to the cost of
filing the appropriate articles or certificate to organize the
surviving entity
25.00
Certificate of withdrawal or cancellation of a corporation,
limited partnership, limited liability partnership, limited
liability company, voluntary association or business
trust
25.00
For receiving, filing and recording a change of the principal or designated office, change of the agent of process and/or change
of officers, directors, partners, members or managers, as the case
may be, of a corporation, limited partnership, limited liability
partnership, limited liability company or other business entity as
provided by law
15.00
For receiving, filing and preserving a reservation of a name
for each 120 days or for any other period in excess of seven days
prescribed by law for a corporation, limited partnership, limited
liability partnership, or limited liability company
15.00
For issuing a certificate relating to a corporation or other
business entity, as follows:
Certificate of good standing of a domestic or foreign
corporation
10.00
Certificate of existence of a domestic limited liability
company, and certificate of authorization foreign limited liability
company
10.00
Certificate of existence of any business entity, trademark or
service mark registered with the secretary of state
10.00
Certified copy of corporate charter or comparable organizing
documents for other business entities
15.00
Plus, for each additional amendment, restatement or other
additional document
5.00
Certificate of registration of the name of a foreign
corporation, limited liability company, limited partnership, or
limited liability partnership
25.00
And for the annual renewal of the name registration
10.00
Any other certificate not herein specified
10.00
For issuing a certificate other than those relating to
business entities as provided above, as follows:
Certificate or apostille relating to the authority of certain
public officers, including the membership of boards and
commissions
10.00
Any other certificate not herein specified
10.00
For acceptance, indexing, and recordation and execution of
service of process by certified or registered mail upon any
corporation, limited partnership, limited liability partnership,
limited liability company, voluntary association, business trust,
insurance company, person or other entity
as permitted by law15.00
Plus, for shipping and handling expenses for execution of
service of process by certified mail upon any such defendant within
the United States, which fee is to be deposited to the special
revenue account established in this section for the operation of
the office of the secretary of state 5.00
Or plus, for shipping and handling expenses for execution of
service of process upon any such defendant outside the United
States by registered mail, which fee is to be deposited to the
special revenue account established in this section for the
operation of the office of the secretary of state15.00
For any search of archival records maintained at sites other
than the office of the secretary of state, no less than10.00
For searches of archival records maintained at sites other
than the office of the secretary of state which require more than
one hour, for each hour or fraction thereof consumed in making such
search10.00
For any search of records maintained on site for the purpose
of obtaining copies of documents or printouts of data5.00
For any search of records maintained in electronic format
which requires special programming to be performed by the state
information services agency or other vendor, any actual cost, but
not less than 25.00
The cost of the search shall be in addition to the cost of any
copies or printouts prepared or any certificate issued pursuant
thereto or based thereon.
For recording any paper for which no specific fee is
prescribed5.00
For producing and providing photocopies or printouts of
electronic data of specific records upon request, as follows:
For a copy of any paper or printout of electronic data, if one
sheet1.00
For each sheet after the first .50
For sending the copies or lists by fax transmission5.00
For producing and providing photocopies of lists, reports,
guidelines and other documents produced in multiple copies for
general public use, a publication price to be established by the
secretary of state at a rate approximating 2.00 plus .10 per page,
and rounded to the nearest dollar.
For electronic copies of records obtained in data format on
disk, the cost of the record in the least expensive available
printed format, plus, for each required disk, which shall be
provided by the secretary of state5.00
The secretary of state may promulgate legislative rules for
charges for on-line electronic access to database information or
other information maintained by the secretary of state.
For any other work or service not herein enumerated, such fee
as may be elsewhere prescribed.
The records maintained by the secretary of state are prepared
and indexed at the expense of the state, and those records shall not be obtained for commercial resale without the written agreement
of the state to a contract including reimbursement to the state for
each instance of resale.
The secretary of state may provide printed or electronic
information free of charge as he or she deems considers necessary
and efficient for the purpose of informing the general public or
the news media.
There is hereby established in the state treasury a special
account
to be known as the "service fees and collections account."
Expenditures from said account shall be used
for the operation of
the office of the secretary of state
and are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
five-a of this code: Provided, That for the fiscal year ending the
thirtieth day of June, two thousand two, expenditures are
authorized from collections rather than pursuant to an
appropriation by the Legislature.
Notwithstanding any other
provision of this code to the contrary, one half of all the fees
and service charges established in the following sections and for
the following purposes shall be deposited by the secretary of state or other collecting agency to
the service fees and collections
account
and used for the operation of the office of the secretary
of state:
The annual attorney-in-fact fee for corporations and limited
partnerships established in section five, article twelve-c, chapter
eleven;
The fees received for the sale of the state register, code of
state rules and other copies established by rule and authorized by
section seven, article two, chapter twenty-nine-a;
The late fees and legal settlements charged for enforcement of
the charitable organizations and professional solicitations
established in sections five and fifteen-b, article nineteen,
chapter twenty-nine;
The nonrefundable processing service charges accompanying
applications for licensing as a private investigator and security
guard and registration or transfer of registration as a security
guard representative, late application fees and replacement of
identification cards established in section thirteen, article
eighteen, chapter thirty;
The annual attorney-in-fact fee for limited liability
companies as designated in section one hundred one, article one
hundred eight, chapter thirty-one-b and established in section two hundred eleven, article two, chapter thirty-one-b;
The filing fees and search and copying fees for uniform
commercial code transactions established by section five hundred
twenty-five, article nine, chapter forty-six;
The annual attorney-in-fact fee for licensed insurers
established in section twelve, article four, chapter thirty-three;
The filing fees for the registration and renewal of trademarks
and service marks established in section seventeen, article two,
chapter forty-seven; and
All fees for services, the sale of photocopies and data
maintained at the expense of the secretary of state as provided in
this section.
Any balance in the
service fees and collections account
established by this section which exceeds five hundred thousand
dollars as of the thirtieth day of June, two thousand three, and
each year thereafter, shall be expired to the state fund, general
revenue.
NOTE: The purpose of the bill is to
revise selected charges
for services at a fair rate designed to offset the cost to the
state of the services provided, and to simplify and combine revenue
accounts and deposit one half of all affected revenues to the
general fund and one half of revenue to one special revenue account
to provide adequate funding for the operation of the Office of the
Secretary of State.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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