__________*__________
Wednesday, March 5, 2003
The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Tuesday, March 4, 2003, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration:
H. C. R. 24, Requesting the United States Congress to broaden the eligibility categories of
membership in veterans' organizations,
H. C. R. 66, Requesting the Joint Committee on Government and Finance to conduct a study
of the benefits of captive insurance companies,
H. C. R. 67, Requesting the Joint Committee on Government and Finance to conduct a study
of payday advances and lending,
H. C. R. 68, Requesting the Joint Committee on Government and Finance to conduct a study
of the availability and affordability of automobile insurance in West Virginia,
H. C. R. 69, Requesting the Joint Committee on Government and Finance to conduct a study
of the availability and affordability of commercial, property and casualty insurance,
H. C. R. 70, Requesting the West Virginia Division of Highways to name the new bridge
crossing the Elk River on State Route 4 South of Gassaway, the "Veterans Memorial Bridge",
H. C. R. 74, Requesting the Division of Highways that the bridge to be built over Pigeon
Creek at Ferrell Bottom, above Taylorville, Mingo County, West Virginia, be named the "Ireland
& Willis Duty Bridge",
H. C. R. 35, Requesting a study of the shortage of qualified nursing personnel to be involved
in various studies,
S. C. R. 47, Requesting construction of access road to Beckley Veterans Administration
Medical Center,
And,
H. C. R. 72, Naming the lane immediately to the right after crossing a cement bridge and
after turning left off of U. S. Route 250 North of the Town of Metz in Marion County, "Sam Slay
Lane",
And reports the same back with the recommendation that they each be adopted.
On motion for leave, a resolution was introduced (Originating in the Committee on Rules
and reported with the recommendation that it be adopted), which was read by its title as follows:
By Mr. Speaker, Mr. Kiss, and Delegate Staton:
H. C. R. 84 - "Calling upon the United States government to provide funding assistance for
the unfunded mandates it places upon the states, for homeland security and for other direct flexible
fiscal relief to the states."
Whereas, The states currently face the worst fiscal crisis since World War II, with a budget
shortfall projected between $40 to $50 billion for the 2003 fiscal year and $65 to $85 billion for the
2004 fiscal year; and
Whereas, Forty-nine of the Fifty states, including West Virginia, must submit balanced
budgets by law and thus can only increase revenue through budget cuts or by tax increases; and
Whereas, Tax revenues from capital gains and from corporations have greatly deteriorated; and
Whereas, Healthcare costs are exploding nationally, especially Medicaid, which grew by
14% last year alone, and is now a larger program than Medicare; and
Whereas, States are faced with the burden of paying for new and improved homeland
security efforts; and
Whereas, The Federal government has added to the financial burden of the states through
new programs that create unfunded mandates such as the Individuals with Disabilities Act (IDEA)
and No Child Left Behind Act (NCLB); and
Whereas, States recognize the importance of programs and are working to implement them;
and
Whereas, West Virginia is facing the same budget difficulties faced by other states; and
Whereas, State Legislators and governors are making difficult and prudent fiscal decisions;
and
Whereas, The national economy is struggling and direct fiscal relief to the states is one of
the best ways to stimulate the economy; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature of West Virginia recognizes the growing problems of the states and the
efforts underway in our state and elsewhere to deal with these problems. The Legislature of West
Virginia calls upon the federal government to provide funding to assist with unfunded mandates,
provide more resources for homeland security and to provide direct flexible fiscal relief to the states;
and, be it
Further Resolved, That a copy of this resolution be forwarded to the President of the United
States, to the Senators and Representatives from West Virginia and to the clerks of each house of
the United States Congress.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub for S. B. 383, Allowing alcohol beverage control commissioner, with approval
of governor and board of public works, to sell warehouse and purchase replacement,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub
for S. B. 383) was taken up for immediate consideration, read a first time and then ordered to second
reading.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
S. B. 375, Allowing transfer of contractor's license to new business entity in certain cases,
And,
Com. Sub. for S. B. 507, Modifying and updating auctioneer licensing requirements; fees,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that they each do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 375
and Com. Sub. for S. B. 507) were each taken up for immediate consideration, read a first time,
ordered to second reading and then, in accordance with the provisions of House Rule 70a, were
ordered to the Consent Calendar.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 594, Increasing membership on public employees insurance agency
finance board,
And reports the same back, by unanimous vote of the Committee, with a title amendment,
with the recommendation that it do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 594) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent
Calendar.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 83, Extending the Committee of Conference until March 7, 2003, for consideration
of Com. Sub. for H. B. 2120, relating to workers' compensation generally.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
S. B. 112, Allowing farm wineries to manufacture, serve and sell certain wines.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
On the further motion of Delegate Staton, the House of Delegates receded in part from its
amendment, namely to §11-16-3, relating to definitions concerning nonintoxicating beer.
The House also receded from its amendment to the enacting section of the bill which set
forth section three therein and agreed to an enacting section as follows:
"That section five-a, article one, chapter sixty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted; that section two, article six of said
chapter be amended and reenacted; and that section two, article eight of said chapter be amended
and reenacted, all to read as follows" and a colon.
The Speaker then propounded "Shall the bill now pass?" and on this question the yeas and
nays were taken (Roll No. 351), and there were--yeas 94, nays 3, absent and not voting 3, with the
nays and absent and not voting being as follows:
Nays: Armstead, Sobonya and Walters.
Absent And Not Voting: Cann, Coleman and Frich.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 112) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows:
S. B. 112 -- "A Bill to amend and reenact section five-a, article one, chapter sixty of the code
of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section
two, article six of said chapter; and to amend and reenact section two, article eight of said chapter,
all relating generally to beverages containing alcohol; allowing farm wineries to produce wine from
other agricultural products containing sugar; allowing farm wineries to manufacture, serve and sell
dessert, port, sherry and Madeira wines; and excluding dessert wine produced by farm wineries from
the definition of fortified wine."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 352), and there were--yeas 96, nays
2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead and Louisos.
Absent And Not Voting: Coleman and Frich.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 112) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Petitions
Delegate Butcher presented a petition signed by fourteen hundred residents of the 19th
district, requesting the Legislature to act immediately to restore, preserve and create good family-
supporting jobs throughout the coal fields of West Virginia; which was referred to the Committee on the Judiciary.
Delegates Leach, Craig and Morgan presented a petition signed by one hundred seventy
residents of the State opposing cuts to higher education; which was referred to the Committee on
Finance.
Delegate Ellem presented a petition, signed by six hundred eighteen residents of Wood
County, requesting the Legislature pass meaningful property tax reform legislation; which was
referred to the Committee on the Judiciary.
Consent Calendar
Second Reading
Com. Sub. for S. B. 287, Authorizing various agencies within department of tax and revenue
to promulgate legislative rules; on second reading, coming up in regular order, was read a second
time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page four, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF TAX AND REVENUE TO
PROMULGATE LEGISLATIVE RULES.
§64-7-1. Insurance commissioner.
(a) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the fifth day of December, two thousand two,
relating to the insurance commissioner (unfair trade practices, 114 CSR 14), is authorized.
(b) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourth day of November, two thousand two,
relating to the insurance commissioner (examiners' compensation, qualifications and classification,
114 CSR 15), is authorized with the following amendment:
"On page one, section two, subsection 2.1 by striking the words 'Market Conduct
Examiner'."
(c) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the first day of October, two thousand two,
relating to the insurance commissioner (licensing and conduct of agents, agencies and solicitors, 114
CSR 2), is authorized with the following amendment:
"On page four, by striking out all of subsection 3.8 and inserting in lieu thereof the
following:
'3.8. Every business entity transacting insurance as defined in W. Va. Code § 33-1-4 must
be licensed as an agency insurance producer. For purposes of this section, "insurance" means all
products defined or regulated by the State of West Virginia except: (i) limited lines insurance as
defined in West Virginia Code § 33-12-2(i) and (k); (ii) insurance placed by a lender in connection
with collateral pledged for a loan when the debtor breaches the contractual obligation to provide this
insurance; and (iii) private mortgage insurance.'
On page four, subsection 4.1 after the word 'with' by striking out the word 'whom' and
inserting in lieu thereof the word 'which';
On page five, by striking out all of subsection 5.1 and inserting in lieu thereof the following:
'5.1. No person that owns or is affiliated with an insurance agency or individual insurance
producer may require, as a condition precedent to making a loan, that the borrower cancel insurance
and purchase new insurance with the individual insurance producer or with an agency insurance
producer with which the person is affiliated.'
And,
On page five, by striking out all of subsection 5.3 and inserting in lieu thereof the following:
'5.3. The act of any person, that owns or is affiliated with an insurance agency or individual
insurance producer, in making a loan in violation of this section, will be considered to be the act of
the individual insurance producer or agency insurance producer with which the person making the
loan is affiliated. The individual insurance producer or agency insurance producer will be held
strictly accountable for the acts of a person who is affiliated with the individual insurance producer
or agency insurance producer and who makes a loan in violation of this section.'"
(d) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the first day of October, two thousand two,
relating to the insurance commissioner (excess line brokers, 114 CSR 20), is authorized with the
amendments set forth below:
"On page three, subdivision 4.2.a., at the end of the subdivision by adding the following:
'The form shall contain an affidavit that the individual insurance producer complied with the due
diligence requirements of this rule.'
And,
On page six, subdivision 4.6.j., after the word 'producer' by inserting the words 'required
in section 4.2. of this rule'."
(e) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the fourth day of November, two thousand two,
relating to the insurance commissioner (AIDS, 114 CSR 27), is authorized with the following
amendment:
"On Appendix A to rule, fifth paragraph, by striking the entire paragraph and inserting in lieu
thereof the following: 'Positive HIV antibody or antigen test results or other significant
abnormalities discovered in the body fluid sample tested for the presence of HIV will adversely
affect your application for insurance. This means that your application may be declined, that an
increased premium may be charged, or that other policy changes may be necessary.'"
(f) The legislative rule filed in the state register on the twenty-sixth day of July, two thousand
two, authorized under the authority of section ten, article two, chapter thirty-three of this code,
relating to the insurance commissioner ("tail" malpractice insurance covering certain medical and
allied health care providers, 114 CSR 30), is authorized.
(g) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the fifth day of December, two thousand two,
relating to the insurance commissioner (group accident and sickness insurance minimum policy
coverage standards, 114 CSR 39), is authorized.
(h) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the first day of October, two thousand two,
relating to the insurance commissioner (continuing education for individual insurance producers,
114 CSR 42), is authorized.
(i) The legislative rule filed in the state register on the twenty-sixth day of July, two thousand
two, authorized under the authority of section ten, article two, chapter thirty-three of this code,
relating to the insurance commissioner (quality assurance, 114 CSR 53), is authorized.
(j) The legislative rule filed in the state register on the twenty-second day of February, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the insurance commissioner (medical malpractice insurance consent to rate and
guide "A" rate agreements, 114 CSR 59), is authorized.
(k) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the third day of January, two thousand three,
relating to the insurance commissioner (credit personal property insurance, 114 CSR 61), is
authorized.
(l) The legislative rule filed in the state register on the twenty-sixth day of July, two thousand
two, authorized under the authority of section ten, article two, chapter thirty-three of this code,
modified by the insurance commissioner to meet the objections of the legislative rule-making review
committee and refiled in the state register on the fourth day of November, two thousand two, relating
to the insurance commissioner (standards for safeguarding consumer information, 114 CSR 62), is
authorized.
(m) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the fourth day of November, two thousand two,
relating to the insurance commissioner (standard motor vehicle policy provisions, 114 CSR 63), is
authorized with the following amendments:
"On page two, subsection 3.4, lines twenty-two and twenty three, by striking out the words
'and may not exclude the liability of the owner with respect to use by a bailee for hire, restricted
driver, or other permissive user';
And,
On page three, subsection 3.13, lines sixteen and seventeen, by striking out the words ', in
exchange for a multi-car discount,'."
(n) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the fourth day of November, two thousand two,
relating to the insurance commissioner (mental health parity, 114 CSR 64), is authorized with the
following amendments:
"On page one, subsection 1.1.b.1, by striking the word 'Any' and inserting in lieu thereof
the words 'Group health benefit plans issued by any';
And,
On page one, subsection 1.1.b.3, by striking the word 'plans' and inserting in lieu thereof the
words, 'benefit plans'."
§64-7-2. Tax commissioner.
(a) The legislative rule filed in the state register on the twenty-fourth day of July, two
thousand two, authorized under the authority of section five-t, article ten, chapter eleven of this
code, modified by the tax commissioner to meet the objections of the legislative rule-making review
committee and refiled in the state register on the twenty-second day of November, two thousand
two, relating to the tax commissioner (payment of taxes by electronic funds transfer, 110 CSR 10F),
is authorized with the following amendments:
On page three, subsection 3.2, by striking out the words "for all taxable years or reporting
periods" and inserting in lieu thereof the words "in tax liability per tax type per taxable year or
reporting period";
On page four, subsection 4.2, by striking out the entire subsection;
On page four, subsection 5.2, first sentence, by striking out the words "Each EFT payment
under this rule shall be limited to" and inserting in lieu thereof the words "The Department will
determine whether a taxpayer meets the $100,000 tax liability threshold requiring payment of taxes
by EFT by considering taxes paid for";
On page four, subsection 5.2, second sentence, by striking out the words "amount paid" and
inserting in lieu thereof the words "taxes paid for all tax types";
On page four, subsection 5.3, first sentence, by striking out the words "Each EFT payment
under this rule shall be limited to" and inserting in lieu thereof the words "The Department will
determine whether a taxpayer meets the $100,000 tax liability threshold requiring payment of taxes
by EFT by considering";
On page five, subsection 7.1, by striking out the words "Form WV/EFT-005" and inserting
in lieu thereof the words "Form WV/EFT-5";
And,
On page five, subsection 7.2, by striking out the words "Form WV/EFT-005" and inserting
in lieu thereof the words "Form WV/EFT-5".
(b) The legislative rule filed in the state register on the twenty-fourth day of July, two
thousand two, authorized under the authority of section eight, article thirteen-p, chapter eleven of
this code, modified by the tax commissioner to meet the objections of the legislative rule-making
review committee and refiled in the state register on the first day of October, two thousand two,
relating to the tax commissioner (tax credit for medical malpractice insurance premiums, 110 CSR
13P), is authorized.
The bill was then ordered to third reading.
Com. Sub. for S. B. 316, Authorizing various agencies within bureau of commerce to
promulgate legislative rules; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page three, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE
LEGISLATIVE RULES.
§64-10-1. Development office.
The legislative rule filed in the state register on the twenty-ninth day of July, two thousand
two, authorized under the authority of section twelve, article two-a, chapter five-b of this code,
modified by the department of environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on the fourteenth day of January, two
thousand three, relating to the department of environmental protection (community development
assessment and real property valuation procedures for office of coal field development, 145 CSR
8), is authorized.
§64-10-2. Division of labor.
(a) The legislative rule filed in the state register on the ninth day of July, two thousand two,
authorized under the authority of section eleven, article three-c, chapter twenty-one of this code,
modified by the division of labor to meet the objections of the legislative rule-making review
committee and refiled in the state register on the eighth day of November, two thousand two,
relating to the division of labor (elevator safety act, 42 CSR 21), is authorized with the following
amendments:
"On page two, subsection 5.1 following the first word 'No', by striking out the word
'elevator' and inserting in lieu thereof the word 'elevators' and following the second words
'certificate of operation', by striking out the words 'shall be issued by the Division' and after the
word 'successfully', by striking out the word 'pass' and inserting in lieu thereof the word 'passed';
On page three, subsection 6.2 following the word 'Chair-lifts', by striking out the word 'is'
and inserting in lieu thereof the word 'are';
And
On page four, subsection 6.4 following the words 'no inspection fee will' by adding the word
'be'".
(b) The legislative rule filed in the state register on the nineteenth day of July, two thousand
two, authorized under the authority of section three, article one, chapter forty-seven of this code,
modified by the division of labor to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of November, two thousand two,
relating to the division of labor (regulation of trade--weights and measures, 42 CSR 22), is
authorized.
§64-10-3. Manufactured housing construction and safety standards board.
The legislative rule filed in the state register on the twenty-sixth day of July, two thousand
two, authorized under the authority of section four, article nine, chapter twenty-one of this code,
relating to the manufactured housing construction and safety standards board (West Virginia
manufactured housing construction and safety standards board, 42 CSR 19), is authorized.
§64-10-4. Division of natural resources.
(a) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section seven, article one, chapter twenty of this
code, modified by the division of natural resources to meet the objections of the legislative rule-
making review committee and refiled in the state register on the first day of October, two thousand
two, relating to the division of natural resources (revocation of hunting and fishing licenses, 58 CSR
23), is authorized.
(b) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section twenty-two, article seven, chapter twenty
of this code, relating to the division of natural resources (special boating, 58 CSR 26), is authorized.
(c) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section seven, article one, chapter twenty of this
code, modified by the division of natural resources to meet the objections of the legislature rule-
making review committee and refiled in the state register on the twenty-seventh day of September,
two thousand two, relating to the division of natural resources (prohibitions when hunting and
trapping, 58 CSR 47), is authorized with the following amendment:
"On page two, section three, by striking out all of subdivision 3.6.1;
And,
On page 3, by striking out all of subdivision 3.15.2 and inserting in lieu thereof a new
subdivision 3.15.2, to read as follows:
'3.15.2. The applicant shall authorize, by written release, his or her medical provider to
disclose to the director of the Division of Natural Resources and the medical provider shall, upon
receipt of the written release, disclose to the director of the Division of Natural Resources, that
portion of the applicant's medical records which substantiates the applicant's physical impairment
qualifying the applicant for the issuance of a special permit for use of a modified bow. The director
shall: Restrict access to medical records submitted to him or her; maintain the records in a secure
locked cabinet; and not share this information with other federal, state or local agencies or entities,
or any register or data bank.'"
(d) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section seven, article one, chapter twenty of this
code, modified by the division of natural resources to meet the objections of the legislative rule-
making review committee and refiled in the state register on the twenty-seventh day of September,
two thousand two, relating to the division of natural resources (deer hunting, 58 CSR 50), is
authorized.
(e) The legislative rule filed in the state register on the eighteenth day of November, two
thousand two, authorized under the authority of section eleven, article two, chapter twenty of this
code, modified by the division of natural resources to meet the objections of the legislative rule-
making review committee and refiled in the state register on the twenty-third day of December, two
thousand two, relating to the division of natural resources (commercial sale of wildlife, 58 CSR 63),
is authorized with the following amendment:
"On page four, section sixty-three, by striking out all of Subsections 4.7 and 4.8 and inserting
in lieu thereof new Subsections 4.7 and 4.8, to read as follows:
'4.7. In order to protect the public health and the welfare of native wildlife, a licensee may
not import cervids into West Virginia. When the United States department of agriculture implements rules and regulations on the interstate transportation and sale of cervids, the interstate movement of
cervids into West Virginia will be governed by the United State department of agriculture rules and
regulations. The Division of Natural Resources, however, may import wildlife during the normal
course of its mission.
4.8. A licensee may sell or relocate cervids within West Virginia until January 15, 2004, or
until the United States department of agriculture establishes rules and regulations regarding the
intrastate transportation and sale of cervids, whichever comes later. When the United States
department of agriculture implements rules and regulations on the intrastate transportation and sale
of cervids, the intrastate movement within West Virginia will be governed by the United States
department of agriculture rules and regulations.'"
§64-10-5. Division of forestry.
(a) The legislative rule filed in the state register on the twenty-third day of July, two
thousand two, under the authority of section four, article one-b, chapter nineteen, of this code,
modified by the division of forestry to meet the objections of the legislative rule-making review
committee and refiled in the state register on the fifth day of December, two thousand two, relating
to the division of forestry (sediment control during commercial timber harvesting operations -
licensing, 22 CSR 2), is authorized.
(b) The legislative rule filed in the state register on the twenty-third day of July, two
thousand two, under the authority of section four, article one-b, chapter nineteen of this code,
modified by the division of forestry to meet the objections of the legislative rule-making review
committee and refiled in the state register on the fifth day of December, two thousand two, relating
to the division of forestry (sediment control during commercial timber harvesting operations - logger
certification, 22 CSR 3), is authorized.
§64-10-6. Board of miner training, education and certification.
The legislative rule filed in the state register on the thirteenth day of September, two
thousand one, under the authority of section five, article seven, chapter twenty-two-a of this code, modified by the board of miner training, education and certification to meet the objections of the
legislative rule-making review committee and refiled in the state register on the thirty-first day of
May, two thousand two, relating to the board of miner training, education and certification
(standards for certification of coal mine electricians, 48 CSR 7), is authorized.
The bill was then ordered to third reading.
S. B. 329, Authorizing miscellaneous agencies and boards to promulgate legislative rules;
on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk,
amending the bill on page five, following the enacting section, by striking out the remainder of the
bill and inserting in lieu thereof the following:
ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO
PROMULGATE LEGISLATIVE RULES.
§64-9-1. Commissioner of agriculture.
The legislative rule filed in the state register on the twenty-second day of July, two thousand
two, authorized under the authority of section three, article two-b, chapter nineteen of this code,
relating to the commissioner of agriculture (inspection of meat and poultry, 61 CSR 16), is
authorized.
§64-9-2. Contractor licensing board.
The legislative rule filed in the state register on the ninth day of July, two thousand two,
authorized under the authority of sections five and sixteen, article eleven, chapter twenty-one of this
code, modified by the contractor licensing board to meet the objections of the legislative rule-
making review committee and refiled in the state register on the fourth day of December, two
thousand two, relating to the contractor licensing board (West Virginia contractor licensing act, 28
CSR 2), is authorized with the following amendment:
"On page nine, section four, subsection 4.1, following the last semicolon by inserting the
following 'or any commercial property intended for sale or lease by an entity other than the employer where the total cost of the total undertaking, labor and materials, exceeds ten thousand
dollars ($10,000.00);'"
§64-9-3. Courthouse facilities improvement authority.
The legislative rule filed in the state register on the twenty-fifth day of July, two thousand
two, under the authority of section three-a, article twenty-six, chapter twenty-nine of this code,
modified by the courthouse facilities improvement authority to meet the objections of the legislative
rule-making review committee and refiled in the state register on the nineteenth day of September,
two thousand two, relating to the courthouse facilities improvement authority (courthouse facilities
improvement authority, 203 CSR 1), is authorized with the following amendment:
On page one, subsection 3.4, after the words "the Authority shall" by striking out the words
"make a written recommendation" and inserting in lieu thereof the words "issue a written
notification".
§64-9-4. Board of dental examiners.
(a) The legislative rule filed in the state register on the fifth day of April, two thousand two,
under the authority of section one, article four, chapter thirty of this code, modified by the board of
dental examiners to meet the objections of the legislative rule-making review committee and refiled
in the state register on the first day of November, two thousand two, relating to the board of dental
examiners (general provisions, 5 CSR 1), is authorized with the following amendment:
"Beginning on page eleven, section eight, subsection 8.2, by striking subdivisions (d), (e),
(i), (j), (k), (l), (n), (p), (q), (r), (s),(t),(u),(y),(z),(aa),(bb),(cc), and (dd);
And,
Beginning on page thirteen, section eight, subsection 8.3 by striking the entire subsection
and inserting the following:
'8.3 Expanded duties of dental hygienists. In addition to and including those duties set forth
in subsection 8.2 of this section, a licensed dentist may assign the following duties and /or intraoral
tasks assigned by a licensed dentist to a dental hygienist in the licensed dentist's employment:
(a). Supra and Subgivgival scaling of teeth;
(b). Placement of subgingival medicaments, fibers, chips, etc.;
(b) (c). Polishing of coronal and/or exposed surfaces of teeth;
(c). Dental Health Education;
(d). Nutritional Counseling;
(e). Application of caries preventive agents and other topical medicaments to the surfaces
of teeth and surrounding tissues (including topical anesthesia);
(f). Placing, exposing, developing, and mounting dental radiographs;
(g). Finishing and polishing amalgams, resin, composite, and silicate restorations;
(h). Examining and recording periodontal findings;
(h). Scaling excessive cement from the surfaces of teeth and restorations;
(i). Performing clinical examinations and diagnostic test of teeth and surrounding tissues
and recording findings for interpretation by a dentist (includes such procedures as restorative
chartings, caries activity test, cytology smears, salivary analysis and smears, endodontic cultures,
vitality test, etc.);
(j). Removing soft tissue dressings;
(j). Removing ligature wires;
(k). Preparing medical and dental histories for interpretation by a dentist;
(l). Placing and removing rubber dams;
(m) (l). Taking intra and extra-oral photographs; and
(n) (m). Removing oral sutures.
(o) (n). Applying pit and fissure sealants with a final evaluation by the supervising dentist;
(o). Using a power-driven handpiece with a rubber cup or brush only for preparing a tooth
for accepting a restoration or appliance.'"
(b) The legislative rule filed in the state register on the tenth day of May, two thousand two,
under the authority of section one, article four, chapter thirty of this code, modified by the board of dental examiners to meet the objections of the legislative rule-making review committee and refiled
in the state register on the twenty-eighth day of May, two thousand two, relating to the board of
dental service examiners (formation and approval of dental corporations, 5 CSR 6), is authorized
with the following amendment:
"On page one, section three, subsection one, after the words 'shall have as a', by striking the
word 'member' and inserting in lieu thereof the word 'shareholder';
On page one, section three, subsection four, after the words 'on or before the', by striking
the words 'first day of July' and inserting in lieu thereof the words 'thirtieth day of June' and after
the word 'every' by striking the word 'member' and inserting in lieu thereof the word 'shareholder';
On page one, section three, subsection five, after the words 'on or before the', by striking
the words 'first day of July' and inserting in lieu thereof the words 'thirtieth day of June';
And,
On page one, section three, subsection seven, on each of the three occasions that the word
'member' appears, by striking the word 'member' and inserting in lieu thereof the word
'shareholder'."
§64-9-5. Family protection services board.
(a) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, under the authority of section four hundred one, article twenty-six, chapter forty-
eight, of this code, modified by the family protection services board to meet the objections of the
legislative rule-making review committee and refiled in the state register on the tenth day of
January, two thousand three, relating to the family protection services board (operation of the family
protection services board, 191 CSR 1), is authorized with the following amendments:
"On page three, section three, by inserting a new subsection to read as follows:
'3.11 "Partner Agencies" means state and community organizations whose mission and
purpose require their response to the needs of victims of domestic violence and their children.", and
by renumbering the remaining subsections accordingly,
And,
On page eight, section five, subsection six, subdivision c, following the words 'fifteen (15)
days', by inserting the words 'after the receipt of the notice'."
(b) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, under the authority of section four hundred one, article twenty-six, chapter forty-eight
of this code, modified by the family protection services board to meet the objections of the
legislative rule-making review committee and refiled in the state register on the tenth day of
January, two thousand three, relating to the family protection services board (licensure of domestic
violence and perpetrator intervention programs, 191 CSR 2), is authorized with the following
amendments:
On page seven, section three, subsection one, subdivision g, after the words 'client service
agreements' by striking the words 'and other purchase of service agreements that exceed one-
thousand dollars ($1000.00) annually'."
(c) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, under the authority of section four hundred one, article twenty-six, chapter forty of
this code, modified by the family protection services board to meet the objections of the legislative
rule-making review committee and refiled in the state register on the tenth day of January, two
thousand three, relating to the family protection services board(perpetrator intervention program
licensure, 191 CSR 3), is authorized with the following amendments:
"On page one, section three, subsection one, subdivision b, after the words 'client service
agreements' by striking the words 'and other purchase of service agreements that exceed one-
thousand dollars ($1000.00) annually';
On page six, section three, subsection three, subdivision c, paragraph 4, by striking the words
'Cultural competency', and inserting in lieu thereof the words 'Cultural sensitivity';
On page six, section three, subsection four, after the words 'conducted by the program', by
inserting the word 'director';
And,
On page nine, section three, subsection twelve, subdivision a, by striking out the words
'Frequency of and reasons for low attendance of perpetrator(s).', and inserting in lieu thereof the
words 'Attendance records of perpetrator(s) including reason(s) for repeated absences.'"
(d) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, under the authority of section four hundred one, article twenty-six, chapter forty-eight
of this code, modified by the family protection services board to meet the objections of the
legislative rule-making review committee and refiled in the state register on the tenth day of
January, two thousand three, relating to the family protection services board (monitored visitation
and exchange program certification, 191 CSR 4), is authorized.
§64-9-6. Board of funeral service examiners.
(a) The legislative rule filed in the state register on the twenty-sixth day of June, two
thousand two, under the authority of sections five and six, article six, chapter thirty of this code,
modified by the board of funeral service examiners to meet the objections of the legislative rule-
making review committee and refiled in the state register on the sixteenth day of January, two
thousand three, relating to the board of funeral service examiners (general provisions, 6 CSR 1), is
authorized with the following amendment:
"On page thirteen, section sixteen, subsection ten, subdivision two, by striking the words
'twenty five dollars ($25)' and inserting in lieu thereof the words 'fifteen dollars ($15)'."
(b) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, under the authority of section six, article six, chapter thirty of this code, modified by
the board of funeral service examiners to meet the objections of the legislative rule-making review
committee and refiled in the state register on the sixteenth day of January, two thousand three,
relating to the board of funeral service examiners (crematory requirements, 6 CSR 2), is authorized
with the following amendment:
"On page twenty-three, section twenty, subsection seven, subdivision two, by striking the words 'twenty five dollars ($25)' and inserting in lieu thereof the words 'fifteen dollars ($15)'."
§64-9-7. Governor's committee on crime, delinquency and correction.
(a) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section three, article eleven-c, chapter sixty-two of
this code, relating to the governor's committee on crime, delinquency and correction (community
corrections standards, 149 CSR 4), is authorized.
(b) The legislative rule filed in the state register on the eighth day of July, two thousand two,
authorized under the authority of section three, article twenty-nine, chapter thirty of this code,
modified by the governor's committee on crime, delinquency and correction to meet the objections
of the legislative rule-making review committee and refiled in the state register on the nineteenth
day of December, two thousand two, relating to the governor's committee on crime, delinquency
and correction (law-enforcement training standards, 149 CSR 2), is authorized.
§64-9-8. Massage therapy licensure board.
The legislative rule filed in the state register on the twenty-sixth day of July, two thousand
two, under the authority of section six, article thirty-seven, chapter thirty of this code, modified by
the massage therapy licensure board to meet the objections of the legislative rule-making review
committee and refiled in the state register on the twenty-second day of November, two thousand
two, relating to the massage therapy licensure board (general provisions, 194 CSR 1), is authorized.
§64-9-9. Board of medicine.
The legislative rule filed in the state register on the twenty-sixth day of July, two thousand
two, under the authority of section sixteen, article three, chapter thirty of this code, modified by the
board of medicine to meet the objections of the legislative rule-making review committee and refiled
in the state register on the twenty-third day of October, two thousand two, relating to the board of
medicine (licensure, disciplinary and complaint procedures, continuing education and physician
assistants, 11 CSR 1B), is authorized.
§64-9-10. Nursing home administrators licensing board.
The legislative rule filed in the state register on the sixteenth day of May, two thousand two,
under the authority of section seven, article twenty-five, chapter thirty of this code, modified by the
nursing home administrators licensing board to meet the objections of the legislative rule-making
review committee and refiled in the state register on the twentieth day of December, two thousand
two, relating to the nursing home administrators licensing board (nursing home administrators, 21
CSR 1), is authorized.
§64-9-11. Board of optometry.
The legislative rule filed in the state register on the fifth day of June, two thousand two,
authorized under the authority of section five, article eight, chapter thirty of this code, modified by
the board of optometry to meet the objections of the legislative rule-making review committee and
refiled in the state register on the twenty-third day of December, two thousand two, relating to the
board of optometry (licensure by endorsement, 14 CSR 8), is authorized.
§64-9-12. Board of pharmacy.
(a) The legislative rule filed in the state register on the seventeenth day of July, two thousand
two, authorized under the authority of section six, article nine, chapter sixty-a of this code, modified
by the board of pharmacy to meet the objections of the legislative rule-making review committee
and refiled in the state register on the twenty-eighth day of October, two thousand two, relating to
the board of pharmacy (controlled substances monitoring, 15 CSR 8), is authorized with the
following amendment:
"On page three, by striking out all of section five and inserting in lieu thereof the following:
§15-8-5. Prescription Forms.
5.1.The purpose of this section is to establish minimum requirements that will decrease
the potential for forgery or alteration of a prescription or a prescription blank for a controlled
substance.
5.2.After June 1, 2003, the Board of Pharmacy recommends that a written prescription
for a controlled substance in Schedules II, III or IV be on a security prescription blank.
5.3.Minimum Requirements of a Security Prescription Blank.
5.3.1.A prescription for a controlled substance should contain the following security
features:
(a) A latent, repetitive "void" pattern screened and printed across the entire front of the
prescription blank. If the prescription is photocopied, the word "void" shall appear in a pattern
across the entire front of the prescription;
(b) A watermark printed on the backside of the prescription blank so that it is only seen at
a forty-five (45) degree angle;
(c) An opaque "Rx" symbol or an "Rx" symbol printed in disappearing ink shall appear in
the upper part of the blank. The symbol shall disappear if the prescription copy is lightened;
(d) Six (6) quantity check off boxes printed on the form and the following quantities shall
appear:
(1) ! 1-24;
(2) ! 25-49;
(3) ! 50-74;
(4) ! 75-100;
(5) ! 101-150; and
(6) ! 151 and over:
Provided, That if the blank has the quantity prescribed electronically printed in both numeric and
word format, then the quantity check off boxes would not be necessary;
(e) The following statement printed on the bottom of the prescription blank: "Prescription
is void if more than one (1) controlled substance prescription is written per blank"; and
(f) Refill options in the following order: Refill NR 1 2 3 4 5: Provided, That if the blank has
the refill amount electronically printed in both numeric and word format, then the quantity check
off boxes would not be necessary.
5.3.2.A prescription shall bear the preprinted, stamped, typed, or manually printed name, address and telephone number of the prescribing practitioner.
5.3.3.A prescription blank for a controlled substance shall not contain:
(a) An advertisement on the front or the back of the prescription blank;
(b) The preprinted name of a controlled substance; or
(c) The written, typed or rubber-stamped name of a controlled substance until the
prescription blank is signed, dated and issued to a patient.
5.3.4.A prescription blank for a controlled substance shall provide space for the patient's
name and address, the practitioner's signature and the practitioner's DEA registration number.
5.3.5.Only one (1) controlled substance prescription blank shall be written per prescription
blank.
5.3.6.A quantity check-off box that corresponds to the quantity prescribed shall be marked
or the quantity electronically printed in both numeric and word format.
5.3.7.If a prescribed drug is a schedule II, III or IV controlled substance, a refill option
shall be marked or the refill amount electronically printed in both numeric and word format.
5.3.8.If a prescription for a schedule II, III or IV controlled substance will be transmitted
to a pharmacy by facsimile, the practitioner or the practitioner's agent shall, prior to transmission,
write or stamp "FAXED" on the face of the original prescription along with the date and the
person's initials.
5.3.9.If a prescription for a schedule II, III or IV controlled substance has been transmitted
to a pharmacy by facsimile, the transmitting practitioner shall file the original prescription in the
patient's record.
5.3.10.A pharmacist shall not be required to use a security prescription blank to record an
oral prescription or a transferred prescription for a Schedule II, III or IV controlled substance.
5.3.11.The requirements of this section do not apply to prescriptions for controlled
substances that are electronically transmitted from a prescriber to a pharmacy: Provided, That all
electronically transmitted prescriptions for controlled substances shall comply with all federal requirements."
(b) The legislative rule filed in the state register on the seventeenth day of July, two
thousand two, authorized under the authority of section seven-c, article five, chapter thirty, of this
code, modified by the board of pharmacy to meet the objections of the legislative rule-making
review committee and refiled in the state register on the twenty-eighth day of October, two thousand
two, relating to the board of pharmacy (pharmacist recovery networks, 15 CSR 10), is authorized.
§64-9-13. Radiologic technology board of examiners.
The legislative rule filed in the state register on the twenty-fifth day of July, two thousand
two, under the authority of section five, article twenty-three, chapter thirty of this code, modified
by the board of examiners of radiologic technology to meet the objections of the legislative rule-
making review committee and refiled in the state register on the nineteenth day of November, two
thousand two, relating to the board of examiners of radiologic technology (rules of the board, 18
CSR 1), is authorized with the following amendments:
"On page two, section two, subsection e, subdivision seven, after the word 'violating', by
striking the words 'provisions of subsection 3.6 of this rule' and inserting in lieu thereof the words
'rules of the board';
On page three, section four, subsection two, subdivision e, by striking the word 'penalty';
And,
On page six, section seven, subsection 4.7.e by striking the words "$15.00" and inserting in
lieu thereof the words 'maximum allowable by West Virginia State Code'."
§64-9-14. Real estate appraiser licensing and certification board.
(a) The legislative rule filed in the state register on he twenty-fifth day of July, two thousand
two, under authority of section nine, article thirty-eight, chapter thirty of this code, modified by the
real estate appraiser licensing and certification board to meet the objections of the legislative rule-
making review committee and filed in the state register on the thirtieth day of September, two
thousand two, relating to the real estate appraiser licensing and certification board (requirements for licensure and certification, 190 CSR 2), is authorized.
(b) The legislative rule filed in the state register on the twenty-fifth day of July, two thousand
two, under the authority of section nine, article thirty-eight, chapter thirty of this code, relating to
the real estate appraiser licensing and certification board (renewal of licensure or certification, 190
CSR 3), is authorized.
§64-9-15. Real estate commission.
(a) The legislative rule filed in the state register on the nineteenth day of July, two thousand
two, under the authority of section eight, article forty, chapter thirty of this code, relating to the real
estate commission (requirements in licensing real estate brokers, associate brokers and salespersons
and the conduct of brokerage business, 174 CSR 1), is authorized with the following amendment:
"On page nine, section sixteen, paragraph 16.3.b.1., following the words 'interest bearing',
by striking out the word 'account' and inserting in lieu thereof the words 'trust fund account
established in compliance with WV Code § 30-40-18'."
(b) The legislative rule filed in the state register on the nineteenth day of July, two thousand
two, under the authority of section eight, article forty, chapter thirty of this code, relating to the real
estate commission (schedule of fees, 174 CSR 2), is authorized.
(c) The legislative rule filed in the state register on the nineteenth day of July, two thousand
two, under the authority of section eight, article forty, chapter thirty, of this code, modified by the
real estate commission to meet the objections of the legislative rule-making review committee and
refiled in the state register on the twenty-second day of November, two thousand two, relating to
the real estate commission (requirements in approval and registration of real estate courses, course
providers and instructors, 174 CSR 3), is authorized.
§64-9-16. Secretary of state.
The legislative rule filed in the state register on the twenty-second day of July, two thousand
two, authorized under the authority of section four, article six-j, chapter forty-six-a of this code,
modified by the secretary of state to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-first day of October, two thousand two,
relating to the secretary of state (registry for notification of a state of emergency, 153 CSR 33), is
authorized.
§64-9-17. Board of veterinary medicine.
(a) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section four, article ten, chapter thirty of this code,
modified by the board of veterinary medicine to meet the objections of the legislative rule-making
review committee and refiled in the state register on the twenty-seventh day of December, two
thousand two, relating to the board of veterinary medicine (standards of practice, 26 CSR 4), is
authorized.
(b) The legislative rule filed in the state register on the twenty-sixth day of July, two
thousand two, authorized under the authority of section four, article ten, chapter thirty of this code,
relating to the board of veterinary medicine (schedule of fees 26 CSR 6), is authorized.
On motion of Delegates Beane and Kuhn, the amendment was amended on page four, section
eight, subsection 8.3, following subdivision (o), by inserting a new subdivision, designated
subdivision (p), to read as follows:
"(p). Examining and recording periodontal findings."
The question then being on the adoption of the Committee amendment as amended, the same
was put and prevailed.
There being no further amendments, the bill was then ordered to third reading.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:
Com. Sub. for S. B. 39, Making false alarm felony in certain cases,
S. B. 107, Creating sales tax holiday for back-to-school purchases,
Com. Sub. for S. B. 180, Providing for school construction on cash basis,
S. B. 189, Relating to approval of out-of-state bank applications to establish bank branches,
S. B. 190, Requiring more examinations for certain banks to track current practice with
federal regulators,
Com. Sub. for S. B. 191, Relating to state-chartered credit union converting to federal or
another state charter,
S. B. 192, Relating to notice from certain bank holding companies,
S. B. 198, Creating presumption that assessed value of property is correct; exception,
Com. Sub. for S. B. 204, Relating to involuntary commitment generally,
S. B. 336, Relating to uniform application forms for credentialing, re-credentialing and
updating information for health care practitioners,
S. B. 337, Simplifying process for adoption of children from foreign countries,
S. B. 342, Limiting time driver's license may be issued to certain non-citizens,
Com. Sub. for S. B. 354, Relating to operating or attempting to operate clandestine drug
laboratory; penalty,
Com. Sub. for S. B. 387, Increasing time to perfect liens for certain debts,
S. B. 428, Directing auditor issue warrants for payment of certain claims against state,
S. B. 430, Providing additional restrictions on outdoor advertising,
Com. Sub. for S. B. 496, Creating Motor Fuels Excise Tax Act,
Com. Sub. for S. B. 510, Permitting holocaust commission to accept gifts, donations and
appropriations from Legislature; reimbursement,
Com. Sub. for S. B. 522, Authorizing county boards of education to lease school property
no longer needed,
And,
S. B. 646, Authorizing centers for economic development and technology advancement.
The Clerk announced that, pursuant to House Rule 70a, Delegate Beane had requested S. B.
329 be removed from the Consent Calendar and be placed upon the House Calendar.
The Clerk announced that, pursuant to House Rule 70a, Delegate Trump had requested Com.
Sub. for S. B. 594 and S. B. 430 be removed from the Consent Calendar and be placed upon the
House Calendar.
Special Calendar
Unfinished Business
H. C. R. 48, Requesting a study on the condition of the mental health plan in regards to the
organization and availability of services offered and the types of services needed; coming up in
regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 71, Naming the bridge connecting U. S. Route 60 east and Peyton Street in Cabell
County, the "Specialist/4 James G. Berry Memorial Bridge"; coming up in regular order, as
unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Third Reading
Com. Sub. for H. B. 2679, Authorizing certain counties to count absentee ballots during
election period; on third reading, coming up in regular order, was, on motion of Delegate Staton,
laid upon the table.
Second Reading
H. B. 2119, Increasing the rate of the tax on cigarettes; on second reading, coming up in
regular order, was read a second time.
Delegates Carmichael and Frich moved to amend the bill on page one, section three, line
eleven, by striking out section three in its entirety and inserting in lieu thereof the following:
"§11-17-3. Levy of tax; ratio; dedication of proceeds; legislative findings and intent; setoff and
reduction of sales tax on certain food.
(a) Tax on cigarettes. -- For the purpose of providing revenue for the general revenue fund
of the state, an excise tax is hereby continued levied and imposed on sales of cigarettes at the rate
of seventeen one dollar and seventeen cents on each twenty cigarettes or in like ratio on any part
thereof. Only one sale of the same article shall be used in computing the amount of tax due under
this subsection.
(b) Legislative findings and intent -- The Legislature finds that the increase of the rate of tax
imposed in subsection (a) of this section by the amendment and reenactment of this section in the
regular session of the Legislature in the year two thousand three will be a significant tax burden
upon the families of lower income citizens of this state who purchase cigarettes on a regular basis;
that the consumer sales tax imposed by article fifteen of this chapter upon sales of food and food
products purchased for human consumption off premises is also a tax burden upon lower income
citizens and families in this state, regardless of whether or not they purchase cigarettes. The
Legislature therefore finds that providing a full or at least partial exemption from the consumer sales
tax on food and food products sold for human consumption off premises imposed in article fifteen
of this chapter would help mitigate the increased tax burden imposed by the increase of the cigarette
tax in subsection (a) of this section upon lower income families. It is therefore the intent of the
Legislature to reduce and offset, in whole or in part, the increased tax burden upon the lower income
families of the state whose members purchase cigarettes as a result of the increase in the tax imposed
upon cigarettes in subdivision (a) of this section by providing an exemption to the sales tax imposed
by article fifteen of this chapter upon the sale of food and food products sold for human
consumption off premises by the act of the Legislature amending and reenacting this section to
increase the tax on cigarettes in the regular session of the Legislature in the year two thousand three.
(c) The tax commissioner shall calculate and determine the amount of revenue generated
annually by the increase of the rate of tax imposed on cigarettes imposed in subsection (a) of this
section effective on the first day of July, two thousand three, based on such revenue generated from
the first day of July, two thousand three, through the thirty-first day of December, two thousand three, according to the following formula: twice the total revenue generated from tax imposed in
subsection (a) of this section from the tax period beginning the first day of July, two thousand three,
through the thirty-first day of December, two thousand three, multiplied by a percentage equal to
one hundred divided by one hundred seventeen. The amount of revenue so generated is defined as
the '2003 cigarette tax revenue increase'.
(d) The additional revenue generated by the increase in the rate of tax on cigarettes effective
the first day of July, two thousand three, pursuant to subsection (a) of this section is dedicated to
effectuate a reduction of the consumer sales tax on food and food products sold for human
consumption off premises imposed by section three, article fifteen of this chapter, as hereinafter
provided. Notwithstanding any provision of this code to the contrary, beginning the first day of July,
two thousand four, the rate of consumer sales tax per dollar of sales imposed upon the sale of food
and food products sold for human consumption off premises imposed in section three, article fifteen
of this chapter is reduced to a rate according to the following formula: the 2003 food tax revenue,
less the 2003 cigarette tax revenue increase, the difference of which is divided by the 2003 food tax
revenue; this quotient is then multiplied by the consumer sales tax rate of six cents on the dollar of
sales and then rounded to the nearest higher full cent, but not to exceed six cents: Provided, That
if the calculation, before rounded to the nearest cent, is less than one tenth of one cent, sales of food
and food products sold for human consumption off premises is exempt from the consumer sales tax
imposed by section three, article fifteen of this chapter. As used in this section, the term '2003 food
tax revenue' means the amount of revenue generated by the consumer sales tax on food and food
products sold for human consumption off premises imposed by section three, article fifteen of this
chapter for the tax period beginning the first day of January, two thousand three, through the thirty-
first day of December, two thousand three.
(b) (d) Tax on tobacco products other than cigarettes. -- Effective the first day of January,
two thousand two, an excise tax is hereby levied and imposed on the sale or use of other than
cigarettes, tobacco products at a rate equal to seven percent of the wholesale price of each article or item of tobacco product other than cigarettes sold by the wholesaler or subjobber dealer, whether
or not sold at wholesale, or if not sold, then at the same rate upon the use by the wholesaler or
dealer. Only one sale of the same article shall be used in computing the amount of tax due under
this subsection. Revenues received from this tax shall be deposited into the general revenue fund.
(e) Effective date. -- The changes set forth herein to sections three and four, article
seventeen, chapter eleven of the code of West Virginia shall become effective the first day of July,
two thousand three."
Delegate Staton arose to a point of order as to the germaneness of the amendment.
To the point of order the Speaker replied, stating that the fundamental purpose of the bill
was to raise the tax on cigarettes and the fundamental purpose of the amendment was to raise the
tax on cigarettes and to eliminate, in whole or in part, the sales tax on food and ruled the amendment
not germane to the fundamental purpose of the bill.
Delegate Michael moved to amend the bill on page three, section three, line twenty-two, by
striking out the word "July" and inserting in lieu thereof the word "May".
On page three, section four, on line eighteen, following the words "tax commissioner", by
striking out the comma and the words "at the time of filing the report" and the comma.
And,
On page four, section four, line nineteen, following the words "increased rate", by striking
out the period and inserting the following:
"in accordance with the following schedule:
(1) One-third at the time of filing the report;
(2) One-third not later than sixty days after the effective date of the rate change; and
(3) One-third not later than ninety days after the effective date of the rate change."
On the adoption of the amendment, Delegate Overington demanded the yeas and nays, which
demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 353), and there were--yeas 56, nays 41, absent and not voting 3, with the nays and absent and not voting being as
follows:
Nays: Armstead, Ashley, Azinger, Blair, Border, Brown, Browning, Butcher, Calvert,
Canterbury, Caputo, Carmichael, Caruth, Craig, Ellem, Evans, Ferrell, Foster, Hall, Hamilton,
Howard, Hrutkay, Kuhn, Leggett, Louisos, Manchin, Martin, Overington, Schadler, Schoen,
Sobonya, Spencer, Stalnaker, Thompson, R., Wakim, Walters, Webb, White, G., Wright, Yeager
and Yost.
Absent And Not Voting: Coleman, Frich and Tucker.
So, a majority of the members present and voting having voted in the affirmative, the
amendment was adopted.
Delegate Canterbury moved to amend the bill on page two, section three, line two, following
the word "fund", by inserting the following:
"and for the construction, maintenance and operation of medical schools in the state".
And,
On page two, section three, line eighteen, following the word "fund.", by inserting a new
subsection, designated subsection "(c)", to read as follows:
"(c) There is hereby created a special fund, designated the 'West Virginia medical school
supplemental fund'. Beginning the fiscal year beginning the first day of July, two thousand three
and each fiscal year thereafter, the tax commissioner shall deposit the first twenty million dollars
of revenue received from the tax imposed in subsection (a) of this section into the West Virginia
medical school supplemental fund. Funds in the said fund shall be used solely for the purpose of
construction, maintenance and operation of the West Virginia University school of medicine, the
Marshall University school of medicine and the West Virginia school of osteopathic medicine."
On the adoption of the amendment, Delegate Canterbury demanded the yeas and nays, which
demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 354), and there were--yeas 31, nays 67, absent and not voting 2, with the yeas and absent and not voting being as
follows:
Yeas: Armstead, Ashley, Azinger, Blair, Border, Calvert, Canterbury, Carmichael, Duke,
Ellem, Evans, Faircloth, Fragale, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Romine,
Schadler, Schoen, Smirl, Sobonya, Spencer, Sumner, Trump, Wakim, Walters, Webb and White,
G.
Absent And Not Voting: Coleman and Frich.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment was not adopted.
There being no further amendments, the bill was then ordered to third reading.
S. B. 105, Increasing tax on cigarettes; on second reading, coming up in regular order, was
read a second time.
On motion of Delegate Staton, the bill was amended on page two, following the enacting
section, by striking out the remainder of the bill and inserting in lieu thereof the provisions of H. B.
2119, to read as follows:
"ARTICLE 17. TOBACCO PRODUCTS EXCISE TAX ACT.
§11-17-3. Levy of tax; ratio; dedication of proceeds.
(a) Tax on cigarettes. -- For the purpose of providing revenue for the general revenue fund
of the state, an excise tax is hereby continued levied and imposed on sales of cigarettes at the rate
of seventeen fifty-five cents on each twenty cigarettes or in like ratio on any part thereof. Only one
sale of the same article shall be used in computing the amount of tax due under this subsection.
(b) Tax on tobacco products other than cigarettes. -- Effective the first day of January, two
thousand two, an excise tax is hereby levied and imposed on the sale or use of other than cigarettes,
tobacco products at a rate equal to seven percent of the wholesale price of each article or item of
tobacco product other than cigarettes sold by the wholesaler or subjobber dealer, whether or not sold
at wholesale, or if not sold, then at the same rate upon the use by the wholesaler or dealer. Only one sale of the same article shall be used in computing the amount of tax due under this subsection.
Revenues received from this tax shall be deposited into the general revenue fund.
(c) Effective date. -- The changes set forth herein to this section and section four of this
article shall become effective the first day of May, two thousand three.
§11-17-4. Effect of rate changes; tobacco products on hand or in inventory; report; discount.
(a) Notwithstanding other provisions of this article, it is hereby declared to be the intent of
the Legislature that one rate of excise tax is applicable to all quantities of cigarettes and another rate
of excise tax is applicable to all tobacco products other than cigarettes in this state on and after the
first day of July, two thousand one, under the provisions of this article. Any tobacco products, on
hand or in inventory, on the effective date of any rate change are hereby considered to have been
purchased or received on the effective date of the change in rate.
(b) Every wholesaler, subjobber, subjobber dealer, retail dealer and vending machine
operator who, on the effective date of any rate change, has, on hand or in inventory, any tobacco
products or cigarette tax stamps, upon which the tax or any portion of the tax has been previously
paid, shall take a physical inventory and shall file a report of the inventory with the tax
commissioner, in the format required by the tax commissioner, within thirty days after the inventory,
and shall pay to the tax commissioner, at the time of filing the report, any additional tax due under
an increased rate in accordance with the following schedule:
(1) One-third at the time of filing the report;
(2) One-third not later than sixty days after the effective date of the rate change; and
(3) One-third not later than ninety days after the effective date of the rate change.
A discount of four percent shall be allowed on all tax due for persons who pay additional tax
under this section.
(c) Imposition of the tax on tobacco products other than cigarettes shall be treated as a
change in rate on the effective date of the tax."
The bill was then ordered to third reading.
S. B. 648, Relating to election laws generally; on second reading, coming up in regular order,
was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
on page seven, following the enacting clause, by striking out the remainder of the bill and inserting
in lieu thereof the following:
That section forty, article one, chapter three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be repealed; that section twenty, article two of said chapter be
repealed; that section twenty-one, article four-a of said chapter be repealed; that section twenty-one,
article nine of said chapter be repealed; that sections seven, nine, twenty, twenty-one, twenty-four,
twenty-five, twenty-eight, twenty-nine, thirty, thirty-four, thirty-nine, forty-one, forty-four and forty-
five, article one of said chapter be amended and reenacted; that said article be further amended by
adding thereto three new sections, designated sections forty-eight, forty-nine and fifty; that sections
two, three, five, seven, ten, thirteen, nineteen and thirty, article two of said chapter be amended and
reenacted; that said article be further amended by adding thereto a new section, designated section
four-a; that sections one, two, two-a, three, five, five-c, seven, eight, ten and eleven, article three of
said chapter be amended and reenacted; that sections ten and twenty-three, article four of said
chapter be amended and reenacted; that sections nine, nineteen, twenty-two, twenty-four-a and
twenty-seven, article four-a of said chapter be amended and reenacted; that sections ten, thirteen,
fifteen and nineteen, article five of said chapter be amended and reenacted; that sections three, four-
a, five, six, seven and nine, article six of said chapter be amended and reenacted; that sections one
and four, article seven of said chapter be amended and reenacted; that sections two, four, five, and
twelve, article eight of said chapter be amended and reenacted; that sections seven and eight, article
ten of said chapter be amended and reenacted; and that section two, article six, chapter eight of said
code be amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-7. Precinct changes; procedure; precinct record.
(a) Subject to the provisions and limitations of section five of this article, the county
commission of any county may change the boundaries of any precinct within such the county, or
divide any precinct into two or more precincts, or consolidate two or more precincts into one, or
change the location of any polling place whenever the public convenience may require it.
(b) No order effecting such the change, division or consolidation shall be made by the county
commission within ninety days next preceding prior to an election nor without giving notice thereof
at least one month before such the change, division or consolidation by publication of such the
notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter
fifty-nine of this code., and the The publication area for such publication shall be is the county in
which such the precinct or precincts are located. The county commission shall also, within fifteen
days after the date of the order, cause a copy to be published as aforesaid publish the order in the
manner required for publication of the notice.
(c) The county commission shall also, before the next succeeding election, cause the voters
in the several precincts affected by the order to be duly registered in the proper precinct or precincts
and shall mail written notification to all registered voters affected by the change.
(d) The county commission shall keep in a well-bound book, marked "election precinct
record", a complete record of all their proceedings hereunder and of every order made creating a
precinct or precincts or establishing a place of voting therein. Such The "election precinct record"
shall be kept by the county commission clerk in his or her office and shall, at all reasonable hours,
when not actually in use by the county commission, be open to inspection by any citizen of the
county.
(e) When the county commission establishes a polling place at a location other than the
location used for holding the preceding primary, general or special election in that precinct, the
commission shall cause a notice to be posted on election day on the door of the previous polling
place describing the location of the newly established polling place and shall mail written notification to all registered voters affected by the change.
(f) If for any reason the election cannot be held at the designated polling place in a precinct
and no provision has been made by the county commission for holding the election at another place,
the commissioners of election for that precinct may hold the election at the nearest place which they
can secure for the purpose. They shall make known by proclamation to voters present at the time
for opening the polls, and by posting a notice at or near the entrance of the first named polling place,
the location at which the election will be held. The county commission shall establish another place
of voting for that precinct as soon thereafter as practicable.
(g) Notwithstanding any provision herein to the contrary, in the case of an emergency, the
county commission may make such the precinct change no later than sixty days prior to an election
in accordance with the requirements herein with the approval of the secretary of state. Such A
change, if made however, shall not cause any voter to be moved to a different district.
§3-1-9. Political party committees; how composed; organization.
At the primary election in the year one thousand nine hundred ninety-four, and in every (a)
Every fourth year thereafter at the primary election, the voters of each political party in each
senatorial district shall elect four members consisting of two male members and two female
members of the state executive committee of the party. In senatorial districts containing two or
more counties, not more than two such elected committee members shall be residents of the same
county: Provided, That at each election the votes shall be tallied from highest to lowest without
regard to gender or county of residence. The two candidates with the highest votes shall be elected
first and the other candidates shall be qualified based on vote tallies, gender and county of residence.
The committee, when convened and organized as herein provided, shall appoint three additional
members of the committee from the state at large which shall constitute the entire voting
membership of the state executive committee: Provided, however, That if it chooses to do so, the
committee may by motion or resolution , and in accordance with party rules, may expand the
membership of the committee. When senatorial districts are realigned following a decennial census, members of the state executive committee previously elected or appointed shall continue in office
until the expiration of their terms., and appointments Appointments made to fill vacancies on the
committee until the next election of executive committee members shall be selected from the
previously established districts. At the first election of executive committee members following the
realignment of senatorial districts, members shall be elected from the newly established districts.
(b) At such the primary election, the voters of each political party in each county shall elect
one male and one female member of the party's executive committee of the congressional district,
of the senatorial district and of the delegate district in which such the county is situated, if such the
county be is situated in a multicounty senatorial or delegate district. When districts are realigned
following a decennial census, members of an executive committee previously elected in a county
to represent that county to in a congressional or multicounty senatorial or delegate district executive
committee shall continue to represent that county in the appropriate newly constituted multicounty
district until the expiration of their terms: Provided, That the county executive committee of the
political party shall determine which previously elected members shall will represent the county if
the number of multicounty senatorial or delegate districts in the county is decreased; and shall
appoint members to complete the remainder of the term if the number of such districts is increased.
(c) At the same time such the voters of the county in each magisterial district or executive
committee district, as the case may be, shall elect one male and one female member of the party's
county executive committee except that in counties having three executive committee districts, there
shall be elected two male and two female members of the party's executive committee from each
magisterial or executive committee district.
(d) For the purpose of complying with the provisions of this section, the county commission
shall create such the executive committee districts. as they shall determine, which such The districts
shall not be fewer than the number of magisterial districts in such the counties, nor shall they exceed
in number the following: Forty for counties having a population of one hundred thousand persons
or more; thirty for counties having a population of fifty thousand to one hundred thousand; twenty for counties having a population of twenty thousand to fifty thousand; and such the districts in
counties having a population of less than twenty thousand persons shall be coextensive with the
magisterial districts.
(e) The executive committee districts shall be as nearly equal in population as practicable
and shall each be composed of compact, contiguous territory. The county commissions shall change
the territorial boundaries of such the districts as required by the increase or decrease in the
population of such the districts as determined by a decennial census. Such The changes must be
made within two years following such the census.
(f) All members of executive committees, selected for each political division as herein
provided, shall reside within the county or district from which chosen. The term of office of all
members of executive committees elected at the primary election in the year one thousand nine
hundred ninety-four shall will begin on the first day of July, following said the primary and shall
continue for four years thereafter and until their successors are elected and qualified. Vacancies in
the state executive committee shall be filled by the members of the committee for the unexpired
term. Vacancies in the party's executive committee of a congressional district, senatorial district,
delegate district or county shall be filled by the party's executive committee of the county in which
such the vacancy exists, and shall be for the unexpired term.
(g) As soon as possible after the certification of the election of the new executive
committees, as herein provided, they shall convene an organizational meeting within their respective
political divisions, on the call of the chairman of corresponding outgoing executive committees or
by any member of the new executive committee in the event there is no corresponding outgoing
executive committee. and proceed to During the first meeting the new executive committee must
select a chairman, a treasurer and a secretary and such other officers as they may desire. , each Each
of which the officers shall, for their respective committees, perform the duties that usually appertain
to such offices his or her office. The organizational meeting may be conducted prior to the
beginning of the term, but no official action other than the election of officers and the appointment to fill vacancies on the committee may be made before the first day of July. A current listing of all
executive committees' members shall be filed with the secretary of state by the end of July of each
year. Vacancies in any executive committee shall be filled no later than four months after the
vacancy occurs. and the The chairman of each executive committee shall submit an updated
committee list as changes occur. Executive committee membership lists shall include at least the
member's name, full address, employer, telephone number and term information. If a vacancy on
an executive committee is not filled within the four-month period prescribed by the provisions of
this section, the chair of the executive committee shall name someone to fill the vacancy within ten
days of the expiration of the four-month period.
(h) Any meeting of any political party executive committee shall be held only after public
notice and notice to each member is given according to party rules and shall be open to all members
affiliated with such the party. Meetings shall be conducted according to party rules, all official
actions shall be made by voice vote and minutes shall be maintained and shall be open to inspection
by members affiliated with such the party.
§3-1-20. Cards of instructions to voters; sample ballots; posting.
(a) The board of ballot commissioners of each county shall provide cards of general
information which will provide the date of the election and the hours during which polling places
will be open, instruction for mail-in registrants and first-time voters and voters' rights and
prohibitions against fraud and misrepresentation and cards of instruction for voters in preparing their
ballots and casting a provisional ballot as prescribed by the secretary of state. They shall furnish
a sufficient number of cards to the commissioners of election at the same time they deliver the
ballots for the precinct.
(b) The commissioners of election shall post one instruction card in each voting booth giving
instructions to the voters on how to prepare the ballots for deposit in the ballot boxes and how to
obtain a new ballot in place of one accidentally spoiled.
(c) The commissioners of election shall post one or more other cards of general information at places inside and outside of the voting place where voters pass or wait to vote. The commissioners
shall also post the official write-in candidates in the same locations inside and outside of the voting
place.
(d) The ballot commissioners shall also cause to be have printed, on a different color paper
than the official ballot, ten or more copies of the sample ballots provided for each voting place, at
each election therein, which shall be designated sample ballots, and for each voting place for each
election. Sample ballots shall be furnished and posted with the cards of general information at each
voting place.
(e) During the period of early in-person voting, the official designated to supervise and
conduct absentee voting shall post the cards of general information, a list of official write-in
candidates and sample ballots within the area where absentee voting is conducted.
§3-1-21. Printing of official and sample ballots; number; packaging and delivery, correction
of ballots.
(a) The board of ballot commissioners for each county shall provide the ballots and sample
ballots necessary for the conduct of conducting every election for public officers in which the voters
of the county participate.
(b) The persons who shall required to provide the ballots necessary for the conduct of
conducting all other elections shall be are:
(1) The secretary of state, for any statewide special election ordered by the Legislature;
(2) The board of ballot commissioners, for any countywide special election ordered by the
county commission; or
(3) The board of education, for any special levy or bond election ordered by the board of
education; or
(4) The municipal board of ballot commissioners, for any election conducted for or within
a municipality except an election in which the matter affecting the municipality is placed on the
county ballot at a county election. Ballots other than those caused to be printed by the proper authorities as specified in this section shall not be cast, received or counted in any election.
(c) When paper ballots are used, the total number of regular official ballots printed shall
equal one and one-twentieth times the number of registered voters eligible to vote that ballot. The
circuit clerk shall determine the number of absentee official ballots.
(d) The number of regular official ballots packaged for each precinct shall equal the number
of registered voters of the precinct. The remaining regular official ballots shall be packaged and
delivered to the circuit clerk who shall retain them unopened until they are required for an
emergency. Each package of ballots shall be wrapped and sealed in a manner which will
immediately make apparent any attempt to open, alter or tamper with the ballots contained therein.
Each package of ballots for a precinct shall be clearly labeled in a manner which cannot be altered,
with the county name, the precinct number and the number of ballots contained therein in each
package. If the packaging material conceals the face of the ballot, a sample ballot identical to the
official ballots contained therein shall be securely attached to the outside of the package or, in the
case of ballot cards, the type of ballot shall be included in the label.
(e) All absentee ballots necessary for the conduct of conducting absentee voting in all voting
systems shall be delivered to the circuit clerk of the appropriate county not later than the forty-
second day before the election. In counties where the clerk of the county commission is responsible
for conducting absentee voting, the circuit clerk shall transfer the absentee ballots to the clerk of the
county commission prior to the beginning of absentee voting. All official ballots in paper ballot
systems shall be delivered to the circuit clerk of the appropriate county not later than twenty-eight
days before the election.
(f) Upon a finding of the board of ballot commissioners that an official ballot contains an
error which, in the opinion of the board, is of sufficient magnitude as to confuse or mislead the
voters, the board shall cause the error to be corrected either by the reprinting of the ballots or by the
use of stickers printed with the correction and of suitable size to be placed over the error without
covering any other portion of the ballot.
§3-1-24. Obtaining and delivering election supplies.
(a) It shall be the duty of the board of ballot commissioners clerk of the county commission
to appoint one or more of the commissioners of election or poll clerks at each precinct of the county
to attend at the offices of the clerks of the circuit court and county commission, as the case may be,
at least one day before each election to receive the ballots, ballot boxes, poll books, registration
records and forms and all other supplies and materials for conducting the election at the respective
precincts. The clerks shall take a receipt for the respective materials delivered to the above
commissioner or commissioners of election or poll clerks and shall file such the receipt in their
respective offices. It shall be the duty of such the commissioners or poll clerks to receive such the
supplies and materials from the respective clerks and to deliver the same them with the seal of all
sealed packages unbroken at the election precinct in time to open the election.
(b) Such commissioner or The commissioners or poll clerks, if they perform such the
messenger services, shall receive the per diem and mileage rate prescribed by law for this service.
(c) Ballots shall be delivered in sealed packages with seals unbroken. For general and
special elections the delivered ballots so delivered shall not be in excess of one and one-twentieth
times the number of registered voters in the precinct. For primary elections the ballots for each
party shall be in a separately sealed package containing not more than one and one-twentieth times
the number of registered voters of such each party in the election precinct.
(d) For primary elections one copy of the poll books, including the written or printed forms
for oaths of commissioners of election and poll clerks written or printed thereon, shall be supplied
at each voting precinct for each political party appearing on the primary ballot.
(e) There shall be two ballot boxes for each election precinct for which a receiving and a
counting board of election commissioners have been appointed.
§3-1-25. Supplies by special messenger.
In case any commissioner of election so appointed shall fail or poll clerk fails to appear at
the offices of the clerks of such the county commission and circuit courts by the close of the clerk's office on the day prior to any election, the board of ballot commissioners, the chairman thereof or
the circuit clerk shall forthwith dispatch a special messenger to the commissioners of election of
each respective precinct with the ballots, registration records, ballot boxes, poll books and other
supplies for such the precinct. Such The messenger, if not a county employee, shall be allowed five
dollars for this service. and, even if he be The messenger a county employee, twenty cents a mile
for the distance necessary to be traveled by him, and shall also receive mileage up to the rate of
reimbursement authorized by the travel management rule of the department of administration for
each mile necessarily traveled in the performance of his or her services. The messenger shall
promptly report to the clerks of the circuit court and county commission, respectively, and file with
such the clerks the receipts of the person to whom he or she delivered such the ballots and other
supplies and his or her affidavit stating when and to whom he or she delivered them.
§3-1-28. Election officials; eligibility, suspension of eligibility.
(a) To be eligible to be appointed or serve as an election official in any state, county or
municipal election held in West Virginia, a person:
(1) Must be a registered voter of the county for elections held throughout the county and a
registered voter of the municipality for elections held within the municipality: Provided, That if the
required number of persons eligible to serve as election officials for a municipal election are not
available or are not willing to serve as election officials for a municipal election, a registered voter
of the county in which the municipality is located may serve as an election official for elections held
within the municipality;
(2) Must be able to read and write the English language;
(3) May not be a candidate on the ballot or an official write-in candidate in the election;
(4) May not be the parent, child, sibling or spouse of a candidate on the ballot or an official
write-in candidate in the precinct where the official serves;
(5) May not be a person prohibited from serving as an election official pursuant to any other
federal or state statute; and
(6) May not have been previously convicted of a violation of any election law.
(b) The county commission may, upon majority vote, suspend the eligibility to serve as an
election official in any election for four years for the following reasons:
(1) Failure to appear at the polling place at the designated time without proper notice and just
cause;
(2) Failure to perform the duties of an election official as required by law;
(3) Improper interference with a voter casting a ballot or violating the secrecy of the voter's
ballot;
(4) Being under the influence of alcohol or drugs while serving as an election official; or
(5) Having anything wagered or bet on an election.
(c) The county commission may, upon majority vote, suspend the eligibility to serve as an
election official in any election for two years upon petition of twenty-five registered voters of the
precinct where the official last served and upon presentation of evidence of any of the grounds set
forth in subsection (b) of this section: Provided, That the petition requesting the suspension of the
election official is filed with the county commission at least ninety days prior to an election date.
The names of those persons signing the petition must be kept confidential.
§3-1-29. Boards of election officials; definitions, composition of boards, determination of
number and type.
(a) For the purpose of this article:
(1) The term "standard receiving board" means those election officials charged with
conducting the process of voting within a precinct and consists of five persons, including one team
of poll clerks, one team of election commissioners for the ballot box and one additional election
commissioner: Provided, That if a municipal election is held at a time when there is no county or
state election, then the standard receiving board is to consist of four persons, including one team of
poll clerks and one team of election commissioners for the ballot box;
(2) The term "expanded receiving board" means a standard receiving board as defined in subdivision (1) of this subsection and one additional team of poll clerks;
(3) The term "counting board" means those election officials charged with counting the
ballots at the precinct in counties using paper ballots and includes one team of poll clerks, one team
of election commissioners and one additional commissioner;
(4) The term "team of poll clerks" or "team of election commissioners" means two persons
appointed by opposite political parties to perform the specific functions of the office: Provided,
That no team of poll clerks or team of election commissioners may consist of two persons with the
same registered political party affiliation or two persons registered with no political party affiliation;
and
(5) The term "election official trainee" means an individual who is sixteen or seventeen years
of age who meets the requirements of subdivisions (2), (3), (4), (5) and (6), subsection (a), section
twenty-eight of this article who serves as a trainee to the standard receiving board on a volunteer
basis by assisting the standard receiving board in performing its official duties and who receives
credits for an official community service program as may be required to obtain a high school
diploma.
(b) The composition of boards of election officials shall be as follows:
(1) In any primary, general or special election other than a presidential primary or
presidential general election, each election precinct is to have one standard receiving board;
(2) In presidential primary and presidential general elections, each election precinct is to
have one receiving board as follows:
(A) For precincts of less than five hundred registered voters, one standard receiving board;
and
(B) For precincts of more than five hundred to seven hundred registered voters, one standard
receiving board or, at the discretion of the county commission, one expanded receiving board. and
(C) For precincts of more than seven hundred registered voters, one expanded receiving
board;
(3) In any election conducted using paper ballots, counting boards may be allowed,
disallowed or required as follows:
(A) For any state, county or municipal special election, no counting board may be allowed;
(B) In a statewide primary or general election, one counting board is required for any
precinct of more than four hundred registered voters and one counting board may be allowed, at the
discretion of the county commission, for any precinct of at least two hundred but no more than four
hundred registered voters; and
(C) In a municipal primary or general election, one counting board may be allowed, at the
discretion of the municipal governing body, for any precinct of more than two hundred registered
voters.
(c) For each primary and general election in the county, the county commission shall
designate the number and type of election boards for the various precincts according to the
provisions of this section. At least eighty-four days before each primary and general election the
county commission shall notify the county executive committees of the two major political parties
in writing of the number of nominations which may be made for poll clerks and election
commissioners.
(d) For each municipal election, the governing body of the municipality shall perform the
duties of the county commission as provided in this section.
(e) For each primary, general or special election in the county, the county commission, and
for each municipal election, the governing body of the municipality, may appoint one or two
election official trainees for each precinct.
§3-1-30. Nomination and appointment of election officials and alternates; notice of
appointment; appointment to fill vacancies in election boards.
(a) For any primary, general or special election held throughout a county, poll clerks and
election commissioners may be nominated as follows:
(1) The county executive committee for each of the two major political parties may, by a majority vote of the committee at a duly called meeting, nominate one qualified person for each
team of poll clerks and one qualified person for each team of election commissioners to be appointed
for the election;
(2) The appointing body shall select one qualified person as the additional election
commissioner for each board of election officials;
(3) Each county executive committee shall also nominate qualified persons as alternates for
at least ten percent of the poll clerks and election commissioners to be appointed in the county and
is authorized to nominate as many qualified persons as alternates as there are precincts in the county
to be called upon to serve in the event any of the persons originally appointed fail to accept
appointment or fail to appear for the required training or for the preparation or execution of their
duties;
(4) When an executive committee nominates qualified persons as poll clerks, election
commissioners or alternates, the committee, or its chairman or secretary on its behalf, shall file in
writing with the appointing body, no later than the fifty-sixth day before the election, a list of those
persons nominated and the positions for which they are designated.
(b) For any municipal primary, general or special election, the poll clerks and election
commissioners may be nominated as follows:
(1) In municipalities which have municipal executive committees for the two major political
parties in the municipality, each committee may nominate election officials in the manner provided
for the nomination of election officials by county executive committees in subsection (a) of this
section;
(2) In municipalities which do not have executive committees, the governing body shall
provide by ordinance for a method of nominating election officials or shall nominate as many
eligible persons as are required, giving due consideration to any recommendations made by voters
of the municipality or by candidates on the ballot.
(c) The governing body responsible for appointing election officials is:
(1) The county commission for any primary, general or special election ordered by the
county commission and any joint county and municipal election;
(2) The board of education for any special election ordered by the board of education
conducted apart from any other election;
(3) The municipal governing body for any primary, general or special municipal election
ordered by the governing body.
(d) The qualifications for persons nominated to serve as election officials may be confirmed
prior to appointment by the clerk of the county commission for any election ordered by the county
commission or for any joint county and municipal election and by the official recorder of the
municipality for a municipal election.
(e) The appropriate governing body shall appoint the election officials for each designated
election board no later than the forty-ninth day before the election as follows:
(1) Those eligible persons whose nominations for poll clerk and election commissioner were
timely filed by the executive committees and those additional persons selected to serve as an
election commissioner are to be appointed;
(2) The governing body shall fill any positions for which no nominations were filed.
(f) At the same time as the appointment of election officials or at a subsequent meeting the
governing body shall appoint persons as alternates: Provided, That no alternate may be eligible for
compensation for election training unless the alternate is subsequently appointed as an election
official or is instructed to attend and actually attends training as an alternate and if called to do so,
also serves at the polls on election day is available to serve on election day. Alternates shall be
appointed and serve as follows:
(1) Those alternates nominated by the executive committees shall be appointed;
(2) The governing body may appoint additional alternates who may be called upon to fill
vacancies after all alternates designated by the executive committees have been assigned, have
declined to serve or have failed to attend training; and
(3) The governing body may determine the number of persons who may be instructed to
attend training as alternates.
(g) The clerk of the county commission shall appoint qualified persons to fill all vacancies
existing after all previously appointed alternates have been assigned, have declined to serve or have
failed to attend training.
(h) Within seven days following appointment, the clerk of the county commission shall
notify, by first-class mail, all election commissioners, poll clerks and alternates of the fact of their
appointment and include with the notice a response notice form for the appointed person to return
indicating whether or not he or she agrees to serve in the specified capacity in the election.
(i) The position of any person notified of appointment who fails to return the response notice
or otherwise confirm to the clerk of the county commission his or her agreement to serve within
fourteen days following the date of appointment is considered vacant and the clerk shall proceed to
fill the vacancies according to the provisions of this section.
(j) If an appointed election official fails to appear at the polling place by forty-five minutes
past five o'clock a.m. on election day, the election officials present shall contact the office of the
clerk of the county commission for assistance in filling the vacancy. and the The clerk shall proceed
as follows:
(1) The clerk may attempt to contact the person originally appointed, may assign an alternate
nominated by the same political party as the person absent if one is available or, if no alternate is
available, may appoint another eligible person;
(2) If the election officials present are unable to contact the clerk within a reasonable time,
they shall diligently attempt to fill the position with an eligible person of the same political party
as the party that nominated the person absent until a qualified person has agreed to serve;
(3) If two teams of election officials, as defined in section twenty-nine of this article, are
present at the polling place, the person appointed to fill a vacancy in the position of the additional
commissioner may be of either political party.
(k) In a municipal election, the recorder or other official designated by charter or ordinance
to perform election responsibilities shall perform the duties of the clerk of the county commission
as provided in this section.
§3-1-34. Voting procedures generally; assistance to voters; voting records; penalties.
(a) Any person desiring to vote in an election shall, upon entering the election room, clearly
state his or her name and residence to one of the poll clerks who shall thereupon announce the same
in a clear and distinct tone of voice. If that person is found to be duly registered as a voter at that
precinct, he or she shall be required to sign his or her name in the space marked "signature of voter"
on the pollbook prescribed and provided for the precinct. If that person is physically or otherwise
unable to sign his or her name, his or her mark shall be affixed by one of the poll clerks in the
presence of the other and the name of the poll clerk affixing the voter's mark shall be indicated
immediately under the affixation. No ballot may be given to the person until he or she so signs his
or her name on the pollbook or his or her signature is so affixed thereon.
(b) The clerk of the county commission is authorized, upon verification that the precinct at
which a handicapped person is registered to vote is not handicap accessible, to transfer that person's
registration to the nearest polling place in the county which is handicap accessible. Requests A
request by these persons a handicapped person for a transfer of registration shall must be received
by the county clerk no later than thirty days prior to the date of the election. Any handicapped
person who has not made a request for a transfer of registration at least thirty days prior to the date
of the election may vote a challenged provisional ballot at a handicap accessible polling place in the
county of his or her registration. and, if If during the canvass the county commission determines that
the person had been registered in a precinct that is not handicap accessible, the voted ballot, if
otherwise valid, shall be counted. The handicapped person may vote in the precinct to which the
registration was transferred only as long as the disability exists or the precinct from which the
handicapped person was transferred remains inaccessible to the handicapped. To ensure
confidentiality of the transferred ballot, the county clerk processing the ballot shall provide the voter with an unmarked envelope and an outer envelope designated "challenged provisional
ballot/handicapped voter". After validation of the ballot at the canvass, the outer envelope shall be
destroyed and the handicapped voter's ballot shall be placed with other approved challenged
provisional ballots prior to removal of the ballot from the unmarked envelope.
(c) When the voter's signature is properly on the pollbook, the two poll clerks shall sign their
names in the places indicated on the back of the official ballot and shall deliver the ballot to the
voter to be voted by him or her then without leaving the election room. If he or she returns the ballot
spoiled to the clerks, they shall immediately mark the ballot "spoiled" and it shall be preserved and
placed in a spoiled ballot envelope together with other spoiled ballots to be delivered to the board
of canvassers and deliver to the voter another official ballot, signed by the clerks on the reverse side
as before done required by this subsection. The voter shall thereupon retire alone to the booth or
compartment prepared within the election room for voting purposes and there prepare his or her
ballot using a ballpoint pen of not less than five inches in length or other indelible marking device
of not less than five inches in length. In voting for candidates in general and special elections, the
voter shall comply with the rules and procedures prescribed in section five, article six of this
chapter.
(d) It is the duty of a poll clerk, in the presence of the other poll clerk, to indicate by a check
mark inserted in the appropriate place on the registration record of each voter the fact that the voter
voted in the election. In primary elections the clerk shall also insert thereon a distinguishing initial
or initials of the political party for whose candidates the voter voted. If a person is challenged at the
polls, the challenge shall be indicated by the poll clerks on the registration record, together with the
name of the challenger. The subsequent removal of the challenge shall be recorded on the
registration record by the clerk of the county commission.
(e)(1) No voter may receive any assistance in voting unless, by reason of blindness,
disability, advanced age or inability to read and write, that voter is unable to vote without assistance.
Any voter qualified to receive assistance in voting under the provisions of this section may:
(A) Declare his or her choice of candidates to an election commissioner of each political
party who, in the presence of the voter and in the presence of each other, shall prepare the ballot for
voting in the manner hereinbefore provided and, on request, shall read over to the voter the names
of the candidates selected on the ballot as so prepared;
(B) Require the election commissioners to indicate to him or her the relative position of the
names of the candidates on the ballot, whereupon the voter shall retire to one of the booths or
compartments to prepare his or her ballot in the manner hereinbefore provided;
(C) Be assisted by any person of the voter's choice, other than the voter's present or former
employer or agent of that employer, the officer or agent of a labor union of which the voter is a past
or present member or a candidate on the ballot or an official write-in candidate; or
(D) If he or she is handicapped, vote from an automobile outside the polling place or precinct
in the presence of an election commissioner of each political party if all of the following conditions
are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the polling place.
(2) Any voter who requests assistance in voting but who is believed not to be qualified for
such assistance under the provisions of this section shall nevertheless be permitted to vote a
challenged provisional ballot with the assistance of any person herein authorized to render
assistance.
(3) Any one or more of the election commissioners or poll clerks in the precinct may
challenge the ballot on the ground that the voter thereof received assistance in voting it when in his,
her or their opinion that the person who received assistance in voting is not so illiterate, blind,
disabled or of such advanced age as to have been unable to vote without assistance. The election
commissioner or poll clerk or commissioners or poll clerks making the challenge shall enter the
challenge and reason therefor on the form and in the manner prescribed or authorized by article three
of this chapter.
(4) An election commissioner or other person who assists a voter in voting:
(A) May not in any manner request or seek to persuade or induce the voter to vote any
particular ticket or for any particular candidate or for or against any public question and must not
keep or make any memorandum or entry of anything occurring within the voting booth or
compartment and must not, directly or indirectly, reveal to any person the name of any candidate
voted for by the voter or which ticket he or she had voted or how he or she had voted on any public
question or anything occurring within the voting booth or compartment or voting machine booth
except when required pursuant to law to give testimony as to the matter in a judicial proceeding; and
(B) Shall sign a written oath or affirmation before assisting the voter on a form prescribed
by the secretary of state stating that he or she will not override the actual preference of the voter
being assisted, attempt to influence the voter's choice or mislead the voter into voting for someone
other than the candidate of voter's choice. The person assisting the voter shall also swear or affirm
that he or she believes that the voter is voting free of intimidation or manipulation: Provided, That
no person providing assistance to a voter is required to sign an oath or affirmation where the reason
for requesting assistance is the voter's inability to vote without assistance because of blindness as
defined in section three, article fifteen, chapter five of this code and the inability to vote without
assistance because of blindness is certified in writing by a physician of the voter's choice and is on
file in the office of the clerk of the county commission.
(5) In accordance with instructions issued by the secretary of state, the clerk of the county
commission shall provide a form entitled "list of assisted voters", the form of which list shall
likewise be prescribed by the secretary of state. The commissioners shall enter the name of each
voter receiving assistance in voting the ballot, together with the poll slip number of that voter and
the signature of the person or the commissioner from each party who assisted the voter. If no voter
has been assisted in voting the ballot as herein provided, the commissioners shall likewise make and
subscribe to an oath of that fact on the list.
(f) After preparing the ballot the voter shall fold the same ballot so that the face is not exposed and so that the names of the poll clerks thereon are seen. The voter shall then announce his
or her name and present his or her ballot to one of the commissioners who shall hand the same to
another commissioner, of a different political party, who shall deposit it in the ballot box if the ballot
is the official one and properly signed. The commissioner of election may inspect every ballot
before it is deposited in the ballot box to ascertain whether it is single, but without unfolding or
unrolling it so as to disclose its content. When the voter has voted, he or she shall retire immediately
from the election room and beyond the sixty-foot limit thereof and may not return except by
permission of the commissioners.
(g) Following the election, the oaths or affirmations required by this section from those
assisting voters, together with the "list of assisted voters", shall be returned by the election
commissioners to the clerk of the county commission along with the election supplies, records and
returns., who The clerk of the county commission shall make the oaths, affirmations and list
available for public inspection and who shall preserve these them for a period of twenty-two months
or until disposition is authorized or directed by the secretary of state, or court of record: Provided,
That the clerk may use these records to update the voter registration records in accordance with
subsection (d), section eighteen, article two of this chapter.
(h) Any person making an oath or affirmation required under the provisions of this section
who knowingly swears falsely or any person who counsels, advises, aids or abets another in the
commission of false swearing under this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than one thousand dollars or imprisoned confined in the county or
regional jail for a period of not more than one year, or both fined and imprisoned confined.
(i) Any election commissioner or poll clerk who authorizes or provides unchallenged
assistance to a voter when the voter is known to the election commissioner or poll clerk not to
require assistance in voting is guilty of a felony and, upon conviction thereof, shall be fined not
more than five thousand dollars or imprisoned in a state correctional facility for a period of not less
than one year nor more than five years, or both fined and imprisoned.
§3-1-39. Illegal voting; affidavit; procedure.
(a) If at any time during the election any qualified voter shall make affidavit, before a
commission or election, appear at the polls for the purpose of stating that any person who has voted
is an illegal voter in such the precinct, the person accused shall at once be arrested by any deputy
sheriff or other person designated by the election commissioners to make the arrest, and by him
delivered to the civil authorities. Any person desiring to make such affidavit that person shall be
admitted to the election room for that purpose and shall appear before a commissioner of election
to make an affidavit explaining why he or she believes the accused to be an illegal voter.
(b) All affidavits alleging illegal voting shall be placed in a strong and durable envelope by
the commissioners of election. The envelope shall be securely sealed and each of the commissioners
shall endorse his or her name on the back of the envelope. At the close of the count the envelope
shall be delivered to the clerk of the circuit court in accordance with section sixteen, article five of
this chapter and section eight, article six of this chapter. The clerk of the circuit court shall carefully
preserve the envelope containing the affidavits and deliver it, with the seal unbroken, to the
prosecuting attorney Immediately after the close of the election, the commissioners of election shall
deliver such affidavit to some justice of the peace in the magisterial district, or magistrate in the
county. , who The prosecuting attorney shall proceed thereon as if the affidavit it had been made
before him or her.
§3-1-41. Challenged and provisional voter procedures; counting of provisional voters' ballots;
ballots of election officials.
(a) It shall be the duty of the members of the receiving board, jointly or severally, to
challenge the right of any person requesting a ballot to vote in any election if such the person's
registration record is not available at the time of the election or if the signature written by the person
in the poll book does not correspond with the signature purported to be his or hers on the registration
record, or if the registration record of such the person indicates any other legal disqualification or
if any other valid challenge exists against the voter pursuant to section ten, article three of this chapter.
(b) Any person so challenged shall nevertheless be permitted to vote in the election., but for
that purpose he He or she shall be furnished an official ballot not endorsed by the poll clerks. In lieu
of such the endorsements, the poll clerks shall fill complete and sign an appropriate form indicating
the challenge, and the reason thereof and the name or names of the challengers. Such The form shall
be securely attached to the voter's ballot and deposited together with the ballot in a separate box or
envelope marked "challenged provisional ballots".
(c) At the time that an individual casts a provisional ballot, the poll clerk shall give the
individual written information stating that an individual who casts a provisional ballot will be able
to ascertain under the free access system established in this section whether the vote was counted
and, if the vote was not counted, the reason that the vote was not counted.
(d) The Provisional ballot of any voter so challenged shall not be counted by the election
officials. The county court commission shall, on its own motion, at the time of canvassing of the
election returns, sit in session to determine the validity of such any challenges according to the
provisions of this chapter. If the county court commission shall determine determines that the
challenges are unfounded, the each provisional ballot of each challenged voter, if otherwise valid,
shall be counted and tallied together with the regular ballots cast in the election. In such
determinations the The county court commission shall disregard technical errors, omissions or
oversights if it can reasonably be ascertained that the challenged voter was entitled to vote.
(e) Any person duly appointed as an election commissioner or clerk under the provisions of
section twenty-eight of this article and who serves in such that capacity in a precinct other than the
precinct in which such the person is legally entitled to vote may cast a challenged provisional ballot
in the precinct in which such the person is serving as a commissioner or clerk., and such The ballot
shall not be deemed invalid for the sole reason of having been cast in a precinct other than the
precinct in which such the person is legally entitled to vote. and the The county court commission
shall record the challenged provisional ballot on the voter's permanent registration record: Provided, That the county commission may only count the votes for the offices that the voter was
legally authorized to vote for in his or her own precinct.
(f) The secretary of state shall establish a free access system such as a toll-free telephone
number or an internet website that may be accessed by any individual who casts a provisional ballot
to discover whether the vote of that individual was counted and, if not, the reason that the vote was
not counted.
§3-1-44. Compensation of election officials; expenses.
(a) Each ballot commissioner is to be paid a sum, to be fixed by the county commission, not
exceeding one hundred twenty-five dollars for each day he or she serves as ballot commissioner, but
in no case may a ballot commissioner receive allowance for more than ten days' services for any one
primary, general or special election.
(b) Each commissioner of election and poll clerk is to be paid a sum, to be fixed by the
county commission, not exceeding one hundred twenty-five dollars for one day's services for
attending the school of instruction for election officials if the commissioner or poll clerk provides
at least one day's service during an election and a sum not exceeding one hundred seventy-five
dollars for his or her services at any one election: Provided, That each commissioner of election and
poll clerk is to be paid a sum not exceeding one hundred seventy-five dollars for his or her services
at any of the three special elections described in subsection (e) (f) of this section.
(c) Each alternate commissioner of election and poll clerk may be paid a sum, to be fixed
by the county commission, not exceeding fifty dollars for one day's services for attending the school
of instruction for election officials: Provided, That no alternate may be eligible for compensation
for election training unless the alternate is subsequently appointed as an election official or is
instructed to attend and actually attends training as an alternate and is available to serve on election
day.
(c) (d) The commissioners of election or poll clerks obtaining and delivering the election
supplies, as provided in section twenty-four of this article, and returning them, as provided in articles five and six of this chapter, is are to be paid an additional sum, fixed by the county
commission, not exceeding one hundred twenty-five dollars for his or her services pursuant to this
subsection at any one election. and, in In addition, he or she is to be paid mileage up to the rate of
reimbursement authorized per mile as set by the travel management office rule of the department
of administration per for each mile necessarily traveled in the performance of his or her services.
The rate paid for mileage pursuant to this section may change from time to time in accordance with
changes in the reimbursement rates established by the travel management office, or its successor
agency.
(d) (e) The compensation of election officers, cost of printing ballots and all other expenses
incurred in holding and making the return of elections, other than the three special elections
described in subsection (e) (f) of this section, is are to be audited by the county commission and paid
out of the county treasury.
(e) (f) The compensation of election officers, cost of printing ballots and all other reasonable
and necessary expenses in holding and making the return of a special election for the purpose of
taking the sense of the voters on the question of calling a constitutional convention, of a special
election to elect members of a constitutional convention and of a special election to ratify or reject
the proposals, acts and ordinances of a constitutional convention are obligations of the state incurred
by the ballot commissioners, clerks of the circuit courts, clerks of the county commissions and
county commissions of the various counties as agents of the state., and all All expenses of these
special elections are to be audited by the secretary of state. The secretary of state shall prepare and
transmit to the county commissions forms on which the county commissions shall certify all
expenses of these special elections to the secretary of state. If satisfied that the expenses as certified
by the county commissions are reasonable and were necessarily incurred, the secretary of state shall
requisition the necessary warrants from the auditor of the state to be drawn on the state treasurer and
shall mail the warrants directly to the vendors of the special election services, supplies and facilities.
§3-1-45. Court proceedings to compel performance of duties, etc.
Any officer or person upon whom any duty is devolved imposed by this chapter may be
compelled to perform the same his or her duty by writ of mandamus. The circuit courts, or the
judges thereof in vacation, shall have jurisdiction by such writ and shall, upon affidavit filed
showing a proper case, issue such a writ to be returned, heard and determined without unnecessary
delay within fifteen days from the commencement of the proceedings. If a circuit court, or a judge
thereof in vacation, shall proceed against any board of canvassers by mandamus, or otherwise, to
control, in any manner, the action of such the board in the performance of its duties, under the
provisions of this article, in any case concerning the election of a member of the House of Delegates,
or a state senator, and shall fail to enter a final order in such the proceedings, settling all questions
presented therein within fifteen days from the commencement of such the proceedings, unless
delayed by proceedings in the supreme court of appeals, or a judge thereof in vacation, the same writ
shall thereupon be dismissed. and such The board shall convene within not less than five days
thereafter and proceed forthwith to the performance of its duties under the provisions of this article.
A mandamus shall lie from the supreme court of appeals, or any one of the judges thereof in
vacation, returnable before said court, to compel any officer herein to do and perform legally any
duty herein required of him or her. And respecting the In an election of a member of the House of
Delegates and state senator, a writ of certiorari, mandamus or prohibition shall lie from the supreme
court of appeals, or a judge thereof in vacation, returnable before said the court, to correct any error
of law and review and correct the proceedings of any circuit court, or the judge thereof in vacation,
or any board of canvassers. When any such writ rule to show cause why a writ of mandamus,
prohibition or certiorari is issued by the court, or a judge thereof in vacation, shall be issued by said
court, or a judge thereof in vacation, it shall be the duty of said the court to convene in special
session at the state capital, not later than ten days from the date of the writ, to hear and determine
all matters arising upon such the writ. , which matters The issues raised in the petition for a writ of
mandamus, prohibition or certiorari shall have precedence over all other business pending in said
before the court., and The issues before the court shall be determined within five days from the assembling thereof, of the court and, in any case, in ample time for the case to be remanded and final
action taken by the circuit court and the board of canvassers in order that such the board may
perform its duty and issue the certificate of election before the second Wednesday in January, then
next following. In mandamus Mandamus and prohibition proceedings under this section the same
may be upon affidavit alone.
§3-1-48. State election fund.
There is hereby created in the state treasury a special revenue account to be known as the
"State Election Fund" account. Expenditures from the account shall be used by the secretary of state
for the administration of this chapter in accordance with the provisions of 42 U. S. C. §1530, et seq.,
the Help America Vote Act of 2002, Public Law 107-252, in accordance with the provisions of
article eleven, chapter four of this code.
§3-1-49. Voting system standards.
(a) In accordance with 42 U. S. C. §1530, et seq., the Help America Vote Act of 2002, Public
Law 107-252, each voting system used in an election for federal office shall:
(1) Permit the voter to verify, in a private and independent manner, the votes selected by the
voter on the ballot before the ballot is cast and counted;
(2) Provide the voter with the opportunity, in a private and independent manner, to change
the ballot or correct any error before the ballot is cast and counted, including the opportunity to
correct the error through the issuance of a replacement ballot if the voter was otherwise unable to
change the ballot or correct any error; and
(3) If the voter selects votes for more than one candidate for a single office: (A) Notify the
voter that the voter has selected more than one candidate for a single office on the ballot; (B) notify
the voter before the ballot is cast and counted of the effect of casting multiple votes for the office;
and (C) provide the voter with the opportunity to correct the ballot before the ballot is cast and
counted: Provided, That a county that uses a paper ballot voting system, a punch card voting system
or an optical scan voting system may meet the requirements of this paragraph by establishing a voter education program specific to that voting system that notifies each voter of the effect of casting
multiple votes for an office; and providing the voter with instructions on how to correct the ballot
before it is cast and counted, including instructions on how to correct the error through the issuance
of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error.
(4) Ensure that any notification required under this section preserves the privacy of the voter
and the confidentiality of the ballot.
(b) Each voting system used in an election for federal office shall produce a record with an
audit capacity for the system which shall meet the following requirements:
(1) Produce a permanent paper record with a manual audit capacity for the system; and
(2) Provide the voter with an opportunity to change the ballot or correct any error before the
ballot is cast and counted and before the permanent paper record is produced.
(c) Each voting system used in an election for federal office shall be accessible for
individuals with disabilities, including nonvisual accessibility for the blind and visually impaired,
in a manner that provides the same opportunity for access and participation, including privacy and
independence, as for other voters: Provided, That the provisions of this subsection may be satisfied
through the use of at least one direct recording electronic voting system or other voting system
equipped for individuals with disabilities at each polling place.
§3-1-50. Establishment of state-based administrative complaint procedures.
The secretary of state shall establish and maintain a state-based administrative complaint
procedure for complaints received concerning election violations which shall meet the following
requirements:
(1) The procedures shall be uniform and nondiscriminatory.
(2) Under the procedures, any person who believes that there is a violation of any provision
of this chapter, including a violation which has occurred, is occurring or is about to occur, may file
a complaint.
(3) Any complaint filed under the procedures shall be in writing, notarized and signed and sworn by the person filing the complaint.
(4) The secretary of state may consolidate complaints filed under this section.
(5) At the request of the complainant, there shall be a hearing on the record.
(6) Violations of any provision of this chapter shall be punishable in accordance with the
provisions of article nine of this chapter.
(7) If, under the procedures, the secretary of state determines that there is no violation, the
secretary of state shall dismiss the complaint and publish the results of the procedures.
(8) The secretary of state shall make a final determination with respect to a complaint prior
to the expiration of the ninety- day period which begins on the date the complaint is filed unless the
complainant consents to a longer period for making a determination.
(9) If the secretary of state fails to meet the deadline applicable under subdivision (8)of this
section, the complaint shall be resolved within sixty days under alternative dispute resolution
procedures established for purposes of this section. The record and other materials from any
proceedings conducted under the complaint procedures established under this section shall be made
available for use under the alternative dispute resolution procedures.
ARTICLE 2. REGISTRATION OF VOTERS.
§3-2-2. Eligibility to register to vote.
(a) Any person who possesses the constitutional qualifications for voting may register to
vote. Such To be qualified, a person shall must be a citizen of the United States and a legal resident
of West Virginia and of the county where he or she is applying to register, shall be at least eighteen
years of age, except that a person who is at least seventeen years of age and who will be eighteen
years of age by the time of the next ensuing general election may also be permitted to register, and
shall not be otherwise legally disqualified: Provided, That a registered voter who has not reached
eighteen years of age may vote both partisan and nonpartisan ballots in a state or county or primary
election, but may only vote in a municipal primary election if he or she will be eighteen years of age
by the time of the next municipal general election, but is not eligible to vote in a municipal general election or special election.
(b) Any person who has been convicted of a felony, treason or bribery in an election, under
either state or federal law, is disqualified and shall is not be eligible to register or to continue to be
registered to vote during the term of any while serving his or her sentence for such conviction,
including any period of incarceration, probation or parole related thereto. Any person who has been
determined to be mentally incompetent by a court of competent jurisdiction is disqualified and shall
not be eligible to register or to continue to be registered to vote for as long as that determination
remains in effect.
§3-2-3. State authority relating to voter registration; chief election official.
(a) The secretary of state, as chief election official of the state as provided in section six,
article one-a of this chapter, shall have general supervision of the voter registration procedures and
practices and the maintenance of voter registration records in the state and shall have authority to
require reports and investigate violations to ensure the proper conduct of voter registration
throughout the state and all of its subdivisions.
(b) The secretary of state, as chief election official of the state, is responsible for
implementing, in a uniform and nondiscriminatory manner, a single, uniform, official, centralized,
interactive computerized statewide voter registration list defined, maintained and administered at
the state level that contains the name and registration information of every legally registered voter
in the state and assigns a unique identifier to each legally registered voter in the state.
(b) (c) The secretary of state is hereby designated as the chief election official responsible
for the coordination of this state's responsibilities under 42 U. S. C. §1973gg, et seq., the "National
Voter Registration Act of 1993" (42 U.S.C. 1973gg). The secretary of state shall have general
supervision of voter registration procedures and practices at agencies and locations providing
services as required by the provisions of this article and shall have the authority to propose
procedural, interpretive and legislative rules for promulgation in accordance with the provisions of
article three, chapter twenty-nine-a of this code for application for registration, transmission of applications, reporting and maintenance of records required by the provisions of this article and for
the development, implementation and application of other provisions of this article.
§3-2-4a. Statewide voter registration list.
(a) The secretary of state shall implement and maintain a single, official, statewide,
centralized, interactive computerized voter registration list of every legally registered voter in the
state and shall assign a unique voter registration identifier to each legally registered voter in the
state, which shall include the following:
(1) The computerized list shall serve as the single system for storing and managing the
official list of registered voters throughout the state.
(2) The computerized list shall contain the name and registration information of every legally
registered voter in the state.
(3) Under the computerized list, a unique identifier shall be assigned to each legally
registered voter in the state.
(4) The computerized list shall be coordinated with other agency databases within the state.
(5) The secretary of state and any clerk of the county commission may obtain immediate
electronic access to the information contained in the computerized list.
(6) Voter registration information obtained by every clerk of the county commission in the
state shall be electronically entered into the computerized list on an expedited basis at the time the
information is provided to the clerk.
(7) The secretary of state shall provide necessary support to enable every clerk of the county
commission in the state to enter information as described in subdivision (6) of this subsection.
(8) The computerized list shall serve as the official voter registration list for conducting all
elections in the state.
(b) The secretary of state or any clerk of a county commission shall perform list maintenance
with respect to the computerized list on a regular basis as follows:
(1) If an individual is to be removed from the computerized list, he or she shall be removed in accordance with the provisions of 42 U. S. C. §1973gg, et seq., the National Voter Registration
Act of 1993.
(2) The secretary of state shall coordinate the computerized list with state agency records and
remove the names of individuals who are not qualified to vote because of felony status or death.
(c) The list maintenance performed under subsection (b) of this section shall be conducted
in a manner that ensures that:
(1) The name of each registered voter appears in the computerized list;
(2) Only voters who are not registered or who are not eligible to vote are removed from the
computerized list; and
(3) Duplicate names are eliminated from the computerized list.
(d) The secretary of state and the clerks of all county commissions shall provide adequate
technological security measures to prevent the unauthorized access to the computerized list
established under this section.
(e) The secretary of state shall ensure that voter registration records in the state are accurate
and updated regularly, including the following:
(1) A system of file maintenance that makes a reasonable effort to remove registrants who
are ineligible to vote from the official list of eligible voters. Under the system, consistent with 42
U. S. C. §1973gg, et seq., registrants who have not responded to a notice sent pursuant to section
twenty-four, article three of this chapter and who have not voted in two consecutive general
elections for federal office shall be removed from the official list of eligible voters except that no
registrant may be removed solely by reason of a failure to vote.
(2) Safeguards to ensure that eligible voters are not removed in error from the official list
of eligible voters.
(f) Applications for voter registration may only be accepted when the following information
is provided:
(1) Except as provided in subdivision (2) of this subsection, notwithstanding any other provision of law to the contrary, an application for voter registration may not be accepted or
processed unless the application includes either: (A) In the case of an applicant who has been issued
a current and valid driver's license, the applicant's driver's license number; or (B) in the case of any
other applicant, the last four digits of the applicant's social security number.
(2) If an applicant for voter registration has not been issued a current and valid driver's
license or a social security number, the secretary of state shall assign the applicant a number which
will serve to identify the applicant for voter registration purposes. To the extent that the state has
a computerized list in effect under this section and the list assigns unique identifying numbers to
registrants, the number assigned under this section shall be the unique identifying number assigned
under the list.
(g) The secretary of state and the commissioner of the division of motor vehicles shall enter
into an agreement to match information in the database of the statewide voter registration system
with information in the database of the division of motor vehicles to the extent required to enable
each official to verify the accuracy of the information provided on applications for voter registration.
(h) The commissioner of the division of motor vehicles shall enter into an agreement with
the commissioner of social security under 42 U. S. C. §301, et seq., the Social Security Act.
§3-2-5. Forms for application for registration; information required and requested; types of
application forms; notices.
(a)(1) All state forms for application for voter registration shall be prescribed by the
secretary of state and shall conform with the requirements of 42 U. S. C. §1973gg, et seq., the
"National Voter Registration Act of 1993" (42 U.S.C. 1973gg) and the requirements of the
provisions of this article. Separate application forms may be prescribed for voter registration
conducted by the clerk of the county commission, registration by mail, registration in conjunction
with an application for motor vehicle driver's license and registration at designated agencies. These
forms may consist of one or more parts, may be combined with other forms for use in registration
by designated agencies or in conjunction with driver licensing and may be revised and reissued as required by the secretary of state to provide for the efficient administration of voter registration.
After the first day of January, one thousand nine hundred ninety-five, all state forms issued for the
purpose of voter registration shall be those prescribed pursuant to the provisions of this article, and
no form used or issued for voter registration pursuant to laws in effect before that date shall be
provided to any person for the purpose of registration.
(2) Notwithstanding any provisions of subdivision (1) of this subsection to the contrary, the
federal postcard application for voter registration issued pursuant to 42 U. S. C. §1973, et seq. the
"Uniformed and Overseas Citizens Absentee Voting Act of 1986" (42 U.S.C. 1973 et seq.), and the
mail voter registration application form prescribed by the Federal Election Commission pursuant
to 42 U. S. C. §1973gg, et seq., the "National Voter Registration Act of 1993", (42 U.S.C. 1973gg)
shall be accepted as a valid form of application for registration pursuant to the provisions of this
article.
(b) Each application form for registration shall include:
(1) A statement specifying the eligibility requirements for registration and an attestation that
the applicant meets each eligibility requirement;
(2) Any specific notice or notices required for a specific type or use of application by 42 U.
S. C. §1973gg, et seq., the "National Voter Registration Act of 1993" (42 U.S.C. 1973gg);
(3) A notice that a voter may be permitted to vote the partisan primary election ballot of a
political party only if the voter has designated that political party on the application for registration
unless the political party has determined otherwise;
(4) The last four digits of the applicant's social security number or the applicant's driver's
license number; and
(4)(5) Any other instructions or information essential to complete the application process.
(c) Each application form shall require that the following be provided by the applicant,
under oath, and any application which does not contain each of the following shall be considered
incomplete:
(1) The applicant's legal name, including the first name, middle or maiden name, if any, and
last name;
(2) The month, day and year of the applicant's birth;
(3) The applicant's residence address, including the number and street or route and city and
county of residence except:
(A) In the case of a person eligible to register under the provisions of 42 U. S. C. §1973ff,
et seq., the "Uniformed and Overseas Citizens Absentee Voting Act" (42 U.S.C. 1973ff), the address
at which he or she last resided before leaving the United States or entering the uniformed services,
or if a dependent child of such a person, the address at which his or her parent last resided; and
(B) In the case of a homeless person having no fixed residence address who nevertheless
resides and remains regularly within the county, the address of a shelter, assistance center or family
member with whom he or she has regular contact or other specific location approved by the clerk
of the county commission for the purposes of establishing a voting residence; and
(4) The applicant's signature, under penalty of perjury, as provided in section thirty-six of
this article to the attestation of eligibility to register to vote and to the truth of the information given.
(d) The applicant shall be requested to provide the following information, but no application
shall be rejected for lack of this information:
(1) An indication whether the application is for a new registration, change of address, change
of name or change of party affiliation;
(2) The applicant's choice of political party affiliation, if any, or an indication of no
affiliation: Provided, That any applicant who does not enter any choice of political party affiliation
shall be listed as having no party affiliation on the voting record;
(3) The applicant's home residence mailing address if different than the residence street
address;
(4) The last four digits of the applicant's social security number;
(5) The applicant's telephone number;
(6) The address at which the applicant was last registered to vote, if any, for the purpose of
canceling or transferring the previous registration; and
(7) The applicant's gender; and
(8) The date the application is signed.
(e) The secretary of state shall prescribe the printing specifications of each type of voter
registration application and the voter registration application portion of any form which is part of
a combined agency form.
(f) Application forms prescribed in this section may refer to various public officials by title
or official position, but in no case may the actual name of any officeholder be printed on the voter
registration application or on any portion of a combined application form.
(g) No later than the first day of July of each odd-numbered year the secretary of state shall
submit the specifications of the voter registration application by mail for statewide bidding for a
contract period beginning the first day of September of each odd-numbered year and continuing for
two calendar years. The successful bidder shall produce and supply the required mail voter
registration forms at the contract price to all purchasers of the form for the period of the contract.
§3-2-7. Hours and days of registration in the office of the clerk of the county commission; in-
person application for voter registration; identification required.
(a) The clerk of the county commission shall provide voter registration services at all times
when the office of the clerk is open for regular business. In addition, the office of the clerk shall
remain open for voter registration from 9:00 a.m. until 8:00 p.m. on the two weekdays immediately
preceding the close of registration for statewide primary and general elections, other than legal
holidays, and from 9:00 a.m. until 5:00 p.m. on the Saturday prior to the close of registration for
statewide primary and general elections.
(b) Any eligible voter who desires to apply for voter registration in person at the office of
the clerk of the county commission shall complete a voter registration application on the prescribed
form and shall sign the oath required on that application in the presence of the clerk of the county commission or his or her deputy. The applicant shall then present valid identification and proof of
age, except that the clerk may waive the proof of age requirement if the applicant is clearly over the
age of eighteen.
(c) The clerk shall attempt to establish whether the residence address given is within the
boundaries of an incorporated municipality and, if so, make the proper entry required for municipal
residents to be properly identified for municipal voter registration purposes.
(d) Upon receipt of the completed registration application, the clerk shall either:
(1) Provide a notice of procedure for verification and notice of disposition of the application
and immediately begin the verification process prescribed by the provisions of section sixteen of this
article; or
(2) Upon presentation of a current driver's license or state-issued identification card
containing the residence address as it appears on the voter registration application, issue the receipt
of registration.
§3-2-10. Application for registration by mail.
(a) Any qualified person may apply to register, change, transfer or correct his or her voter
registration by mail. Application shall be made on a prescribed form as provided by section five of
this article.
(b) To the extent possible, with funds allocated annually for such purpose, the secretary of
state shall make state mail registration forms available for distribution through governmental and
private entities and organized voter registration programs. The secretary of state shall make a record
of all requests by entities or organizations for ten or more forms with a description of the dates and
locations in which the proposed registration drive is to be conducted. The secretary of state may
limit the distribution to a reasonable amount per group.
(c) The clerk of the county commission shall provide up to four mail registration forms to
any resident of the county upon request. To the extent possible with funds allocated annually for the
purpose, the clerk of the county commission shall make state mail registration forms available for distribution through organized voter registration programs within the county. The clerk of the county
commission shall make a record of all requests by entities or organizations for ten or more forms
with a description of the dates and locations in which the proposed registration drive is to be
conducted. The clerk may limit the distribution to a reasonable amount per group.
(d) The applicant shall provide all required information and, only after completing the
information, sign the prescribed applicant's oath under penalty of perjury as provided in section
thirty-six of this article. No person may alter or add any entry or make any mark which would alter
any material information on the voter registration application after the applicant has signed the oath:
Provided, That the clerk of the county commission may correct any entry upon the request of the
applicant provided the request is properly documented and the correction is dated and initialed by
the clerk.
(e) Completed applications shall be mailed or delivered to the clerk of the county
commission of the county in which the voter resides. If a clerk receives a completed mail
application form from a voter whose residence address is located in another county, the clerk shall
forward that application within three days to the clerk of the county commission of the county of
the applicant's residence.
(f) Upon receipt of the application for registration by the appropriate clerk of the county
commission, the clerk shall:
(1) Attempt to establish whether the residence address given is within the boundaries of an
incorporated municipality and, if so, make the proper entry required for municipal residents to be
properly identified for municipal voter registration purposes; and
(2) Immediately begin the verification process required by the provisions of section sixteen
of this article.
(g) Any person who registers by mail pursuant to this section shall be required to make his
or her first vote in person at the polls or in person at the office of the clerk of the circuit court to vote
an absentee ballot in order to make the registration valid: Provided, That any person who has applied for an absentee ballot pursuant to the provisions of subdivision (1), subsection (d), section one,
article three of this chapter, or paragraph (B), subdivision (2) of said subsection, or subdivision (3)
of said subsection or of subsection (e) of said section shall not have his or her ballot in that election
challenged for failure to appear in person or for failure to present identification. and who has not
previously voted in an election in the state or if the statewide voter registration has not yet been
implemented, the voter has not previously voted in the county shall be required to present the
following forms of identification to the secretary of state or clerk of the county commission:
(1) In the case of an individual who votes in person, a current and valid photo identification;
or a copy of a current utility bill, bank statement, government check, paycheck or other government
document that shows the name and address of the voter;
(2) In the case of an individual who votes by mail, submits with the ballot a copy of a
current and valid photo identification or a copy of a current utility bill, bank statement, government
check, paycheck or other government document that shows the name and address of the voter.
(h) An individual who desires to vote in person or by mail, but who does not meet the
requirements of subsection (g), may cast a provisional ballot.
(i) Subsection (g) shall not apply in the case of a person:
(1) Who registers to vote by mail under 42 U. S. C. §1973gg-4, et seq., and submits as part
of his or her registration either a copy of a current and valid photo identification or a copy of a
current utility bill, bank statement, government check, paycheck or government document that
shows the name and address of the voter;
(2)(A) Who registers to vote by mail under 42 U. S. C. §1973gg-4, et seq., and submits with
his or her registration either a driver's license number or at least the last four digits of the
individual's social security number; and (B) with respect to whom the secretary of state or clerk of
the county commission matches the information submitted under paragraph (A) with an existing
state identification record bearing the same number, name and date of birth as provided in the
registration; or
(3) Who is: (A) Entitled to vote by absentee ballot under 42 U. S. C. §1973ff-1, et seq., the
Uniformed and Overseas Citizens Absentee Voting Act; (B) provided the right to vote otherwise
than in person under 42 24 U. S. C. §1973ee-1(b) (2) (B) (ii); or 25 (iii), section 3(b)(2)(B)(ii) of the
Voting Accessibility for the Elderly and Handicapped Act; (C) entitled to vote otherwise than in
person under any other federal law: Provided, That any person who has applied for an absentee
ballot pursuant to the provisions of subdivision (1), subsection (b), section one, article three of this
chapter; paragraph (B), subdivision (2) of said subsection; subdivision (3) of said subsection; or
subsection (c) of said section shall not have his or her ballot in that election challenged for failure
to appear in person or for failure to present identification.
(h) Any person required by this section to make his or her first vote in person shall present
valid identification and proof of age to the clerks at the poll or at the office of the clerk of the circuit
court or the clerk of the county commission of the county in which he or she is registered before
casting the first ballot.
(i) (j) Any person who submits a state mail voter registration application to the clerk of the
county commission in the county in which he or she is currently registered for the purpose of
entering a change of address within the county, making a change of party affiliation or recording a
change of legal name shall not be required to make his or her first vote in person or to present
identification or proof of age.
§3-2-13. Agencies to provide voter registration services; designation of responsible employees;
forms; prohibitions; confidentiality.
(a) For the purposes of this article, "agency" means a department, division or office of state
or local government, or a program supported by state funds, which is designated under this section
to provide voter registration services, but does not include departments, divisions or offices required
by other sections of this article to provide voter registration services.
(b) Beginning on the first day of January, one thousand nine hundred ninety-five, the
following agencies shall provide voter registration services pursuant to the provisions of this article:
(1) Those state agencies which administer or provide services under the food stamp program,
the "Aid to Families with Dependent Children" (AFDC) program, the "Women, Infants and
Children" (WIC) program and the medicaid program;
(2) Those state-funded agencies primarily engaged in providing services to persons with
disabilities;
(3) County marriage license offices; and
(4) Armed services recruitment offices, as required by federal law.
(c) No later than the first day of October, one thousand nine hundred ninety-four, the
secretary of state shall, in conjunction with a designated representative of each of the appropriate
state agencies, review those programs and offices established and operating with state funds which
administer or provide public assistance or services to persons with disabilities and shall promulgate
an emergency rule pursuant to the provisions of chapter twenty-nine-a of this code designating the
specific programs and offices required to provide voter registration services in order to comply with
the requirements of this section and the requirements of the "National Voter Registration Act of
1993" (42 U. S. C. §1973gg, et seq.). The offices and programs so designated shall begin providing
voter registration services on the first day of January, one thousand nine hundred ninety-five.
(d) No later than the first day of July, one thousand nine hundred ninety-six, and each even-
numbered year thereafter, the secretary of state shall, in conjunction with the designated
representatives of the appropriate state agencies, perform the review as required by the provisions
of subsection (c) of this section. and the The secretary of state shall promulgate a periodically review
and revise, if necessary, the legislative rule pursuant to the provisions of chapter twenty-nine-a of
this code designating the specific agencies required to provide voter registration services beginning
on the first day of July of the following year.
(e) Each state agency required to provide services pursuant to the provisions of this article
shall designate a current employee of that agency to serve as a state supervisor to administer voter
registration services required in all programs under their the agency's jurisdiction. Each state supervisor shall be responsible for coordination with the secretary of state, overall operation of the
program in conjunction with services within the agency, designation and supervision of local
coordinators and for the review of any complaints filed against employees relating to voter
registration as provided in this chapter.
(f) The state supervisor shall designate a current employee as a local coordinator for voter
registration services for each office or program delivery center who shall be responsible for the
proper conduct of voter registration services, timely return of completed voter registration
applications, proper handling of declinations and reporting requirements. Notice of the designation
of these persons shall be made upon request of the secretary of state and within five days following
any change of such designation.
(g) The registration application forms used for agency registration shall be issued pursuant
to the provisions of section five of this article.
(h) The secretary of state, in conjunction with those agencies designated to provide voter
registration services pursuant to the provisions of this section, shall prescribe the form or portion
of the appropriate agency form required by the provisions of Section 42 U. S. C. §1973gg, et seq.,
section 7(a)(6)(B) of the "National Voter Registration Act of 1993" (42 U.S.C. 1973gg), containing
the required notices and providing boxes for the applicant to check to indicate whether the applicant
would like to register or decline to register to vote. Such The form or portion of the form is
designated the "declination form".
(i) A person who provides voter registration services shall not:
(1) Seek to influence an applicant's political preference or party registration;
(2) Display to any applicant any political preference or party allegiance;
(3) Make any statement to an applicant or take any action the purpose or effect of which is
to discourage the applicant from registering to vote; or
(4) Make any statement to an applicant or take any action the purpose or effect of which is
to lead the applicant to believe that a decision to register or not to register has any bearing on the availability of services or benefits.
(j) No information relating to the identity of a voter registration agency through which any
particular voter is registered or to a declination to register to vote in connection with an application
made at any designated agency may be used for any purpose other than voter registration.
§3-2-19. Maintenance of active and inactive registration files in precinct record books and
county alphabetical registration file.
(a) Each county shall continue to maintain a record of each active and inactive voter
registration in precinct registration books until the statewide voter registration state uniform data
system is adopted pursuant to the provisions of section twenty four-a of this article, fully
implemented and given final approval by the secretary of state. The precinct registration books shall
be maintained as follows:
(1) Each active voter registration shall be entered in the precinct book or books for the
county precinct in which the voter's residence is located and shall be filed alphabetically by name,
alphabetically within categories, or by numerical street address, as determined by the clerk of the
county commission for the effective administration of registration and elections. No active voter
registration record shall be removed from the precinct registration books unless the registration is
lawfully transferred or canceled pursuant to the provisions of this article.
(2) Each voter registration which is designated "inactive" pursuant to the procedures
prescribed in section twenty-seven of this article shall be retained in the precinct book for the county
precinct in which the voter's last recorded residence address is located until the time period expires
for which a record must remain on the inactive files. Every inactive registration shall be clearly
identified by a prominent tag or notation or arranged in a separate section in the precinct book
clearly denoting the registration status. No inactive voter registration record shall be removed from
the precinct registration books unless the registration is lawfully transferred or canceled pursuant
to the provisions of this article.
(b) For municipal elections, the registration records of active and inactive voters shall be maintained as follows:
(1) County precinct books shall be used in municipal elections when the county precinct
boundaries and the municipal precinct boundaries are the same and all registrants of the precinct are
entitled to vote in state, county and municipal elections within the precinct or when the registration
records of municipal voters within a county precinct are separated and maintained in a separate
municipal section or book for that county precinct and can be used either alone or in combination
with other precinct books to make up a complete set of registration records for the municipal
election precinct.
(2) Upon request of the municipality, and if the clerk of the county commission does not
object, separate municipal precinct books shall be maintained in cases where municipal or ward
boundaries divide county precincts and it is impractical to use county precinct books or separate
municipal sections of those precinct books. If the clerk of the county commission objects to the
request of a municipality for separate municipal precinct books, the state election commission must
determine whether the separate municipal precinct books should be maintained.
(3) No registration record may be removed from a municipal registration record unless the
registration is lawfully transferred or canceled pursuant to the provisions of this article in both the
county and the municipal registration records.
(c) No later than the first day of January, one thousand nine hundred ninety-five, and within
Within thirty days following the entry of any annexation order or change in street names or numbers,
the governing body of an incorporated municipality shall file with the clerk of the county
commission a certified current official municipal boundary map and a list of streets and ranges of
street numbers within the municipality to assist the clerk in determining whether a voter's address
is within the boundaries of the municipality.
(d) Each county, so long as precinct registration books are maintained, shall maintain a
duplicate record of every active and inactive voter registration in a county alphabetical file. The
alphabetical file may be maintained on individual paper forms or, upon approval of the secretary of state of a qualified data storage program, may be maintained in digitized format. A qualified data
storage program shall be required to contain the same information for each voter registration as the
precinct books, shall be subject to proper security from unauthorized alteration and shall be regularly
duplicated to backup data storage to prevent accidental destruction of the information on file.
§3-2-30. Public inspection of voter registration records in the office of the clerk of the county
commission; providing voter lists for noncommercial use; prohibition against
resale of voter lists for commercial use or profit.
(a) The active, inactive, rejected and canceled voter registration records shall be made
available for public inspection during office hours of the clerk of the county commission in
accordance with the provisions of chapter twenty-nine-b of this code as follows:
(1) When the active and inactive files are maintained on precinct registration books, any
person shall be allowed to examine these files under the supervision of the clerk and obtain copies
of records except when a precinct book is in temporary use for updating and preparing lists or during
the time the books are sealed for use in an election. Other original voter registration records,
including canceled voter records, pending applications, rejected applications, records of change
requests, reinstatements and other documents, shall be available for inspection upon specific request;
(2) When the active, inactive, rejected and canceled voter files are maintained in data format,
any person shall be allowed to examine voter record information in printed form or in a read-only
data format on a computer terminal set aside for public use, if available. The data files available
shall include all registration and voting information maintained in the file, except that the telephone
number and social security number of any voter shall not be available for inspection or copying in
any format.
(b) Printed lists of registered voters may be purchased for noncommercial use from the clerk
of the county commission at a cost of one cent per name.
(1) In counties maintaining active and inactive files on precinct registration books only, a
separate list for each of the two major political parties and for voters registered independent or other affiliation shall be prepared for each precinct. The lists shall be arranged in alphabetical order or
street order, as the books are maintained, and shall include the name, residence address and party
affiliation of the voter, along with a designation of inactive status where applicable. The lists shall
be prepared prior to the primary election and the clerk shall not be required to supplement or revise
those lists as registrations are added or canceled.
(2) In counties maintaining active and inactive files in digitized data format, the clerk of the
county commission shall, upon request, prepare printed copies of the lists of voters for each precinct.
No list prepared under this section may include the telephone number or social security number of
the registrant. The clerk shall establish a written policy, which shall be posted within public view,
listing the options which may be requested for selection and sorting criteria and available data
elements, which shall include at least the name, residence address, political party affiliation and
status and the format of the lists and the times at which lists will be prepared. A copy of the policy
shall be filed with the secretary of state no later than the first day of January, one thousand nine
hundred ninety-five, and within thirty days after any change in policy.
(c) In counties which maintain voter files in a digitized data format, lists of registered voters
may be obtained for noncommercial purposes in data format on disk provided and prepared by the
clerk of the county commission at a cost of one cent per name plus ten dollars for each disk required.
No data file prepared under this subsection may include the telephone number or social security
number of the registrant.
(d) The fees received by the clerk of the county commission shall be kept in a separate fund
under the supervision of the clerk for the purpose of defraying the cost of the preparation of the
voter lists. Any unexpended balance in the fund shall be transferred to the general fund of the
county commission.
(e) After the implementation of the state uniform voter data system, the secretary of state
may make voter lists available for sale subject to the limitations as provided in this section for
counties, except that the cost shall be one and one-half cents per name plus ten dollars for each disk required. One cent per name for each voter from a particular county on each list sold shall be
reimbursed to the appropriate county and one-half cent per name shall be deposited to a special
account for purpose of defraying the cost of the preparation of the lists.
(f) No voter registration lists or data files containing the names, addresses or other
information relating to voters derived from voter data files obtained pursuant to the provisions of
this article may be used for commercial or charitable solicitations or advertising, sold or reproduced
for resale, or provided to any person at less than the prescribed cost for any purpose other than
official use.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-1. Persons eligible to vote absentee ballots.
(a) Registered and other qualified voters of the county may vote an absentee ballot pursuant
to the provisions of this article.
(b)(a) All registered and other qualified voters of the county may vote an absentee ballot
during the period of regular absentee early voting in person.
(c) Any registered voter or other qualified voter of the county who will be absent from the
county throughout the regular period and available hours for voting in person because of personal
or business travel or employment and who will be unable to receive an absentee ballot by mail at
an address outside the county during that absence may vote an absentee ballot under special affidavit
in person during the period of special absentee voting in person.
(d) (b) Registered voters and other qualified voters in the county are authorized to vote an
absentee ballot by mail in the following circumstances:
(1) Any voter who is confined to a specific location and prevented from voting in person
throughout the period of voting in person because of:
(A) Illness, injury or other medical reason;
(B) Physical disability or immobility due to extreme advanced age; or
(C) Incarceration or home detention: Provided, That the underlying conviction is not for a crime which is a felony or a violation of section twelve, thirteen or sixteen, article nine of this
chapter involving bribery in an election;
(2) Any voter who is absent from the county throughout the period and available hours for
voting in person because of:
(A) Personal or business travel;
(B) Attendance at a college, university or other place of education or training; or
(C) Employment which because of hours worked and distance from the county seat make
voting in person impossible;
(3) Any voter absent from the county throughout the period and available hours for voting
in person and who is an absent uniformed services voter or overseas voter, as defined by 42 U. S.
C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, including
members of the uniformed services on active duty, members of the merchant marine, spouses and
dependents of those members on active duty and persons who reside outside the United States and
are qualified to vote in the last place in which the person was domiciled before leaving the United
States;
(4) Any voter who is required to dwell temporarily outside the county and is absent from the
county throughout the time for voting in person because of:
(A) Serving as an elected or appointed federal or state officer; or
(B) Serving in any other documented employment assignment of specific duration of four
years or less; and
(5) Any voter for whom the designated area for absentee voting within the county courthouse
or annex of the courthouse and the voter's assigned polling place are inaccessible because of his or
her physical disability.
(e) (c) Registered voters and other qualified voters in the county may, in the following
circumstances, vote an emergency absentee ballot, subject to the availability of the services as
provided in this article:
(1) Any voter who is confined or expects to be confined in a hospital or other duly licensed
health care facility within the county of residence or other authorized area, as provided in this
article, on the day of the election;
(2) Any voter who resides in a nursing home within the county of residence and would be
otherwise unable to vote in person, providing the county commission has authorized the services if
the voter has resided in the nursing home for a period of less than thirty days; and
(3) Any voter who is working as a replacement poll worker and is assigned to a precinct out
of his or her voting district, if the assignment was made after the period for voting an absentee ballot
in person has expired.
§3-3-2. Authority to conduct absentee voting; absentee voting application; form.
(a) Absentee voting is to be supervised and conducted by the proper official for the political
division in which the election is held, in conjunction with the ballot commissioners appointed from
each political party, as follows:
(1) For any election held throughout the county, within a political subdivision or territory
other than a municipality, or within a municipality when the municipal election is conducted in
conjunction with a county election, the clerk of the county commission: Provided, That if the clerk
of the county commission and the clerk of the circuit court jointly petition the county commission
setting forth their agreement that the clerk of the circuit court should continue to supervise and
conduct the absentee voting, the county commission shall designate the clerk of the circuit court to
supervise and conduct the absentee voting; or
(2) The municipal recorder or other officer authorized by charter or ordinance provisions to
conduct absentee voting, for any election held entirely within the municipality, or in the case of
annexation elections, within the area affected. The terms "clerk" or "circuit clerk" or "official
designated to supervise and conduct absentee voting" used elsewhere in this article means municipal
recorder or other officer in the case of municipal elections.
(b) A person authorized and desiring to vote an a mail-in absentee ballot in any primary, general or special election is to make application in writing in the proper form to the proper official
as follows:
(1) The completed application is to be on a form prescribed by the secretary of state and is
to contain the name, date of birth and political affiliation of the voter, residence address within the
county, the address to which the ballot is to be mailed, the authorized reason, if any, for which the
absentee ballot is requested and, if the reason is illness or hospitalization, the name and telephone
number of the attending physician, the signature of the voter to a declaration made under the
penalties for false swearing as provided in section three, article nine of this chapter that the
statements and declarations contained in the application are true, any additional information which
the voter is required to supply, any affidavit which may be required and an indication as to whether
it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under the provisions of 42 U. S. C.
§1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the completed
application may be on the federal postcard application for absentee ballot form issued under
authority of that act; or
(3) For any person unable to obtain the official form for absentee balloting at a reasonable
time before the deadline for an application for an absentee ballot by mail is to be received by the
proper official, the completed application may be in a form set out by the voter, provided all
information required to meet the provisions of this article is set forth and the application is signed
by the voter requesting the ballot.
§3-3-2a. Voting booths within public view to be provided; prohibition against display of
campaign material.
Throughout the period of absentee voting early in-person voting, the official designated to
supervise and conduct absentee voting shall make the following provisions for voting:
(1) The official shall provide a sufficient number of voting booths or devices appropriate to
the voting system at which voters may prepare their ballots. The booths or devices are to be in an area separate from but within clear view of the public entrance area of the official's office or other
area designated by the county commission for absentee voting and are to be arranged to ensure the
voter complete privacy in casting the ballot.
(2) The official shall make the voting area secure from interference with the voter and shall
ensure that voted and unvoted ballots are at all times secure from tampering. No person, other than
a person lawfully assisting the voter according to the provisions of this chapter, may be permitted
to come within five feet of the voting booth while the voter is voting. No person, other than the
officials or employees of the official designated to supervise and conduct absentee voting or
members of the board of ballot commissioners assigned to conduct absentee voting, may enter the
area or room set aside for voting.
(3) The official designated to supervise and conduct absentee voting shall request the county
commission designate another area within the county courthouse or any annex of the courthouse as
a portion of the official's office for the purpose of absentee voting in the following circumstances:
(A) If the voting area is not accessible to voters with physical disabilities;
(B) If the voting area is not within clear view of the public entrance of the office of the
official designated to supervise and conduct absentee voting; or
(C) If there is no suitable area for absentee voting within the office.
Any designated area is subject to the same requirements as the regular absentee voting area.
(4) The official designated to supervise and conduct absentee voting shall have at least two
representatives to assist with absentee voting: Provided, That the two representatives shall not be
registered with the same political party affiliation or two persons registered with no political party
affiliation. The representatives may be full-time employees, temporary employees hired for the
period of absentee voting in person or volunteers.
(4) (5) No person may do any electioneering nor may any person display or distribute in any
manner, or authorize the display or distribution of, any literature, posters or material of any kind
which tends to influence the voting for or against any candidate or any public question on the property of the county courthouse or any annex facilities during the entire period of regular in-
person absentee voting. The official designated to supervise and conduct absentee voting is hereby
authorized to remove the material and to direct the sheriff of the county to enforce the prohibition.
§3-3-3. Early voting in person.
(a) Regular absentee The voting period for early in-person voting is to be conducted during
regular business hours beginning on the fifteenth twentieth day before the election and continuing
through the third day before the election. 1:00 p.m. the Monday before the election for any election
held on a Tuesday, or continuing through 1:00 p.m. the day before the election for any election held
on another day. For any election held on a Tuesday, regular absentee the early voting period for in-
person voting is to be available from 9:00 a.m. to 5:00 p.m. on the two Saturdays Saturday before
prior to the election.
(b) Special absentee voting in person for persons eligible to vote an absentee ballot under
the provisions of subsection (c), section one of this article is to be conducted during regular business
hours in the office of the official designated to supervise and conduct absentee voting beginning on
the forty-second day before the election and continuing until the first day when regular absentee
voting in person begins. Any person seeking to vote absentee under this subsection is to first give
an affidavit, on a form prescribed by the secretary of state, stating under oath the specific
circumstances which prevent voting absentee during the period for regular absentee voting in person
or by mail.
(c) Upon oral request, the official designated to supervise and conduct absentee voting shall
provide the voter with the appropriate application for voting absentee in person, as provided in this
article. The voter shall complete and sign the application in his or her own handwriting or, if the
voter is unable to complete the application because of illiteracy or physical disability, the person
assisting the voter and witnessing the mark of the voter shall sign his or her name in the space
provided.
(d) Upon completion, the application is to be immediately returned to the official designated to supervise and conduct absentee voting who shall determine:
(1) Whether the application has been completed as required by law;
(2) Whether the applicant is duly registered to vote in the precinct of his or her residence and,
in a primary election, is qualified to vote the ballot of the political party requested; and
(3) Whether the applicant is authorized for the reasons given in the application to vote an
absentee ballot by personal appearance during the special absentee voting period at the time of the
application.
(b) Any person desiring to vote during the period of early in-person voting shall, upon
entering the election room, clearly state his or her name and residence to the official or
representative designated to supervise and conduct absentee voting. If that person is found to be
duly registered as a voter in the precinct of his or her residence, he or she shall be required to sign
his or her name in the space marked "signature of voter" on the pollbook. If the voter is unable to
sign his or her name due to illiteracy or physical disability, the person assisting the voter and
witnessing the mark of the voter shall sign his or her name in the space provided. No ballot may be
given to the person until he or she signs his or her name on the pollbook.
(c) When the voter's signature or mark is properly on the pollbook, two qualified
representatives of the official designated to supervise and conduct absentee voting shall sign their
names in the places indicated on the back of the official ballot.
(e) (d) If the official designated to supervise and conduct absentee voting determines the
conditions provided in subsection (d) of this section have not been met, or has evidence that any of
the information contained in the application is not true that the voter is not properly registered in the
precinct where he or she resides, the clerk or his or her representative shall challenge the voter's
absentee ballot as provided in this article.
(f) (e) The official designated to supervise and conduct absentee voting shall provide each
person voting an absentee ballot in person the following items to be printed as prescribed by the
secretary of state:
(1) One In counties using paper ballots, one of each type of official absentee ballot the voter
is eligible to vote, prepared according to law;
(2) For all punch card and paper ballot voting and for optical scan ballots voted after election
supplies are delivered to the election supply commissioner, one envelope, unsealed, which may have
no marks except the designation "Absent Voter's Ballot Envelope No. 1" and printed instructions
to the voter;
(3) For all punch card and paper ballot voting and for optical scan ballots voted after election
supplies are delivered to the election supply commissioner, one envelope, unsealed, designated
"Absent Voter's Ballot Envelope No. 2"; and
(4) For optical scan voting systems, ballots, a secrecy sleeve and access to a ballot box
secured by two locks with keys kept by the president of the county commission and the county clerk.
(2) In counties using punch card systems, one of each type of official absentee ballot the
voter is eligible to vote, prepared according to law, and a gray secrecy envelope;
(3) In counties using optical scan systems, one of each type of official absentee ballot the
voter is eligible to vote, prepared according to law, and a secrecy sleeve; or
(4) For direct recording election systems, access to the voting equipment in the voting booth.
(g) (f) The voter shall enter the voting booth alone and there mark the ballot: Provided, That
the voter may have assistance in voting according to the provisions of section four of this article.
After the voter has voted the ballot or ballots, the punch card and paper absentee voter shall: (1)
Place the ballot or ballots in the gray secrecy envelope no. 1 and seal that envelope; (2) place the
sealed envelope no. 1 in envelope no. 2 and seal that envelope; (3) complete and sign the forms on
envelope no. 2; and (4) return that envelope the ballot or ballots to the official designated to
supervise and conduct the absentee voting: Provided, however, That in direct recording election
systems, once the voter has cast his or her ballot, the voter shall exit the polling place.
(h) (g) Upon receipt of the sealed envelope voted ballot, representatives of the official
designated to supervise and conduct the absentee voting shall:
(1) Enter onto the envelope any other required information; (2) Enter the challenge, if any,
to the ballot;
(3) Enter the required information into the permanent record of persons applying for and
voting an absentee ballot in person; and
(4) Place the sealed envelope in a secure location in the official's office, to remain until
delivered to the polling place or, in the case of a challenged ballot, to the board of canvassers.
(1) Remove the ballot stub;
(2) Place punch card ballots and paper ballots into one envelope which shall not have any
marks except the precinct number and seal the envelope;
(3) Place ballots for all voting systems into a ballot box that is secured by two locks with a
key to one lock kept by the president of the county commission and a key to the other lock kept by
the county clerk;
(4) Due to the reenactment of this section by the Legislature in the two thousand three
regular session removing authorization for early in-person voting on the Monday prior to a Tuesday
election, to assure notice to all persons that voted on the Monday before the Tuesday election day
of the two thousand two general election are made aware of this change, the clerk of each county
shall, for the primary election of the year two thousand four, include along with the sample ballots
published in local newspapers as required by this chapter a notice to voters that Monday in-person
voting will no longer be available.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the official designated to supervise and conduct absentee
voting shall provide to any voter of the county, in person, by mail or by facsimile, if the official has
access to facsimile equipment, the appropriate application for voting absentee by mail as provided
in this article. The voter shall complete and sign the application in his or her own handwriting or,
if the voter is unable to complete the application because of illiteracy or physical disability, the
person assisting the voter and witnessing the mark of the voter shall sign his or her name in the space provided.
(b) Completed applications for voting an absentee ballot by mail is to be accepted when
received by the official designated to supervise and conduct absentee voting in person, by mail or
by facsimile, if the official has access to facsimile equipment, within the following times:
(1) For persons eligible to vote an absentee ballot under the provisions of subdivision (3),
subsection (b), section one of this article, relating to absent uniformed services and overseas voters,
not earlier than the first day of January of an election year, or eighty-four days preceding the
election, whichever is earlier, and not later than the sixth day preceding the election, which
application is to, upon the voter's request, be accepted as an application for the ballots for all
elections in the calendar year; and
(2) For all other persons eligible to vote an absentee ballot by mail, not earlier than eighty-
four days preceding the election and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the official designated to supervise and
conduct absentee voting shall determine whether the following requirements have been met:
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct of his or her residence and, in a
primary election, is qualified to vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the application to vote an absentee
ballot by mail;
(4) The address to which the ballot is to be mailed is an address outside the county if the
voter is applying to vote by mail under the provisions of paragraph (A) or (B), subdivision (2),
subsection (d), section one of this article; or subdivision (3) or (4) of said subsection;
(5) The applicant is not making his or her first vote after having registered by postcard
registration or, if the applicant is making his or her first vote after having registered by postcard
registration, the applicant is exempt from these requirements; and
(6) No regular and repeated pattern of applications for an absentee ballot by mail for the reason of being out of the county during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
(d) If the official designated to supervise and conduct absentee voting determines that the
required conditions have been met, two representatives that are registered to vote with different
political party affiliations shall sign their names in the places indicated on the back of the official
ballot. If the official designated to supervise and conduct absentee voting determines the required
conditions have not been met, or has evidence that any of the information contained in the
application is not true, the official shall give notice to the voter that the voter's absentee ballot will
be challenged as provided in this article and shall enter that challenge.
(e) Within one day after the official designated to supervise and conduct absentee voting has
both the completed application and the ballot, the official shall mail to the voter at the address given
on the application the following items as prescribed by the secretary of state:
(1) One of each type of official absentee ballot the voter is eligible to vote, prepared
according to law;
(2) One envelope, unsealed, which may have no marks except the designation "Absent
Voter's Ballot Envelope No. 1" and printed instructions to the voter;
(3) One postage paid envelope, unsealed, designated "Absent Voter's Ballot Envelope No.
2";
(4) Instructions for voting absentee by mail; and
(5) For electronic systems, one punching tool for perforating or a device for marking by
electronically sensible pen or ink, as may be appropriate;
(6) If a punching tool is to be utilized, one disposable styrofoam block to be placed behind
the ballot card for voting purposes and to be discarded after use by the voter; and
(5) (7) Any other supplies required for voting in the particular voting system.
(f) The voter shall mark the ballot alone: Provided, That the voter may have assistance in
voting according to the provisions of section six of this article. After the voter has voted the ballot or ballots, the voter shall: (1) Place the ballot or ballots in envelope no. 1 and seal that envelope;
(2) place the sealed envelope no. 1 in envelope no. 2 and seal that envelope; (3) complete and sign
the forms on envelope no. 2; and (4) return that envelope to the official designated to supervise and
conduct absentee voting.
(g) Except as provided in subsection (h) of this section, absentee ballots returned by United
States mail or other express shipping service are to be accepted if: (1) The ballot is received by the
official designated to supervise and conduct absentee voting no later than the day after the election;
or (2) the ballot bears a postmark of the United States postal service dated no later than election day
and the ballot is received by the official designated to supervise and conduct absentee voting no later
than the hour at which the board of canvassers convenes to begin the canvass.
(h) Absentee ballots received through the United States mail from persons eligible to vote
an absentee ballot under the provisions of subdivision (3), subsection (b), section one of this article,
relating to uniform services and overseas voters, are to be accepted if the ballot is received by the
official designated to supervise and conduct absentee voting no later than the hour at which the
board of canvassers convenes to begin the canvass.
(i) Ballots received after the proper time which cannot be accepted are to be placed unopened
in an envelope marked for the purpose and kept secure for twenty-two months following the
election, after which time they are to be destroyed without being opened.
(j) Absentee ballots which are hand delivered are to be accepted if they are received by the
official designated to supervise and conduct absentee voting no later than the day preceding the
election: Provided, That no person may hand deliver more than two absentee ballots in any election,
and any person hand delivering an absentee ballot is required to certify that he or she has not
examined or altered the ballot. Any person who makes a false certification violates the provisions
of article nine of this chapter and is subject to those provisions.
(k) Upon receipt of the sealed envelope, the official designated to supervise and conduct
absentee voting shall:
(1) Enter onto the envelope any other required information;
(2) Enter the challenge, if any, to the ballot;
(3) Enter the required information into the permanent record of persons applying for and
voting an absentee ballot in person; and
(4) Place the sealed envelope in a secure location in the official's office, to remain until
delivered to the polling place or, in the case of a challenged ballot, to the board of canvassers
into a ballot box that is secured by two locks with a key to one lock kept by the president of the
county commission and a key to the other lock kept by the county clerk.
§3-3-5c. Procedures for voting an emergency absentee ballot by qualified voters.
(a) Notwithstanding any other provision of this chapter, a person qualified to vote an
emergency absentee ballot, as provided in subsection (c), section one of this article may vote an
emergency absentee ballot under the procedures established in this section. The county commission
may adopt a policy extending the emergency absentee voting procedures to: (1) Hospitals or other
duly licensed health care facilities within an adjacent county or within thirty-five miles of the county
seat; or (2) nursing homes within the county: Provided, That the policy is to be adopted by the
county commission at least ninety days prior to the election that will be affected and a copy of the
policy is to be filed with the secretary of state.
(b) On or before the fifty-sixth day preceding the date on which any election is to be held the
official designated to supervise and conduct absentee voting shall notify the county commission of
the number of sets of emergency absentee ballot commissioners which he or she determines
necessary to perform the duties and functions pursuant to this section.
(c) A set of emergency absentee ballot commissioners at-large shall consist of two persons
with different political party affiliations appointed by the county commission in accordance with the
procedure prescribed for the appointment of election commissioners under the provisions of article
one of this chapter. Emergency absentee ballot commissioners have the same qualifications and
rights and take the same oath required under the provisions of this chapter for commissioners of elections. Emergency absentee ballot commissioners are to be compensated for services and
expenses in the same manner as commissioners of election or poll clerks obtaining and delivering
election supplies under the provisions of section forty-four, article one of this chapter.
(d) Upon request of the voter or a member of the voter's immediate family or, when the
county commission has adopted a policy to provide emergency absentee voting services to nursing
home residents within the county, upon request of a staff member of the nursing home, the official
designated to supervise and conduct absentee voting, upon receiving a proper request for voting an
emergency absentee ballot no earlier than the seventh day next preceding the election and no later
than noon of election day shall supply to the emergency absentee ballot commissioners the
application for voting an emergency absentee ballot and the balloting materials. The emergency
absentee ballot application is to be prescribed by the secretary of state and is to include the name,
residence address and political party affiliation of the voter, the date, location and reason for
confinement in the case of an emergency, and the name of the attending physician.
(e) The application for an emergency absentee ballot is to be signed by the person applying.
If the person applying for an emergency absentee ballot is unable to sign his or her application
because of illiteracy or physical disability, he or she is to make his or her mark on the signature line
provided for an illiterate or disabled applicant, which the mark is to be witnessed. The person
assisting the voter and witnessing the mark of the voter shall sign his or her name in the space
provided.
(f) A declaration is to be completed and signed by each of the emergency absentee ballot
commissioners, stating their names, the date on which they appeared at the place of confinement of
the person applying for an emergency absentee ballot and the particulars of the confinement.
(g) At least one of the emergency absentee ballot commissioners receiving the balloting
materials shall sign a receipt which is to be attached to the application form. Each of the emergency
absentee ballot commissioners shall deliver the materials to the absent voter, await his or her
completion of the application and ballot and return the application and the ballot to the official designated to supervise and conduct absentee voting. and, upon Upon delivering the application and
the voted ballot to the official, the emergency absentee ballot commissioners shall sign an oath that
no person other than the absent voter voted the ballot. The application and the voted ballot are to
be returned to the official designated to supervise and conduct absentee voting prior to the close of
the polls on election day. Any ballots received by the official after the time that delivery may
reasonably be made but before the closing of the polls are to be delivered to the canvassing board
along with the absentee ballots challenged in accordance with the provisions of section ten of this
article.
(h) Upon receiving the application and emergency absentee ballot, the official designated
to supervise and conduct absentee voting shall ascertain whether the application is complete,
whether the voter appears to be eligible to vote an emergency absentee ballot, and whether the voter
is properly registered to vote with the office of the clerk of the county commission. If the voter is
found to be properly registered in the precinct shown on the application, the ballot is to be delivered
to the precinct election commissioner pursuant to section seven of this article. If the voter is found
not to be registered or is otherwise ineligible to vote an emergency ballot, then the ballot is to be
challenged for the appropriate reason provided for in section ten of this article.
(i) If either or both of the emergency absentee ballot commissioners should refuse to sign
any application for voting an emergency absentee ballot, then the voter may vote as an emergency
absentee and the ballot is to will be challenged in accordance with the provisions of section ten of
this article, in addition to those absentee ballots subject to challenge as provided in that section.
(j) Any voter who receives assistance in voting an emergency absentee ballot shall comply
with the provisions of section six of this article. Any other provisions of this chapter relating to
absentee ballots not altered by the provisions of this section are to govern the treatment of
emergency absentee ballots.
§3-3-7. Delivery of absentee ballots to polling places.
(a) Except as otherwise provided in this article, in counties in which the clerk of the county commission has determined that the absentee ballots should be counted at the precincts in which the
absent voters are registered, using paper ballots systems or voting machines, the absentee ballots of
each precinct, together with the applications for the absentee ballots, the affidavits made in
connection with assistance in voting and any forms, lists and records as may be designated by the
secretary of state, are to be delivered in a sealed carrier envelope to the election commissioner of
the precinct at the time he or she picks up the official ballots and other election supplies as provided
in section twenty-four, article one of this chapter.
(b) For optical scan voting systems, all ballots voted before the precinct supplies are
delivered to the precinct supply commissioner are to be deposited in the ballot box. The ballots
deposited in the ballot box shall be counted and merged with the election day ballots at the counting
center on election night.
(c) (b) Absentee ballots received after the election commissioner has picked up the official
ballots and other election supplies for the precinct are to be delivered to the election commissioner
of the precinct who has been designated pursuant to section twenty-four, article one of this chapter,
by the official designated to supervise and conduct absentee voting in person or by messenger before
the closing of the polls, provided the ballots are received by the official in time to make the delivery.
Any ballots received by the official after the time that delivery may reasonably be made but within
the time required as provided in subsection (g), section five of this article are to be delivered to the
board of canvassers along with the challenged provisional ballots.
§3-3-8. Disposition and counting of absent voters' ballots.
(a) All absentee ballots voted must be deposited in the absentee ballot box. The ballots
deposited in the ballot box must be counted and merged with the election day ballots at the counting
center on election night or, at the option of the clerk of the county commission, be delivered for
counting at the precinct in which the absent voter is registered to vote, as provided in section seven
of this article.
(b) The county clerk shall appoint at least one team of five absentee ballot counting commissioners. The composition of each team shall consist of the same combination of election
officials as provided for a counting board in subdivision (3), subsection (a), section twenty-nine,
article one of this chapter. The absentee ballot counting commissioners must count the absentee
ballots at the counting center as follows:
(1) Immediately after the closing of the polls on election day the absentee ballot counting
commissioners, in the presence of each other, shall open the ballot box in which are enclosed the
absent voters' ballots.
(2) After the ballot box has been opened, each of the absentee ballot counting commissioners
shall examine each of the mail-in sealed absent voter's ballot envelopes no. 2 contained therein, as
well as the information contained thereon, the application for such ballot, the affidavits, records and
lists, if any, made, prepared or authorized under the provisions of this article which relate thereto
and make a decision as to each ballot whether a challenge is or is not to be made to such ballot. The
appropriate form indicating the challenge shall be completed as to each ballot challenged by one or
more of the absentee ballot counting commissioners. Each ballot challenged shall remain sealed in
absent voter's ballot envelope no. 2 and be deposited in the box or envelope for challenged ballots.
(3) The absentee ballot counting commissioners shall next determine whether any challenge
has been made to any absent voter's ballot by any registered voter in the county under the provisions
of section nine of this article. Each such ballot challenged shall remain sealed in absent voter's
ballot envelope no. 2 and be deposited in the box or envelope for challenged ballots.
(4) The absentee ballot counting commissioners, in the presence of each other, shall then
open, in a manner as not to deface or destroy the information thereon, all of the mail-in absent
voter's ballot envelopes no. 2 which contain ballots not challenged and remove therefrom the absent
voter's ballot envelopes no. 1. These envelopes shall then be shuffled and intermingled.
(5) The absentee ballot counting commissioners, in the presence of each other, shall next
open all of the absent voter's ballot envelopes no. 1 and remove the ballots therefrom. The absentee
ballot counting commissioners who are poll clerks shall write their names on the back of each of such ballots in the same manner as other ballots are required to be endorsed by the poll clerks at
precinct voting. The absentee ballot counting commissioners who are poll clerks shall then indicate
with the letter "a" in the appropriate place on the registration record the fact that the voter had voted
by absent voter's ballot in that election and shall enter the absent voter's name on the pollbook.
(6) The absentee ballot counting commissioners shall next count the mail-in and in-person
absentee ballots and enter the totals onto the precinct election records.
(a) In counties using paper ballots, all absentee ballots shall be processed as follows:
(1) The ballot boxes containing the absentee ballots shall be opened in the presence of the
clerk of the county commission and two representatives of opposite political parties;
(2) The ballots shall be separated by precincts as stated on the sealed envelopes containing
the ballots; and
(3) Absentee ballots shall be delivered to the polls to be opened and counted in accordance
with section thirty-three, article one of this chapter, section fifteen, article five of this chapter; and
section six, article six of this chapter. Disclosure of any results before the voting has been closed
and the precinct returns posted on the door of the polling place shall be a per se violation of the oath
taken by the counting board. In all other counties, counting is to begin immediately after closing
of the polls.
(b) In the counties using punch card systems, the absentee ballots shall be processed as
follows:
(1) On election day, the ballot boxes containing the absentee ballots shall be delivered to the
central counting center and opened in the presence of the clerk of the county commission and two
representatives of opposite political parties;
(2) The ballots shall be separated by precincts as stated on the sealed envelopes containing
the ballots; and
(3) The absentee ballots shall be counted in accordance with section twenty-seven, article
four-a of this chapter.
(c) In counties using optical scan systems, the absentee ballots shall be processed as follows:
(1) On election day, the ballot boxes containing the absentee ballots shall be delivered to the
central counting center and opened in the presence of the clerk of the county commission and two
representatives of opposite political parties; and
(2) The absentee ballots shall be counted in accordance with section twenty-seven, article
four-a of this chapter.
(d) In counties using direct recording elections systems, the absentee ballots shall be counted
in accordance with section twenty-seven, article four-a of this chapter.
(7) (e) The challenged provisional ballots shall be deposited in a challenged provisional
ballot envelope and delivered to the board of canvassers.
(c) (f) Any election official who determines a person has voted an absent voter's ballot and
has also voted at the polls on election day must report the fact to the prosecuting attorney of the
county in which the votes were cast.
§3-3-10. Challenging of absent voters' ballots.
(a) The official designated to supervise and conduct absentee voting may challenge an absent
voter's ballot on any of the following grounds:
(1) That the application for an absent voter's ballot has not been completed as required by
law;
(2) That any statement or declaration contained in the application for an absent voter's ballot
is not true;
(3) That the applicant for an absent voter's ballot is not registered to vote in the precinct of
his or her residence as provided by law;
(4) That the person voting an absent voter's ballot by personal appearance in his or her office
had assistance in voting the ballot when the person was not qualified for voting assistance because:
(A) The affidavit of the person who received assistance does not indicate a legally sufficient reason
for assistance; or (B) the person who received assistance did not make an affidavit as required by this article; or (C) the person who received assistance is not so illiterate as to have been unable to
read the names on the ballot or that he or she is not so physically disabled as to have been unable
to see or mark the absent voter's ballot;
(5) That the person who voted an absent voter's ballot by mail and received assistance in
voting the ballot was not qualified under the provisions of this article for assistance; and
(6) That the person has voted absentee by mail as a result of being out of the county more
than four consecutive times: Provided, That the determination as to whether the person has voted
more than four consecutive times does not apply if the person is a citizen residing out of the United
States; or a member, spouse or dependent of a member serving in the uniformed services; or a
college student living outside of his or her home county.
(b) Any one or more of the election commissioners or poll clerks in a precinct may challenge
an absent voter's ballot on any of the following grounds:
(1) That the application for an absent voter's ballot was not completed as required by law;
(2) That any statement or declaration contained in the application for an absent voter's ballot
is not true;
(3) That the person voting an absent voter's ballot is not registered to vote in the precinct of
his or her residence as provided by law;
(4) That the signatures of the person voting an absent voter's ballot as they appear on his or
her registration record, his or her application for an absent voter's ballot and the absent voter's ballot
envelope are not in the same handwriting;
(5) That the absent voter's ballot does not have the official seal of the clerk of the circuit
court and all signatures of members of the board of ballot commissioners on it;
(6) (5) That the person voting an absent voter's ballot by personal appearance had assistance
in voting the ballot when the person was not qualified for assistance because: (A) The affidavit of
the person who received assistance does not indicate a legally sufficient reason for assistance; or (B)
the person who received assistance did not make an affidavit as required by this article; or (C) the person who received assistance is not so illiterate as to have been unable to read the names on the
ballot or that he or she was not so physically disabled as to have been unable to see or mark the
absent voter's ballot;
(7) (6) That the person voted an absent voter's ballot by mail and received assistance in
voting the ballot when not qualified under the provisions of this article for assistance;
(8) (7) That the person who voted the absent voter's ballot voted in person at the polls on
election day;
(9) (8) That the person voted an absent voter's ballot under authority of subdivision (3),
subsection (b), section one of this article and is or was present in the county in which he or she is
registered to vote between the opening and closing of the polls on election day; and
(10) That the person who voted an absent voter's ballot had died before election day; and
(11) (9) On any other ground or for any reason on which or for which the ballot of a voter
voting in person at the polls on election day may be challenged.
No challenge may be made to any absent voter ballot if the voter was registered and qualified
to vote pursuant to the provisions of subsection (a), section one of this article.
(c) Forms for, and the manner of, challenging an absent voter's ballot under the provisions
of this article are to be prescribed by the secretary of state.
(d) Absent voters' ballots challenged by the official designated to supervise and conduct
absentee voting under the provisions of this article are to be transmitted by the official directly to
the county commission sitting as a board of canvassers. The absent voters' ballots challenged by
the election commissioners and poll clerks under the provisions of this article may not be counted
by the election officials but are to be transmitted by them to the county commission sitting as a
board of canvassers. Action by the board of canvassers on challenged absent voters' ballots is to
be governed by the provisions of section forty-one, article one of this chapter.
§3-3-11. Preparation, number and handling of absent voters' ballots.
(a) Absent voters' ballots are to be in all respects like other ballots. Not less than seventy days before the date on which any primary, general or special election is to be held, unless a lesser
number of days is provided for in any specific election law in which case the lesser number of days
applies, the clerks of the circuit courts of the several counties shall estimate and determine the
number of absent voters' ballots of all kinds which will be required in their respective counties for
that election. The ballots for the election of all officers, or the ratification, acceptance or rejection
of any measure, proposition or other public question to be voted on by the voters, are to be prepared
and printed under the direction of the board of ballot commissioners constituted as provided in
article one of this chapter. The several county boards of ballot commissioners shall prepare and
have printed, in the number they may determine, absent voters' ballots that are to be printed under
their directions as provided in this chapter and those ballots are to be delivered to the clerk of the
circuit court of the county not less than forty-two days before the day of the election at which they
are to be used. Before any ballot is mailed or delivered, the clerk of the circuit court shall affix his
or her official seal and he or she and the other members of the board of ballot commissioners shall
place their signatures near the lower left-hand corner on the back of the ballot. The clerks of the
circuit courts are authorized to have their signatures affixed by a facsimile printed on the back of
absentee ballots, by a facsimile signature stamp or by signing their original signatures. An absent
voter's ballot not containing the seal and signatures shall be challenged. If an accurate accounting
is made for all ballots and applications in that precinct and no other valid challenge exists against
the voter, the ballot shall be counted at the canvas. In counties where the clerk of the county
commission is responsible for conducting absentee voting, the circuit clerk shall transfer the
absentee ballots to the clerk of the county commission prior to the beginning of absentee voting.
(b) The official designated to supervise and conduct absentee voting shall be primarily
responsible for the mailing, receiving, delivering and otherwise handling of all absent voters'
ballots. He or she shall keep a record, as may be prescribed by the secretary of state, of all ballots
so delivered for the purpose of absentee voting, as well as all ballots, if any, marked before him or
her and shall deliver to the commissioner of election a certificate stating the number of ballots delivered or mailed to absent voters and those marked before him or her, if any, and the names of
the voters to whom those ballots have been delivered or mailed or by whom they have been marked,
if marked before him or her.
ARTICLE 4. VOTING MACHINES.
§3-4-10. Ballot labels, instructions and other supplies; vacancy changes; procedure and
requirements.
(a) The ballot commissioners of any county in which voting machines are to be used in any
election shall cause to be printed for use in the election the ballot labels for the voting machines and
paper ballots for absentee voting, voting by persons unable to use the voting machine and challenged
provisional ballots or if an electronic voting system or direct recording election equipment is to be
used in an election, the ballot commissioners shall comply with requirements of section eleven,
article four-a of this chapter. The labels shall be clearly printed in black ink on clear white material
of such in a size as that will fit the ballot frames. The paper ballots shall be printed in compliance
with the provisions of this chapter governing paper ballots.
(b) The heading, the names and arrangement of offices and the printing and arrangement of
names of the candidates for each office indicated must be placed on the ballot for the primary
election as nearly as possible according to the provisions of sections thirteen and thirteen-a, article
five of this chapter and for the general election according to the provisions of section two, article
six of this chapter: Provided, That the staggering of the names of candidates in multicandidate races
and the instructions to straight ticket voters prescribed by section two, article six of this chapter shall
appear on paper ballots but shall not appear on ballot labels for voting machines which mechanically
control crossover voting.
(c) Each question to be voted on must be placed at the end of the ballot and must be printed
according to the provisions of the laws and regulations governing the question.
(d) The ballot labels printed must total in number one and one-half times the total number
of corresponding voting machines to be used in the several precincts of the county in the election. All the labels must be delivered to the clerk of the circuit court at least twenty-eight days prior to
the day of the election. The clerk of the circuit court shall determine the number of paper ballots
needed for absentee voting and to supply the precincts for challenged provisional ballots and ballots
to be cast by persons unable to use the voting machine. All required paper ballots shall be delivered
to the clerk of the circuit court at least forty-two days prior to the day of the election.
(e) When the ballot labels and absentee ballots are delivered, the clerk of the circuit court
shall examine them for accuracy, assure that the appropriate ballots and ballot labels are designated
for each voting precinct and deliver the ballot labels to the clerk of the county commission who shall
insert one set in each machine prior to the inspection of the machines as prescribed in section twelve
of this article. The remainder of the ballot labels for each machine shall be retained by the clerk of
the county commission for use in an emergency.
(f) In addition to all other equipment and supplies required by the provisions of this article,
the ballot commissioners shall cause to be printed a supply of instruction cards, sample ballots and
facsimile diagrams of the voting machine ballot adequate for the orderly conduct of the election in
each precinct in their county. In addition, they shall provide appropriate facilities for the reception
and safekeeping of the ballots of absent voters and of challenged voters and of such the
"independent" voters who shall, in primary elections, cast their votes on nonpartisan candidates and
public questions submitted to the voters.
§3-4-23. Voting by challenged voters.
If the right of any person to vote be is challenged in accordance with provisions of article
one of this chapter relating to the challenging of voters, such the person shall not be permitted to cast
his or her vote by use of the voting machine but he or she shall be supplied by the election officer
at the polling place with an official printed ballot of such the election. Such The provisional ballot
shall not be endorsed on the back by the poll clerks but, when voted by the challenged voter, shall
have affixed thereto by the poll clerks their statement of information as to the challenge on the form
prescribed therefor. Such challenged The provisional ballots shall be secured, handled and disposed of as challenged provisional ballots in other elections, as provided in article one of this chapter.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-9. Minimum requirements of electronic voting systems.
An electronic voting system of particular make and design may not be approved by the state
election commission or be purchased, leased or used by any county commission unless it meets the
following requirements:
(1) It secures or ensures the voter absolute secrecy in the act of voting or, at the voter's
election, provides for open voting;
(2) It is constructed to ensure that no person, except in instances of open voting as provided
for in this section, can see or know for whom any voter has voted or is voting;
(3) It permits each voter to vote at any election for all persons and offices for whom and
which he or she is lawfully entitled to vote, whether or not the name of any person appears on a
ballot or ballot label as a candidate; and it permits each voter to vote for as many persons for an
office as he or she is lawfully entitled to vote for; and to vote for or against any question upon which
he or she is lawfully entitled to vote. The automatic tabulating equipment used in electronic voting
systems is to reject choices recorded on any ballot if the number of choices exceeds the number to
which a voter is entitled;
(4) It permits each voter to deposit, write in, affix upon a ballot, card, envelope or other
medium to be provided for that purpose, ballots containing the names of persons for whom he or she
desires to vote whose names do not appear upon the ballots or ballot labels;
(5) It permits each voter to change his or her vote for any candidate and upon any question
appearing upon the ballots or ballot labels up to the time when his or her ballot is deposited in the
ballot box or his or her ballot is cast by electronic means;
(6) It contains a program deck consisting of cards that are sequentially numbered or
consisting of a computer program disk, diskette, tape or other programming media containing
sequentially numbered program instructions and coded or otherwise protected from tampering or substitution of the media or program instructions by unauthorized persons and capable of tabulating
all votes cast in each election;
(7) It contains two standard validation test decks approved as to form and testing capabilities
by the state election commission;
(8) It correctly records and counts accurately all votes cast for each candidate and for and
against each question appearing upon the ballots or ballot labels;
(9) It permits each voter at any election other than primary elections by one mark or punch
to vote a straight party ticket, as provided in section five, article six of this chapter;
(10) It permits each voter in primary elections to vote only for the candidates of the party for
which he or she is legally permitted to vote and precludes him or her from voting for any candidate
seeking nomination by any other political party, permits him or her to vote for the candidates, if any,
for nonpartisan nomination or election and permits him or her to vote on public questions;
(11) It, where applicable, is provided with means for sealing or electronically securing the
vote recording device to prevent its use and to prevent tampering with ballot labels, both before the
polls are open or before the operation of the vote recording device for an election is begun and
immediately after the polls are closed or after the operation of the vote recording device for an
election is completed;
(12) It has the capacity to contain the names of candidates constituting the tickets of at least
nine political parties and accommodates the wording of at least fifteen questions;
(13) Where vote recording devices are used, they:
(A) Are durably constructed of material of good quality and in a workmanlike manner and
in a form which makes it safely transportable;
(B) Are so constructed with frames for the placing of ballot labels that the labels upon which
are printed the names of candidates and their respective parties, titles of offices and wording of
questions are reasonably protected from mutilation, disfigurement or disarrangement or are
constructed to ensure that the screens upon which appear the names of the candidates and their respective parties, titles of offices and wording of questions are reasonably protected from any
modification;
(C) Bear a number that will identify it or distinguish it from any other machine;
(D) Are constructed to ensure that a voter may easily learn the method of operating it and
may expeditiously cast his or her vote for all candidates of his or her choice and upon any public
question;
(E) Are accompanied by a mechanically or electronically operated instruction model which
shows the arrangement of ballot labels, party columns or rows, and questions;
(F) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, are constructed to provide for the direct electronic recording
and tabulating of votes cast in a system specifically designed and engineered for the election
application;
(G) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, are constructed to prevent any voter from voting for more
than the allowable number of candidates for any office, to include an audible or visual signal, or
both, warning any voter who attempts to vote for more than the allowable number of candidates for
any office or who attempts to cast his or her ballot prior to its completion and are constructed to
include a visual or audible confirmation, or both, to the voter upon completion and casting of the
ballot;
(H) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, are constructed to present the entire ballot to the voter, in
a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages
before completing his or her vote and to allow the voter to review and change all ballot choices prior
to completing and casting his or her ballot;
(I) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, are constructed to allow election commissioners to spoil a ballot where a voter fails to properly cast his or her ballot, has departed the polling place and cannot
be recalled by a poll clerk to complete his or her ballot;
(J) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, are constructed to allow election commissioners, poll clerks,
or both, to designate, mark or otherwise record challenged provisional ballots;
(K) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, consist of devices which are independent, non-networked
voting systems in which each vote is recorded and retained within each device's internal nonvolatile
electronic memory and contain an internal security, the absence of which prevents substitution of
any other device;
(L) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, store each vote in no fewer than three separate, independent,
nonvolatile electronic memory components and that each device contains comprehensive diagnostics
to ensure that failures do not go undetected;
(M) For electronic voting systems that utilize a screen upon which votes may be recorded
by means of a stylus or by means of touch, contain a unique, embedded internal serial number for
auditing purposes for each device used to activate, retain and record votes;
(N) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, are constructed to record all pre-election, election and post-
election activities, including all ballot images and system anomalies, in each device's internal
electronic memory and are to be accessible in electronic or printed form;
(O) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, are constructed with a battery backup system in each device
to, at a minimum, prevent the loss of any votes, as well as all preelection, election and postelection
activities, including all ballot images and system anomalies, stored in the device's internal
electronic memory and to allow voting to continue for two hours of uninterrupted operation in case of an electrical power failure; and
(P) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, are constructed to prevent the loss of any votes, as well as
all preelection, election and postelection activities, including all ballot images and system anomalies,
stored in each device's internal electronic memory even in case of an electrical and battery power
failure.
§3-4A-19. Conducting electronic voting system elections generally; duties of election officers;
penalties.
(a) The election officers shall constantly and diligently maintain a watch in order to see that
no person votes more than once and to prevent any voter from occupying the voting booth for more
than five minutes.
(b) In primary elections, before a voter is permitted to occupy the voting booth, the election
commissioner representing the party to which the voter belongs shall direct the voter to the vote
recording device or supply the voter with a ballot, as may be appropriate, which will allow the voter
to vote only for the candidates who are seeking nomination on the ticket of the party with which the
voter is affiliated or for unaffiliated voters in accordance with section thirty-one, article two of this
chapter.
(c) The poll clerk shall issue to each voter when he or she signs the pollbook a card or ticket
numbered to correspond to the number on the pollbook of the voter and in the case of a primary
election, indicating the party affiliation of the voter, which numbered card or ticket is to be
presented to the election commissioner in charge of the voting booth.
(d) One hour before the opening of the polls the precinct election commissioners shall arrive
at the polling place and set up the voting booths in clear view of the election commissioners. Where
applicable, they shall open the vote recording devices, place them in the voting booths, examine
them to see that they have the correct ballots or ballot labels, where applicable by comparing them
with the sample ballots, and determine whether they are in proper working order. They shall open and check the ballots, supplies, records and forms and post the sample ballots or ballot labels and
instructions to voters. Upon ascertaining that all ballots, supplies, records and forms arrived intact,
the election commissioners shall certify their findings in writing upon forms provided and collected
by the clerk of the county commission over their signatures to the clerk of the county commission.
Any discrepancies are to be noted and reported immediately to the clerk of the county commission.
The election commissioners shall then number in sequential order the ballot stub of each ballot in
their possession and report in writing to the clerk of the county commission the number of ballots
received. They shall issue the ballots in sequential order to each voter.
(e) Where applicable, each voter shall be instructed how to operate the vote recording device
before he or she enters the voting booth.
(f) Where applicable, any voter who spoils, defaces or mutilates the ballot delivered to him
or her, on returning the ballot to the poll clerks, shall receive another in its place. Every person who
does not vote any ballot delivered to him or her shall, before leaving the election room, return the
ballot to the poll clerks. When a spoiled or defaced ballot is returned, the poll clerks shall make a
minute of the fact on the pollbooks, at the time, write the word "spoiled" across the face of the ballot
and place it in an envelope for spoiled ballots.
Immediately on closing the polls, the election commissioners shall ascertain the number of
spoiled ballots during the election and the number of ballots remaining not voted. The election
commissioners shall also ascertain from the pollbooks the number of persons who voted and shall
report, in writing signed by them to the clerk of the county commission, any irregularities in the
ballot boxes, the number of ballots cast, the number of ballots spoiled during the election and the
number of ballots unused. All unused ballots are to be returned at the same time to the clerk of the
county commission who shall count them and record the number. If there is no discrepancy, the
clerk of the county commission or a duly designated deputy clerk shall destroy the unused ballots
forthwith by fire or otherwise, before a representative of each party on the ballot. If there is a
discrepancy, the unused ballots are to be impounded and secured under double locks until the discrepancy is resolved. The county clerk and the president or president pro tempore of the county
commission are each to have a key. Upon resolution of the discrepancy, the clerk of the county
commission or a duly designated deputy clerk, shall destroy the unused ballots forthwith, by fire or
otherwise, before a representative of each party on the ballot. All unused ballots shall be stored with
the other election materials and destroyed at the expiration of twenty-two months.
(g) Each commissioner who is a member of an election board which fails to account for
every ballot delivered to it is guilty of a misdemeanor and, upon conviction thereof, shall be fined
not more than one thousand dollars or confined in the county or regional jail for not more than one
year, or both.
(h) The board of ballot commissioners of each county, or the chair of the board, shall
preserve the ballots that are left over in their hands, after supplying the precincts as provided, until
the close of the polls on the day of election and shall then destroy the ballots, by fire or otherwise
deliver them to the clerk of the county commission who shall store them with the other election
materials and destroy them at the expiration of twenty-two months.
(i) Where ballots are used, the voter, after he or she has marked his or her ballot, shall, before
leaving the voting booth, place the ballot inside the envelope provided for this purpose, with the stub
extending outside the envelope, and return it to an election commissioner who shall remove the stub
and deposit the envelope with the ballot inside in the ballot box. No ballot from which the stub has
been detached may be accepted by the officer in charge of the ballot box, but the ballot shall be
marked "spoiled" and placed with the spoiled ballots. If an electronic voting system is used that
utilizes a screen on which votes may be recorded by means of a stylus or by means of touch and the
signal warning that a voter has attempted to cast his or her ballot has failed to do so properly has
been activated and the voter has departed the polling place and cannot be recalled by a poll clerk to
complete his or her ballot while the voter remains physically present in the polling place, then two
election commissioners of different registered party affiliations, two poll clerks of different
registered party affiliations or an election commissioner and a poll clerk of different registered party affiliations shall spoil the ballot.
(j) The precinct election commissioners shall prepare a report in quadruplicate of the number
of voters who have voted and, where electronic voting systems are used that utilize a screen on
which votes may be recorded by means of a stylus or by means of touch, the number of ballots that
were spoiled, as indicated by the pollbooks, and shall place two copies of this report in the ballot
box or where electronic voting systems are used that utilize a screen upon which votes may be
recorded by means of a stylus or by means of touch, shall place two copies of this report and the
electronic ballot devices in a container provided by the clerk of the county commission, which
thereupon is to be sealed with a paper seal signed by the election commissioners to ensure that no
additional ballots may be deposited or removed from the ballot box. Two election commissioners
of different registered party affiliations shall forthwith deliver the ballot box or container to the clerk
of the county commission at the central counting center and receive a signed numbered receipt
therefor. which The receipt must carefully sets set forth in detail any and all irregularities pertaining
to the ballot boxes or containers and noted by the precinct election officers.
The receipt is to be prepared in duplicate, a copy of which remains with the clerk of the
county commission who shall have any and all irregularities noted. The time of their departure from
the polling place is to be noted on the two remaining copies of the report, which are to be
immediately mailed to the clerk of the county commission.
(k) The pollbooks, register of voters, unused ballots, spoiled ballots and other records and
supplies are to be delivered to the clerk of the county commission, all in conformity with the
provisions of this section.
§3-4A-22. Assistance to illiterate and disabled voters.
(a) Any duly registered voter who requires assistance to vote by reason of blindness,
disability, advanced age or inability to read and write may be given assistance by one of the
following means:
(1) By a person of the voter's choice: Provided, That such the assistance may not be given by the voter's present or former employer or agent of that employer or by an officer or agent of a
labor union of which the voter is a past or present member or a candidate on the ballot or official
write-in candidate; or
(2) If no person of the voter's choice be present at the polling place, the voter may request
such assistance from the poll clerks or ballot commissioners present at the polling place, whereupon
such assistance may be given by any two of such the election officers of opposite political party
affiliation to whom such the voter shall thereupon declare his or her choice of candidates and his or
her position on public questions appearing on the ballot. Such The election officers, in the presence
of the voter and in the presence of each other, shall thereupon cause such the voter's declared
choices to be recorded on the ballot or a vote recording device, as may be appropriate, as votes.
(b) A person other than an election officer who assists a voter in voting under the provisions
of this section shall sign a written oath or affirmation before assisting such the voter, stating that he
or she will not override the actual preference of the voter being assisted or mislead the voter into
voting for someone other than the candidate of the voter's choice. Such The person assisting the
voter shall also swear or affirm that he or she believes that the voter is voting free of intimidation
or manipulation.
§3-4A-24a. Voting by challenged voter where touch-screen electronic voting systems are used.
If the right of any person to vote is challenged in accordance with the provisions of article
one of this chapter, relating to the challenging of voters, and a vote recording device or ballot is used
that tabulates the vote as an individual vote, the person is to be permitted to cast his or her vote by
use of the vote recording device or ballot, as may be appropriate. An election commissioner shall
enter into the voting device a voter-specific electronic code for any person voting a challenged
provisional ballot. The devices are to retain challenged provisional ballots in electronic memory and
are not to be tabulated in accordance with the provisions of this code, but are to be reviewed in
accordance with the provisions of this code.
After the county commission, as prescribed in article one of this chapter, has determined that the challenges are unfounded, the commissioners shall ensure that the ballots are included in the
tabulation.
§3-4A-27. Proceedings at the central counting center.
(a) All proceedings at the central counting center are to be under the supervision of the clerk
of the county commission and are to be conducted under circumstances which allow observation
from a designated area by all persons entitled to be present. The proceedings shall take place in a
room of sufficient size and satisfactory arrangement to permit observation. Those persons entitled
to be present include all candidates whose names appear on the ballots being counted or if a
candidate is absent, a representative of the candidate who presents a written authorization signed by
the candidate for the purpose and two representatives of each political party on the ballot who are
chosen by the county executive committee chairperson. A reasonable number of the general public
is also freely admitted to the room. In the event all members of the general public desiring
admission to the room cannot be admitted at one time, the county commission shall provide for a
periodic and convenient rotation of admission to the room for observation, to the end that each
member of the general public desiring admission, during the proceedings at the central counting
center, is to be granted admission for reasonable periods of time for observation: Provided, That
no person except those authorized for the purpose may touch any ballot or ballot card or other
official records and papers utilized in the election during observation.
(b) All persons who are engaged in processing and counting the ballots are to work in teams
consisting of two persons of opposite political parties, and are to be deputized in writing and take
an oath that they will faithfully perform their assigned duties. These deputies are to be issued an
official badge or identification card which is assigned an identity control number and the deputies
are to prominently wear on his or her outer garments the issued badge or identification card. Upon
completion of the deputies' duties, the badges or identification cards are to be returned to the county
clerk.
(c) Ballots are to be handled and tabulated and the write-in votes tallied according to procedures established by the secretary of state, subject to the following requirements:
(1) In systems using punch card ballots, the ballot cards and secrecy envelopes for a precinct
are to be removed from the box and examined for write-in votes before being separated and stacked
for delivery to the tabulator. Immediately after valid write-in votes are tallied, the ballot cards are
to be delivered to the tabulator. No write-in vote may be counted for an office unless the voter has
punched the write-in voting position for that office and entered the name of that office and the name
of an official write-in candidate for that office on the inside of the secrecy envelope, either by
writing, affixing a sticker or label or placing an ink-stamped impression thereon;
(2) In systems using ballots marked with electronically sensible ink, ballots are to be
removed from the boxes and stacked for the tabulator which separates ballots containing marks for
a write-in position. Immediately after tabulation, the valid write-in votes are to be tallied. No write-
in vote may be counted for an office unless the voter has marked the write-in voting position for that
office and entered the name of an official write-in candidate for that office on the line provided,
either by writing, affixing a sticker or placing an ink-stamped impression thereon;
(3) In systems using ballots in which votes are recorded upon screens with a stylus or by
means of touch, the personalized electronic ballots are to be removed from the containers and
stacked for the tabulator. Systems using ballots in which votes are recorded upon screens with a
stylus or by means of touch are to tally write-in ballots simultaneously with the other ballots;
(4) When more than one person is to be elected to an office and the voter desires to cast
write-in votes for more than one official write-in candidate for that office, a single punch or mark,
as appropriate for the voting system, in the write-in location for that office is sufficient for all write-
in choices. When there are multiple write-in votes for the same office and the combination of
choices for candidates on the ballot and write-in choices for the same office exceed the number of
candidates to be elected, the ballot is to be duplicated or hand counted, with all votes for that office
rejected;
(5) Write-in votes for nomination for any office and write-in votes for any person other than an official write-in candidate are to be disregarded;
(6) When a voter casts a straight ticket vote and also punches or marks the location for a
write-in vote for an office, the straight ticket vote for that office is to be rejected, whether or not a
vote can be counted for a write-in candidate; and
(7) Official write-in candidates are those who have filed a write-in candidate's certificate of
announcement and have been certified according to the provisions of section four-a, article six of
this chapter.
(d) If any ballot card is damaged or defective so that it cannot properly be counted by the
automatic tabulating equipment, a true duplicate copy is to be made of the damaged ballot card in
the presence of representatives of each political party on the ballot and substituted for the damaged
ballot card. All duplicate ballot cards are to be clearly labeled "duplicate" and are to bear a serial
number which is recorded on the damaged or defective ballot card and on the replacement ballot
card.
(e) The returns printed by the automatic tabulating equipment at the central counting center,
to which have been added write-in and other valid votes, are, when certified by the clerk of the
county commission, to constitute the official preliminary returns of each precinct or election district.
Further, all the returns are to be printed on a precinct basis. Periodically throughout and upon
completion of the count, the returns are to be open to the public by posting the returns as have been
tabulated precinct by precinct at the central counting center. Upon completion of the canvass, the
returns are to be posted in the same manner.
(f) If for any reason it becomes impracticable to count all or a part of the ballots with
tabulating equipment, the county commission may direct that they be counted manually, following
as far as practicable the provisions governing the counting of paper ballots.
(g) As soon as possible after the completion of the count, the clerk of the county commission
shall have the vote recording devices properly boxed or securely covered and removed to a proper
and secure place of storage.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-10. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a sample official primary ballot
for each party and, as the case may be, for the nonpartisan candidates to be voted for at the primary
election, according to the provisions of this article and articles four and four-a of this chapter, as
appropriate to the voting system. If any ballot issue is to be voted on in the primary election, the
ballot commissioners shall likewise prepare a sample official ballot for that issue according to the
provisions of law authorizing such the election.
(b) The facsimile sample ballot for each political party and for nonpartisan candidates or
ballot issues shall be published as follows:
(1) For counties in which two or more qualified newspapers publish a daily newspaper, not
more than fourteen twenty-six nor less than eight twenty days preceding the primary election, the
ballot commissioners shall publish each sample official primary election ballot as a Class I-0 legal
advertisement in the two qualified daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of article three, chapter fifty-nine
of this code;
(2) For counties having no more than one daily newspaper, or having only one or more
qualified newspapers which publish weekly, not more than fourteen twenty-six nor less than eight
twenty days preceding the primary election, the ballot commissioners shall publish the sample
official primary election ballot as a Class I legal advertisement in the qualified newspaper within
the county having the largest circulation in compliance with the provisions of article three, chapter
fifty-nine of this code; and
(3) Each facsimile sample ballot shall be a photographic reproduction of the official sample
ballot or ballot pages and shall be printed in a size no less than eighty percent of the actual size of
the ballot, at the discretion of the ballot commissioners: Provided, That when the ballots for the
precincts within the county contain different senatorial, delegate, magisterial or executive committee districts or when the ballots for precincts within a city contain different municipal wards, the
facsimile shall be altered to include each of the various districts in the appropriate order. If, in order
to accommodate the size of each ballot, the ballot or ballot pages must be divided onto more than
one page, the arrangement and order shall be made to conform as nearly as possible to the
arrangement of the ballot. The publisher of the newspaper shall submit a proof of the ballot and the
arrangement to the ballot commissioners for approval prior to publication.
(c) The ballot commissioners of each county shall prepare, in the form and manner
prescribed by the secretary of state, an official list of offices and candidates for each office which
will appear on the primary election ballot for each party and, as the case may be, for the nonpartisan
candidates to be voted for at such the primary election. All information which appears on the ballot,
including instructions as to the number of candidates for whom votes may be cast for the office, any
additional language which will appear on the ballot below the name of the office, any identifying
information relating to the candidates, such as residence, magisterial district or presidential
preference, and the ballot numbers of the candidates for punch card systems shall be included in the
list in the same order in which it appears on the ballot. Following the names of all candidates, the
list shall include the full title, text and voting positions of any issue to appear on the ballot.
(d) The official list of candidates and issues as provided in subsection (c) of this section shall
be published as follows:
(1) For counties in which two or more qualified newspapers publish a daily newspaper, on
the last day on which a newspaper is published immediately preceding the primary election, the
ballot commissioners shall publish the official list of candidates and issues as a Class I-0 legal
advertisement in the two qualified daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of article three, chapter fifty-nine
of this code;
(2) For counties having no more than one daily newspaper, or having only one or more
qualified newspapers which publish weekly, on the last day on which a newspaper is published immediately preceding the primary election, the ballot commissioners shall publish the sample
official list of nominees and issues as a Class I legal advertisement in the qualified newspaper within
the county having the largest circulation in compliance with the provisions of article three, chapter
fifty-nine of this code;
(3) The publication of the official list of candidates for each party and for nonpartisan
candidates shall be in single or double columns, as required to accommodate the type size
requirements as follows: (A) The words "official list of candidates", the name of the county, the
words "primary election", the date of the election, the name of the political party or the designation
of nonpartisan candidates shall be printed in all capital letters and in bold type no smaller than
fourteen point. The designation of the national, state, district or other tickets shall be printed in all
capital letters in type no smaller than fourteen point; (B) the title of the office shall be printed in bold
type no smaller than twelve point and any voting instructions or other language printed below the
title shall be printed in bold type no smaller than ten point; and (C) the names of the candidates shall
be printed in all capital letters in bold type no smaller than ten point and the residence information
shall be printed in type no smaller than ten point; and
(4) When any ballot issue is to appear on the ballot, the title of that ballot shall be printed
in all capital letters in bold type no smaller than fourteen point. The text of the ballot issue shall
appear in no smaller than ten point type. The ballot commissioners may require the publication of
the ballot issue under this subsection in the facsimile sample ballot format in lieu of the alternate
format.
(e) Notwithstanding the provisions of subsections (c) and (d) of this section, beginning with
the primary election to be held in the year two thousand, the ballot commissioners of any county
may choose to publish a facsimile sample ballot for each political party and for nonpartisan
candidates or ballot issues instead of the official list of offices and candidates for each office for
purposes of the last publication required before any primary election.
§3-5-13. Form and contents of ballots and ballot labels.
The face of every primary election ballot shall conform as nearly as practicable to that used
at the general election.
(a) The heading of every ballot is to be printed in display type. The heading is to contain a
ballot title, the name of the county, the state, the words "Primary Election" and the month, day and
year of the election. The ballot title of the political party ballots is to contain the words "Official
Ballot of the (Name) Party" and the official symbol of the political party may be included in the
heading. The ballot title of any separate paper ballot or portion of any electronic or voting machine
ballot for the board of education is to contain the words "Nonpartisan Ballot of Election of Members
of the ______________ County Board of Education". The districts for which less than two
candidates may be elected and the number of available seats are to be specified and the names of
the candidates are to be printed without reference to political party affiliation and without
designation as to a particular term of office. Any other ballot or portion of a ballot on a question is
to have a heading which clearly states the purpose of the election according to the statutory
requirements for that question.
(b)(1) For paper ballots, the heading of the ballot is to be separated from the rest of the ballot
by heavy lines and the offices shall be arranged in columns with the following headings, from left
to right across the ballot: "National Ticket", "State Ticket", "County Ticket" and, in a presidential
election year, "National Convention" or, in a nonpresidential election year, "District Ticket". The
columns are to be separated by heavy lines. Within the columns, the offices are to be arranged in
the order prescribed in section thirteen-a of this article.
(2) For voting machines, electronic voting devices and any ballot tabulated by electronic
means, the offices are to appear in the same sequence as prescribed in section thirteen-a of this
article and under the same headings as prescribed in subsection (a) of this section. The number of
pages, columns or rows, where applicable, may be modified to meet the limitations of ballot size and
composition requirements subject to approval by the secretary of state.
(3) The title of each office is to be separated from preceding offices or candidates by a line and is to be printed in bold type no smaller than eight point. Below the office is to be printed the
number of the district, if any, the number of the division, if any, and the words "Vote for ________"
with the number to be nominated or elected or "Vote For Not More Than ________" in
multicandidate elections. For offices in which there are limitations relating to the number of
candidates which may be nominated, elected or appointed to or hold office at one time from a
political subdivision within the district or county in which they are elected, there is to be a clear
explanation of the limitation, as prescribed by the secretary of state, printed in bold type
immediately preceding the names of the candidates for those offices on the ballot in every voting
system. For counties in which the number of county commissioners exceeds three and the total
number of members of the county commission is equal to the number of magisterial districts within
the county, the office of county commission is to be listed separately for each district to be filled
with the name of the magisterial district and the words "Vote for One" printed below the name of
the office.
(c) The location for indicating the voter's choices on the ballot is to be clearly shown. For
paper ballots, other than those tabulated electronically, the official primary ballot is to contain a
square formed in dark lines at the left of each name on the ballot, arranged in a perpendicular
column of squares before each column of names.
(d)(1) The name of every candidate certified by the secretary of state or the board of ballot
commissioners is to be printed in capital letters in no smaller than eight-point type on the ballot for
the appropriate precincts. Subject to the rules promulgated by the secretary of state, the name of
each candidate is to appear in the form set out by the candidate on the certificate of announcement,
but in no case may the name misrepresent the identity of the candidate nor may the name include
any title, position, rank, degree or nickname implying or inferring any status as a member of a class
or group or affiliation with any system of belief.
(2) The city of residence of every candidate, the state of residence of every candidate
residing outside the state, the county of residence of every candidate for an office on the ballot in more than one county and the magisterial district of residence of every candidate for an office
subject to magisterial district limitations are to be printed in lower case letters beneath the names
of the candidates.
(3) The arrangement of names within each office must be determined as prescribed in section
thirteen-a of this article.
(4) If the number of candidates for an office exceeds the space available on a column or
ballot label page and requires that candidates for a single office be separated, to the extent possible,
the number of candidates for the office on separate columns or pages are to be nearly equal and clear
instructions given the voter that the candidates for the office are continued on the following column
or page.
(e) When an insufficient number of candidates has filed for a party to make the number of
nominations allowed for the office or for the voters to elect sufficient members to the board of
education or to executive committees, the vacant positions on the ballot shall be filled with the
words "No Candidate Filed": Provided, That in paper ballot systems which allow for write-ins to
be made directly on the ballot, a blank line shall be placed in any vacant position in the office of
board of education or for election to any party executive committee. A line shall separate each
candidate from every other candidate for the same office. Notwithstanding any other provision of
this code, if there are multiple vacant positions on a ballot for one office, the multiple vacant
positions which would otherwise be filled with the words "No Candidate Filed" may be replaced
with a brief detailed description, approved by the secretary of state, indicating that there are no
candidates listed for the vacant positions.
(f) In presidential election years, the words "For election in accordance with the plan adopted
by the party and filed with the secretary of state" is to be printed following the names of all
candidates for delegate to national convention.
(g) All paper ballots are to be printed in black ink on paper sufficiently thick so that the
printing or marking cannot be discernible from the back. Ballot cards and paper for printing ballots using electronically sensible ink are to meet minimum requirements of the tabulating systems.
(h) Electronically tabulated ballots Ballots and ballot cards are to contain perforated tabs at
the top of the ballots and are to be printed with unique sequential numbers from one to the highest
number representing the total number of ballots or ballot cards printed. On paper ballots, the ballot
is to be bordered by a solid line at least one sixteenth of an inch wide and the ballot is to be trimmed
to within one-half inch of that border.
(i) On the back of every official ballot or ballot card the words "Official Ballot" with the
name of the county and the date of the election are to be printed. Beneath the date of the election
there are to be two blank lines followed by the words "Poll Clerks".
(j) Absent voters' ballots are to be in all respects like other official ballots except that three
blank lines are to be printed on the back of the ballot or ballot card in the lower left corner with the
words "Ballot Commissioners" printed underneath.
(k) The face of sample paper ballots and sample ballot labels are to be like other official
ballots or ballot labels except that the word "sample" is to be prominently printed across the front
of the ballot in a manner that ensures the names of candidates are not obscured and the word
"sample" may be printed in red ink. No printing may be placed on the back of the sample.
§3-5-15. Ascertaining and certifying primary election results.
When the polls are closed in an election precinct where only a single election board has
served, the receiving board shall perform all of the duties prescribed in this section. When the polls
are closed in an election precinct where two election boards have served, both the receiving and
counting boards shall together conclude the counting of the votes cast, the tabulating and
summarizing of the number of the votes cast, unite in certifying and attesting to the returns of the
election and join in making out the certificates of the result of the election provided for in this
article. They shall not adjourn until the work is completed.
In all election precincts, as soon as the polls are closed and the last voter has voted, the
receiving board shall first process the absentee ballots according to the provisions of section eight, article three of this chapter. After the absentee ballots to be counted have been deposited in the
ballot box, the election officers shall proceed to ascertain the result of the election in the following
manner:
(a) The receiving board shall ascertain from the poll books and record separately on the
proper form the total number of voters of each party and nonpartisan voters who have voted.
(1) The number of challenged provisional ballots of each party shall be counted and
subtracted from the number of voters of the same party, which result should equal the number of
ballots of that party deposited in the ballot box.
(2) The total of all voters, including both partisan and nonpartisan voters, minus the total of
all challenged provisional ballots, should equal the number of nonpartisan ballots deposited in the
ballot box.
(3) The commissioners and clerks shall also report, over their signatures, the number of each
type of ballots spoiled and the number of each type of ballots not voted.
(b) The procedure for counting ballots, whether performed throughout the day by the
counting board, as provided in section thirty-three, article one of this chapter, or after the close of
the polls by the receiving board or by the two boards together, shall be as follows:
(1) The ballot box shall be opened and all votes shall be tallied in the presence of the entire
election board;
(2) One of the commissioners shall take one ballot from the box at a time and shall determine
if the ballot is properly signed by the two poll clerks of the receiving board. If not properly signed,
the ballot shall be placed in an envelope for the purpose without unfolding it. If properly signed,
the commissioner shall announce which type of ballot it is, and hand the ballot to a team of
commissioners of opposite politics, who shall together read the votes marked on the ballot for each
office. Write-in votes for nomination for any office and write-in votes for election for any person
other than an official write-in candidate shall be disregarded;
(3) The commissioner responsible for removing the ballots from the box shall keep a tally of the number of ballots of each party and any nonpartisan ballot as they are removed, and whenever
the number of ballots of a particular party shall equal the number of voters entered on the poll book
for that party minus the number of challenged provisional ballots of that party, as determined
according to subsection (a) of this section, any other ballot found in the ballot box shall be placed
in the same envelope with unsigned ballots not counted, without unfolding the same, or allowing
anyone to examine or know the contents thereof, and the number of excess ballots of each party shall
be recorded on the envelope;
(4) Each poll clerk shall keep an accurate tally of the votes cast by marking in ink on tally
sheets, which shall be provided for the purpose so as to show the number of votes received by each
candidate for each office;
(5) When the votes have been read from a ballot, the ballot shall be immediately strung on
a thread, with separate threads for each party's ballots and for nonpartisan ballots.
(c) As soon as the results at the precinct are ascertained, the commissioners and clerks shall
make out and sign four certificates of result, for each party represented, of the vote for all candidates
of each party represented, on a form prescribed by the secretary of state, giving the complete returns
of the election at the polling place, which form shall include the following oath:
"We, the undersigned commissioners and poll clerks of the primary election held at precinct
No. ....................... of ........... district of ................... County, W.Va., on the .......... day of ...............,
19 20...., do hereby certify that having been first duly sworn, we have carefully and impartially
ascertained the result of said election at said precinct for the candidates on the official ballot of the
....................... party, and the same is as follows:
The election officers shall enter the name of each office and the full name of each candidate
on the ballot, and the number of votes, in words and numbers, received by each. The election
officers shall also enter the full name of every official write-in candidate for election to offices to
be filled in the primary, except delegate to national convention, and the number of votes for each.
Three of such the certificates of result of election, for each party, shall then be sealed in separately addressed envelopes, furnished for the purpose, and shall be disposed of by the precinct
commissioners as follows: One of the sealed envelopes containing the returns of each party shall
be delivered to the clerk of the circuit court and two shall be delivered to the clerk of the county
commission who shall, within forty-eight hours, mail one of the sealed returns for each precinct by
certified mail to the secretary of state. The one not sealed up shall be posted on the outside of the
front door of the polling place.
(d) All ballots voted for candidates of each party shall be sealed up in separate envelopes and
the commissioners and clerks shall each sign across the seal.
§3-5-19. Vacancies in nominations; how filled; fees.
(a) If any vacancy shall occur in the party nomination of candidates for office nominated at
the primary election or by appointment under the provisions of section eleven of this article, the
vacancies may be filled, subject to the following requirements and limitations:
(1) Each appointment made under this section shall be made by the executive committee of
the political party for the political division in which the vacancy occurs: Provided, That if the
executive committee holds a duly called meeting in accordance with section nine, article one of this
chapter but fails to make an appointment in a duly called meeting or fails to certify the appointment
of the candidate to the proper filing officer within the time required, the chairperson of the executive
committee may make the appointment not later than two days following the deadline for the
executive committee.
(2) Each appointment made under this section is complete only upon the receipt by the
proper filing officer of the certificate of appointment by the executive committee, or its chairperson,
as the case may be, the certificate of announcement of the candidate as prescribed in section seven
of this article and, except for appointments made under subdivision (4), (5), or (6) or (7) of this
subsection, the filing fee or waiver of fee as prescribed in section eight or eight-a of this article. The
proper filing officer is the officer with whom the original certificate of nomination is regularly filed
for that office.
(3) If a vacancy in nomination is caused by the failure of a candidate to file for an office, or
by withdrawal of a candidate no later than the third Tuesday following the close of candidate filing
pursuant to the provisions of section eleven of this article, a nominee may be appointed by the
executive committee and certified to the proper filing officer no later than the Thursday preceding
the primary election.
(4) If a vacancy in nomination is caused by the disqualification or of a candidate and the
vacancy occurs not later than eighty-four days before the general election, a nominee may be
appointed by the executive committee and certified to the proper filing officer not later than seventy-
eight days before the general election. A candidate may be determined ineligible if a written request
is made by an individual with information to show a candidate's ineligibility to the state election
commission no later than ninety-five days before the general election explaining grounds why a
candidate is not eligible to be placed on the general election ballot or not eligible to hold the office,
if elected. The state election commission shall review the reasons for the request. If the commission
finds the circumstances warrant the disqualification of the candidate, the commission may authorize
appointment by the executive committee to fill the vacancy. Upon receipt of the authorization a
nominee may be appointed by the executive committee and certified to the proper filing officer no
later than seventy-eight days before the general election.
(5) If a vacancy in nomination is caused by the incapacity of the candidate and if the vacancy
occurs not later than eighty-four days before the general election, a nominee may be appointed by
the executive committee and certified to the proper filing officer no later than seventy-eight days
before the general election.
(5) (6) If a vacancy in nomination is caused by the withdrawal of the candidate no later than
ninety-eight days before the general election due to extenuating personal circumstances which will
prevent the candidate from serving in the office if elected and if the candidate or the chairperson of
the executive committee for the political division applies in writing to the state election commission
no later than ninety-five days before the general election for permission to fill the vacancy remove the candidate's name from the general election ballot, the state election commission shall review the
reasons for the withdrawal request. If the commission finds the circumstances warrant the
withdrawal of the candidate, the commission may shall authorize appointment by the executive
committee to fill the vacancy., upon which Upon receipt of the authorization, a nominee may be
appointed by the executive committee and certified to the proper filing officer no later than seventy-
eight days before the general election.
(6) (7) If a vacancy in nomination is caused by the death of the candidate occurring no later
than twenty-five days before the general election, a nominee may be appointed by the executive
committee and certified to the proper filing officer no later than twenty-one days following the date
of such death or no later than twenty-two days before the general election, whichever date occurs
first.
(b) Except as otherwise provided in article ten of this chapter, if any vacancy occurs in a
partisan office or position other than political party executive committee, which vacancy creates an
unexpired term for a position which would not otherwise appear on the ballot in the general election,
and the vacancy occurs after the close of candidate filing for the primary election but not later than
eighty-four days before the general election, a nominee of each political party may be appointed by
the executive committee and certified to the proper filing officer no later than seventy-eight days
before the general election. Appointments shall be filed in the same manner as provided in
subsection (a) of this section, except that the filing fee shall be paid before the appointment is
complete.
(c) When a vacancy occurs in the board of education after the close of candidate filing for
the primary election but not later than eighty-four days before the general election, a special
candidate filing period shall be established. Candidates seeking election to any unexpired term for
board of education shall file a certificate of announcement and pay the filing fee to the clerk of the
circuit court no earlier than the first Monday in August and no later than seventy-seven days before
the general election.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-3. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a sample official general election
ballot for all political party or independent nominees, nonpartisan candidates for election, if any, and
all ballot issues to be voted for at the general election, according to the provisions of this article and
articles four and four-a of this chapter, as appropriate to the voting system, and for any ballot issue,
according to the provisions of law authorizing such the election.
(b) The facsimile sample general election ballot shall be published as follows:
(1) For counties in which two or more qualified newspapers publish a daily newspaper, not
more than fourteen twenty-six nor less than eight twenty days preceding the general election, the
ballot commissioners shall publish the sample official general election ballot as a Class I-0 legal
advertisement in the two qualified daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of article three, chapter fifty-nine
of this code;
(2) For counties having no more than one daily newspaper, or having only one or more
qualified newspapers which publish weekly, not more than fourteen twenty-six nor less than eight
twenty days preceding the primary election, the ballot commissioners shall publish the sample
official general election ballot as a Class I legal advertisement in the qualified newspaper within the
county having the largest circulation in compliance with the provisions of article three, chapter fifty-
nine of this code; and
(3) Each facsimile sample ballot shall be a photographic reproduction of the official sample
ballot or ballot pages and shall be printed in a size no less than eighty percent of the actual size of
the ballot, at the discretion of the ballot commissioners: Provided, That when the ballots for the
precincts within the county contain different senatorial, delegate, magisterial or executive committee
districts or when the ballots for precincts within a city contain different municipal wards, the
facsimile shall be altered to include each of the various districts in the appropriate order. If, in order to accommodate the size of each ballot, the ballot or ballot pages must be divided onto more than
one page, the arrangement and order shall be made to conform as nearly as possible to the
arrangement of the ballot. The publisher of the newspaper shall submit a proof of the ballot and the
arrangement to the ballot commissioners for approval prior to publication.
(c) The ballot commissioners of each county shall prepare, in the form and manner
prescribed by the secretary of state, an official list of offices and nominees for each office which will
appear on the general election ballot for each political party or as independent nominees and, as the
case may be, for the nonpartisan candidates to be voted for at the general election:
(1) All information which appears on the ballot, including the names of parties for which a
straight ticket may be cast, instructions relating to straight ticket voting, instructions as to the
number of candidates for whom votes may be cast for the office, any additional language which will
appear on the ballot below the name of the office, any identifying information relating to the
candidates, such as residence, magisterial district or presidential preference, and the ballot numbers
of the candidates for punch card systems shall be included in the list in the order specified in
subdivision (2) of this subsection. Following the names of all candidates, the list shall include the
full title, text and voting positions of any issue to appear on the ballot.
(2) The order of the straight ticket positions, offices and candidates for each office and the
manner of designating the parties shall be as follows: (A) The straight ticket positions shall be
designated "straight (party name) ticket", with the parties listed in the order in which they appear
on the ballot, from left to right or from top to bottom, as the case may be; (B) the offices shall be
listed in the same order in which they appear on the ballot; (C) the candidates within each office for
which one is to be elected shall be listed in the order they appear on the ballot, from left to right or
from top to bottom, as the case may be, and the candidate's political party affiliation or independent
status shall be indicated by the one or two letter initial specifying the affiliation, placed in
parenthesis to the right of the candidate's name; and (D) the candidates within each office for which
more than one is to be elected shall be arranged by political party groups in the order they appear on the ballot and the candidate's affiliation shall be indicated as provided in part (C) of this
subdivision.
(d) The official list of candidates and issues as provided in subsection (c) of this section shall
be published as follows:
(1) For counties in which two or more qualified newspapers publish a daily newspaper, on
the last day on which a newspaper is published immediately preceding the general election, the
ballot commissioners shall publish the official list of nominees and issues as a Class I-0 legal
advertisement in the two qualified daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of article three, chapter fifty-nine
of this code;
(2) For counties having no more than one daily paper, or having only one or more qualified
newspapers which publish weekly, on the last day on which a newspaper is published immediately
preceding the general election, the ballot commissioners shall publish the sample official list of
nominees and issues as a Class I legal advertisement in the qualified newspaper within the county
having the largest circulation in compliance with the provisions of article three, chapter fifty-nine
of this code;
(3) The publication of the official list of nominees for each party and for nonpartisan
candidates shall be in single or double columns, as required to accommodate the type size
requirements as follows: (A) The words "official list of nominees and issues", the name of the
county, the words "General Election" and the date of the election shall be printed in all capital letters
and in bold type no smaller than fourteen point; (B) the designation of the straight ticket party
positions shall be printed in all capital letters in bold type no smaller than twelve point and the title
of the office shall be printed in bold type no smaller than twelve point and any voting instructions
or other language printed below the title shall be printed in bold type no smaller than ten point; and
(C) the names of the candidates and the initial within parenthesis designating the candidate's
affiliation shall be printed in all capital letters in bold type no smaller than ten point and the residence information shall be printed in type no smaller than ten point; and
(4) When any ballot issue is to appear on the ballot, the title of that ballot shall be printed
in all capital letters in bold type no smaller than twelve point. The text of the ballot issue shall
appear in no smaller than ten point type. The ballot commissioners may require the publication of
the ballot issue under this subsection in the facsimile sample ballot format in lieu of the alternate
format.
(e) Notwithstanding the provisions of subsections (c) and (d) of this section, beginning with
the general election to be held in the year two thousand, the ballot commissioners of any county may
choose to publish a facsimile sample general election ballot, instead of the official list of candidates
and issues, for purposes of the last publication required before any general election.
§3-6-4a. Filing requirements for write-in candidates.
Any eligible person who seeks to be elected by write-in votes to an office, except delegate
to national convention, which is to be filled in a primary, general or special election held under the
provisions of this chapter shall file a write-in candidate's certificate of announcement as provided
in this section. No certificate of announcement may be accepted and no person may be certified as
a write-in candidate for a political party nomination for any office or for election as delegate to
national convention.
(a) The write-in candidate's certificate of announcement shall be in a form prescribed by the
secretary of state on which the candidate shall make a sworn statement before a notary public or
other officer authorized to give oaths containing the following information:
(1) The name of the office sought and the district and division, if any;
(2) The legal name of the candidate and the first and last name by which the candidate may
be identified in seeking the office;
(3) The specific address designating the location at which the candidate resides at the time
of filing, including number and street or rural route and box number and city, state and zip code;
(4) A statement that the person filing the certificate of announcement is a candidate for the office in good faith; and
(5) The words "subscribed and sworn to before me this ______ day of _____________,
____" and a space for the signature of the officer giving the oath.
(b) The certificate of announcement shall be filed with the filing officer for the political
division of the office as prescribed in section seven, article five of this chapter.
(c) The certificate of announcement shall be filed with and received by the proper filing
officer as follows:
(1) Except as provided in subdivisions (2) and (3) of this subsection, the certificate of
announcement for any office shall be received no later than the close of business on the fourteenth
twenty-first day before the election at which the office is to be filled;
(2) When a vacancy occurs in the nomination of candidates for an office on the ballot
resulting from the death of the nominee or from the disqualification or removal of a nominee from
the ballot by a court of competent jurisdiction not earlier than the twenty-first day nor later than the
fifth day before the general election, the certificate shall be received no later than the close of
business on the fifth day before the election or the close of business on the day following the
occurrence of the vacancy, whichever is later;
(3) When a vacancy occurs in an elective office which would not otherwise appear on the
ballot in the election, but which creates an unexpired term of one or more years which, according
to the provisions of this chapter, is to be filled by election in the next ensuing election and such the
vacancy occurs no earlier than the twenty-first day and no later than the fifth day before the general
election, the certificate shall be received no later than the close of business on the fifth day before
the election or the close of business on the day following the occurrence of the vacancy, whichever
is later.
(d) Any eligible person who files a completed write-in candidate's certificate of
announcement with the proper filing officer within the required time shall be certified by that filing
officer as an official write-in candidate:
(1) The secretary of state shall, immediately following the filing deadline, post the names
of all official write-in candidates for offices on the ballot in more than one county and certify the
name of each official write-in candidate to the clerks of the circuit court of the appropriate counties.
(2) The clerk of the circuit court shall, immediately following the filing deadline, post the
names of all official write-in candidates for offices on the ballot in one county and certify and
deliver to the clerk of the county commission and the election officials of the appropriate precincts
the names of all official write-in candidates and the office sought by each for statewide, district and
county offices on the ballot in the precinct for which valid write-in votes will be counted and the
names shall be posted at the office where absentee voting is conducted and at the precincts in
accordance with section twenty, article one of this chapter.
§3-6-5. Rules and procedures in election other than primaries.
The provisions of article one of this chapter relating to elections generally shall govern and
control arrangements and election officials for the conduct of elections under this article. The
following rules and procedures shall govern the voting for candidates in general and special
elections:
(a) If the voter desires to vote a straight ticket, or in other words, for each and every
candidate for one party for whatever office nominated, the voter shall either:
(1) Mark the position designated for a straight ticket in the manner appropriate to the voting
system; or
(2) Mark the voting position for each and every candidate of the chosen party in the manner
appropriate to the voting system.
(b) If the voter desires to vote a mixed ticket, or in other words, for candidates of different
parties, the voter shall either:
(1) Omit marking any straight ticket voting position and mark, in the manner appropriate to
the voting system, the name of each candidate for whom he or she desires to vote on whatever ticket
the name may be; or
(2) Mark the position designated for a straight ticket for the party for some of whose
candidates he or she desires to vote and then mark the name of any candidate of any other party for
whom he or she may desire to vote, in which case the cross mark in the circular space above the
name of the party straight ticket mark will cast his or her vote for every candidate on the ticket of
such the party except for offices for which candidates are marked on other party tickets and the
marks for such the candidates will cast a vote for them; or
(3) Write with ink or other means or affix a sticker or label or place an ink-stamped
impression of the name of an official write-in candidate for an office for whom he or she desires to
vote in the space designated for write-in votes for the particular voting system and mark that voting
position as required in this chapter; or for paper ballot systems, write or place the name and office
designation in any position on the face of the ballot which makes the intention of the voter clear as
to both the office and the candidate chosen.
(c) If in marking either a straight or mixed ticket as above defined, a straight ticket voting
position is marked, and also one or more marks are made for candidates on the same ticket for
offices for which candidates on other party tickets are not individually marked, such the marks
before the name of candidate on the ticket so marked shall be treated as surplusage and ignored.
(d) When a voter casts a straight ticket vote and also writes in any name for an office, and,
in electronic voting systems, punches or marks the voting position for that write-in, the straight
ticket vote for that office shall be rejected, whether or not a vote can be counted for a write-in
candidate.
(e) The secretary of state may proscribe devices for casting write-in votes which would cause
mechanical difficulty with voting machines or electronic devices or which would obliterate or deface
a paper ballot or any portion thereof, but the secretary of state shall preserve the right to vote by a
write-in vote for those candidates who have filed and have been certified as official write-in
candidates under the provisions of section four-a of this article.
(f) If the voter marks more names than there are persons to be elected to an office or if, for any reason, it is impossible to determine the voter's choice for an office to be filled, the ballot shall
not be counted for such the office. The intention of the voter shall be deemed to be clear if the
write-in vote cast for an office contains both the first and last name of an official write-in candidate
for that office; and if no two official write-in candidates for that office share a first or last name,
either the first name or last name alone shall be deemed to express the clear intention of the voter.
(g) Except as otherwise specifically provided in this chapter, no ballot shall be rejected for
any technical error which does not make it impossible to determine the voter's choice.
§3-6-6. Ballot counting procedures in paper ballot systems.
When the polls are closed in an election precinct where only a single election board has
served, the receiving board shall perform all of the duties prescribed in this section. When the polls
are closed in an election precinct where two election boards have served, both the receiving and
counting boards shall together conclude the counting of the votes cast, the tabulating and
summarizing of the number of the votes cast, unite in certifying and attesting to the returns of the
election and join in making out the certificates of the result of the election provided for in this
article. They shall not adjourn until the work is completed.
In all election precincts, as soon as the polls are closed and the last voter has voted, the
receiving board shall proceed to ascertain the result of the election in the following manner:
(a) In counties in which the clerk of the county commission has determined that the absentee
ballots should be counted at the precincts in which the absent voters are registered, the receiving
board must first process the absentee ballots and deposit the ballots to be counted in the ballot box.
The receiving board shall then proceed as provided in subsections (b) and (c) of this section. In
counties in which the absentee ballots are counted at the central counting center, the receiving board
shall proceed as provided in subsections (b) and (c) of this section.
(b) The receiving board shall ascertain from the pollbooks and record on the proper form the
total number of voters who have voted. The number of ballots challenged shall be counted and
subtracted from the total, which the result should equal the number of ballots deposited in the ballot box. The commissioners and clerks shall also report, over their signatures, the number of ballots
spoiled and the number of ballots not voted.
(c) The procedure for counting ballots, whether performed throughout the day by the
counting board as provided in section thirty-three, article one of this chapter or after the close of the
polls by the receiving board or by the two boards together, shall be as follows:
(1) The ballot box shall be opened and all votes shall be tallied in the presence of the entire
election board;
(2) One of the commissioners shall take one ballot from the box at a time and shall determine
if the ballot is properly signed by the two poll clerks of the receiving board. If not properly signed,
the ballot shall be placed in an envelope for the purpose, without unfolding it. Any ballot which
does not contain the proper signatures shall be challenged. If an accurate accounting is made for
all ballots in the precinct in which the ballot was voted and no other challenge exists against the
voter, the ballot shall be counted at the canvas. If properly signed, the commissioner shall hand the
ballot to a team of commissioners of opposite politics, who shall together read the votes marked on
the ballot for each office. Write-in votes for election for any person other than an official write-in
candidate shall be disregarded. When a voter casts a straight ticket vote and also casts a write-in
vote for an office, the straight ticket vote for that office shall be rejected whether or not a vote can
be counted for a write-in candidate;
(3) The commissioner responsible for removing the ballots from the box shall keep a tally
of the number of ballots as they are removed and whenever the number shall equal the number of
voters entered on the pollbook minus the number of challenged provisional ballots, as determined
according to subsection (a) of this section, any other ballot found in the ballot box shall be placed
in the same envelope with unsigned ballots not counted, without unfolding the same or allowing
anyone to examine or know the contents thereof, and the number of excess ballots shall be recorded
on the envelope;
(4) Each poll clerk shall keep an accurate tally of the votes cast by marking in ink on tally sheets, which shall be provided for the purpose, so as to show the number of votes received by each
candidate for each office and for and against each issue on the ballot; and
(5) When the reading of the votes is completed, the ballot shall be immediately strung on a
thread.
§3-6-7. Ballot irregularities; procedures.
If two or more ballots be are found folded or rolled together and the names voted for thereon
be the same, one of them only shall be counted; but if the names voted for thereon be different, in
any particular, neither of them shall be counted except as hereinbefore provided; and in either case,
the commissioners of election shall, in writing in ink, place a common number on such the ballots
and state thereon that they were folded or rolled together when voted. If any ballot be found to
contain more than the proper number of names for any office, such the ballot shall not be counted
as to such the office. In any election for state senator, if a person be is voted for on any ballot who
is not a resident of the proper county, as required by the fourth section four, of the sixth article VI
of the constitution, such the ballot shall not be counted for said the office. Any ballot which is not
endorsed with the names of the poll clerks, as provided in this chapter, shall be void and shall not
be counted; and any ballot, or part of a ballot from which it is impossible to determine the elector's
choice of candidates shall not be counted as to the candidates affected thereby.
§3-6-9. Canvass of returns; declaration of results; recounts; record keeping.
(a) The commissioners of the county commission shall be ex officio a board of canvassers
and, as such, shall keep in a well-bound book, marked "election record", a complete record of all
their proceedings in ascertaining and declaring the results of every election in their respective
counties. They shall convene as the canvassing board at the courthouse on the fifth day (Sundays
excepted) after every election held in their county, or in any district thereof, and the officers in
whose custody the ballots, pollbooks, registration records, tally sheets and certificates have been
placed shall lay them before the board for examination. They may, if considered necessary, require
the attendance of any of the commissioners, poll clerks or other persons present at the election to appear and testify respecting the same election and make such other orders as shall seem proper to
procure correct returns and ascertain the true results of the election in their county; but in this case
all the questions to the witnesses and all the answers thereto and evidence shall be taken down in
writing and filed and preserved. All orders made shall be entered upon the record. They may
adjourn, from time to time, but no longer than absolutely necessary., and, when When a majority
of the commissioners are not present, their the meeting shall stand adjourned until the next day and
so from day to day, until a quorum is present. All meetings of the commissioners sitting as a board
of canvassers shall be open to the public. The board shall proceed to open each sealed package of
ballots so laid before them and, without unfolding them, count the number in each package and enter
the number upon their record. The ballots shall then be again sealed up carefully in a new envelope
and each member of the board shall write his or her name across the place where the envelope is
sealed. After canvassing the returns of the election, the board shall publicly declare the results of
the election; however, they shall not enter an order certifying the election results for a period of
forty-eight hours after the declaration.
(a)(b) Within the 48-hour period a candidate voted for at the election may demand the board
to open and examine any of the sealed packages of ballots and recount them; but in such case they
shall seal the ballots again, along with the envelope above named, and the clerk of the county
commission and each member of the board shall write his or her name across the places where it is
sealed and endorse in ink, on the outside: "Ballots of the election held at precinct No.____, in the
district of _______________, and county of _______________, on the ____________ day of
_____________." In computing the 48-hour period as used in this section, Saturdays, Sundays and
legal holidays shall be excluded: Provided, That at the end of the 48-hour period, an order shall be
entered certifying all election results except for those offices in which a recount has been demanded.
(b)(c) If a recount has been demanded, the board shall have an additional twenty-four hours
after the end of the 48-hour period in which to send notice to all candidates who filed for the office
in which a recount has been demanded of the date, time and place where the board will convene to commence the recount. The notice shall be served under the provisions of subdivision (c) (d) of this
section. The recount shall be set for no sooner than three days after the serving of the notice:
Provided, That after the notice is served, candidates so served shall have an additional twenty-four
hours in which to notify the board, in writing, of their intention to preserve their right to demand a
recount of precincts not requested to be recounted by the candidate originally requesting a recount
of ballots cast: Provided, however, That there shall be only one recount of each precinct, regardless
of the number of requests for a recount of any precinct. A demand for the recount of ballots cast at
any precinct may be made during the recount proceedings only by the candidate originally
requesting the recount and those candidates who notify the board, pursuant to this subdivision, of
their intention to preserve their right to demand a recount of additional precincts.
(c) (d) Any sheriff of the county in which the recount is to occur shall deliver a copy thereof
in writing to the candidate in person; or if the candidate is not found, by delivering the copy at the
usual place of abode of the candidate and giving information of its purport, to the spouse of the
candidate or any other person found there who is a member of his or her family and above the age
of sixteen years; or if neither the spouse of the candidate nor any other person be found there and
the candidate is not found, by leaving the copy posted at the front door of the place of abode. Any
sheriff, thereto required, shall serve a notice within his or her county and make return of the manner
and time of service; for a failure so to do, he or she shall forfeit twenty dollars. The return shall be
evidence of the manner and time of service.
(d) (e) Every candidate who demands a recount shall be required to furnish bond in a
reasonable amount with good sufficient surety to guarantee payment of the costs and the expenses
of such the recount in the event the result of the election is not changed by the recount; but the
amount of the bond shall in no case exceed three hundred dollars.
(f) When they have After the board of canvassers has made their certificates and declared
the results as hereinafter provided, they shall deposit the sealed packages of ballots, absent voter
ballots, registration records, pollbooks, tally sheets and precinct certificates with the clerks of the county commissions and circuit courts from whom they were received, who shall carefully preserve
them for twenty-two months: Provided, That the clerk may use these records to update the voter
registration records in accordance with subsection (d), section eighteen, article two of this chapter.
and if If there is no contest pending as to any election and their further preservation is not required
by any order of a court, the ballots, pollbooks, tally sheets and certificates shall be destroyed by fire
or otherwise, without opening the sealed packages of ballots.; and if If there is a contest pending,
then they shall be so destroyed as soon as the contest is ended.
(g) If the result of the election is not changed by the recount, the costs and expenses thereof
shall be paid by the party at whose instance the recount was made.
ARTICLE 7. CONTESTED ELECTIONS.
§3-7-1. Contests for state offices and judgeships; procedure.
If the election of governor, secretary of state, treasurer, auditor, attorney general,
commissioner of agriculture, a judge of the supreme court of appeals or a judge of a circuit court,
be is contested, the contestant shall give notice, with specifications and affidavit, to the person
whose election is contested within sixty ten days after the day upon which the election was held in
case the election of governor, secretary of state, treasurer, auditor, attorney general, or commissioner
of agriculture, be contested, and within forty-five days after the day upon which the election was
held in case the election of a judge of the supreme court of appeals, or a judge of a circuit court, be
contested; and within thirty election is certified and within ten days thereafter the return notice shall
be given to the contestant. The parties shall finish taking depositions within forty days after the last-
mentioned notice is delivered. The depositions shall be transmitted to the clerk of the House of
Delegates, to be delivered by him or her to the joint committee or special court hereinafter provided
for. In other respects the regulations contained in this article respecting contests for a seat in the
Legislature shall be observed, so far as they are applicable.
§3-7-4. Contests of seats in Legislature; notices and procedure.
Any person intending to contest the election of another as senator or delegate shall, within twenty-one ten days after the election in case of a delegate, and within thirty days after the election,
in case of a senator, is certified, give him or her notice thereof in writing and a list of the votes he
or she will dispute, with the objections to each, and of the votes rejected for which he or she will
contend. If the contestant objects to the legality of the election or the qualification of the person
returned, the notice shall set forth the facts on which such the objection is founded. The person
whose election as delegate is contested shall, within fourteen ten days after receiving such the
notice, and the person whose election as senator is contested shall, within twenty days after
receiving such notice, deliver to the contestant a like list of the votes he or she will dispute and of
the objection to each, and of the rejected votes he or she will claim; and, if he or she has any
objection to the qualification of the contestant, shall specify in such the notice the facts on which
the objection is founded. Each party shall append to the notice an affidavit that the matters therein
set forth, so far as they are stated of his or her knowledge, are true and that, so far as they are stated
on the information of others, he or she believes them to be true. If new facts be are discovered by
either party after he or she has given notice as aforesaid, he or she may give an additional notice or
notices to his or her adversary, with specifications and affidavit as above prescribed.
The notice of contest shall be presented to the proper branch of the Legislature, within ten
days after its meeting.
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-2. Accounts for receipts and expenditures in elections; requirements for reporting
independent expenditures.
(a) Except candidates for party committeemen and committeewomen, in primary and other
elections and federal committees required to file under the provisions 2 U. S. C. §434, all candidates
for nomination or election and all persons or organizations of any kind advocating or opposing a
nomination, election or defeat of any candidate or the passage or defeat of any issue, shall keep
records of receipts and expenditures which are made for political purposes. All such of the receipts
and expenditures shall be are subject to regulation by the provisions of this article. Verified financial statements of such the records and expenditures shall be made and filed as public records
by all candidates and by their financial agents, representatives or any person acting for and on behalf
of any candidate, or the passage or defeat of any issue, and by the treasurers of all political party
committees.
(b) In addition to any other reporting required by the provisions of this chapter, any
independent expenditure in the amount of one thousand dollars or more for any statewide, legislative
or multicounty judicial candidate or in the amount of five hundred dollars or more for any county
office, single-county judicial candidate, committee supporting or opposing an issue or a candidate
on the ballot in more than one county, any municipal candidate or issue on a municipal election
ballot, which is made after the eleventh day but more than twelve hours before the day of any
election shall be reported, on a form prescribed by the secretary of state, within twenty-four hours
after the expenditure is made or debt is incurred for a communication, to the secretary of state by
hand-delivery, facsimile or other means to assure receipt by the secretary of state within such the
24-hour period.
(c) For purposes of this section, "independent expenditure" means an expenditure made by
a person other than a candidate or committee for a communication which expressly advocates the
election or defeat of a clearly identified candidate but which is made independently of a candidate's
campaign and which has not been made with the cooperation or consent of, or in consultation with,
or at the request or suggestion of, any candidate or any of his or her agents or authorized
committees. An expenditure which does not meet the criteria for independence established in this
subsection is considered a contribution.
(d) Any independent expenditure must include a clear and conspicuous public notice which
identifies the name of the person who paid for the expenditure and states that the communication
is not authorized by the candidate or his or her committee.
§3-8-4. Treasurers and financial agents; written designation requirements; "person" and
"financial agent" defined.
(a) No person shall act as the treasurer of any political committee, or as financial agent for
any candidate for nomination or election to any office to be filled by the voters of the entire state,
or candidates for nomination or election for any office, encompassing an election district larger than
a county, or candidates for nomination for legislative office, or any person or organization
advocating or opposing the nomination, election or defeat of any candidate, or the passage or defeat
of any issue, thing or item to be voted upon, encompassing an election district larger than a county,
unless a written statement designating him or her as such the treasurer or financial agent shall be is
filed with the secretary of state at least twenty-eight days before the election at which he or she is
to act and must be received before midnight, eastern standard time, of that day or if mailed, shall be
postmarked before that hour: Provided, That a change of treasurer may be made at any time by
filing a written statement with the secretary of state.
(b) No person shall act as treasurer of any such committee or as financial agent for any
candidate to be nominated or elected by the voters of a county or a district therein, except legislative
candidates, or as the treasurer or financial agent for a candidate for the nomination or election to any
other office, or for the passage or defeat of any issue, thing or item to be voted upon not herein
mentioned, unless a written statement designating him or her as such the treasurer or financial agent
shall be is filed with the clerk of the county commission at least twenty-eight days before the
election at which he or she is to act and must be received before midnight, eastern standard time,
of that day or if mailed, shall be postmarked before that hour: Provided, That a change of treasurer
may be made at any time by filing a written statement with the clerk of the county commission.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, a filing
designating a treasurer or financial agent for a state or county political executive committee may be
made anytime before the committee either accepts or spends funds on behalf of the committee.
Once a designation is made by a state or county political executive committee, no additional
designations shall be are required under this section until a successor treasurer or financial agent is
designated. A state or county political executive committee may terminate a designation made pursuant to this section by making a written request to terminate the designation and by stating in
the request that the committee has no funds remaining in the committee's account. This written
request shall be made with either the secretary of state or the clerk of the county commission as
provided by subsections (a) and (b) of this section.
(d) As used in this article:
The term "person" shall include means an individual, partnership, committee, association,
corporation, and any other organization or group of persons; and
The term "financial agent" shall include means any person acting for and by himself or
herself, or any two or more natural persons acting together or cooperating in a financial way to aid
or take part in the nomination or election of any candidate for public office, or to aid or promote the
success or defeat of any political party or principle at any election, or any proposition submitted to
a vote at a public election.
§3-8-5. Detailed accounts and verified financial statements required.
(a) Every candidate, financial agent, person and association of persons, organization of any
kind, including every corporation, directly or indirectly, supporting a political committee established
pursuant to paragraph (C), subdivision (1), subsection (b), section eight of this article or engaging
in other activities permitted by said this section and also including the treasurer or equivalent officer
of such the association or organization, advocating or opposing the nomination, election or defeat
of any candidate or the passage or defeat of any issue, thing or item to be voted upon, and the
treasurer of every political party committee shall keep detailed accounts of every sum of money or
other thing of value received by him or her, including all loans of money or things of value, and of
all expenditures and disbursements made, liabilities incurred, by such the candidate, financial agent,
person, association or organization or committee, for political purposes, or by any of the officers or
members of such the committee, or any person acting under its authority or on its behalf.
(b) Every person or association of persons required to keep detailed accounts under this
section shall file with the officers hereinafter prescribed a detailed itemized sworn statement, subscribed and sworn to before an officer authorized to administer oaths, according to the following
provisions and times:
(1) On the last Saturday in March or within fifteen six days thereafter, next preceding the
primary election day and annually whenever the total of all financial transactions relating to an
election exceed five hundred dollars a statement which shall include all financial transactions which
have taken place by the date of that statement, subsequent to any previous statement filed within the
previous five years under this section, or if no previous statement was filed, all financial transactions
made within the preceding five years; and
(2) Not less than seven ten nor more than ten seventeen days preceding each primary or other
election, a statement which shall include all financial transactions which have taken place by the
date of such the statement, subsequent to the previous statement, if any; and
(3) Not less than twenty-five nor more than thirty thirty-one days after each primary or other
election, a statement which shall include all financial transactions which have taken place by the
date of such the statement, subsequent to the previous statement; and
(4) On the first day of July, one thousand nine hundred eighty-five, and thereafter on the last
Saturday in March or within fifteen days thereafter annually, whenever contributions or expenditures
relating to an election exceed five hundred dollars or whenever any loans are outstanding, a
statement which shall include all financial transactions which have taken place by the date of such
report, subsequent to any previous report; and
(5) (4) On the last first Saturday in September or within fifteen six days thereafter, next
preceding the general election day whenever the total of all financial transactions relating to an
election exceed five hundred dollars or whenever any loans are outstanding, a statement which shall
include all financial transactions which have taken place by the date of such the statement,
subsequent to the previous statement.
(c) Every person who shall announce as a write-in candidate for any elective office and his
or her financial agent or election organization of any kind shall comply with all of the requirements of this section after public announcement of such the person's candidacy has been made.
(d) For purposes of this section, the term "financial transactions" includes all contributions
or loans received and all repayments of loans or expenditures made to promote the candidacy of any
person by any candidate or any organization advocating or opposing the nomination, election or
defeat of any candidate or to promote the passage or defeat of any issue, thing or item to be voted
on.
(e)(1) Except as provided in subdivision (2) of this subsection, any person, association,
organization, corporation or other legal entity who publishes, distributes or disseminates any
scorecard, voter guide or other written analysis of a candidate's position or votes on specific issues
within sixty days of an election is presumed to be engaging in such activity for the purpose of
advocating or opposing the nomination, election or defeat of any candidate.
(2) The provisions of subdivision (1) of this subsection shall not apply to:
(A) The publication, distribution or dissemination of such materials in the form of a news
release to broadcast or print media;
(B) Persons who engage in news or feature reporting activities and editorial comment as
working members of the press, radio or television, and persons who publish, distribute or
disseminate such news, features or editorial comment through a newspaper, book, regularly
published periodical, radio station or television station;
(C) The members of a nonprofit corporation or other organization who have such
membership in accordance with the provisions of the articles of incorporation, bylaws or other
instruments creating its form of organization and who have bona fide rights and privileges in the
organization such as the right to vote, to elect officers, directors and issues, to hold office or
otherwise as ordinarily conferred on members of such organizations who publish, distribute or
disseminate materials described in subdivision (1) of this subsection to other such members; or
(D) The employees of a church or synagogue which currently holds or is eligible to hold an
exemption as a church issued by the internal revenue service under the provisions of §26 U.S.C. 501(c)(3) who publish, distribute or disseminate materials described in subdivision (1) of this
subsection within the membership of the church or synagogue or upon the premises of any facility
owned or controlled by the church or synagogue: Provided, That the exemption from the
presumption provided by this subparagraph shall not apply to such employees of a church when the
church or synagogue otherwise advocates or opposes the nomination, election or defeat of any
candidate, or the passage of any issue, thing or item to be voted upon.
(f) No scorecard, voter guide or other written analysis of a candidate's position or votes on
specific issues shall be published, distributed or disseminated within sixty days of an election unless
it shall state thereon the name of the person, association, organization, corporation or other legal
entity authorizing its publication, distribution or dissemination.
§3-8-12. Additional acts forbidden; circulation of written matter; newspaper advertising;
solicitation of contributions; intimidation and coercion of employees; promise
of employment or other benefits; limitations on contributions; public
contractors; penalty.
(a) No person may publish, issue or circulate, or cause to be published, issued or circulated,
any anonymous letter, circular, placard, radio or television advertisement or other publication
expressly advocating the election or defeat of a clearly identified candidate.
(b) No owner, publisher, editor or employee of a newspaper or other periodical may insert,
either in its advertising or reading columns, any matter, paid for or to be paid for, which tends to
influence the voting at any election, unless directly designating it as a paid advertisement and stating
the name of the person authorizing its publication and the candidate in whose behalf it is published.
(c) No person may, in any room or building occupied for the discharge of official duties by
any officer or employee of the state or a political subdivision of the state, solicit orally or by written
communication delivered within the room or building, or in any other manner, any contribution of
money or other thing of value for any party or political purpose, from any postmaster or any other
officer or employee of the federal government, or officer or employee of the state, or a political subdivision of the state. No officer, agent, clerk or employee of the federal government, or of this
state, or any political subdivision of the state, who may have charge or control of any building,
office or room, occupied for any official purpose, may knowingly permit any person to enter any
building, office or room, occupied for any official purpose for the purpose of soliciting or receiving
any political assessments from, or delivering or giving written solicitations for, or any notice of, any
political assessments to, any officer or employee of the state, or a political subdivision of the state.
(d) Except as provided in section eight of this article, no person entering into any contract
with the state or its subdivisions, or any department or agency of the state, either for rendition of
personal services or furnishing any material, supplies or equipment or selling any land or building
to the state, or its subdivisions, or any department or agency of the state, if payment for the
performance of the contract or payment for the material, supplies, equipment, land or building is to
be made, in whole or in part, from public funds may, during the period of negotiation for or
performance under the contract or furnishing of materials, supplies, equipment, land or buildings,
directly or indirectly, make any contribution to any political party, committee or candidate for public
office or to any person for political purposes or use; nor may any person or firm solicit any
contributions for any purpose during any period.
(e) No person may, directly or indirectly, promise any employment, position, work,
compensation or other benefit provided for, or made possible, in whole or in part, by act of the
Legislature, to any person as consideration, favor or reward for any political activity for the support
of or opposition to any candidate, or any political party in any election.
(f) No person may, directly or indirectly, make any contribution in excess of the value of one
thousand dollars in connection with any campaign for nomination or election to or on behalf of any
statewide or national elective office, or in excess of the value of one thousand dollars, in connection
with any other campaign for nomination or election to or on behalf of any other elective office in
the state or any of its subdivisions, or in connection with or on behalf of any committee or other
organization or person engaged in furthering, advancing or advocating the nomination or election of any candidate for any of the offices.
(g) (1) Notwithstanding the provisions of subsection (f) of this section to the contrary, the
aggregate contributions made to a state party executive committee or state party legislative caucus
committee are to be permitted only pursuant to the limitations imposed by the provisions of this
subsection.
(2) No person may, directly or indirectly, make contributions to a state party executive
committee or state party legislative caucus committee which, in the aggregate, exceed the value of
one thousand dollars in any calendar year.
(h) The limitations on contributions contained in this section do not apply to transfers
between and among a state party executive committee or a state party's legislative caucus political
committee from national committees of the same political party: Provided, That transfers permitted
by this subsection may not exceed fifty thousand dollars in the aggregate in any calendar year to any
state party executive committee or state party legislative caucus political committee: Provided,
however, That the moneys transferred may only be used for voter registration and get-out-the-vote
activities of the state committees.
(i) No person may solicit any contribution from any nonelective salaried employee of the
state government or of any of its subdivisions or coerce or intimidate any nonelective salaried
employee into making a contribution. No person may coerce or intimidate any nonsalaried
employee of the state government or any of its subdivisions into engaging in any form of political
activity. The provisions of this subsection may not be construed to prevent any employee from
making a contribution or from engaging in political activity voluntarily, without coercion,
intimidation or solicitation.
(j) No person may solicit a contribution from any other person without informing the other
person at the time of the solicitation of the amount of any commission, remuneration or other
compensation that the solicitor or any other person will receive or expect to receive as a direct result
of the contribution being successfully collected. Nothing in this subsection may be construed to apply to solicitations of contributions made by any person serving as an unpaid volunteer.
(k) No person may place any letter, circular, flyer, advertisement, election paraphernalia,
solicitation material or other printed or published item tending to influence voting at any election
in a roadside receptacle unless it is: (1) Approved for placement into a roadside receptacle by the
business or entity owning the receptacle; and (2) contains a written acknowledgment of the approval.
This subdivision does not apply to any printed material contained in a newspaper or periodical
published or distributed by the owner of the receptacle. The term "roadside receptacle" means any
container placed by a newspaper or periodical business or entity to facilitate home or personal
delivery of a designated newspaper or periodical to its customers.
(l) Any person violating any provision of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand dollars, or confined in a regional or
county jail for not more than one year, or, in the discretion of the court, be subject to both fine and
confinement.
ARTICLE 10. FILLING VACANCIES.
§3-10-7. Vacancies in offices of county commissioner and clerk of county commission.
Any vacancy in the office of county commissioner or clerk of county commission shall be
filled by the county commission of the county, unless the number of vacancies in a county
commission deprive that body of a quorum, in which case the governor of the state shall fill any
vacancy in such the county commission necessary to create a quorum thereof. Persons appointed
shall be of the same political party as the officeholder vacating the office and shall continue in office
until the next general election is certified, or until the completion of the term if the term ends on the
thirty-first day of December following the next general election The vacancy shall be filled by
election for the unexpired term if the unexpired term is greater than one year: Provided, That in the
event a quorum of the county commission cannot agree upon a person to fill a vacancy in the office
of county commissioner it shall be the mandatory, nondiscretionary duty of each such county
commissioner, within sixty days from the date such the vacancy occurs, to submit in person to the chief judge of the circuit court of such the county, the name of one person who is a member of the
same political party as was the person whose vacancy is being filled and was such member for at
least one year next preceding the filling of such the vacancy and who is legally qualified and willing
to fill such the vacancy. The judge shall thereupon, in the presence of the quorum of the county
commission, cause each name to be written on a separate piece of paper, shall fold or roll up the
pieces of paper so as to resemble each other and so that the name written thereon shall not be visible
on the outside, and shall deposit the pieces of paper in a box from which one of the county
commissioners, selected by lot under the supervision of such the judge, shall, in the presence of each
other and the judge, draw one of the names. and the The person whose name is so drawn shall be
the county commission's choice to fill such the vacancy. The circuit court shall have jurisdiction
to compel compliance with the provisions of this proviso.
Notice of such the election as aforesaid shall be given by order of the county commission
and published as prescribed in section six of this article. Nomination of candidates to fill the office
for an unexpired term in the office of county commissioner or clerk of the county commission shall
be made in the manner prescribed for making nominations to fill a vacancy in the office of the clerk
of the circuit court.
In the event that the election for an unexpired term is held at the same time as the election
for a full term for county commissioner, the full term shall be counted first and the unexpired term
shall be counted second. If the candidate with the highest number of votes for the unexpired term
resides in the same magisterial district as the candidate with the highest number of votes for the full
term, the candidate for the full term shall be seated. The candidate with the next highest number of
votes for the unexpired term residing in a different magisterial district shall be seated for the
unexpired term.
§3-10-8. Vacancies in offices of prosecuting attorney, sheriff, assessor and surveyor.
Any vacancy occurring in the office of prosecuting attorney, sheriff, assessor or county
surveyor shall be filled by the county commission by appointment of a person of the same political party as the officeholder vacating the office., and the The appointed person shall hold the office until
the next general election is certified, or until the completion of the term if the term ends on the
thirty-first day of December following the next general election. Such vacancy shall be filled by
election for the unexpired term if the unexpired term is greater than one year. Notice of an election
to fill a vacancy in any of the offices named in this section shall be given by the county commission,
or by the president thereof in vacation, and published or posted in the manner prescribed in section
six of this article. Nomination of candidates to fill any such vacancy shall be made in the manner
prescribed in said section six of this article for nominating candidates to fill a vacancy in the office
of the clerk of the circuit court.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 6. ANNEXATION.
PART II. ANNEXATION BY ELECTION.
§8-6-2. Petition for annexation.
(a) Five percent or more of the freeholders of a municipality desiring to have territory
annexed thereto may file a petition in writing with the governing body thereof setting forth the
change proposed in the metes and bounds of the municipality and asking that a vote be taken upon
the proposed change. The petition shall be verified and shall be accompanied by an accurate survey
map showing the territory to be annexed to the corporate limits by the proposed change.
(b) The petitioners shall obtain a surety bond in an amount set by the governing body
sufficient to cover the cost of the election. The bond shall be forfeited if a majority of the votes cast
are against the proposed annexation.
(c) The governing body shall, upon receipt of the bond, order a vote of the qualified voters
of the municipality to be taken upon the proposed annexation on a date and at a time and place to
be named in the order, not less than twenty nor more than thirty days from the date thereof.
(d) The governing body shall, at the same time, order a vote of all of the qualified voters of
the additional territory and of all of the freeholders of such the additional territory whether they reside or have a place of business therein or not, to be taken upon the question on the same day at
some convenient place in or near the additional territory.
(e) The governing body shall cause the order for the election to be published, at the cost of
the municipality, as a Class II-0 legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. The publication area is the municipality and the additional
territory. The first publication must be at least fourteen days prior to the date upon which the vote
is to be taken. The order for the election shall contain an accurate description by metes and bounds
of the additional territory proposed to be annexed to the corporate limits by the proposed change,
a summary of the municipality's plan for providing services to the additional territory and, if
practicable, shall also contain a popular description of the additional territory.
(f) The election shall be held, superintended and conducted and the results thereof
ascertained, certified, returned and canvassed in the same manner by the same individuals as
elections for municipal officers. The election is reviewable by the circuit court of the county in
which the municipality or the major portion thereof, including the area proposed to be annexed, is
located. The order may be reviewed by the circuit court as an order of a county commission
ordering an election may be reviewed under section sixteen, article five of this chapter.
(g) The ballots, or ballot labels where voting machines are used, shall have written or printed
on them the words:
/ / For Annexation
/ / Against Annexation
(h) Any freeholder which is a firm or corporation may vote by its manager, president or
executive officer duly designated in writing by such the firm or corporation.
(i) An individual who is a qualified voter and freeholder of the municipality or the additional
territory shall be entitled to vote only once.
(j) For purposes of this section, the term "qualified voter of the additional territory" includes
a firm or corporation in the additional territory regardless of whether the firm or corporation is a freeholder. A firm or corporation may vote by its manager, president, or executive officer duly
designated in writing by the firm or corporation. In any instance where a freeholder leases or rents
real property to a firm or corporation the freeholder and the firm or corporation shall determine
which entity will be entitled to vote in the annexation election.
(k) When an election is held in any municipality in accordance with the provisions of this
section, another election relating to the same proposed change or any part thereof shall not be held
for a period of one year.
(l) If a majority of all of the legal votes cast both in the municipality and a majority of all the
legal votes cast in the territory are in favor of the proposed annexation, then the governing body
shall proceed as specified in the immediately succeeding section of this article.
On motion of Delegate Trump, the amendment was amended on page five, section nine, line
fourteen, preceding the word "membership" by inserting the word "voting".
The question being on the adoption of the Committee amendment, as amended, the same was
put and prevailed.
There being no further amendments, S. B. 648 was then ordered to third reading.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:
Com. Sub. for S. B. 181, Relating to compulsory school attendance and home school
instruction,
Com. Sub. for S. B. 213, Restricting actions brought by nonresidents in state courts,
S. B. 388, Modifying requirements for titling and registration of imported vehicles,
Com. Sub. for S. B. 529, Creating institute for health care professionals and center for
nursing,
Com. Sub. for H. B. 2050, Budget Bill, making appropriations of public money out of the
treasury in accordance with section fifty-one, article six of the Constitution,
H. B. 3204, Expiring funds from the insurance commissioner -insurance commission fund,
And,
H. B. 3205, Expiring funds from the public service commission.
Leaves of Absences
At the request of Delegate Staton, and by unanimous consent, leaves of absence were granted
Delegates Coleman and Frich.
Conference Committee Report
Chairman Amores from the Committee of Conference on matters of disagreement between
the two houses, as to
Com. Sub. for H. B. 2122, Relating to medical professional liability generally,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses on the
amendments of the Senate to Com. Sub. for H. B. 2122, having met, after full and free conference,
have agreed to recommend and do recommend to their respective houses, as followings:
That both houses recede from their respective positions as to the amendment of the Senate
striking out the remainder of the bill following the enacting clause and inserting new language, and
agree to the same as follows:
That section two, article eleven-a, chapter four of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted; that chapter eleven of said code
be amended by adding thereto a new article, designated article thirteen-t; that section five, article
twelve, chapter twenty-nine of said code be amended and reenacted; that sections six and fourteen,
article twelve-b, of said chapter be amended and reenacted; that said chapter be further amended by
adding thereto a new article, designated article twelve-c; that section fourteen, article three, chapter
thirty of said code be amended and reenacted; that section twelve-a, article fourteen of said chapter
be amended and reenacted; that article two, chapter thirty-three of said code be amended by adding
thereto a new section, designated section nine-a; that sections fourteen and fourteen-a, article three of said chapter be amended and reenacted; that section fifteen-a, article four of said chapter be
amended and reenacted; that sections two and three, article twenty-b, of said chapter be amended
and reenacted; that said article be further amended by adding thereto a new section, designated
section three-a; that sections two through eleven, inclusive, of article twenty-f of said chapter be
amended and reenacted; that said article be further amended by adding thereto a new section,
designated section one-a; that section twenty-four, article twenty-five-a of said chapter be amended
and reenacted; that section twenty-six, article twenty-five-d of said chapter be amended and
reenacted; that section four, article ten, chapter thirty-eight of said code be amended and reenacted;
that sections one, two, three, six, seven, eight, nine, and ten, article seven-b, chapter fifty-five of said
code be amended and reenacted; and that said article be further amended by adding thereto three
new sections, designated sections nine-a, nine-b and nine-c, all to read as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT
FUNDS.
§4-11A-2. Receipt of settlement funds and required deposit in West Virginia tobacco
settlement medical trust fund.
(a) The Legislature finds and declares that certain dedicated revenues should be preserved
in trust for the purpose of stabilizing the state's health related programs and delivery systems. It
further finds and declares that these dedicated revenues should also be preserved in trust for the
purpose of educating the public about the health risks associated with tobacco usage and for the
establishment of establishing a program designed to reduce and stop the use of tobacco by the
citizens of this state and in particular by teenagers.
(b) There is hereby created a special account in the state treasury, designated the "West
Virginia Tobacco Settlement Medical Trust Fund," which shall be an interest-bearing account and
may be invested in the manner permitted by section nine, article six, chapter twelve of this code,
with the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement shall be deposited in this fund.
Funds paid into the account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund;
(2) Any gifts, grants, bequests, transfers or donations which may be received from any
governmental entity or unit or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which may be made for this purpose; and
(4) Any funds or accrued interest remaining in the board of risk and insurance management
physicians' mutual insurance company account created pursuant to section seven, article twenty-f,
chapter thirty-three of this code on or after first day of July, two thousand four.
(c) The moneys from the principal in the trust fund may not be expended for any purpose,
except that on the first day of April, two thousand three, the treasurer shall transfer to the board of
risk and insurance management physicians' mutual insurance company account created by section
seven, article twenty-f, chapter thirty-three of this code, twenty-four million dollars from the West
Virginia tobacco settlement medical trust fund for use as the initial capital and surplus of the
physicians' mutual insurance company created pursuant to article twenty-f, chapter thirty-three of
this code. The remaining moneys in the trust fund resulting from interest earned on the moneys in
the fund and the return on investments of the moneys in the fund shall be available only upon
appropriation by the Legislature as part of the state budget and expended in accordance with the
provisions of section three of this article.
CHAPTER 11. TAXATION.
ARTICLE 13T. TAX CREDIT FOR COMBINED CLAIMS MADE MEDICAL
MALPRACTICE PREMIUMS AND MEDICAL MALPRACTICE
LIABILITY TAIL INSURANCE PREMIUMS PAID.
§11-13T-1. Legislative finding and purpose.
The Legislature finds that the retention of physicians practicing in this state is in the public
interest and promotes the general welfare of the people of this state. The Legislature further finds that the promotion of stable and affordable medical malpractice liability insurance premium rates
and medical malpractice liability tail insurance premium rates will induce retention of physicians
practicing in this state.
In order to effectively decrease the cost of medical malpractice liability insurance premiums
and medical malpractice liability tail insurance premiums paid in this state on physicians' services,
there is hereby provided a tax credit for certain medical malpractice liability insurance premiums
and medical malpractice liability tail insurance premiums paid.
§11-13T-2. Definitions.
(a) General. -- When used in this article, or in the administration of this article, terms defined
in subsection (b) of this section have the meanings ascribed to them by this section, unless a
different meaning is clearly required by the context in which the term is used.
(b) Terms defined. -
(1) "Claims made malpractice insurance policy" means a medical malpractice liability
insurance policy that covers claims which:
(A) Are reported during the policy period,
(B) Meet the provisions specified by the policy, and
(C) Are for an incident which occurred during the policy period, or occurred prior to the
policy period, as is specified by the policy.
(2) "Combined annual medical liability insurance premiums" means the sum of the actual
amount of insurance premiums paid by or on behalf of the taxpayer during the taxable year for
medical malpractice insurance coverage under a claims made malpractice insurance policy, plus the
actual amount of insurance premiums paid by or on behalf of the taxpayer during the taxable year
for tail insurance.
(3) "Eligible taxpayer" means any person subject to tax under section sixteen, article twenty-
seven of this chapter or a physician who is a partner, member, shareholder or employee of an
eligible taxpayer.
(4) "Eligible taxpayer organization" means a partnership, limited liability company, or
corporation that is an eligible taxpayer.
(5) "Payor" means a natural person who is a partner, member, shareholder or owner, in
whole or in part, of an eligible taxpayer organization and who pays medical malpractice insurance
premiums or tail insurance premiums or both for or on behalf of the eligible taxpayer organization.
(6) "Person" means and includes any natural person, corporation, limited liability company,
trust or partnership.
(7) "Physicians' services" means health care provider services taxable under section sixteen,
article twenty-seven of this chapter, performed in this state by physicians licensed by the state board
of medicine or the state board of osteopathic medicine.
(8) "Tail insurance" means insurance which covers an eligible taxpayer insured once a
claims made malpractice insurance policy is canceled, not renewed or terminated and which covers
claims made or asserted after such cancellation or termination for acts relating to the provision of
physicians' services by the eligible taxpayer occurring during the period the prior malpractice
insurance was in effect.
(9) "Tail insurance premium" means insurance coverage premiums paid by an eligible
taxpayer or payor during the taxable year for tail insurance.
(10) "Tail liability" means the medical malpractice liability of an eligible taxpayer insured
that results from a claim asserted subsequent to cancellation, nonrenewal or termination of a claims
made malpractice insurance policy for acts relating to the provision of physicians' services by the
eligible taxpayer occurring during the period when the prior malpractice insurance was in effect.
§11-13T-3. Eligibility for tax credits; creation of the credit.
There shall be allowed to every eligible taxpayer a credit against the tax payable under
section sixteen, article twenty-seven of this chapter. The amount of this credit shall be determined
and applied as provided in this article.
§11-13T-4. Amount of credit allowed.
(a) Allowance. -
(1) The amount of annual credit allowable under this article to an eligible taxpayer shall be:
(A) Ten percent of the combined annual medical liability insurance premiums paid in excess
of thirty thousand dollars, or
(B) Twenty percent of combined annual medical liability insurance premiums paid in excess
of seventy thousand dollars.
(2) This credit may be taken for combined annual medical liability insurance premiums paid
during any taxable year beginning on or after the first day of January, two thousand two, and ending
on or before the thirty-first day of December, two thousand three.
(b) Exclusions. -- No credit shall be allowed for any combined annual medical liability
insurance premiums, or part or component thereof, paid by or on behalf of an eligible taxpayer
employed by this state, its agencies or subdivisions. No credit shall be allowed for any combined
annual medical liability insurance premiums, or part or component thereof, paid by or on behalf of
an eligible taxpayer or an eligible taxpayer organization or a payor pursuant to insurance coverage
provided under article twelve, chapter twenty-nine of this code. No credit shall be allowed for any
combined annual medical liability insurance premiums, or part or component thereof, paid before
the first day of January, two thousand two, or paid after the thirty-first day of December, two
thousand three.
§11-13T-5. Unused credit; carryforward; credit forfeiture.
If any credit remains after application of the credit against tax for any taxable year under this
article, the amount thereof shall be carried forward to each ensuing tax year until used or until the
first day of July, two thousand ten, whichever occurs first. If any unused credit remains after the
first day of July, two thousand ten, the amount thereof is forfeited. No carryback to a prior taxable
year is allowed for the amount of any unused portion of this credit.
§11-13T-6. Application of credit against health care provider tax; schedules; estimated
taxes.
(a) The credit allowed under this article shall be applied against the tax payable under section
sixteen, article twenty-seven of this chapter, for the taxable year in which the combined annual
medical liability insurance premiums are paid. To assert credit against the tax payable under section
sixteen, article twenty-seven of this chapter, the eligible taxpayer shall prepare and file with the
annual tax return filed under article twenty-seven of this chapter, a schedule showing the combined
annual medical liability insurance premiums paid for the taxable year, the amount of credit allowed
under this article, the tax against which the credit is being applied and other information that the tax
commissioner may require. This annual schedule shall set forth the information and be in the form
prescribed by the tax commissioner.
(b) An eligible taxpayer may consider the amount of credit allowed under this article when
determining the eligible taxpayer's liability for periodic payments of estimated tax for the taxable
year for the tax payable under section sixteen, article twenty-seven of this chapter, in accordance
with the procedures and requirements prescribed by the tax commissioner. The annual total tax
liability and total tax credit allowed under this article are subject to adjustment and reconciliation
pursuant to the filing of the annual schedule required by this section.
§11-13T-7. Computation and application of credit.
(a) Credit resulting from premiums directly paid by persons who pay the tax imposed by
section sixteen, article twenty-seven of this chapter. -- The annual credit allowable under this article
for eligible taxpayers other than payors described in subsection (b) of this section, shall be applied
as a credit to reduce the eligible taxpayer's annual tax liability imposed under section sixteen, article
twenty-seven of this chapter, determined after application of the credit allowed under article
thirteen-p of this chapter, if any, and after application of all other allowable credits, deductions and
exemptions.
(b) Computation of credit for premiums directly paid by partners, members or shareholders
of partnerships, limited liability companies, or corporations for or on behalf of such organizations;
application of credit.
(1) Qualification for credit.-- Combined annual medical liability insurance premiums paid
by a payor (as defined in this article) qualify for tax credit under this article, provided that such
payments are made to insure against medical malpractice liabilities arising out of or resulting from
physicians' services provided by a physician while practicing in service to or under the
organizational identity of an eligible taxpayer organization or as an employee of such eligible
taxpayer organization, and where such insurance covers the medical malpractice liabilities or tail
liabilities of:
(A) The eligible taxpayer organization; or
(B) One or more physicians practicing in service to or under the organizational identity of
the eligible taxpayer organization or as an employee of the eligible taxpayer organization; or
(C) Any combination thereof.
(2) Application of credit by the payor against health care provider tax on physician's
services. -- The annual credit allowable under this article shall be applied to reduce the tax liability
directly payable by the payor under section sixteen, article twenty-seven of this chapter, determined
after application of the credit allowed under article thirteen-p of this chapter, if any, and after
application of all other allowable credits, deductions and exemptions.
(3) Application of credit by the eligible taxpayer organization against health care provider
tax on physician's services. -- After application of this credit as provided in subdivision (2) of this
subsection, remaining annual credit shall then be applied to reduce the tax liability directly payable
by the eligible taxpayer organization under section sixteen, article twenty-seven of this chapter,
determined after application of the credit allowed under article thirteen-p of this chapter, if any, and
after application of all other allowable credits, deductions and exemptions.
(4) Apportionment among multiple eligible taxpayer organizations. -- Where a payor
described in subdivision (1) of this subsection pays combined annual medical liability insurance
premiums for and provides services to or under the organizational identity of two or more eligible
taxpayer organizations described in this section or as an employee of two or more such eligible taxpayer organizations, the tax credit shall, for purposes of subdivision (3) of this subsection, be
allocated among such eligible taxpayer organizations in proportion to the combined annual medical
liability insurance premiums paid directly by the payor during the taxable year to cover physicians'
services during such year for, or on behalf of, each eligible taxpayer organization. In no event may
the total credit claimed by all payors, eligible taxpayers and eligible taxpayer organizations exceed
the credit which would be allowable if the payor had paid all such combined annual medical liability
insurance premiums for or on behalf of one eligible taxpayer organization, and if all physician's
services had been performed for, or under the organizational identity of, or by employees of, one
eligible taxpayer organization.
(c) Application of the credit allowed under this article in combination with all other
applicable tax credits, exemptions and deductions shall in no event reduce the tax liability below
zero, and shall in no circumstances be applied as a refundable tax credit, or result in a refundable
tax credit.
§11-13T-8. Legislative rules.
The tax commissioner shall propose for promulgation rules pursuant to the provisions of
article three, chapter twenty-nine-a of this code, as may be necessary to carry out the purposes of
this article.
§11-13T-9. Burden of proof.
The burden of proof is on the person claiming the credit allowed by this article to establish
by clear and convincing evidence that the person is entitled to the amount of credit asserted for the
taxable year.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 12. STATE INSURANCE.
§29-12-5 Powers and duties of board.
(a) The board shall have general supervision and control over the insurance of all state
property, activities and responsibilities, including the acquisition and cancellation thereof; determination of amount and kind of coverage, including, but not limited to, deductible forms of
insurance coverage, inspections or examinations relating thereto, reinsurance, and any and all
matters, factors and considerations entering into negotiations for advantageous rates on and coverage
of all such state property, activities and responsibilities. The board shall have the authority to
employ an executive director for an annual salary of seventy thousand dollars and such other
employees, including legal counsel, as may be necessary to carry out its duties. The legal counsel
may represent the board before any judicial or administrative tribunal and perform such other duties
as may be requested by the board. Any policy of insurance purchased or contracted for by the board
shall provide that the insurer shall be barred and estopped from relying upon the constitutional
immunity of the state of West Virginia against claims or suits: Provided, That nothing herein shall
bar the insurer of political subdivisions from relying upon any statutory immunity granted such
political subdivisions against claims or suits. The board may enter into any contracts necessary to
the execution of the powers granted to it by this article. It shall endeavor to secure the maximum
of protection against loss, damage or liability to state property and on account of state activities and
responsibilities by proper and adequate insurance coverage through the introduction and
employment of sound and accepted methods of protection and principles of insurance. It is
empowered and directed to make a complete survey of all presently owned and subsequently
acquired state property subject to insurance coverage by any form of insurance, which survey shall
include and reflect inspections, appraisals, exposures, fire hazards, construction, and any other
objectives or factors affecting or which might affect the insurance protection and coverage required.
It shall keep itself currently informed on new and continuing state activities and responsibilities
within the insurance coverage herein contemplated. The board shall work closely in cooperation
with the state fire marshal's office in applying the rules of that office insofar as the appropriations
and other factors peculiar to state property will permit. The board is given power and authority to
make rules governing its functions and operations and the procurement of state insurance.
The board is hereby authorized and empowered to negotiate and effect settlement of any and
all insurance claims arising on or incident to losses of and damages to state properties, activities and
responsibilities hereunder and shall have authority to execute and deliver proper releases of all such
claims when settled. The board may adopt rules and procedures for handling, negotiating and
settlement of all such claims. Any discussion or consideration of the financial or personal
information of an insured may be held by the board in executive session closed to the public,
notwithstanding the provisions of article nine-a, chapter six of this code.
(b) If requested by a political subdivision, a charitable or public service organization, or an
emergency medical services agency, the board is authorized to provide property and liability
insurance to insure their property, activities and responsibilities. The board is authorized to enter
into any necessary contract of insurance to further the intent of this subsection.
The property insurance provided by the board, pursuant to this subsection, may also include
insurance on property leased to or loaned to the political subdivision, a charitable or public service
organization or an emergency medical services agency which is required to be insured under a
written agreement.
The cost of this insurance, as determined by the board, shall be paid by the political
subdivision, the charitable or public service organization or the emergency medical services agency
and may include administrative expenses. For purposes of this section: Provided, That if an
emergency medical services agency is a for-profit entity its claims history may not adversely affect
other participant's rates in the same class. All funds received by the board (including, but not
limited to, state agency premiums, mine subsidence premiums, and political subdivision premiums)
shall be deposited with the West Virginia investment management board with the interest income
and returns on investment a proper credit to such property insurance trust fund or liability insurance
trust fund, as applicable.
"Political subdivision" as used in this subsection shall have the same meaning as in section
three, article twelve-a of this chapter.
"Charitable" or public service organization as used in this subsection means a any hospital
in this state which has been certified as a critical access hospital by the federal centers for medicare
and medicaid upon the designation of the state office of rural health policy, the office of community
and rural health services, the bureau for public health, or the department of health and human
resources, and any bona fide, not-for-profit, tax-exempt, benevolent, educational, philanthropic,
humane, patriotic, civic, religious, eleemosynary, incorporated or unincorporated association or
organization or a rescue unit or other similar volunteer community service organization or
association, but does not include any nonprofit association or organization, whether incorporated
or not, which is organized primarily for the purposes of influencing legislation or supporting or
promoting the campaign of any candidate for public office.
"Emergency medical service agency" as used in this subsection shall have the same meaning
as in section three, article four-c, chapter sixteen of this code.
(c) (1) The board shall have general supervision and control over the optional medical
liability insurance programs providing coverage to health care providers as authorized by the
provisions of article twelve-b of this chapter. The board is hereby granted and may exercise all
powers necessary or appropriate to carry out and effectuate the purposes of this article.
(2) The board shall:
(A) Administer the preferred medical liability program and the high risk medical liability
program and exercise and perform other powers, duties and functions specified in this article;
(B) Obtain and implement, at least annually, from an independent outside source, such as
a medical liability actuary or a rating organization experienced with the medical liability line of
insurance, written rating plans for the preferred medical liability program and high risk medical
liability program on which premiums shall be based;
(C) Prepare and annually review written underwriting criteria for the preferred medical
liability program and the high risk medical liability program. The board may utilize review panels,
including, but not limited to, the same specialty review panels to assist in establishing criteria;
(D) Prepare and publish, before each regular session of the Legislature, separate summaries
for the preferred medical liability program and high risk medical liability program activity during
the preceding fiscal year, each summary to be included in the board of risk and insurance
management audited financial statements as "other financial information", and which shall include
a balance sheet, income statement and cash flow statement, an actuarial opinion addressing
adequacy of reserves, the highest and lowest premiums assessed, the number of claims filed with
the program by provider type, the number of judgments and amounts paid from the program, the
number of settlements and amounts paid from the program and the number of dismissals without
payment;
(E) Determine and annually review the claims history debit or surcharge for the high risk
medical liability program;
(F) Determine and annually review the criteria for transfer from the preferred medical
liability program to the high risk medical liability program;
(G) Determine and annually review the role of independent agents, the amount of
commission, if any, to be paid therefor, and agent appointment criteria;
(H) Study and annually evaluate the operation of the preferred medical liability program and
the high risk medical liability program, and make recommendations to the Legislature, as may be
appropriate, to ensure their viability, including, but not limited to, recommendations for civil justice
reform with an associated cost-benefit analysis, recommendations on the feasibility and desirability
of a plan which would require all health care providers in the state to participate with an associated
cost-benefit analysis, recommendations on additional funding of other state run insurance plans with
an associated cost-benefit analysis and recommendations on the desirability of ceasing to offer a
state plan with an associated analysis of a potential transfer to the private sector with a cost-benefit
analysis, including impact on premiums;
(I) Establish a five-year financial plan to ensure an adequate premium base to cover the long
tail nature of the claims-made coverage provided by the preferred medical liability program and the high risk medical liability program. The plan shall be designed to meet the program's estimated total
financial requirements, taking into account all revenues projected to be made available to the
program, and apportioning necessary costs equitably among participating classes of health care
providers. For these purposes, the board shall:
(i) Retain the services of an impartial, professional actuary, with demonstrated experience
in analysis of large group malpractice plans, to estimate the total financial requirements of the
program for each fiscal year and to review and render written professional opinions as to financial
plans proposed by the board. The actuary shall also assist in the development of alternative
financing options and perform any other services requested by the board or the executive director.
All reasonable fees and expenses for actuarial services shall be paid by the board. Any financial
plan or modifications to a financial plan approved or proposed by the board pursuant to this section
shall be submitted to and reviewed by the actuary and may not be finally approved and submitted
to the governor and to the Legislature without the actuary's written professional opinion that the
plan may be reasonably expected to generate sufficient revenues to meet all estimated program and
administrative costs, including incurred but not reported claims, for the fiscal year for which the plan
is proposed. The actuary's opinion for any fiscal year shall include a requirement for establishment
of a reserve fund;
(ii) Submit its final, approved five-year financial plan, after obtaining the necessary actuary's
opinion, to the governor and to the Legislature no later than the first day of January preceding the
fiscal year. The financial plan for a fiscal year becomes effective and shall be implemented by the
executive director on the first day of July of the fiscal year. In addition to each final, approved
financial plan required under this section, the board shall also simultaneously submit an audited
financial statement based on generally accepted accounting practices (GAAP) and which shall
include allowances for incurred but not reported claims: Provided, That the financial statement and
the accrual-based financial plan restatement shall not affect the approved financial plan. The provisions of chapter twenty-nine-a of this code shall not apply to the preparation, approval and
implementation of the financial plans required by this section;
(iii) Submit to the governor and the Legislature a prospective five-year financial plan
beginning on the first day of January, two thousand three, and every year thereafter, for the
programs established by the provisions of article twelve-b of this chapter. Factors that the board
shall consider include, but shall not be limited to, the trends for the program and the industry; claims
history, number and category of participants in each program; settlements and claims payments; and
judicial results;
(iv) Obtain annually, certification from participants that they have made a diligent search for
comparable coverage in the voluntary insurance market and have been unable to obtain the same;
(J) Meet on at least a quarterly basis to review implementation of its current financial plan
in light of the actual experience of the medical liability programs established in article twelve-b of
this chapter. The board shall review actual costs incurred, any revised cost estimates provided by
the actuary, expenditures and any other factors affecting the fiscal stability of the plan and may
make any additional modifications to the plan necessary to ensure that the total financial
requirements of these programs for the current fiscal year are met;
(K) To analyze the benefit of and necessity for excess verdict liability coverage;
(L) Consider purchasing reinsurance, in the amounts as it may from time to time determine
is appropriate, and the cost thereof shall be considered to be an operating expense of the board;
(M) Make available to participants, optional extended reporting coverage or tail coverage:
Provided, That, at least five working days prior to offering such coverage to a participant or
participants, the board shall notify the president of the Senate and the speaker of the House of
Delegates in writing of its intention to do so, and such notice shall include the terms and conditions
of the coverage proposed;
(N) Review and approve, reject or modify rules that are proposed by the executive director
to implement, clarify or explain administration of the preferred medical liability program and the high risk medical liability program. Notwithstanding any provisions in this code to the contrary,
rules promulgated pursuant to this paragraph are not subject to the provisions of sections nine
through sixteen, article three, chapter twenty-nine-a of this code. The board shall comply with the
remaining provisions of article three and shall hold hearings or receive public comments before
promulgating any proposed rule filed with the secretary of state: Provided, That the initial rules
proposed by the executive director and promulgated by the board shall become effective upon
approval by the board notwithstanding any provision of this code;
(O) Enter into settlements and structured settlement agreements whenever appropriate. The
policy may not require as a condition precedent to settlement or compromise of any claim the
consent or acquiescence of the policy holder. The board may own or assign any annuity purchased
by the board to a company licensed to do business in the state;
(P) Refuse to provide insurance coverage for individual physicians whose prior loss
experience or current professional training and capability are such that the physician represents an
unacceptable risk of loss if coverage is provided;
(Q) Terminate coverage for nonpayment of premiums upon written notice of the termination
forwarded to the health care provider not less than thirty days prior to termination of coverage;
(R) Assign coverage or transfer all insurance obligations and/or risks of existing or in-force
contracts of insurance to a third party medical professional liability insurance carrier with the
comparable coverage conditions as determined by the board. Any transfer of obligation or risk shall
effect a novation of the transferred contract of insurance and if the terms of the assumption
reinsurance agreement extinguish all liability of the board and the state of West Virginia such
extinguishment shall be absolute as to any and all parties; and
(S) Meet and consult with and consider recommendations from the medical malpractice
advisory panel established by the provisions of article twelve-b of this chapter.
(d) If, after the first day of September, two thousand two, the board has assigned coverages
or transferred all insurance obligations and/or risks of existing or in-force contracts of insurance to a third party medical professional liability insurance carrier, and the board otherwise has no covered
participants, then the board shall not thereafter offer or provide professional liability insurance to
any health care provider pursuant to the provisions of subsection (c) of this section or the provisions
of article twelve-b of this chapter unless the Legislature adopts a concurrent resolution authorizing
the board to reestablish medical liability insurance programs.
ARTICLE 12B. WEST VIRGINIA HEALTH CARE PROVIDER PROFESSIONAL
LIABILITY INSURANCE AVAILABILITY ACT.
§29-12B-6. Health care provider professional liability insurance programs.
(a) There is hereby established through the board of risk and insurance management optional
insurance for health care providers consisting of a preferred professional liability insurance program
and a high risk professional liability insurance program.
(b) Each of the programs described in subsection (a) of this section shall provide claims-
made coverage for any covered act or omission resulting in injury or death arising out of medical
professional liability as defined in subsection (d), section two, article seven-b, chapter fifty-five of
this code.
(c) Each of the programs described in subsection (a) of this section shall offer optional prior
acts coverage from and after a retroactive date established by the policy declarations. The premium
for prior acts coverage may be based upon a five-year maturity schedule depending on the years of
prior acts exposure, as more specifically set forth in a written rating manual approved by the board.
(d) Each of the programs described in subsection (a) of this section shall further provide an
option to purchase an extended reporting endorsement or tail coverage.
(e) Each of the programs described in subsection (a) of this section shall offer limits for each
health care provider in the amount of one million dollars per claim, including repeated exposure to
the same event or series of events, and all derivative claims, and three million dollars in the annual
aggregate. Health care providers have the option to purchase higher limits of up to two million
dollars per claim, including repeated exposure to the same event or series of events, and all derivative claims, and up to four million dollars in the annual aggregate. In addition, hospitals
covered by the plan shall have available limits of three million dollars per claim, including repeated
exposure to the same event or series of events, and all derivative claims, and five million dollars in
the annual aggregate. Installment payment plans as established in the rating manual shall be
available to all participants.
(f) Each of the programs described in subsection (a) of this section shall cover any act or
omission resulting in injury or death arising out of medical professional liability as defined in
subsection (d), section two, article seven-b, chapter fifty-five of this code. The board shall exclude
from coverage sexual acts as defined in subdivision (e), section three of this article, and shall have
the authority to exclude other acts or omission from coverage.
(g) Each of the programs described in subsection (a) of this section shall apply to damages,
except punitive damages, for medical professional liability as defined in subsection (d), section two,
article seven-b, chapter fifty-five of this code.
(h) The board may, but is not required, to obtain excess verdict liability coverage for the
programs described in subsection (a) of this section.
(i) Each of the programs shall be liable to the extent of the limits purchased by the health
care provider as set forth in subsection (e) of this section. In the event that a claimant and a health
care provider are willing to settle within those limits purchased by the health care provider, but the
board refuses or declines to settle, and the ultimate verdict is in excess of the purchased limits, the
board shall not be liable for the portion of the verdict in excess of the coverage provided in
subsection (e) of this section unless the board acts in bad faith, with actual malice, in declining or
refusing to settle: Provided, That if the board has in effect applicable excess verdict liability
insurance, the health care provider shall not be required to prove that the board acted with actual
malice in declining or refusing to settle in order to be indemnified for that portion of the verdict in
excess of the limits of the purchased policy and within the limits of the excess liability coverage.
Notwithstanding any provision of this code to the contrary, the board shall not be liable for any verdict in excess of the combined limit of the purchased policy and any applicable excess liability
coverage unless the board acts in bad faith with actual malice.
(j) Rates for each of the programs described in subsection (a) of this section may not be
excessive, inadequate or unfairly discriminatory: Provided, That the rates charged for the preferred
professional liability insurance program shall not be less than the highest approved comparable base
rate for a licensed carrier providing five percent of the malpractice insurance coverage in this state
for the previous calendar year on file with the insurance commissioner: Provided, however, That
if there is only one licensed carrier providing five percent or more of the malpractice insurance
coverage in the state offering comparable coverage, the board shall have discretion to disregard the
approved comparable base rate of the licensed carrier.
(k) The premiums for each of the programs described in subsection (a) of this section are
subject to premium taxes imposed by article three, chapter thirty-three of this code.
(l) Nothing in this article shall be construed to preclude a health care provider from obtaining
professional liability insurance coverage for claims in excess of the coverage made available by the
provisions of this article.
(m) General liability coverage that may be required by a health care provider may be offered
as determined by the board.
(n) The board may provide coverage for the run out of, and tail coverage for, any active
policy issued pursuant to this article which is not transferred to the physician's mutual insurance
company in accordance with section nine, article twenty-f, chapter thirty-three of this code. The
board may permit such policy holders to finance, with interest, the tail coverage premium payments
therefore, up to a maximum finance period of five years, on such terms as the board may set.
§29-12B-14. Effective date and termination of authority.
The provisions of this article are effective from passage. Any policies Policies written under
this article may have an effective date retroactive to the effective date of this article. Except as
provided in subsection (n), section six of this article, the authority of the board of risk and insurance management to issue medical liability policies under this article shall cease upon the board's
transfer, in accordance with section nine, article twenty-f, chapter thirty-three of this code, of assets,
obligations and liabilities to the physicians' mutual insurance company created pursuant to said
article, or upon the first day of July, two-thousand four, whichever occurs first. The board shall
continue to administer any existing policy of insurance which was issued pursuant to this article, but
was not transferred to the physician's mutual insurance company, until the policy expires. Upon the
expiration of the policy, the board shall make tail coverage available at an appropriate premium rate
to be determined by the board. The board shall continue to administer any tail coverage so provided.
On the thirtieth day of January each year, the board shall report to the legislature's joint committee
on government and finance the amount of any unfunded liability associated with the run out and tail
coverage provided by this section.
ARTICLE 12C. PATIENT INJURY COMPENSATION PLAN.
§29-12C-1. Patient injury compensation plan study board created; purpose; study of creation
and funding of patient injury compensation fund; developing rules and
establishing program; and report to the Legislature.
(a) In recognition of the statewide concern over the rising cost of medical malpractice
insurance and the difficulty that health care practitioners have in locating affordable medical
malpractice insurance, there is hereby created a patient injury compensation fund study board to
study the feasibility of establishing a patient injury compensation fund to reimburse claimants in
medical malpractice actions for any portion of economic damages awarded which are uncollectible
due to statutory limitations on damage awards for trauma care and/or the elimination of joint and
several liability of tortfeasor health care providers and health care facilities.
(b) The patient injury compensation fund study board shall consist of the director of the
board of risk and insurance management, who shall serve as chairperson, the insurance
commissioner and an appointee of the governor. The patient injury compensation fund study board
shall utilize the resources of the board of risk and insurance management and the insurance commission to effectuate the study required by this article. The patient injury compensation fund
study board shall meet upon the call of the chair. A simple majority of the patient injury
compensation fund study board members constitutes a quorum for the transaction of business.
(c) The patient injury compensation fund study board is authorized to hold hearings, conduct
investigations and consider, without limitation, all options for identifying funding methods and for
the operation and administration of a patient injury compensation fund within the following
guidelines:
(1) The board of risk and insurance management is responsible for implementing,
administering and operating any patient injury compensation fund;
(2) The patient injury compensation fund must be actuarially sound and fully funded in
accordance with generally accepted accounting principles;
(3) Eligibility for reimbursement from the patient injury compensation fund is limited to
claimants who have been awarded damages in a medical malpractice action but have been certified
by the board of risk and insurance management to be unable, after exhausting all reasonable means
available by law of recovering the award, to collect all or part of the economic damages awarded
due to the limitations on awards established in sections nine and nine-c, article seven-b, chapter
fifty-five of this code; and
(4) The board of risk and insurance management may invest the moneys in the patient injury
compensation fund and use any interest or other return from investments to pay administration
expenses and claims granted.
(d) The patient injury compensation fund study board's report and recommendations shall
be completed no later than the first day of December, two thousand three, and shall be presented to
the joint committee of government and finance during the legislative interim meetings to be held in
December, two thousand three.
29-12C-2. Legislative rules.
(a) The Legislature hereby declares that an emergency exists necessitating expeditious
implementation of a patient injury compensation fund, if economically feasible, and directs the
patient injury compensation fund study board to propose emergency legislative rules relating to the
establishment, implementation and operation of the patient injury compensation fund in conjunction
with its report and recommendations to the Legislature under section one of this article. The rules
proposed by the patient injury compensation fund study board shall:
(1) Provide the funding mechanism and the methodology for processing and timely and
accurately collect funds;
(2) Assure the actuarial soundness of the patient injury compensation fund and sufficient
moneys to satisfy all foreseeable claims against the patient injury compensation fund, giving due
consideration to relevant loss or claim experience or trends and normal costs of operation;
(3) Provide a reasonable reserve fund for unexpected contingencies, consistent with generally
accepted accounting principles;
(4) Establish appropriate procedures for notification of payment adjustments prior to any
payment periods established in which a funding adjustment will be in effect, consistent with
generally accepted accounting principles;
(5) Establish procedures for determining eligibility for and distribution of funds to claimants
seeking reimbursement;
(6) Establish the requirements and procedure for certifying that a claimant has been unable
to collect a portion of the economic damages recovered;
(7) Establish the process for submitting a claim for payment from the patient injury
compensation fund; and
(8) Establish any additional requirements and criteria consistent with and necessary to
effectuate the provisions of this article.
(b) If the Legislature accepts, in whole or in part, the recommendations of the patient injury
compensation fund study board, enacts legislation establishing a patient injury compensation fund and approves rules governing the initial establishment, implementation and operation of the patient
injury compensation fund, those rules shall be filed with the secretary of state as emergency rules.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-14. Professional discipline of physicians and podiatrists; reporting of information to
board pertaining to medical professional liability and professional
incompetence required; penalties; grounds for license denial and discipline
of physicians and podiatrists; investigations; physical and mental
examinations; hearings; sanctions; summary sanctions; reporting by the
board; reapplication; civil and criminal immunity; voluntary limitation of
license; probable cause determinations.
(a) The board may independently initiate disciplinary proceedings as well as initiate
disciplinary proceedings based on information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional societies and others.
The board may initiate investigations as to professional incompetence or other reasons for
which a licensed physician or podiatrist may be adjudged unqualified based upon criminal
convictions; complaints by citizens, pharmacists, physicians, podiatrists, peer review committees,
hospital administrators, professional societies or others; or unfavorable outcomes arising out of
medical professional liability. The board shall initiate an investigation if there are five it receives
notice that three or more judgments, or five any combination of judgments and settlements resulting
in five or more unfavorable outcomes arising from medical professional liability have been rendered
or made against the physician or podiatrist within the most recent a five-year period in excess of
fifty thousand dollars each. The board may not consider any judgments or settlements as conclusive
evidence of professional incompetence or conclusive lack of qualification to practice.
(b) Upon request of the board, any medical peer review committee in this state shall report
any information that may relate to the practice or performance of any physician or podiatrist known to that medical peer review committee. Copies of the requests for information from a medical peer
review committee may be provided to the subject physician or podiatrist if, in the discretion of the
board, the provision of such copies will not jeopardize the board's investigation. In the event that
copies are so provided, the subject physician or podiatrist is allowed fifteen days to comment on the
requested information and such comments must be considered by the board.
The chief executive officer of every hospital shall, within sixty days after the completion of
the hospital's formal disciplinary procedure and also within sixty days after the commencement of
and again after the conclusion of any resulting legal action, report in writing to the board the name
of any member of the medical staff or any other physician or podiatrist practicing in the hospital
whose hospital privileges have been revoked, restricted, reduced or terminated for any cause,
including resignation, together with all pertinent information relating to such action. The chief
executive officer shall also report any other formal disciplinary action taken against any physician
or podiatrist by the hospital upon the recommendation of its medical staff relating to professional
ethics, medical incompetence, medical professional liability, moral turpitude or drug or alcohol
abuse. Temporary suspension for failure to maintain records on a timely basis or failure to attend
staff or section meetings need not be reported. Voluntary cessation of hospital privileges for reasons
unrelated to professional competence or ethics need not be reported.
Any managed care organization operating in this state which provides a formal peer review
process shall report in writing to the board, within sixty days after the completion of any formal peer
review process and also within sixty days after the commencement of and again after the conclusion
of any resulting legal action, the name of any physician or podiatrist whose credentialing has been
revoked or not renewed by the managed care organization. The managed care organization shall
also report in writing to the board any other disciplinary action taken against a physician or
podiatrist relating to professional ethics, professional liability, moral turpitude or drug or alcohol
abuse within sixty days after completion of a formal peer review process which results in the action
taken by the managed care organization. For purposes of this subsection, "managed care organization" means a plan that establishes, operates or maintains a network of health care providers
who have entered into agreements with and been credentialed by the plan to provide health care
services to enrollees or insureds to whom the plan has the ultimate obligation to arrange for the
provision of or payment for health care services through organizational arrangements for ongoing
quality assurance, utilization review programs or dispute resolutions.
Any professional society in this state comprised primarily of physicians or podiatrists which
takes formal disciplinary action against a member relating to professional ethics, professional
incompetence, medical professional liability, moral turpitude or drug or alcohol abuse shall report
in writing to the board within sixty days of a final decision the name of the member, together with
all pertinent information relating to the action.
Every person, partnership, corporation, association, insurance company, professional society
or other organization providing professional liability insurance to a physician or podiatrist in this
state, including the state board of risk and insurance management, shall submit to the board the
following information within thirty days from any judgment or settlement of a civil or medical
professional liability action excepting product liability actions: The name of the insured; the date
of any judgment or settlement; whether any appeal has been taken on the judgment and, if so, by
which party; the amount of any settlement or judgment against the insured; and other information
as the board may require required by the board.
Within thirty days from the entry of an order by a court in a medical professional liability
action or other civil action wherein in which a physician or podiatrist licensed by the board is
determined to have rendered health care services below the applicable standard of care, the clerk of
the court in which the order was entered shall forward a certified copy of the order to the board.
Within thirty days after a person known to be a physician or podiatrist licensed or otherwise
lawfully practicing medicine and surgery or podiatry in this state or applying to be so licensed is
convicted of a felony under the laws of this state or of any crime under the laws of this state
involving alcohol or drugs in any way, including any controlled substance under state or federal law, the clerk of the court of record in which the conviction was entered shall forward to the board a
certified true and correct abstract of record of the convicting court. The abstract shall include the
name and address of the physician or podiatrist or applicant, the nature of the offense committed and
the final judgment and sentence of the court.
Upon a determination of the board that there is probable cause to believe that any person,
partnership, corporation, association, insurance company, professional society or other organization
has failed or refused to make a report required by this subsection, the board shall provide written
notice to the alleged violator stating the nature of the alleged violation and the time and place at
which the alleged violator shall appear to show good cause why a civil penalty should not be
imposed. The hearing shall be conducted in accordance with the provisions of article five, chapter
twenty-nine-a of this code. After reviewing the record of the hearing, if the board determines that
a violation of this subsection has occurred, the board shall assess a civil penalty of not less than one
thousand dollars nor more than ten thousand dollars against the violator. Anyone The board shall
notify any person so assessed shall be notified of the assessment in writing and the notice shall
specify the reasons for the assessment. If the violator fails to pay the amount of the assessment to
the board within thirty days, the attorney general may institute a civil action in the circuit court of
Kanawha County to recover the amount of the assessment. In any such civil action, the court's
review of the board's action shall be conducted in accordance with the provisions of section four,
article five, chapter twenty-nine-a of this code. Notwithstanding any other provision of this article
to the contrary, when there are conflicting views by recognized experts as to whether any alleged
conduct breaches an applicable standard of care, the evidence must be clear and convincing before
the board may find that the physician or podiatrist has demonstrated a lack of professional
competence to practice with a reasonable degree of skill and safety for patients.
Any person may report to the board relevant facts about the conduct of any physician or
podiatrist in this state which in the opinion of that person amounts to medical professional liability
or professional incompetence.
The board shall provide forms for filing reports pursuant to this section. Reports submitted
in other forms shall be accepted by the board.
The filing of a report with the board pursuant to any provision of this article, any
investigation by the board or any disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society comprised primarily of physicians or
podiatrists to suspend, restrict or revoke the privileges or membership of the physician or podiatrist.
(c) The board may deny an application for license or other authorization to practice medicine
and surgery or podiatry in this state and may discipline a physician or podiatrist licensed or
otherwise lawfully practicing in this state who, after a hearing, has been adjudged by the board as
unqualified due to any of the following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting to renew a license to practice
medicine and surgery or podiatry by bribery, fraudulent misrepresentation or through known error
of the board;
(2) Being found guilty of a crime in any jurisdiction, which offense is a felony, involves
moral turpitude or directly relates to the practice of medicine. Any plea of nolo contendere is a
conviction for the purposes of this subdivision;
(3) False or deceptive advertising;
(4) Aiding, assisting, procuring or advising any unauthorized person to practice medicine
and surgery or podiatry contrary to law;
(5) Making or filing a report that the person knows to be false; intentionally or negligently
failing to file a report or record required by state or federal law; willfully impeding or obstructing
the filing of a report or record required by state or federal law; or inducing another person to do any
of the foregoing. The reports and records as are herein covered in this subdivision mean only those
that are signed in the capacity as a licensed physician or podiatrist;
(6) Requesting, receiving or paying directly or indirectly a payment, rebate, refund,
commission, credit or other form of profit or valuable consideration for the referral of patients to any person or entity in connection with providing medical or other health care services or clinical
laboratory services, supplies of any kind, drugs, medication or any other medical goods, services
or devices used in connection with medical or other health care services;
(7) Unprofessional conduct by any physician or podiatrist in referring a patient to any clinical
laboratory or pharmacy in which the physician or podiatrist has a proprietary interest unless the
physician or podiatrist discloses in writing such interest to the patient. The written disclosure shall
indicate that the patient may choose any clinical laboratory for purposes of having any laboratory
work or assignment performed or any pharmacy for purposes of purchasing any prescribed drug or
any other medical goods or devices used in connection with medical or other health care services.
As used herein in this subdivision, "proprietary interest" does not include an ownership
interest in a building in which space is leased to a clinical laboratory or pharmacy at the prevailing
rate under a lease arrangement that is not conditional upon the income or gross receipts of the
clinical laboratory or pharmacy;
(8) Exercising influence within a patient-physician relationship for the purpose of engaging
a patient in sexual activity;
(9) Making a deceptive, untrue or fraudulent representation in the practice of medicine and
surgery or podiatry;
(10) Soliciting patients, either personally or by an agent, through the use of fraud,
intimidation or undue influence;
(11) Failing to keep written records justifying the course of treatment of a patient, the records
to include including, but not be limited to, patient histories, examination and test results and
treatment rendered, if any;
(12) Exercising influence on a patient in such a way as to exploit the patient for financial
gain of the physician or podiatrist or of a third party. Any influence includes, but is not limited to,
the promotion or sale of services, goods, appliances or drugs;
(13) Prescribing, dispensing, administering, mixing or otherwise preparing a prescription
drug, including any controlled substance under state or federal law, other than in good faith and in
a therapeutic manner in accordance with accepted medical standards and in the course of the
physician's or podiatrist's professional practice: Provided, That a physician who discharges his or
her professional obligation to relieve the pain and suffering and promote the dignity and autonomy
of dying patients in his or her care and, in so doing, exceeds the average dosage of a pain relieving
controlled substance, as defined in Schedule Schedules II and III of the Uniform Controlled
Substance Act, does not violate this article;
(14) Performing any procedure or prescribing any therapy that, by the accepted standards of
medical practice in the community, would constitute experimentation on human subjects without
first obtaining full, informed and written consent;
(15) Practicing or offering to practice beyond the scope permitted by law or accepting and
performing professional responsibilities that the person knows or has reason to know he or she is
not competent to perform;
(16) Delegating professional responsibilities to a person when the physician or podiatrist
delegating the responsibilities knows or has reason to know that the person is not qualified by
training, experience or licensure to perform them;
(17) Violating any provision of this article or a rule or order of the board or failing to comply
with a subpoena or subpoena duces tecum issued by the board;
(18) Conspiring with any other person to commit an act or committing an act that would tend
to coerce, intimidate or preclude another physician or podiatrist from lawfully advertising his or her
services;
(19) Gross negligence in the use and control of prescription forms;
(20) Professional incompetence; or
(21) The inability to practice medicine and surgery or podiatry with reasonable skill and
safety due to physical or mental impairment, including deterioration through the aging process or, loss of motor skill or abuse of drugs or alcohol. A physician or podiatrist adversely affected under
this subdivision shall be afforded an opportunity at reasonable intervals to demonstrate that he or
she may resume the competent practice of medicine and surgery or podiatry with reasonable skill
and safety to patients. In any proceeding under this subdivision, neither the record of proceedings
nor any orders entered by the board shall be used against the physician or podiatrist in any other
proceeding.
(d) The board shall deny any application for a license or other authorization to practice
medicine and surgery or podiatry in this state to any applicant who, and shall revoke the license of
any physician or podiatrist licensed or otherwise lawfully practicing within this state who, is found
guilty by any court of competent jurisdiction of any felony involving prescribing, selling,
administering, dispensing, mixing or otherwise preparing any prescription drug, including any
controlled substance under state or federal law, for other than generally accepted therapeutic
purposes. Presentation to the board of a certified copy of the guilty verdict or plea rendered in the
court is sufficient proof thereof for the purposes of this article. A plea of nolo contendere has the
same effect as a verdict or plea of guilt.
(e) The board may refer any cases coming to its attention to an appropriate committee of an
appropriate professional organization for investigation and report. Except for complaints related to
obtaining initial licensure to practice medicine and surgery or podiatry in this state by bribery or
fraudulent misrepresentation, any complaint filed more than two years after the complainant knew,
or in the exercise of reasonable diligence should have known, of the existence of grounds for the
complaint, shall be dismissed: Provided, That in cases of conduct alleged to be part of a pattern of
similar misconduct or professional incapacity that, if continued, would pose risks of a serious or
substantial nature to the physician physician's or podiatrist's current patients, the investigating body
may conduct a limited investigation related to the physician physician's or podiatrist's current
capacity and qualification to practice and may recommend conditions, restrictions or limitations on
the physician physician's or podiatrist's license to practice that it considers necessary for the protection of the public. Any report shall contain recommendations for any necessary disciplinary
measures and shall be filed with the board within ninety days of any referral. The recommendations
shall be considered by the board and the case may be further investigated by the board. The board
after full investigation shall take whatever action it deems considers appropriate, as provided herein
in this section.
(f) The investigating body, as provided for in subsection (e) of this section, may request and
the board under any circumstances may require a physician or podiatrist or person applying for
licensure or other authorization to practice medicine and surgery or podiatry in this state to submit
to a physical or mental examination by a physician or physicians approved by the board. A
physician or podiatrist submitting to any such an examination has the right, at his or her expense,
to designate another physician to be present at the examination and make an independent report to
the investigating body or the board. The expense of the examination shall be paid by the board.
Any individual who applies for or accepts the privilege of practicing medicine and surgery or
podiatry in this state is considered to have given his or her consent to submit to all examinations
when requested to do so in writing by the board and to have waived all objections to the
admissibility of the testimony or examination report of any examining physician on the ground that
the testimony or report is privileged communication. If a person fails or refuses to submit to any
such an examination under circumstances which the board finds are not beyond his or her control,
failure or refusal is prima facie evidence of his or her inability to practice medicine and surgery or
podiatry competently and in compliance with the standards of acceptable and prevailing medical
practice.
(g) In addition to any other investigators it employs, the board may appoint one or more
licensed physicians to act for it in investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the board shall furnish the physician or
podiatrist or applicant with written notice setting out with particularity the reasons for its action.
Disciplinary and licensure denial hearings shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. However, hearings shall be heard upon sworn
testimony and the rules of evidence for trial courts of record in this state shall apply to all hearings.
A transcript of all hearings under this section shall be made, and the respondent may obtain a copy
of the transcript at his or her expense. The physician or podiatrist has the right to defend against any
charge by the introduction of evidence, the right to be represented by counsel, the right to present
and cross-examine witnesses and the right to have subpoenas and subpoenas duces tecum issued on
his or her behalf for the attendance of witnesses and the production of documents. The board shall
make all its final actions public. The order shall contain the terms of all action taken by the board.
(i) In disciplinary actions in which probable cause has been found by the board, the board
shall, within twenty days of the date of service of the written notice of charges or sixty days prior
to the date of the scheduled hearing, whichever is sooner, provide the respondent with the complete
identity, address and telephone number of any person known to the board with knowledge about the
facts of any of the charges; provide a copy of any statements in the possession of or under the
control of the board; provide a list of proposed witnesses with addresses and telephone numbers,
with a brief summary of his or her anticipated testimony; provide disclosure of any trial expert
pursuant to the requirements of rule 26(b)(4) of the West Virginia rules of civil procedure; provide
inspection and copying of the results of any reports of physical and mental examinations or scientific
tests or experiments; and provide a list and copy of any proposed exhibit to be used at the hearing:
Provided, That the board shall not be required to furnish or produce any materials which contain
opinion work product information or would be a violation of the attorney-client privilege. Within
twenty days of the date of service of the written notice of charges, the board shall be required to
disclose any exculpatory evidence with a continuing duty to do so throughout the disciplinary
process. Within thirty days of receipt of the board's mandatory discovery, the respondent shall
provide the board with the complete identity, address and telephone number of any person known
to the respondent with knowledge about the facts of any of the charges; provide a list of proposed
witnesses with addresses and telephone numbers, to be called at hearing, with a brief summary of his or her anticipated testimony; provide disclosure of any trial expert pursuant to the requirements
of rule 26(b)(4) of the West Virginia rules of civil procedure; provide inspection and copying of the
results of any reports of physical and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the hearing.
(j) Whenever it finds any person unqualified because of any of the grounds set forth in
subsection (c) of this section, the board may enter an order imposing one or more of the following:
(1) Deny his or her application for a license or other authorization to practice medicine and
surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his or her license or other authorization to practice medicine and
surgery or podiatry for not more than five years, including limiting the practice of that person to, or
by the exclusion of, one or more areas of practice, including limitations on practice privileges;
(4) Revoke his or her license or other authorization to practice medicine and surgery or
podiatry or to prescribe or dispense controlled substances for a period not to exceed ten years;
(5) Require him or her to submit to care, counseling or treatment designated by the board as
a condition for initial or continued licensure or renewal of licensure or other authorization to practice
medicine and surgery or podiatry;
(6) Require him or her to participate in a program of education prescribed by the board;
(7) Require him or her to practice under the direction of a physician or podiatrist designated
by the board for a specified period of time; and
(8) Assess a civil fine of not less than one thousand dollars nor more than ten thousand
dollars.
(k) Notwithstanding the provisions of section eight, article one, chapter thirty of this code,
if the board determines the evidence in its possession indicates that a physician's or podiatrist's
continuation in practice or unrestricted practice constitutes an immediate danger to the public, the
board may take any of the actions provided for in subsection (j) of this section on a temporary basis and without a hearing if institution of proceedings for a hearing before the board are initiated
simultaneously with the temporary action and begin within fifteen days of the action. The board
shall render its decision within five days of the conclusion of a hearing under this subsection.
(l) Any person against whom disciplinary action is taken pursuant to the provisions of this
article has the right to judicial review as provided in articles five and six, chapter twenty-nine-a of
this code: Provided, That a circuit judge may also remand the matter to the board if it appears from
competent evidence presented to it in support of a motion for remand that there is newly discovered
evidence of such a character as ought to produce an opposite result at a second hearing on the merits
before the board and:
(1) The evidence appears to have been discovered since the board hearing; and
(2) The physician or podiatrist exercised due diligence in asserting his or her evidence and
that due diligence would not have secured the newly discovered evidence prior to the appeal.
A person may not practice medicine and surgery or podiatry or deliver health care services
in violation of any disciplinary order revoking, suspending or limiting his or her license while any
appeal is pending. Within sixty days, the board shall report its final action regarding restriction,
limitation, suspension or revocation of the license of a physician or podiatrist, limitation on practice
privileges or other disciplinary action against any physician or podiatrist to all appropriate state
agencies, appropriate licensed health facilities and hospitals, insurance companies or associations
writing medical malpractice insurance in this state, the American medical association, the American
podiatry association, professional societies of physicians or podiatrists in the state and any entity
responsible for the fiscal administration of medicare and medicaid.
(m) Any person against whom disciplinary action has been taken under the provisions of this
article shall, at reasonable intervals, be afforded an opportunity to demonstrate that he or she can
resume the practice of medicine and surgery or podiatry on a general or limited basis. At the
conclusion of a suspension, limitation or restriction period the physician or podiatrist may resume
practice if the board has so ordered.
(n) Any entity, organization or person, including the board, any member of the board, its
agents or employees and any entity or organization or its members referred to in this article, any
insurer, its agents or employees, a medical peer review committee and a hospital governing board,
its members or any committee appointed by it acting without malice and without gross negligence
in making any report or other information available to the board or a medical peer review committee
pursuant to law and any person acting without malice and without gross negligence who assists in
the organization, investigation or preparation of any such report or information or assists the board
or a hospital governing body or any committee in carrying out any of its duties or functions provided
by law is immune from civil or criminal liability, except that the unlawful disclosure of confidential
information possessed by the board is a misdemeanor as provided for in this article.
(o) A physician or podiatrist may request in writing to the board a limitation on or the
surrendering of his or her license to practice medicine and surgery or podiatry or other appropriate
sanction as provided herein in this section. The board may grant the request and, if it considers it
appropriate, may waive the commencement or continuation of other proceedings under this section.
A physician or podiatrist whose license is limited or surrendered or against whom other action is
taken under this subsection may, at reasonable intervals, petition for removal of any restriction or
limitation on or for reinstatement of his or her license to practice medicine and surgery or podiatry.
(p) In every case considered by the board under this article regarding discipline or licensure,
whether initiated by the board or upon complaint or information from any person or organization,
the board shall make a preliminary determination as to whether probable cause exists to substantiate
charges of disqualification due to any reason set forth in subsection (c) of this section. If probable
cause is found to exist, all proceedings on the charges shall be open to the public who shall be are
entitled to all reports, records and nondeliberative materials introduced at the hearing, including the
record of the final action taken: Provided, That any medical records, which were introduced at the
hearing and which pertain to a person who has not expressly waived his or her right to the
confidentiality of the records, may not be open to the public nor is the public entitled to the records.
(q) If the board receives notice that a physician or podiatrist has been subjected to
disciplinary action or has had his or her credentials suspended or revoked by the board, a hospital
or a professional society, as defined in subsection (b) of this section, for three or more incidents
during a five-year period, the board shall require the physician or podiatrist to practice under the
direction of a physician or podiatrist designated by the board for a specified period of time to be
established by the board.
(q) (r) Notwithstanding any other provisions of this article, the board may, at any time, on
its own motion, or upon motion by the complainant, or upon motion by the physician or podiatrist,
or by stipulation of the parties, refer the matter to mediation. The board shall obtain a list from the
West Virginia state bar's mediator referral service of certified mediators with expertise in
professional disciplinary matters. The board and the physician or podiatrist may choose a mediator
from this that list. If the board and the physician or podiatrist are unable to agree on a mediator, the
board shall designate a mediator from from this listing the list by neutral rotation. The mediation
shall not be considered a proceeding open to the public and any reports and records introduced at
the mediation shall not become part of the public record. The mediator and all participants in the
mediation shall maintain and preserve the confidentiality of all mediation proceedings and records.
The mediator may not be subpoenaed or called to testify or otherwise be subject to process requiring
disclosure of confidential information in any proceeding relating to or arising out of the disciplinary
or licensure matter mediated: Provided, That any confidentiality agreement and any written
agreement made and signed by the parties as a result of mediation may be used in any proceedings
subsequently instituted to enforce the written agreement. The agreements may be used in other
proceedings if the parties agree in writing.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-12a. Initiation of suspension or revocation proceedings allowed and required;
reporting of information to board pertaining to professional malpractice and professional incompetence required; penalties; probable cause
determinations.
(a) The board may independently initiate suspension or revocation proceedings as well as
initiate suspension or revocation proceedings based on information received from any person.
The board shall initiate investigations as to professional incompetence or other reasons for
which a licensed osteopathic physician and surgeon may be adjudged unqualified if the board
receives notice that five three or more judgments or any combination of judgments and settlements
resulting in five or more unfavorable outcomes arising from medical professional liability have been
rendered or made against such osteopathic physician within a five-year period.
(b) Upon request of the board, any medical peer review committee in this state shall report
any information that may relate to the practice or performance of any osteopathic physician known
to that medical peer review committee. Copies of such requests for information from a medical peer
review committee may be provided to the subject osteopathic physician if, in the discretion of the
board, the provision of such copies will not jeopardize the board's investigation. In the event that
copies are so provided, the subject osteopathic physician is allowed has fifteen days to comment on
the requested information and such comments must be considered by the board.
After the completion of a hospital's formal disciplinary procedure and after any resulting
legal action, the chief executive officer of such hospital shall report in writing to the board within
sixty days the name of any member of the medical staff or any other osteopathic physician practicing
in the hospital whose hospital privileges have been revoked, restricted, reduced or terminated for
any cause, including resignation, together with all pertinent information relating to such action. The
chief executive officer shall also report any other formal disciplinary action taken against any
osteopathic physician by the hospital upon the recommendation of its medical staff relating to
professional ethics, medical incompetence, medical malpractice, moral turpitude or drug or alcohol
abuse. Temporary suspension for failure to maintain records on a timely basis or failure to attend
staff or section meetings need not be reported.
Any professional society in this state comprised primarily of osteopathic physicians or
physicians and surgeons of other schools of medicine which takes formal disciplinary action against
a member relating to professional ethics, professional incompetence, professional malpractice, moral
turpitude or drug or alcohol abuse, shall report in writing to the board within sixty days of a final
decision the name of such member, together with all pertinent information relating to such action.
Every person, partnership, corporation, association, insurance company, professional society
or other organization providing professional liability insurance to an osteopathic physician in this
state shall submit to the board the following information within thirty days from any judgment,
dismissal or settlement of a civil action or of any claim involving the insured: The date of any
judgment, dismissal or settlement; whether any appeal has been taken on the judgment, and, if so,
by which party; the amount of any settlement or judgment against the insured; and such other
information as required by the board may require.
Within thirty days after a person known to be an osteopathic physician licensed or otherwise
lawfully practicing medicine and surgery in this state or applying to be so licensed is convicted of
a felony under the laws of this state, or of any crime under the laws of this state involving alcohol
or drugs in any way, including any controlled substance under state or federal law, the clerk of the
court of record in which the conviction was entered shall forward to the board a certified true and
correct abstract of record of the convicting court. The abstract shall include the name and address
of such osteopathic physician or applicant, the nature of the offense committed and the final
judgment and sentence of the court.
Upon a determination of the board that there is probable cause to believe that any person,
partnership, corporation, association, insurance company, professional society or other organization
has failed or refused to make a report required by this subsection, the board shall provide written
notice to the alleged violator stating the nature of the alleged violation and the time and place at
which the alleged violator shall appear to show good cause why a civil penalty should not be
imposed. The hearing shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. After reviewing the record of such hearing, if the board determines that
a violation of this subsection has occurred, the board shall assess a civil penalty of not less than one
thousand dollars nor more than ten thousand dollars against such violator. Anyone The board shall
notify anyone so assessed shall be notified of the assessment in writing and the notice shall specify
the reasons for the assessment. If the violator fails to pay the amount of the assessment to the board
within thirty days, the attorney general may institute a civil action in the circuit court of Kanawha
County to recover the amount of the assessment. In any such civil action, the court's review of the
board's action shall be conducted in accordance with the provisions of section four, article five,
chapter twenty-nine-a of this code.
Any person may report to the board relevant facts about the conduct of any osteopathic
physician in this state which in the opinion of such person amounts to professional malpractice or
professional incompetence.
The board shall provide forms for filing reports pursuant to this section. Reports submitted
in other forms shall be accepted by the board.
The filing of a report with the board pursuant to any provision of this article, any
investigation by the board or any disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society comprised primarily of osteopathic
physicians or physicians and surgeons of other schools of medicine to suspend, restrict or revoke
the privileges or membership of such osteopathic physician.
(c) In every case considered by the board under this article regarding suspension, revocation
or issuance of a license whether initiated by the board or upon complaint or information from any
person or organization, the board shall make a preliminary determination as to whether probable
cause exists to substantiate charges of cause to suspend, revoke or refuse to issue a license as set
forth in subsection (a), section eleven of this article. If such probable cause is found to exist, all
proceedings on such charges shall be open to the public who shall be are entitled to all reports,
records, and nondeliberative materials introduced at such hearing, including the record of the final action taken: Provided, That any medical records, which were introduced at such hearing and which
pertain to a person who has not expressly waived his right to the confidentiality of such records,
shall not be open to the public nor is the public entitled to such records. If a finding is made that
probable cause does not exist, the public has a right of access to the complaint or other document
setting forth the charges, the findings of fact and conclusions supporting such finding that probable
cause does not exist, if the subject osteopathic physician consents to such access.
(d) If the board receives notice that an osteopathic physician has been subjected to
disciplinary action or has had his or her credentials suspended or revoked by the board, a medical
peer review committee, a hospital or professional society, as defined in subsection (b) of this
section, for three or more incidents in a five-year period, the board shall require the osteopathic
physician to practice under the direction of another osteopathic physician for a specified period to
be established by the board.
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-9a. Imposing a one-time assessment on all insurance carriers.
For the purpose of completely novating the physician liability currently borne by the state
under the West Virginia health care provider professional liability insurance availability act found
in article twelve-b, chapter twenty-nine of this code, and to help capitalize the physicians' mutual
insurance company created pursuant to article twenty-f of this chapter, and for all the reasons set
forth in section two of said article, the insurance commissioner shall impose a special one-time
assessment of two thousand five hundred dollars on all insurers licensed under this chapter for the
privilege of writing insurance in the state of West Virginia, except risk retention groups defined in
subsection (f), section four, article thirty-two of this chapter and risk purchasing groups defined in
subsection (e), section seventeen of said article. The assessment is due and payable on the first day
of July, two thousand three. The commissioner shall transfer funds collected pursuant to this section
to the physicians' mutual insurance company.
ARTICLE 3. LICENSING, FEES AND TAXATION OF INSURERS.
§33-3-14. Annual financial statement and premium tax return; remittance by insurer of
premium tax, less certain deductions; special revenue fund created.
(a) Every insurer transacting insurance in West Virginia shall file with the commissioner,
on or before the first day of March, each year, a financial statement made under oath of its president
or secretary and on a form prescribed by the commissioner. The insurer shall also, on or before the
first day of March of each year subject to the provisions of section fourteen-c of this article, under
the oath of its president or secretary, make a premium tax return for the previous calendar year, on
a form prescribed by the commissioner showing the gross amount of direct premiums, whether
designated as a premium or by some other name, collected and received by it during the previous
calendar year on policies covering risks resident, located or to be performed in this state and
compute the amount of premium tax chargeable to it in accordance with the provisions of this
article, deducting the amount of quarterly payments as required to be made pursuant to the
provisions of section fourteen-c of this article, if any, less any adjustments to the gross amount of
the direct premiums made during the calendar year, if any, and transmit with the return to the
commissioner a remittance in full for the tax due. The tax is the sum equal to two percent of the
taxable premium, and also includes any additional tax due under section fourteen-a of this article.
All taxes received by the commissioner shall be paid into the insurance tax fund created in
subsection (b) of this section: Provided, That the portion of taxes received by the commissioner from
insurance policies for medical liability insurance as defined in section three, article twenty-f of this
chapter and from any insurer on its medical malpractice line, shall be temporarily dedicated to
replenishing moneys appropriated from the tobacco settlement account pursuant to subsection (c),
section two, article eleven-a, chapter four of this code. Upon determination by the commissioner
that these moneys have been fully replenished to the tobacco settlement account, the commissioner
shall resume depositing taxes received from medical malpractice premiums as provided in
subsection (b) of this section.
(b) There is created in the state treasury a special revenue fund, administered by the
treasurer, designated the "insurance tax fund." This fund is not part of the general revenue fund of
the state. It consists of all amounts deposited in the fund pursuant to subsection (a) of this section,
sections fifteen and seventeen of this article, any appropriations to the fund, all interest earned from
investment of the fund and any gifts, grants or contributions received by the fund.
(c) The treasurer shall dedicate and transfer from the insurance tax fund to the regional jail
and correctional facility investment fund created under the provisions of section twenty-one, article
six, chapter twelve of this code, on or before the tenth day of each month, an amount equal to one
twelfth of the projected annual investment earnings to be paid and the capital invested to be
returned, as certified to the treasurer by the investment management board: Provided, That the
amount dedicated and transferred may not exceed twenty million dollars in any fiscal year. In the
event there are insufficient funds available in any month to transfer the amount required pursuant
to this subsection to the regional jail and correctional facility investment fund, the deficiency shall
be added to the amount transferred in the next succeeding month in which revenues are available
to transfer the deficiency. Each month a lien on the revenues generated from the insurance premium
tax, the annuity tax and the minimum tax, provided in this section and sections fifteen and seventeen
of this article, up to a maximum amount equal to one twelfth of the projected annual principal and
return is granted to the investment management board to secure the investment made with the
regional jail and correctional facility authority pursuant to section twenty, article six, chapter twelve
of this code. The treasurer shall, no later than the last business day of each month, transfer amounts
the treasurer determines are not necessary for making refunds under this article to meet the
requirements of subsection (d), section twenty-one, article six, chapter twelve of this code, to the
credit of the general revenue fund. Commencing on the first day of the month following the month
in which the investment created under the provisions of section twenty-one, article six, chapter
twelve of this code, is returned to the investment management board, the treasurer shall transfer all
amounts deposited in the insurance tax fund as appropriated by the Legislature.
§33-3-14a. Additional premium tax.
For the purpose of providing additional revenue for the state general revenue fund, there is
hereby levied and imposed, in addition to the taxes imposed by section fourteen of this article, an
additional premium tax equal to one percent of taxable premiums. Except as otherwise provided in
this section, all provisions of this article relating to the levy, imposition and collection of the regular
premium tax shall be applicable to the levy, imposition and collection of the additional tax. All
moneys received from the additional tax imposed by this section, less deductions allowed by this
article for refunds and for costs of administration, shall be received by the commissioner and shall
be paid by him or her into the state treasury for the benefit of the state fund: Provided, That the
portion of taxes received by the commissioner from insurance policies for medical liability insurance
as defined in section three, article twenty-f of this chapter and from any insurer on its medical
malpractice line, shall be temporarily dedicated to replenishing moneys appropriated from the
tobacco settlement account pursuant to subsection (c), section two, article eleven-a of chapter four
of this code. Upon determination by the commissioner that these moneys have been fully
replenished to the tobacco settlement account, the commissioner shall resume depositing taxes
received from medical malpractice premiums as provided herein.
§33-3-14d. Additional fire and casualty insurance premium tax; allocation of proceeds;
effective date.
(a) For the purpose of providing additional revenue for municipal policemen's and firemen's
pension and relief funds and the teachers retirement system reserve fund and for volunteer and part
volunteer fire companies and departments, there is hereby levied and imposed an additional
premium tax equal to one percent of taxable premiums for fire insurance and casualty insurance
policies. For purposes of this section, casualty insurance does not include insurance on the life of
a debtor pursuant to or in connection with a specific loan or other credit transaction or insurance on
a debtor to provide indemnity for payments becoming due on a specific loan or other credit
transaction while the debtor is disabled as defined in the policy.
All moneys collected from this additional tax shall be received by the commissioner and paid
by him or her into a special account in the state treasury, designated the municipal pensions and
protection fund. The net proceeds of this tax after appropriation thereof by the Legislature is
distributed in accordance with the provisions of this section. :Provided, That the portion of taxes
received by the commissioner from insurance policies for medical liability insurance as defined in
section three, article twenty-f of this chapter and from any insurer on its medical malpractice line,
shall be temporarily dedicated to replenishing moneys appropriated from the tobacco settlement
account pursuant to subsection (c), section two, article eleven-a of chapter four of this code. Upon
determination by the commissioner that these moneys have been fully replenished to the tobacco
settlement account, the commissioner shall resume depositing taxes received from medical
malpractice premiums as provided herein.
(b) (1) Before the first day of August of each calendar year, the treasurer of each
municipality in which a municipal policemen's or firemen's pension and relief fund has been
established shall report to the state treasurer the average monthly number of members who worked
at least one hundred hours per month and the average monthly number of retired members of
municipal policemen's or firemen's pension systems during the preceding fiscal year.
(2) Before the first day of September of each calendar year, the state treasurer shall allocate
and authorize for distribution the revenues in the municipal pensions and protection fund which were
collected during the preceding calendar year for the purposes set forth in this section. Sixty-five
percent of the revenues are allocated to municipal policemen's and firemen's pension and relief
funds; twenty-five percent of the revenues shall be allocated to volunteer and part volunteer fire
companies and departments; and ten percent of such allocated revenues are allocated to the teachers
retirement system reserve fund created by section eighteen, article seven-a, chapter eighteen of this
code: Provided, That in any year the actuarial report required by section twenty, article twenty-two,
chapter eight of this code indicates no actuarial deficiency in the municipal policemen's or firemen's
pension and relief fund, no revenues may be allocated from the municipal pensions and protection fund to that fund. The revenues from the municipal pensions and protection fund shall then be
allocated to all other pension funds which have an actuarial deficiency.
(3) The moneys, and the interest earned thereon, in the municipal pensions and protection
fund allocated to volunteer and part volunteer fire companies and departments shall be allocated and
distributed quarterly to the volunteer fire companies and departments. Before each distribution date,
the state fire marshal shall report to the state treasurer the names and addresses of all volunteer and
part volunteer fire companies and departments within the state which meet the eligibility
requirements established in section eight-a, article fifteen, chapter eight of this code.
(c) (1) Each municipal pension and relief fund shall have allocated and authorized for
distribution a pro rata share of the revenues allocated to municipal policemen's and firemen's
pension and relief funds based upon the corresponding municipality's average monthly number of
members who worked at least one hundred hours per month during the preceding fiscal year. On
and after the first day of July, one thousand nine hundred ninety-seven, from the growth in any
moneys collected pursuant to the tax imposed by this section there shall be allocated and authorized
for distribution to each municipal pension and relief fund, a pro rata share of the revenues allocated
to municipal policemen's and firemen's pension and relief funds based upon the corresponding
municipalities average number of members who worked at least one hundred hours per month and
average monthly number of retired members. For the purposes of this subsection, the growth in
moneys collected from the tax collected pursuant to this section is determined by subtracting the
amount of the tax collected during the fiscal year ending the thirtieth day of June, one thousand nine
hundred ninety-six, from the tax collected during the fiscal year for which the allocation is being
made. All moneys received by municipal pension and relief funds under this section may be
expended only for those purposes described in sections sixteen through twenty-eight, inclusive,
article twenty-two, chapter eight of this code.
(2) Each volunteer fire company or department shall receive an equal share of the revenues
allocated for volunteer and part volunteer fire companies and departments.
(3) In addition to the share allocated and distributed in accordance with subdivision (1) of
this subsection, each municipal fire department composed of full-time paid members and volunteers
and part volunteer fire companies and departments shall receive a share equal to the share distributed
to volunteer fire companies under subdivision (2) of this subsection reduced by an amount equal to
the share multiplied by the ratio of the number of full-time paid fire department members who are
also members of a municipal firemen's pension system to the total number of members of the fire
department.
(d) The allocation and distribution of revenues provided for in this section are subject to the
provisions of section twenty, article twenty-two, and sections eight-a and eight-b, article fifteen,
chapter eight of this code.
§33-3-33. Surcharge on fire and casualty insurance policies to benefit volunteer and part
volunteer fire departments; special fund created; allocation of proceeds;
effective date.
(a) For the purpose of providing additional revenue for volunteer fire departments, part-
volunteer fire departments, certain retired teachers and the teachers retirement reserve fund, there
is hereby authorized and imposed on and after the first day of July, one thousand nine hundred
ninety-two, on the policyholder of any fire insurance policy or casualty insurance policy issued by
any insurer, authorized or unauthorized, or by any risk retention group, a policy surcharge equal to
one percent of the taxable premium for each such policy. For purposes of this section, casualty
insurance may not include insurance on the life of a debtor pursuant to or in connection with a
specific loan or other credit transaction or insurance on a debtor to provide indemnity for payments
becoming due on a specific loan or other credit transaction while the debtor is disabled as defined
in the policy. The policy surcharge may not be subject to premium taxes, agent commissions or any
other assessment against premiums.
(b) The policy surcharge shall be collected and remitted to the commissioner by the insurer
or in the case of excess lines coverage, by the resident excess lines broker, or if the policy is issued by a risk retention group, by the risk retention group. The amount required to be collected under
this section shall be remitted to the commissioner on a quarterly basis on or before the twenty-fifth
day of the month succeeding the end of the quarter in which they are collected, except for the fourth
quarter for which the surcharge shall be remitted on or before the first day of March of the
succeeding year.
(c) Any person failing or refusing to collect and remit to the commissioner any policy
surcharge and whose surcharge payments are not postmarked by the due dates for quarterly filing
is liable for a civil penalty of up to one hundred dollars for each day of delinquency, to be assessed
by the commissioner. The commissioner may suspend the insurer, broker or risk retention group
until all surcharge payments and penalties are remitted in full to the commissioner.
(d) One half of all money from the policy surcharge shall be collected by the commissioner
who shall disburse the money received from the surcharge into a special account in the state
treasury, designated the "fire protection fund." The net proceeds of this portion of the tax, and the
interest thereon after appropriation by the Legislature shall be distributed quarterly on the first day
of the months of January, April, July and October to each volunteer fire company or department on
an equal share basis by the state treasurer.
(1) Before each distribution date, the state fire marshal shall report to the state treasurer the
names and addresses of all volunteer and part volunteer fire companies and departments within the
state which meet the eligibility requirements established in section eight-a, article fifteen, chapter
eight of this code.
(2) The remaining fifty percent of the moneys collected shall be transferred to the teachers
retirement system to be disbursed according to the provisions of sections twenty-six-j, twenty-six-k
and twenty-six-l, article seven-a, chapter eighteen of this code. Any balance remaining after the
disbursements authorized by this subdivision have been paid shall be paid by the teachers retirement
system into the teachers retirement system reserve fund. :Provided, That the portion of taxes or
surcharges received by the commissioner from insurance policies for medical liability insurance as defined in section three, article twenty-f of this chapter and from any insurer on its medical
malpractice line, shall be temporarily dedicated to replenishing moneys appropriated from the
tobacco settlement account pursuant to subsection (c), section two, article eleven-a of chapter four
of this code. Upon determination by the commissioner that these moneys have been fully
replenished to the tobacco settlement account, the commissioner shall resume depositing taxes and
surcharges received from medical malpractice premiums as provided herein.
(e) The allocation, distribution and use of revenues provided in the fire protection fund are
subject to the provisions of sections eight-a and eight-b, article fifteen, chapter eight of this code.
ARTICLE 4. GENERAL PROVISIONS.
§33-4-15a. Credit for reinsurance; definitions; requirements; trust accounts; reductions from
liability; security; effective date.
(a) For purposes of this section, an "accredited reinsurer" is one which:
(1) Has filed an application for accreditation and received a letter of accreditation from the
commissioner;
(2) Is licensed to transact insurance or reinsurance in at least one of the fifty states of the
United States or the District of Columbia or, in the case of a United States branch of an alien
assuming insurer, is entered through and licensed to transact insurance or reinsurance in at least one
of the fifty states of the United States or the District of Columbia;
(3) Has filed with the application a certified statement that the company submits to this
state's jurisdiction and that the company will comply with the laws, and rules and regulations of the
state of West Virginia;
(4) Has filed with the application a certified statement that the company submits to the
examination authority granted the commissioner by section nine, article two of this chapter and will
pay all examination costs and fees as required by that section, and the one-time assessment on
insurers imposed under section nine-a, article two of this chapter;
(5) Has filed with the application a copy of its most recent annual statement in a form
consistent with the requirements of subdivision (8) of this subsection and a copy of its last audited
financial statement;
(6) Has filed any other information the commissioner requests to determine that the company
qualifies for accreditation under this section;
(7) Has remitted the applicable processing fee with its application for accreditation;
(8) Files with the commissioner after initial accreditation on or before the first day of March
of each year a true statement of its financial condition, transactions and affairs as of the preceding
thirty-first day of December. The statement shall be on the appropriate national association of
insurance commissioners annual statement blank; shall be prepared in accordance with the national
association of insurance commissioners annual statement instructions; and shall follow the
accounting practices and procedures prescribed by the national association of insurance
commissioners accounting practices and procedures manual as amended. The statement shall be
accompanied by the applicable annual statement filing fee. The commissioner may grant extensions
of time for filing of this annual statement upon application by the accredited reinsurer; and
(9) Files with the commissioner after initial accreditation by the first day of June of each year
a copy of its audited financial statement for the period ending the preceding thirty-first day of
December.
(b) If the commissioner determines that the assuming insurer has failed to continue to meet
any of these qualifications, he or she may upon written notice and hearing, as prescribed by section
thirteen, article two of this chapter, revoke an assuming insurer's accreditation. Credit shall not be
allowed to a ceding insurer if the assuming insurers' insurer's accreditation has been revoked by the
commissioner after notice and hearing.
(c) Credit for reinsurance shall be allowed a domestic ceding insurer or any foreign or alien
insurer transacting insurance in West Virginia that is domiciled in a jurisdiction that employs
standards regarding credit for reinsurance that are not substantially similar to those applicable under this article as either an asset or a deduction from liability on account of reinsurance ceded only when
the reinsurer meets one of the following requirements:
(1) Credit shall be allowed when the reinsurance is ceded to an assuming insurer which is
licensed to transact insurance or reinsurance in this state.
(2) Credit shall be allowed when the reinsurance is ceded to an assuming insurer which is
accredited as a reinsurer in this state prior to the effective date of the reinsurance contract.
(3) Credit shall be allowed when the reinsurance is ceded to an assuming insurer which is
domiciled and licensed in, or in the case of a United States branch of an alien assuming insurer, is
entered through one of the fifty states of the United States or the District of Columbia and which
employs standards regarding credit for reinsurance substantially similar to those applicable under
this statute, and the ceding insurer provides evidence suitable to the commissioner that the assuming
insurer:
(A) Maintains a surplus as regards policyholders in an amount not less than twenty million
dollars: Provided, That the requirements of this paragraph do not apply to reinsurance ceded and
assumed pursuant to pooling arrangements among insurers in the same holding company system;
(B) The ceding insurer provides the commissioner with a certified statement from the
assuming insurer that the assuming insurer submits to the authority of this state to examine its books
and records granted the commissioner by section nine, article two of this chapter and will pay all
examination costs and fees as required by that section; and
(C) The reinsurer complies with the provisions of subdivision (6), subsection (c) herein.
(4) Credit shall be allowed when the reinsurance is ceded to an assuming insurer which
maintains a trust fund as required by subsection (d) herein in a qualified United States financial
institution, as defined by this section, for the payment of the valid claims of its United States
policyholders and ceding insurers, their assigns and successors in interest, and complies with the
provisions of subdivision (6) herein.
(5) Credit shall be allowed when the reinsurance is ceded to an assuming insurer not meeting
the requirements of subdivisions (1) through (4), inclusive, subsection (c) of this section, but only
with respect to the insurance of risks located in jurisdictions where such reinsurance is required by
applicable law or regulation of that jurisdiction.
(6) If the assuming insurer is not licensed or accredited to transact insurance or reinsurance
in this state, the credit permitted by subdivisions (3) and (4) of this subsection shall not be allowed
unless the assuming insurer agrees in the reinsurance agreements:
(A) That in the event of the failure of the assuming insurer to perform its obligations under
the terms of the reinsurance agreement, the assuming insurer, at the request of the ceding insurer,
shall submit to the jurisdiction of any court of competent jurisdiction in any state of the United
States, shall comply with all requirements necessary to give such court jurisdiction, and shall abide
by the final decision of such court or of any appellate court in the event of an appeal; and
(B) To designate the secretary of state as its true and lawful attorney upon whom may be
served any lawful process in any action, suit or proceeding instituted by or on behalf of the ceding
company. 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 section thirteen of this
article: Provided, That this provision is not intended to conflict with or override the obligation of
the parties to a reinsurance agreement to arbitrate their disputes, if such an obligation is created in
the agreement.
(d) Whenever an assuming insurer establishes a trust fund for the payment of claims pursuant
to the provisions of this section, the following requirements shall apply:
(1) The assuming insurer shall report annually to the commissioner information substantially
the same as that required to be reported on the national association of insurance commissioners
annual statement form by licensed insurers to enable the commissioner to determine the sufficiency
of the trust fund. In the case of a single assuming insurer, the trust shall consist of a trusteed account
representing the assuming insurer's liabilities attributable to business written in the United States and, in addition, the assuming insurer shall maintain a trusteed surplus of not less than twenty
million dollars. In the case of a group, including incorporated and individual unincorporated
underwriters, the trust shall consist of a trusteed account representing the group's liabilities
attributable to business written in the United States and, in addition, the group shall maintain a
trusteed surplus of which one hundred million dollars shall be held jointly for the benefit of United
States ceding insurers of any member of the group. The incorporated members of the group shall
not be engaged in any business other than underwriting as a member of the group and shall be
subject to the same level of solvency regulation and control by the group's domiciliary regulator as
are the unincorporated members. The group shall make available to the commissioner an annual
certification of the solvency of each underwriter by the group's domiciliary regulator and its
independent public accountants.
(2) In the case of a group of incorporated insurers under common administration which
complies with the filing requirements contained in the previous paragraph; which has continuously
transacted an insurance business outside the United States for at least three years immediately prior
to making application for accreditation; which submits to this state's authority to examine its books
and records and bears the expense of the examination; and which has aggregate policyholders'
surplus of ten billion dollars, the trust shall be in an amount equal to the group's several liabilities
attributable to business ceded by United States ceding insurers to any member of the group pursuant
to reinsurance contracts issued in the name of the group. The group shall also maintain a joint
trusteed surplus of which one hundred million dollars shall be held jointly for the benefit of United
States ceding insurers of any member of the group as additional security for any such liabilities.
Each member of the group shall make available to the commissioner an annual certification of the
member's solvency by the member's domiciliary regulator and its independent public accountants.
(3) Any trust that is subject to the provisions of this section shall be established in a form
approved by the commissioner. The trust instrument shall provide that contested claims shall be
valid and enforceable upon the final order of any court of competent jurisdiction in the United States. The trust shall vest legal title to its assets in the trustees of the trust for its United States
policyholders and ceding insurers, their assigns and successors in interest. The trust and the
assuming insurer shall be subject to examination as determined by the commissioner. The trust
described herein shall remain in effect for as long as the assuming insurer shall have outstanding
obligations due under the reinsurance agreements subject to the trust.
(4) No later than the twenty-eighth day of February of each year the trustees of the trust shall
report to the commissioner in writing setting forth the balance of the trust and listing the trust's
investments at the preceding year's end. The trustees shall certify the date of termination of the
trust, if so planned, or certify that the trust shall not expire prior to the next following December
thirty-first.
(e) A reduction from liability for the reinsurance ceded by a ceding insurer subject to the
requirements of this article to an assuming insurer not meeting the requirements of subsection (c)
of this section shall be allowed in an amount not exceeding the liabilities carried by the ceding
insurer. The reduction shall be in the amount of funds held by or on behalf of the ceding insurer,
including funds held in trust for the ceding insurer, under a reinsurance contract with the assuming
insurer as security for the payment of obligations thereunder: Provided, That the security is held
in the United States subject to withdrawal solely by, and under the exclusive control of, the ceding
insurer; or, in the case of a trust, held in a qualified United States financial institution, as defined by
this section. The security may be in the form of:
(1) Cash;
(2) Securities listed by the securities valuation office of the national association of insurance
commissioners and qualifying as admitted assets; or
(3) Clean, irrevocable, unconditional letters of credit, issued or confirmed by a qualified
United States financial institution, as defined by this section, no later than the thirty-first day of
December of the year for which filing is being made, and in the possession of the ceding company
on or before the filing date of its annual statement: Provided, That letters of credit meeting applicable standards of issuer acceptability as of the dates of their issuance or confirmation shall,
notwithstanding the issuing or confirming institution's subsequent failure to meet applicable
standards of issuer acceptability, continue to be acceptable as security until their expiration,
extension, renewal, modification or amendment, whichever first occurs.
(f) For purposes of this section, a "qualified United States financial institution" means an
institution that:
(1) Is organized or licensed under the laws of the United States or any state thereof;
(2) Is regulated, supervised and examined by United States federal or state authorities having
regulatory authority over banks and trust companies; and
(3) Has been determined by either the commissioner, or the securities valuation office of the
national association of insurance commissioners, to meet the standards of financial condition and
standing as are considered necessary and appropriate to regulate the quality of financial institutions
whose letters of credit will be acceptable to the commissioner.
(g) A "qualified United States financial institution" means, for purposes of those provisions
of this law specifying those institutions that are eligible to act as a fiduciary of a trust, an institution
that:
(1) Is organized or, in the case of a United States branch or agency office of a foreign
banking organization, licensed under the laws of the United States or any state thereof and has been
granted authority to operate with fiduciary powers; and
(2) Is regulated, supervised and examined by federal or state authorities having regulatory
authority over banks and trust companies.
(h) The provisions of this section shall apply to all cessions on or after the first day of
January, one thousand nine hundred ninety-three.
ARTICLE 20B. RATES AND MALPRACTICE INSURANCE POLICIES.
§33-20B-2. Ratemaking.
Any and all modifications of rates shall be made in accordance with the following
provisions:
(a) Due consideration shall be given to the past and prospective loss experience within and
outside this state.
(b) Due consideration shall be given to catastrophe hazards, if any, to a reasonable margin
for underwriting profit and contingencies, to dividends, savings or unabsorbed premium deposits
allowed or returned by insurers to their policyholders, members or subscribers and actual past
expenses and demonstrable prospective or projected expenses applicable to this state.
(c) Rates shall not be excessive, inadequate, predatory or unfairly discriminatory.
(d) Risks may not be grouped by territorial areas for the establishment of rates and minimum
premiums.
(e) An insurer may use guide "A" rates and other nonapproved rates, also known as "consent
to rates": Provided, That the insurer shall, prior to entering into an agreement with an individual
provider or any health care entity, submit guide "A" rates and other nonapproved rates to the
commissioner for review and approval: Provided, however, That the commissioner shall propose
legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-
nine-a of this code, which set forth the standards and procedure for reviewing and approving guide
"A" rates and other nonapproved rates. No insurer may require execution of a consent to rate
endorsement for the purpose of offering to issue or issuing a contract or coverage to an insured or
continuing an existing contract or coverage at a rate in excess of that provided by a filing otherwise
applicable.
(f) Except to the extent necessary to meet the provisions of subdivision (c) of this section,
uniformity among insurers, in any matters within the scope of this section, is neither required nor
prohibited.
(g) Rates made in accordance with this section may be used subject to the provisions of this
article.
§33-20B-3. Rate filings.
(a) On or before the first day of July, two thousand four and on the first day of July each year
thereafter, or at such other time specified by the commissioner, every insurer offering malpractice
insurance in this state shall make a rate filing, in accordance with the provisions of section four,
article twenty of this chapter, regardless of whether any increase or decrease is indicated, Every
filing for malpractice insurance made pursuant to subsection (a), section four, article twenty of this
chapter shall state the proposed effective date of the filing, the character and extent of the coverage
contemplated and information in support of the filing. The information furnished in support of a
filing shall include: (i) The experience or judgment of the insurer or rating organization making the
filing; (ii) its interpretation of any statistical data the filing relies upon; (iii) the experience of other
insurers or rating organizations; (iv) the character and extent of the coverage contemplated; (v) the
proposed effective date of any requested change and (iv) (vi) any other relevant factors required by
the commissioner. When a filing is not accompanied by the information required by this section
upon which the insurer supports the filing, the commissioner shall require the insurer to furnish the
information and, in that event, the waiting period prescribed by subsection (b) of this section shall
commence as of the date the information is furnished.
A filing and any supporting information shall be open to public inspection as soon as the
filing is received by the commissioner. Any interested party may file a brief with the commissioner
supporting his or her position concerning the filing. Any person or organization may file with the
commissioner a signed statement declaring and supporting his or her or its position concerning the
filing. Upon receipt of any such statement prior to the effective date of the filing, the commissioner
shall mail or deliver a copy of the statement to the filer, which may file a reply. This section is not
applicable to any memorandum or statement of any kind by any employee of the commissioner.
(b) Every filing shall be on file for a waiting period of ninety days before it becomes
effective. The commissioner may extend the waiting period for an additional period not to exceed
thirty days if he or she gives written notice within the waiting period to the insurer or rating organization which made the filing that he or she needs the additional time for the consideration of
the filing. Upon written application by the insurer or rating organization, the commissioner may
authorize a filing which he or she has reviewed to become effective before the expiration of the
waiting period or any extension of the waiting period. A filing shall be deemed to meet the
requirements of this article unless disapproved by the commissioner within the waiting period or any
extension thereof.
(c) No insurer shall make or issue a contract or policy of malpractice insurance except in
accordance with the filings which are in effect for the insurer as provided in this article.
§33-20B-3a. Rate prohibitions.
Reduced rates charged for certain specialties or risks found by the commissioner to be
predatory, designed to gain market share or otherwise inadequate are prohibited.
ARTICLE 20F. PHYSICIANS' MUTUAL INSURANCE COMPANY.
§33-20F-1a. Scope of article.
This article applies only to the physicians' mutual insurance company created as a novation
of the medical professional liability insurance programs created in article twelve-b, chapter twenty-
nine of this code.
§33-20F-2. Findings and purpose.
(a) The Legislature finds that:
(1) There is a nationwide crisis in the field of medical liability insurance;
(2) Similar crises have occurred at least three times during the past three decades;
(3) Such crises are part of a naturally recurring cycle of a hard market period, when medical
professional liability coverage is difficult to obtain, and a soft market period, when coverage is more
readily available;
(4) Such crises are particularly acute in this state due to the small size of the insurance
market;
(5) During a hard market period, insurers tend to flee this state, creating a crisis for
physicians who are left without professional liability coverage;
(3) (6) Physicians During the current crisis, physicians in West Virginia find it increasingly
difficult, if not impossible, to obtain medical liability insurance either because coverage is
unavailable or unaffordable;
(4) (7) The difficulty or impossibility in of obtaining medical liability insurance may result
in many qualified physicians leaving the state;
(5) (8) Access to quality health care is of utmost importance to the citizens of West Virginia;
(6) (9) A mechanism is needed to remedy provide an enduring solution to this recurring
medical liability crisis; and
(7) (10) A physicians' mutual insurance company or a similar entity has proven to be a
successful mechanism in other states for helping physicians secure insurance and for stabilizing the
insurance market;
(11) There is a substantial public interest in creating a method to provide a stable medical
liability market in this state;
(12) The state has attempted to temporarily alleviate the current medical crisis by the
creation of programs to provide medical liability coverage through the board of risk and insurance
management;
(13) The state-run program is a substantial actual and potential liability to the state;
(14) There is substantial public benefit in transferring the actual and potential liability of the
state to the private sector and creating a stable self-sufficient entity which will be a source of
liability insurance coverage for physicians in this state;
(15) A stable, financially viable insurer in the private sector will provide a continuing source
of insurance funds to compensate victims of medical malpractice; and
(16) Because the public will greatly benefit from the formation of a physicians' mutual
insurance company, state efforts to encourage and support the formation of such an entity, including
providing a low-interest loan for a portion of the entity's initial capital, is in the clear public interest.
(b) The purpose of this article is to create a mechanism for the formation of a physicians'
mutual insurance company that will provide:
(1) A means for physicians to obtain medical liability insurance that is available and
affordable; and
(2) Compensation to persons who suffer injuries as a result of medical professional liability
as defined in subsection (d), section two, article seven-b, chapter fifty-five of this code.
§33-20F-3. Definitions.
For purposes of this article, the term:
(a) "Board of medicine" means the West Virginia board of medicine as provided in section
five, article three, chapter thirty of this code.
(b) "Board of osteopathy" means the West Virginia board of osteopathy as provided in
section three, article fourteen, chapter thirty of this code.
(c) "Commissioner" means the insurance commissioner of West Virginia as provided in
section one, article two, chapter thirty-three of this code.
(d) "Company" means any the physicians' mutual insurance company created pursuant to
the terms of this article.
(e) "Medical liability insurance" means, for the purposes of this article: All policies
previously issued by the board of risk and insurance management pursuant to article twelve-b,
chapter twenty-nine of this code which are transferred by the board of risk and insurance
management to the company, pursuant to subsection (b), section nine of this article and all policies
of insurance subsequently issued by the company to physicians, physician corporations, physician-
operated clinics and such other individual health care providers as the commissioner may, upon
written application of the company, approve.
(e) (f) "Physician" means an individual who is licensed by the board of medicine or the board
of osteopathy to practice medicine or podiatry in West Virginia.
(g) "Transfer date" means the date on which the assets, obligations and liabilities resulting
from the the board of risk and insurance management's issuance of medical liability policies to
physicians, physician corporations and physician-operated clinics pursuant to article twelve-b,
chapter twenty-nine of this code are transferred to the company.
§33-20F-4. Authorization for creation of company; requirements and limitations.
(a) Subject to the provisions of this article, a physicians' mutual insurance company is
hereby authorized to may be created as a domestic, private, nonstock, nonprofit corporation. As an
incentive for its creation, any the company that meets the requirements set forth in this article may
be eligible for funds from the Legislature in accordance with the provisions of section seven of this
article. A The company must remain for the duration of its existence a domestic mutual insurance
company owned by its policyholders and may not be converted into a stock corporation, a for-profit
corporation or any other entity not owned by its policyholders. The company may not declare any
dividend to its policyholders; sell, assign or transfer substantial assets of the company; or write
coverage outside this state, except for counties adjoining this state, until after any and all debts owed
by the company to the state have been fully paid.
(b) For the duration of its existence, a the company is not and may not be considered a
department, unit, agency, or instrumentality of the state for any purpose. All debts, claims,
obligations, and liabilities of a the company, whenever incurred, shall be the debts, claims,
obligations, and liabilities of the company only and not of the state or of any department, unit,
agency, instrumentality, officer, or employee of the state.
(c) The moneys of a the company are not and may not be considered part of the general
revenue fund of the state. The debts, claims, obligations, and liabilities of a the company are not
and may not be considered a debt of the state or a pledge of the credit of the state.
(d) A The company is not subject to provisions of article nine-a, chapter six of this code or
the provisions of article one, chapter twenty-nine-b of this code.
(e) (1) All premiums collected by the company are subject to the premium taxes and
surcharges contained in sections fourteen, fourteen-a, fourteen-d and thirty three, article three of this
chapter: Provided, That while the loan to the company of moneys from the West Virginia tobacco
settlement medical trust fund pursuant to section nine of this article remains outstanding, the
commissioner may waive the company's premium taxes and surcharges if payment would render
the company insolvent or otherwise financially impaired.
(2) On and after the first day of July, two thousand and three, any premium taxes and
surcharges paid by the company and by any insurer on its medical malpractice line pursuant to
sections fourteen, fourteen-a, fourteen-d and thirty-three, article three of this chapter, shall be
temporarily applied toward replenishing the moneys appropriated from the West Virginia tobacco
settlement medical trust fund pursuant to subsection (c), section two, article eleven-a, chapter four
of this code pending repayment of the loan of such moneys by the company.
(3) The state treasurer shall notify the commissioner when the moneys appropriated from the
West Virginia tobacco settlement medical trust have been fully replenished, at which time the
commissioner shall resume depositing premium taxes and surcharges diverted pursuant to
subdivision (2) of this subsection in accordance with the provisions of sections fourteen, fourteen-a,
fourteen-d and thirty-three, article three of this chapter.
(4) Payments received by the treasurer from the company in repayment of any outstanding
loan made pursuant to section nine of this article shall be deposited in the West Virginia tobacco
settlement medical trust fund and dedicated to replenishing the moneys appropriated therefrom
under subsection (c), section two, article eleven-a, chapter four of this code. Once the moneys
appropriated from the West Virginia tobacco settlement medical trust fund have been fully
replenished, the treasurer shall deposit any payments from the company in repayment of any
outstanding loan made pursuant to section nine of this article in said fund and transfer a like amount from said fund to the commissioner for disbursement in accordance with the provisions of sections
fourteen, fourteen-a, fourteen-d and thirty-three, article three of this chapter.
§33-20F-5. Governance and organization.
(a)(1) The board of risk and insurance management shall implement the initial formation and
organization of the company as provided by this article.
(2) From the first day of July, two thousand three, until the thirtieth day of June, two
thousand three, the company shall be governed by a provisional board of directors consisting of the
members of the board of risk and insurance management, the dean of the West Virginia University
School of Medicine or a physician representative designated by him or her, and five physician
directors, elected by the policy holders whose policies are to be transferred to the company pursuant
to section nine of this article.
(3) Only physicians who are licensed to practice medicine in this state pursuant to article
three or article fourteen, chapter thirty of this code and who have purchased medical professional
liability coverage from the board of risk and insurance management are eligible to serve as physician
directors on the provisional board of directors. One of the physician directors shall be selected from
a list of three physicians nominated by the West Virginia medical association. The board of risk and
insurance management shall develop procedures for the nomination of the remaining physician
directors and for the conduct of the election, to be held no later than the first day of June, two
thousand three, of all of the physician directors, including, but not limited to, giving notice of the
election to the policy holders. These procedures shall be exempt from the provisions of article three,
chapter twenty-nine of this code.
(a)(b) From the first day of July, two thousand four, A the company is to shall be governed
by a board of directors consisting of eleven directors, as follows:
(1) At least, but not more than, four Five directors who are physicians licensed to practice
medicine in this state by the board of medicine or the board of osteopathy, and who represent the
various physician organizations within the state; including at least one general practitioner and one specialist: Provided, That only physicians who have purchased medical professional liability
coverage from the board of risk and insurance management are eligible to serve as physician
representatives on the company's first board of directors;
(2) Three directors who have substantial experience as an officer or employee of a company
in the insurance industry;
(3) At least two Two directors with general knowledge and experience in business
management who are officers and employees of the company and are responsible for the daily
management of the company; and
(4) Two directors with general knowledge and experience in business management. One
director who is a dean of a West Virginia school of medicine or osteopathy or his or her designated
physician representative. This director's position shall rotate annually among the dean of the West
Virginia University School of Medicine, the dean of the Marshall University Joan C. Edwards
School of Medicine and the dean of the West Virginia School of Osteopathic Medicine. This
director shall serve until such time as the moneys loaned to the company from the West Virginia
tobacco settlement medical trust fund have been replenished as provided in subsection (e),
subsection four of this article. After the moneys have been replenished the West Virginia tobacco
settlement medical trust fund, this director shall be a physician licensed to practice medicine in this
state by the board of medicine or the board of osteopathy.
(b) (c) In addition to the eleven directors required by subsection (a) (b) of this section, the
by-laws bylaws of a the company may provide for the addition of at least two directors who
represent an entity or institution which lends or otherwise provides funds to the company.
(c) Relating to the directors provided for in subsection (a) of this section and to the extent
possible, the directors are to reside in different geographical areas of the state. The number of such
directors from any one congressional district in the state may not exceed the number of directors
from any other congressional district in the state by more than two.
(d) The directors and officers of a the company are to be chosen in accordance with the
articles of incorporation and bylaws of the company. The initial board of directors selected in
accordance with the provisions of subdivision (3), subsection (a) of this section shall serve for the
following terms: (1) Three for four-year terms; (2) three for three-year terms; (3) three for two-year
terms; and (4) two for one-year terms. Thereafter, the directors shall serve staggered terms of four
years. If an additional directors are director is added to the board as provided in subsection (b) (c)
of this section, the his or her initial term for those directors is shall be for four years. No director
chosen pursuant to subsection (a) (b) of this section may serve more than two consecutive terms.
(e) The incorporators are to prepare and file articles of incorporation and bylaws in
accordance with the provisions of this article and the provisions of chapters thirty-one and thirty-
three of this code.
§33-20F-6. Management and administration of the company.
(a) If it is determined that the services of a third-party administrator or other firm or
company are necessary to properly administer the affairs of the company prior to the first day of
July, two thousand four, the provisional board of directors shall avail itself of any existing contracts
entered into by the board of risk and insurance management to manage its affairs. The terms of the
company's participation in the contract shall be established by the board of risk and insurance
management.
(b) The provisional board of directors may enter into a one-year contract with a third-party
administrator or other firm or company with suitable qualifications and experience to administer
some or all of the affairs of the company from the first day of July, two thousand four, until the
thirtieth day of June, two thousand five, subject to the continuing direction of the board of directors
as required by the articles of incorporation and bylaws of the company, and the contract. Any
contract entered into pursuant to this subsection must be awarded by competitive bidding not later
than the first day of November, two thousand three.
(a)(c) After the first day of July, two thousand four, If if the company's board of directors
determines that the affairs of a the company may be administered suitably and efficiently, the
company may enter into a contract with a licensed insurer, licensed health service plan, insurance
service organization, third-party administrator, insurance brokerage firm or other firm or company
with suitable qualifications and experience to administer some or all of the affairs of the company,
subject to the continuing direction of the board of directors as required by the articles of
incorporation and bylaws of the company, and the contract. All such contracts shall be awarded by
competitive bidding.
(b) (d) The company shall file a true copy of the contract with the commissioner as provided
in section twenty-one, article five of this chapter.
§33-20F-7. Initial capital and surplus; special assessment.
(a) A portion of the initial capital and surplus of a the company may be provided by direction
of the Legislature, in an amount, upon terms and conditions, and from sources as may be determined
by the Legislature in its sole discretion. There is hereby created in the state treasury a special
revenue account designated as the "Board of Risk and Insurance Management Physicians' Mutual
Insurance Company Account" solely for the purpose of receiving moneys transferred from the West
Virginia Tobacco Medical Trust Fund pursuant to sub-section (c), section two, article eleven-a,
chapter four of this code for the company's use as initial capital and surplus.
(b) In the event that a portion of the initial capital and surplus of a company is provided by
direction of the Legislature pursuant to subsection (a) of this section, On the first day of July, two
thousand three, a special one-time assessment, in the amount of one thousand dollars, for the
privilege of practicing in West Virginia may shall be assessed imposed on every physician licensed
by the board of medicine and every physician licensed or by the board of osteopathy to practice for
the privilege of practicing medicine in this state: The executive director of the medical licensing
board shall establish the amount of the assessment, in consultation with the board of directors of the company or their designee. The amount of the assessment may not exceed one thousand dollars.
Provided, That the following physicians shall be exempt from the assessment:
(1)A faculty physician who meets the criteria for full-time faculty under subsection (f),
section one, article eight, chapter eighteen-b of this code, who is a full-time employee of a school
of medicine or osteopathic medicine in this state, and who does not maintain a private practice;
(2) A resident physician who is a graduate of a medical school or college of osteopathic
medicine enrolled and who is participating in an accredited full-time program of post-graduate
medical education in this state;
(3) A physician who has presented suitable proof that he or she is on active duty in armed
forces of the United States and who will not be reimbursed by the armed forces for the assessment;
(4) A physician who receives more than fifty percent of his or her practice income from
providing services to federally qualified health center as that term is defined in 42 U.S.C.
§1396d(l)(2); and
(5) A physician who practices solely under a special volunteer medical license authorized
by section ten-a, article three or section twelve-b, article fourteen, chapter thirty of this code. The
assessment is to be assessed imposed and collected by the board of medicine and the board of
osteopathy on forms as prescribed by the board of medicine and the board of osteopathy may
prescribe each licensing board.
(c) If the special assessment is collected pursuant to subsection (b) of this section, the
Legislature hereby dedicates the The entire proceeds of the special assessment collected pursuant
to subsection (b) of this section shall be dedicated to the company. The board of medicine and the
board of osteopathy shall promptly pay over to the company all amounts collected pursuant to this
section to be used as policyholder surplus for the company.
(d) Any physician who applies to purchase insurance from the company and who has not
paid the assessment pursuant to subsection (b) of this section shall pay one thousand dollars to the
company as a condition of obtaining insurance from the company.
§33-20F-8. Application for license; authority of commissioner.
(a) As soon as practical, a the company desiring to do business established pursuant to the
provisions of this article shall file its corporate charter and by-laws bylaws with the commissioner
and apply for a license to transact insurance in this state. Notwithstanding any other provision of
this code, the commissioner must shall act on the documents within fifteen days of the filing by a
the company.
(b) In recognition of the medical liability insurance crisis in this state at the time of
enactment of this article, and the critical need to expedite the initial operation of a the company, the
Legislature hereby authorizes the commissioner to review the documentation submitted by a the
company and to determine the initial capital and surplus requirements of a the company,
notwithstanding the provisions of section five-b, article three of this chapter. The commissioner has
the sole discretion to determine the capital and surplus funds of a the company and to monitor the
economic viability of the company during its initial operation and duration on not less than a
monthly basis. A The company shall furnish the commissioner with all information and cooperate
in all respects as may be necessary for the commissioner to perform the duties set forth in this
section and in other provisions of this chapter, including annual audited financial statements
required by article thirty-three of this chapter and fidelity bond coverage for each of the directors
of the company.
(c) Subject to the provisions of subsection (d) of this section, the commissioner may waive
other requirements imposed on mutual insurance companies by the provisions of this chapter as the
commissioner determines is necessary to enable a the company to begin insuring physicians in this
state at the earliest possible date.
(d) Within thirty-six forty months of the date of the issuance of its license to transact
insurance, a the company must shall comply with the capital and surplus requirements set forth in
section five-b, article three of this chapter. and with all other requirements imposed upon mutual
insurance companies by the provisions of this chapter.
§33-20F-9. Kinds of coverage authorized; transfer of policies from the state board of risk and
insurance management; risk management practices authorized.
(a) Upon approval by the commissioner for a license to transact insurance in this state, a the
company may issue nonassessable policies of malpractice insurance, as defined in subdivision (9),
subsection (e), section ten, article one of this chapter, insuring a physician. Additionally, a the
company may issue other types of casualty or liability insurance as may be approved by the
commissioner.
(b) On the transfer date:
(1) A The company must shall accept from the board of risk and insurance management the
transfer of medical malpractice any and all medical liability insurance obligations and risks of
existing or in force contracts of insurance on physicians covering physicians, physician corporations
and physician-operated clinics issued by the board pursuant to article twelve-b, chapter twenty-nine
of this code. from the state board of risk and insurance. Subject to approval by the commissioner,
a company may impose reasonable terms and conditions upon any transfer from the state board of
risk and insurance management, but the terms and conditions may not be designed or construed to
prohibit or unduly restrict such transfers. The transfer shall not include medical liability insurance
obligations and risks of existing or in-force contracts of insurance covering hospitals and non-
physician providers;
(2) The company shall assume all responsibility for and defend, indemnify and hold harmless
the board of risk and insurance management and the state with respect to any and all liabilities and
duties arising from the assets and responsibilities transferred to the company pursuant to article
twelve-b, chapter twenty-nine of this code;
(3) The board of risk and insurance management shall disburse and pay to the company any
funds attributable to premiums paid for the insurance obligations transferred to the company
pursuant to subdivision (1) of this subsection, with earnings thereon, less paid losses and expenses, and deposited in the medical liability fund created by section ten, article twelve-b, chapter twenty-
nine of this code as reflected on the ledgers of the board of risk and insurance management;
(4) The board of risk and insurance management shall disburse and pay to the company any
funds in the board of risk and insurance management physicians' mutual insurance company account
created by section seven of this article. All funds in this account shall be transferred pursuant to
terms of a surplus note or other loan arrangement satisfactory to the board of risk and insurance
management and the insurance commissioner.
(c) The board of risk and insurance management shall cause an independent actuarial study
to be performed to determine the amount of all paid losses, expenses and assets associated with the
policies the board has in force pursuant to article twelve-b, chapter twenty-nine of this code. The
actuarial study shall determine the paid losses, expenses and assets associated with the policies to
be transferred to the company pursuant to subsection (b) of this section and the paid losses, expenses
and assets associated with those policies retained by the board. The determination shall not include
liabilities created by issuance of new tail insurance policies for non-physician providers authorized
by subsection (n), section six, article twelve-b, chapter twenty-nine of this code.
(d) The board of risk and insurance management may enter into such agreements, including
loan agreements, with the company that are necessary to accomplish the transfers addressed in this
section.
(c) (e) A The company shall make policies of insurance available to physicians in this state,
regardless of practice type or specialty. Policies issued by a the company to each class of physicians
are to be essentially uniform in terms and conditions of coverage.
(d) (f) Notwithstanding the provisions of subsections (b), or (c) or (e) of this section, a the
company may:
(1) Establish reasonable classifications of physicians, insured activities, and exposures based
on a good faith determination of relative exposures and hazards among classifications;
(2) Vary the limits, coverages, exclusions, conditions, and loss-sharing provisions among
classifications;
(3) Establish, for an individual physician within a classification, reasonable variations in the
terms of coverage, including rates, deductibles and loss-sharing provisions, based on the insured's
prior loss experience and current professional training and capability; and
(4) Refuse Except with respect to policies transferred from the board of risk and insurance
management under this section, refuse to provide insurance coverage for individual physicians
whose prior loss experience or current professional training and capability are such that the
physician represents an unacceptable risk of loss if coverage is provided.
(e) (g) A The company shall establish reasonable risk management and continuing education
requirements which policyholders must meet in order to be and remain eligible for coverage.
§33-20F-10. Controlling law.
To the extent applicable, and when not in conflict with the provisions of this article, the
provisions of chapters thirty-one and thirty-three of this code apply to any the company created
pursuant to the provisions of this article. If a provision of this article and another provision of this
code are in conflict, the provision of this article controls.
§33-20F-11. Liberal construction.
This article is enacted to address a situation critical to the citizens of the state of West
Virginia by providing a mechanism for the speedy and deliberate creation of a company to begin
offering medical liability insurance to physicians in this state at the earliest possible date, ; and to
accomplish this purpose, this article must shall be liberally construed.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24. Scope of provisions; applicability of other laws.
(a) Except as otherwise provided in this article, provisions of the insurance laws and
provisions of hospital or medical service corporation laws are not applicable to any health
maintenance organization granted a certificate of authority under this article. The provisions of this article shall not apply to an insurer or hospital or medical service corporation licensed and regulated
pursuant to the insurance laws or the hospital or medical service corporation laws of this state except
with respect to its health maintenance corporation activities authorized and regulated pursuant to this
article. The provisions of this article may not apply to an entity properly licensed by a reciprocal
state to provide health care services to employer groups, where residents of West Virginia are
members of an employer group, and the employer group contract is entered into in the reciprocal
state. For purposes of this subsection, a "reciprocal state" means a state which physically borders
West Virginia and which has subscriber or enrollee hold harmless requirements substantially similar
to those set out in section seven-a of this article.
(b) Factually accurate advertising or solicitation regarding the range of services provided,
the premiums and copayments charged, the sites of services and hours of operation and any other
quantifiable, nonprofessional aspects of its operation by a health maintenance organization granted
a certificate of authority, or its representative may not be construed to violate any provision of law
relating to solicitation or advertising by health professions: Provided, That nothing contained in this
subsection shall be construed as authorizing any solicitation or advertising which identifies or refers
to any individual provider or makes any qualitative judgment concerning any provider.
(c) Any health maintenance organization authorized under this article may not be considered
to be practicing medicine and is exempt from the provisions of chapter thirty of this code, relating
to the practice of medicine.
(d) The provisions of sections fifteen and twenty, article four (general provisions); section
nine-a, article two (one-time assessment); section seventeen, article six (noncomplying forms);
section twenty, article five (borrowing by insurers); article six-c (guaranteed loss ratio); article seven
(assets and liabilities); article eight (investments); article eight-a (use of clearing corporations and
federal reserve book-entry system); article nine (administration of deposits); article twelve (agents,
brokers, solicitors and excess line); section fourteen, article fifteen (individual accident and sickness
insurance); section sixteen, article fifteen (coverage of children); section eighteen, article fifteen (equal treatment of state agency); section nineteen, article fifteen (coordination of benefits with
medicaid); article fifteen-b (uniform health care administration act); section three, article sixteen
(required policy provisions); section three-f, article sixteen (treatment of temporomandibular
disorder and craniomandibular disorder); section eleven, article sixteen (coverage of children);
section thirteen, article sixteen (equal treatment of state agency); section fourteen, article sixteen
(coordination of benefits with medicaid); article sixteen-a (group health insurance conversion);
article sixteen-d (marketing and rate practices for small employers); article twenty-five-c (health
maintenance organization patient bill of rights); article twenty-seven (insurance holding company
systems); article thirty-four-a (standards and commissioner's authority for companies considered
to be in hazardous financial condition); article thirty-five (criminal sanctions for failure to report
impairment); article thirty-seven (managing general agents); article thirty-nine (disclosure of
material transactions); article forty-one (privileges and immunity); and article forty-two (women's
access to health care) shall be applicable to any health maintenance organization granted a certificate
of authority under this article. In circumstances where the code provisions made applicable to health
maintenance organizations by this section refer to the "insurer", the "corporation" or words of
similar import, the language shall be construed to include health maintenance organizations.
(e) Any long-term care insurance policy delivered or issued for delivery in this state by a
health maintenance organization shall comply with the provisions of article fifteen-a of this chapter.
ARTICLE 25D. PREPAID LIMITED HEALTH SERVICE ORGANIZATION ACT.
§33-25D-26. Scope of provisions; applicability of other laws.
(a) Except as otherwise provided in this article, provisions of the insurance laws, provisions
of hospital, medical, dental or health service corporation laws and provisions of health maintenance
organization laws are not applicable to any prepaid limited health service organization granted a
certificate of authority under this article. The provisions of this article do not apply to an insurer,
hospital, medical, dental or health service corporation, or health maintenance organization licensed
and regulated pursuant to the insurance laws, hospital, medical, dental or health service corporation laws or health maintenance organization laws of this state except with respect to its prepaid limited
health service corporation activities authorized and regulated pursuant to this article. The provisions
of this article do not apply to an entity properly licensed by a reciprocal state to provide a limited
health care service to employer groups, where residents of West Virginia are members of an
employer group, and the employer group contract is entered into in the reciprocal state. For
purposes of this subsection, a "reciprocal state" means a state which physically borders West
Virginia and which has subscriber or enrollee hold harmless requirements substantially similar to
those set out in section ten of this article.
(b) Factually accurate advertising or solicitation regarding the range of services provided,
the premiums and copayments charged, the sites of services and hours of operation and any other
quantifiable, nonprofessional aspects of its operation by a prepaid limited health service organization
granted a certificate of authority, or its representative do not violate any provision of law relating
to solicitation or advertising by health professions: Provided, That nothing contained in this
subsection authorizes any solicitation or advertising which identifies or refers to any individual
provider or makes any qualitative judgment concerning any provider.
(c) Any prepaid limited health service organization authorized under this article is not
considered to be practicing medicine and is exempt from the provision of chapter thirty of this code
relating to the practice of medicine.
(d) The provisions of section nine, article two, examinations; section nine-a, article two, one-
time assessment; section thirteen, article two, hearings; sections fifteen and twenty, article four,
general provisions; section twenty, article five, borrowing by insurers; section seventeen, article six,
noncomplying forms; article six-c, guaranteed loss ratio; article seven, assets and liabilities; article
eight, investments; article eight-a, use of clearing corporations and federal reserve book-entry
system; article nine, administration of deposits; article ten, rehabilitation and liquidation; article
twelve, agents, brokers, solicitors and excess line; section fourteen, article fifteen, individual
accident and sickness insurance; section sixteen, article fifteen, coverage of children; section eighteen, article fifteen, equal treatment of state agency; section nineteen, article fifteen,
coordination of benefits with medicaid; article fifteen-b, uniform health care administration act;
section three, article sixteen, required policy provisions; section eleven, article sixteen, coverage of
children; section thirteen, article sixteen, equal treatment of state agency; section fourteen, article
sixteen, coordination of benefits with medicaid; article sixteen-a, group health insurance conversion;
article sixteen-d, marketing and rate practices for small employers; article twenty-seven, insurance
holding company systems; article thirty-three, annual audited financial report; article thirty-four,
administrative supervision; article thirty-four-a, standards and commissioner's authority for
companies considered to be in hazardous financial condition; article thirty-five, criminal sanctions
for failure to report impairment; article thirty-seven, managing general agents; article thirty-nine,
disclosure of material transactions; and article forty-one, privileges and immunity, all of this chapter
are applicable to any prepaid limited health service organization granted a certificate of authority
under this article. In circumstances where the code provisions made applicable to prepaid limited
health service organizations by this section refer to the "insurer", the "corporation" or words of
similar import, the language includes prepaid limited health service organizations.
(e) Any long-term care insurance policy delivered or issued for delivery in this state by a
prepaid limited health service organization shall comply with the provisions of article fifteen-a of
this chapter.
(f) A prepaid limited health service organization granted a certificate of authority under this
article is exempt from paying municipal business and occupation taxes on gross income it receives
from its enrollees, or from their employers or others on their behalf, for health care items or services
provided directly or indirectly by the prepaid limited health service organization.
CHAPTER 38. LIENS.
ARTICLE 10. FEDERAL TAX LIENS; ORDERS AND DECREES IN BANKRUPTCY.
§38-10-4. Exemptions of property in bankruptcy proceedings.
Pursuant to the provisions of 11 U. S. C. §522(b)(1), this state specifically does not authorize
debtors who are domiciled in this state to exempt the property specified under the provisions of 11
U. S. C. §522(d).
Any person who files a petition under the federal bankruptcy law may exempt from property
of the estate in a bankruptcy proceeding the following property:
(a) The debtor's interest, not to exceed twenty-five thousand dollars in value, in real property
or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative
that owns property that the debtor or a dependent of the debtor uses as a residence or in a burial plot
for the debtor or a dependent of the debtor.: Provided, That when the debtor is a physician licensed
to practice medicine in this state under article three or article fourteen, chapter thirty of this code,
and has commenced a bankruptcy proceeding in part due to a verdict or judgment entered in a
medical professional liability action, if the physician has current medical malpractice insurance in
the amount of at least one million dollars for each occurrence, the debtor physician's interest that
is exempt under this subsection may exceed twenty-five thousand dollars in value but may not
exceed two hundred fifty thousand dollars per household.
(b) The debtor's interest, not to exceed two thousand four hundred dollars in value, in one
motor vehicle.
(c) The debtor's interest, not to exceed four hundred dollars in value in any particular item,
in household furnishings, household goods, wearing apparel, appliances, books, animals, crops or
musical instruments that are held primarily for the personal, family or household use of the debtor
or a dependent of the debtor: Provided, That the total amount of personal property exempted under
this subsection may not exceed eight thousand dollars.
(d) The debtor's interest, not to exceed one thousand dollars in value, in jewelry held
primarily for the personal, family or household use of the debtor or a dependent of the debtor.
(e) The debtor's interest, not to exceed in value eight hundred dollars plus any unused
amount of the exemption provided under subsection (a) of this section in any property.
(f) The debtor's interest, not to exceed one thousand five hundred dollars in value, in any
implements, professional books or tools of the trade of the debtor or the trade of a dependent of the
debtor.
(g) Any unmeasured life insurance contract owned by the debtor, other than a credit life
insurance contract.
(h) The debtor's interest, not to exceed in value eight thousand dollars less any amount of
property of the estate transferred in the manner specified in 11 U. S. C. §542(d), in any accrued
dividend or interest under, or loan value of, any unmeasured life insurance contract owned by the
debtor under which the insured is the debtor or an individual of whom the debtor is a dependent.
(i) Professionally prescribed health aids for the debtor or a dependent of the debtor.
(j) The debtor's right to receive:
(1) A social security benefit, unemployment compensation or a local public assistance
benefit;
(2) A veterans' benefit;
(3) A disability, illness or unemployment benefit;
(4) Alimony, support or separate maintenance, to the extent reasonably necessary for the
support of the debtor and any dependent of the debtor;
(5) A payment under a stock bonus, pension, profit sharing, annuity or similar plan or
contract on account of illness, disability, death, age or length of service, to the extent reasonably
necessary for the support of the debtor and any dependent of the debtor, and funds on deposit in an
individual retirement account (IRA), including a simplified employee pension (SEP) regardless of
the amount of funds, unless:
(A) The plan or contract was established by or under the auspices of an insider that employed
the debtor at the time the debtor's rights under the plan or contract arose;
(B) The payment is on account of age or length of service;
(C) The plan or contract does not qualify under Section 401(a), 403(a), 403(b), 408 or 409
of the Internal Revenue Code of 1986; and
(D) With respect to an individual retirement account, including a simplified employee
pension, the amount is subject to the excise tax on excess contributions under Section 4973 and/or
Section 4979 of the Internal Revenue Code of 1986, or any successor provisions, regardless of
whether the tax is paid.
(k) The debtor's right to receive or property that is traceable to:
(1) An award under a crime victim's reparation law;
(2) A payment on account of the wrongful death of an individual of whom the debtor was
a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of
the debtor;
(3) A payment under a life insurance contract that insured the life of an individual of whom
the debtor was a dependent on the date of the individual's death, to the extent reasonably necessary
for the support of the debtor and any dependent of the debtor;
(4) A payment, not to exceed fifteen thousand dollars on account of personal bodily injury,
not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an
individual of whom the debtor is a dependent;
(5) A payment in compensation of loss of future earnings of the debtor or an individual of
whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the
debtor and any dependent of the debtor;
(6) Payments made to the prepaid tuition trust fund or to the savings plan trust fund,
including earnings, in accordance with article thirty, chapter eighteen of this code on behalf of any
beneficiary.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-1. Legislative findings and declaration of purpose.
The Legislature hereby finds and declares that the citizens of this state are entitled to the best
medical care and facilities available and that health care providers offer an essential and basic
service which requires that the public policy of this state encourage and facilitate the provision of
such service to our citizens;
That as in every human endeavor the possibility of injury or death from negligent conduct
commands that protection of the public served by health care providers be recognized as an
important state interest;
That our system of litigation is an essential component of this state's interest in providing
adequate and reasonable compensation to those persons who suffer from injury or death as a result
of professional negligence, and any limitation placed on this system must be balanced with and
considerate of the need to fairly compensate patients who have been injured as a result of negligent
and incompetent acts by health care providers;
That liability insurance is a key part of our system of litigation, affording compensation to
the injured while fulfilling the need and fairness of spreading the cost of the risks of injury;
That a further important component of these protections is the capacity and willingness of
health care providers to monitor and effectively control their professional competency, so as to
protect the public and insure to the extent possible the highest quality of care;
That it is the duty and responsibility of the Legislature to balance the rights of our individual
citizens to adequate and reasonable compensation with the broad public interest in the provision of
services by qualified health care providers and health care facilities who can themselves obtain the
protection of reasonably priced and extensive liability coverage;
That in recent years, the cost of insurance coverage has risen dramatically while the nature
and extent of coverage has diminished, leaving the health care providers, the health care facilities,
and the injured without the full benefit of professional liability insurance coverage;
That many of the factors and reasons contributing to the increased cost and diminished
availability of professional liability insurance arise from the historic inability of this state to effectively and fairly regulate the insurance industry so as to guarantee our citizens that rates are
appropriate, that purchasers of insurance coverage are not treated arbitrarily, and that rates reflect
the competency and experience of the insured health care providers and health care facilities;
That the unpredictable nature of traumatic injury health care services often result in a greater
likelihood of unsatisfactory patient outcomes, a higher degree of patient and patient family
dissatisfaction and frequent malpractice claims, creating a financial strain on the trauma care system
of our state, increasing costs for all users of the trauma care system and impacting the availability
of these services, requires appropriate and balanced limitations on the rights of persons asserting
claims against trauma care health care providers, this balance must guarantee availability of trauma
care services while mandating that these services meet all national standards of care, to assure that
our health care resources are being directed towards providing the best trauma care available; and
That the cost of liability insurance coverage has continued to rise dramatically, resulting in
the state's loss and threatened loss of physicians, which, together with other costs and taxation
incurred by health care providers in this state, have created a competitive disadvantage in attracting
and retaining qualified physicians and other health care providers.
The Legislature further finds that medical liability issues have reached critical proportions
for the state's long-term health care facilities, as: (1) Medical liability insurance premiums for
nursing homes in West Virginia continue to increase and the number of claims per bed has increased
significantly; (2) the cost to the state medicaid program as a result of such higher premiums has
grown considerably in this period; (3) current medical liability premium costs for some nursing
homes constitute a significant percentage of the amount of coverage; (4) these high costs are leading
some facilities to consider dropping medical liability insurance coverage altogether; and (5) the
medical liability insurance crisis for nursing homes may soon result in a reduction of the number
of beds available to citizens in need of long-term care.
Therefore, the purpose of this enactment article is to provide for a comprehensive resolution
of the matters and factors which the Legislature finds must be addressed to accomplish the goals set forth above in this section. In so doing, the Legislature has determined that reforms in the common
law and statutory rights of our citizens must be enacted together as necessary and mutual ingredients
of the appropriate legislative response relating to:
(1) Compensation for injury and death, in;
(2) The regulation of rate making and other practices by the liability insurance industry,
including the formation of a physicians' mutual insurance company and establishment of a fund to
assure adequate compensation to victims of malpractice; and in
(3) The authority of medical licensing boards to effectively regulate and discipline the health
care providers under such board must be enacted together as necessary and mutual ingredients of
the appropriate legislative response.
§55-7B-2. Definitions.
(a) "Board" means the state board of risk and insurance management.
(b) "Collateral source" means a source of benefits or advantages for economic loss that the
claimant has received from:
(1) Any federal or state act, public program or insurance which provides payments for
medical expenses, disability benefits, including workers' compensation benefits, or other similar
benefits. Benefits payable under the Social Security Act are not considered payments from
collateral sources except for Social Security disability benefits directly attributable to the medical
injury in question;
(2) Any contract or agreement of any group, organization, partnership or corporation to
provide, pay for or reimburse the cost of medical, hospital, dental, nursing, rehabilitation, therapy
or other health care services or provide similar benefits;
(3) Any group accident, sickness or income disability insurance, any casualty or property
insurance (including automobile and homeowners' insurance) which provides medical benefits,
income replacement or disability coverage, or any other similar insurance benefits, except life insurance, to the extent that someone other than the insured, including the insured's employer, has
paid all or part of the premium or made an economic contribution on behalf of the plaintiff; or
(4) Any contractual or voluntary wage continuation plan provided by an employer or
otherwise, or any other system intended to provide wages during a period of disability.
(c) "Consumer price index" means the most recent consumer price index for all consumers
published by the United States department of labor.
(d) "Emergency condition" means any acute traumatic injury or acute medical condition
which, according to standardized criteria for triage, involves a significant risk of death or the
precipitation of significant complications or disabilities, impairment of bodily functions, or, with
respect to a pregnant woman, a significant risk to the health of the unborn child.
(a) (e) "Health care" means any act or treatment performed or furnished, or which should
have been performed or furnished, by any health care provider for, to or on behalf of a patient during
the patient's medical care, treatment or confinement.
(b) (f) "Health care facility" means any clinic, hospital, nursing home, or extending care
facility assisted living facility, including personal care home, residential care community and
residential board and care home, or behavioral health care facility or comprehensive community
mental health/mental retardation center, in and licensed by the state of West Virginia and any state
operated institution or clinic providing health care.
(c) (g) "Health care provider" means a person, partnership, corporation, professional limited
liability company, health care facility or institution licensed by, or certified in, this state or another
state, to provide health care or professional health care services, including, but not limited to, a
physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist,
podiatrist, chiropractor, physical therapist or, psychologist, emergency medical services authority
or agency, or an officer, employee or agent thereof acting in the course and scope of such officer's,
employee's or agent's employment.
(h) "Medical injury" means injury or death to a patient arising or resulting from the rendering
of or failure to render health care.
(d) (i) "Medical professional liability" means any liability for damages resulting from the
death or injury of a person for any tort or breach of contract based on health care services rendered,
or which should have been rendered, by a health care provider or health care facility to a patient.
(j) "Medical professional liability insurance" means a contract of insurance or any actuarially
sound self-funding program that pays for the legal liability of a health care facility or health care
provider arising from a claim of medical professional liability.
(k) "Noneconomic loss" means losses, including, but not limited to, pain, suffering, mental
anguish and grief.
(e)(l) "Patient" means a natural person who receives or should have received health care
from a licensed health care provider under a contract, expressed or implied.
(m) "Plaintiff" means a patient or representative of a patient who brings an action for
medical professional liability under this article.
(f) (n) "Representative" means the spouse, parent, guardian, trustee, attorney or other legal
agent of another.
(g) "Noneconomic loss" means losses, including, but not limited to, pain, suffering, mental
anguish and grief.
§55-7B-3. Elements of proof.
(a) The following are necessary elements of proof that an injury or death resulted from the
failure of a health care provider to follow the accepted standard of care:
(a) (1) The health care provider failed to exercise that degree of care, skill and learning
required or expected of a reasonable, prudent health care provider in the profession or class to which
the health care provider belongs acting in the same or similar circumstances; and
(b) (2) Such failure was a proximate cause of the injury or death.
(b) If the plaintiff proceeds on the "loss of chance" theory, i.e., that the health care provider's
failure to follow the accepted standard of care deprived the patient of a chance of recovery or
increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate
injury to the patient, the plaintiff must also prove, to a reasonable degree of medical probability, that
following the accepted standard of care would have resulted in a greater than twenty-five percent
chance that the patient would have had an improved recovery or would have survived.
§55-7B-6. Prerequisites for filing an action against a health care provider; procedures;
sanctions
.
(a) Notwithstanding any other provision of this code, no person may file a medical
professional liability action against any health care provider without complying with the provisions
of this section.
(b) At least thirty days prior to the filing of a medical professional liability action against a
health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of
claim on each health care provider the claimant will join in litigation. The notice of claim shall
include a statement of the theory or theories of liability upon which a cause of action may be based,
and a list of all health care providers and health care facilities to whom notices of claim are being
sent, together with a screening certificate of merit. The screening certificate of merit shall be
executed under oath by a health care provider qualified as an expert under the West Virginia rules
of evidence and shall state with particularity: (1) The expert's familiarity with the applicable
standard of care in issue; (2) the expert's qualifications; (3) the expert's opinion as to how the
applicable standard of care was breached; and (4) the expert's opinion as to how the breach of the
applicable standard of care resulted in injury or death. A separate screening certificate of merit must
be provided for each health care provider against whom a claim is asserted. The person signing the
screening certificate of merit shall have no financial interest in the underlying claim, but may
participate as an expert witness in any judicial proceeding. Nothing in this subsection may be
construed to limit the application of rule fifteen 15 of the rules of civil procedure.
(c) Notwithstanding any provision of this code, if a claimant or if represented by counsel,
the claimant's his or her counsel, believes that no screening certificate of merit is necessary because
the cause of action is based upon a well-established legal theory of liability which does not require
expert testimony supporting a breach of the applicable standard of care, the claimant or if
represented by counsel, the claimant's his or her counsel, shall file a statement specifically setting
forth the basis of the alleged liability of the health care provider in lieu of a screening certificate of
merit.
(d) If a claimant or his or her counsel has insufficient time to obtain a screening certificate
of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with
the provisions of subsection (b) of this section except that the claimant or his or her counsel shall
furnish the health care provider with a statement of intent to provide a screening certificate of merit
within sixty days of the date the health care provider receives the notice of claim.
(e) Any health care provider who receives a notice of claim pursuant to the provisions of this
section must may respond, in writing, to the claimant or his or her counsel within thirty days of
receipt of the claim or within thirty days of receipt of the screening certificate of merit if the
claimant is proceeding pursuant to the provisions of subsection (d) of this section. The response
may state that the health care provider has a bona fide defense and the name of the health care
provider's counsel, if any.
(f) Upon receipt of the notice of claim or of the screening certificate of merit, if the claimant
is proceeding pursuant to the provisions of subsection (d) of this section, the health care provider
is entitled to pre-litigation mediation before a qualified mediator upon written demand to the
claimant.
(g) If the health care provider demands mediation pursuant to the provisions of subsection
(f) of this section, the mediation shall be concluded within forty-five days of the date of the written
demand. The mediation shall otherwise be conducted pursuant to rule 25 of the trial court rules,
unless portions of the rule are clearly not applicable to a mediation conducted prior to the filing of a complaint or unless the supreme court of appeals promulgates rules governing mediation prior to
the filing of a complaint. If mediation is conducted, the claimant may depose the health care
provider before mediation or take the testimony of the health care provider during the mediation.
(h) The failure of a health care provider to timely respond to a notice of claim, in the absence
of good cause shown, constitutes a waiver of the right to request pre-litigation mediation. Except
as otherwise provided in this subsection, any statute of limitations applicable to a cause of action
against a health care provider upon whom notice was served for alleged medical professional
liability shall be tolled from the date of the mailing service of a notice of claim to thirty days
following receipt of a response to the notice of claim, thirty days from the date a response to the
notice of claim would be due, or thirty days from the receipt by the claimant of written notice from
the mediator that the mediation has not resulted in a settlement of the alleged claim and that
mediation is concluded, whichever last occurs. If a claimant has sent a notice of claim relating to
any injury or death to more than one health care provider, any one of whom has demanded
mediation, then the statute of limitations shall be tolled with respect to, and only with respect to,
those health care providers to whom the claimant sent a notice of claim to thirty days from the
receipt of the claimant of written notice from the mediator that the mediation has not resulted in a
settlement of the alleged claim and that mediation is concluded.
(i) Notwithstanding any other provision of this code, a notice of claim, a health care
provider's response to any notice claim, a screening certificate of merit and the results of any
mediation conducted pursuant to the provisions of this section are confidential and are not
admissible as evidence in any court proceeding unless the court, upon hearing, determines that
failure to disclose the contents would cause a miscarriage of justice.
§55-7B-7. Testimony of expert witness on standard of care.
(a) The applicable standard of care and a defendant's failure to meet said the standard of
care, if at issue, shall be established in medical professional liability cases by the plaintiff by
testimony of one or more knowledgeable, competent expert witnesses if required by the court. Such expert Expert testimony may only be admitted in evidence if the foundation, therefor, is first laid
establishing that: (a) (1) The opinion is actually held by the expert witness; (b) (2) the opinion can
be testified to with reasonable medical probability; (c) (3) such the expert witness possesses
professional knowledge and expertise coupled with knowledge of the applicable standard of care
to which his or her expert opinion testimony is addressed; (d) (4) such the expert witness maintains
a current license to practice medicine in one of the states with the appropriate licensing authority
of any state of the United States: Provided, That the expert witness' license has not been revoked
or suspended in the past year in any state; and (e) (5) such the expert witness is engaged or qualified
in the same or substantially similar a medical field as the defendant health care provider in which
the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar
to those of the patient. If the witness meets all of these qualifications and devoted, at the time of the
medical injury, sixty percent of his or her professional time annually to the active clinical practice
in his or her medical field or specialty, or to teaching in his or her medical field or speciality in an
accredited university, there shall be a rebuttable presumption that the witness is qualified as an
expert. The parties shall have the opportunity to impeach any witness' qualifications as an expert.
Financial records of an expert witness are not discoverable or relevant to prove the amount of time
the expert witness spends in active practice or teaching in his or her medical field unless good cause
can be shown to the court.
(b) Nothing contained in this section may be construed to limit a trial court's discretion to
determine the competency or lack of competency of a witness on a ground not specifically
enumerated in this section.
§55-7B-8. Limit on liability for noneconomic loss.
(a) In any medical professional liability action brought against a health care provider
pursuant to this article, the maximum amount recoverable as compensatory damages for
noneconomic loss shall not exceed one million two hundred fifty thousand dollars and the jury may
be so instructed per occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, except as provided in
subsection (b) of this section.
(b) The plaintiff may recover compensatory damages for noneconomic loss in excess of the
limitation described in subsection (a) of this section, but not in excess of five hundred thousand
dollars for each occurrence, regardless of the number of plaintiffs or the number of defendants or,
in the case of wrongful death, regardless of the number of distributees, where the damages for
noneconomic losses suffered by the plaintiff were for: (1) Wrongful death; (2) permanent and
substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3)
permanent physical or mental functional injury that permanently prevents the injured person from
being able to independently care for himself or herself and perform life sustaining activities.
(c) On the first of January, two thousand four, and in each year thereafter, the limitation for
compensatory damages contained in subsections (a) and (b) of this section shall increase to account
for inflation by an amount equal to the consumer price index published by the United States
department of labor, up to fifty percent of the amounts specified in subsections (b) and (c) as a
limitation of compensatory noneconomic damages.
(d) The limitations on noneconomic damages contained in subsections (a), (b), (c) and (e)
of this section are not available to any defendant in an action pursuant to this article which does not
have medical professional liability insurance in the amount of at least one million dollars per
occurrence covering the medical injury which is the subject of the action.
(e) If subsection (a) or (b) of this section, as enacted during the regular session of the
Legislature, two thousand three, or the application thereof to any person or circumstance, is found
by a court of law to be unconstitutional or otherwise invalid, the maximum amount recoverable as
damages for noneconomic loss in a professional liability action brought against a health care
provider under this article shall thereafter not exceed one million dollars.
§55-7B-9. Several liability.
(a) In the trial of a medical professional liability action against a health care provider under
this article involving multiple defendants, the jury trier of fact shall be required to report its findings
to the court on a form provided by the court which contains each of the possible verdicts as
determined by the court. Unless otherwise agreed by all the parties to the action, the jury shall be
instructed to answer special interrogatories, or the court, acting without a jury, shall make findings
as to:
(1) The total amount of compensatory damages recoverable by the plaintiff;
(2) The portion of the damages that represents damages for noneconomic loss;
(3) The portion of the damages that represents damages for each category of economic loss;
(4) The percentage of fault, if any, attributable to each plaintiff; and
(5) The percentage of fault, if any, attributable to each of the defendants.
(b) In every medical professional liability action In assessing percentages of fault, the trier
of fact shall consider only the fault of the parties in the litigation at the time the verdict is rendered
and shall not consider the fault of any other person who has settled a claim with the plaintiff arising
out of the same medical injury. Provided, That, upon the creation of the patient injury compensation
fund provided for in article twelve-c, chapter twenty-nine of this code, or of some other mechanism
for compensating a plaintiff for any amount of economic damages awarded by the trier of fact which
the plaintiff has been unable to collect, the trier of fact shall, in assessing percentages of fault,
consider the fault of all alleged parties, including the fault of any person who has settled a claim
with the plaintiff arising out of the same medical injury.
(c) If the trier of fact renders a verdict for the plaintiff, the court shall make findings as to
the total dollar amount awarded as damages to each plaintiff. The court shall enter judgment of joint
and several liability against every defendant which bears twenty-five percent or more of the
negligence attributable to all defendants. The court shall enter judgment of several, but not joint,
liability against and among all defendants which bear less than twenty-five percent of the negligence attributable to all defendants each defendant in accordance with the percentage of fault attributed
to the defendant by the trier of fact.
(c) Each defendant against whom a judgment of joint and several liability is entered in a
medical professional liability action pursuant to subsection (b) of this section is liable to each
plaintiff for all or any part of the total dollar amount awarded regardless of the percentage of
negligence attributable to him. A right of contribution exists in favor of each defendant who has
paid to a plaintiff more than the percentage of the total dollar amount awarded attributable to him
relative to the percentage of negligence attributable to him. The total amount of recovery for
contribution is limited to the amount paid by the defendant to a plaintiff in excess of the percentage
of the total dollar amount awarded attributable to him relative to the percentage of negligence
attributable to him. No right of contribution exists against any defendant who entered into a good
faith settlement with the plaintiff prior to the jury's report of its findings to the court or the court's
findings as to the total dollar amount awarded as damages.
(d) Where a right of contribution exists in a medical professional liability action pursuant
to subsection (c) of this section, the findings of the court or jury as to the percentage of negligence
and liability of the several defendants to the plaintiff shall be binding among such defendants as
determining their rights of contribution.
(d) To determine the amount of judgment to be entered against each defendant, the court
shall first, after adjusting the verdict as provided in section nine-a of this article, reduce the adjusted
verdict by the amount of any pre-verdict settlement arising out of the same medical injury. The
court shall then, with regard to each defendant, multiply the total amount of damages remaining,
with interest, by the percentage of fault attributed to each defendant by the trier of fact. The
resulting amount of damages, together with any post-judgment interest accrued, shall be the
maximum recoverable against the defendant.
(e) Upon the creation of the patient injury compensation fund provided for in article twelve-
c, chapter twenty-nine of this code, or of some other mechanism for compensating a plaintiff for any amount of economic damages awarded by the trier of fact which the plaintiff has been unable to
collect, the court shall, in determining the amount of judgment to be entered against each defendant,
first multiply the total amount of damages, with interest, recoverable by the plaintiff by the
percentage of each defendant's fault and that amount, together with any post-judgment interest
accrued, is the maximum recoverable against said defendant. Prior to the court's entry of the final
judgment order as to each defendant against whom a verdict was rendered, the court shall reduce
the total jury verdict by any amounts received by a plaintiff in settlement of the action. When any
defendant's percentage of the verdict exceeds the remaining amounts due plaintiff after the
mandatory reductions, each defendant shall be liable only for the defendant's pro rata share of the
remainder of the verdict as calculated by the court from the remaining defendants to the action. The
plaintiff's total award may never exceed the jury's verdict less any statutory or court-ordered
reductions.
(f) Nothing in this section is meant to eliminate or diminish any defenses or immunities
which exist as of the effective date of this section, except as expressly noted in this section.
(g) Nothing in this article is meant to preclude a health care provider from being held
responsible for the portion of fault attributed by the trier of fact to any person acting as the health
care provider's agent or servant or to preclude imposition of fault otherwise imputable or
attributable to the health care provider under claims of vicarious liability. A health care provider
may not be held vicariously liable for the acts of a nonemployee pursuant to a theory of ostensible
agency unless the alleged agent does not maintain professional liability insurance covering the
medical injury which is the subject of the action in the aggregate amount of at least one million
dollars.
§55-7B-9a. Reduction in compensatory damages for economic losses for payments from
collateral sources the same injury.
(a) In any action arising after the effective date of this section, a defendant who has been
found liable to the plaintiff for damages for medical care, rehabilitation services, lost earnings or other economic losses may present to the court, after the trier of fact has rendered a verdict, but
before entry of judgment, evidence of payments the plaintiff has received for the same injury from
collateral sources.
(b) In any hearing pursuant to subsection (a) of this section, the defendant may present
evidence of future payments from collateral sources if the court determines that: (1) There is a
preexisting contractual or statutory obligation on the collateral source to pay the benefits; (2) the
benefits, to a reasonable degree of certainty, will be paid to the plaintiff for expenses the trier of fact
has determined the plaintiff will incur in the future; and (3) the amount of the future expenses is
readily reducible to a sum certain.
(c) In the hearing pursuant to subsection (a) of this section, the plaintiff may present evidence
of the value of payments or contributions he or she has made to secure the right to the benefits paid
by the collateral source.
(d) After hearing the evidence presented by the parties, the court shall make the following
findings of fact:
(1) The total amount of damages for economic loss found by the trier of fact;
(2) The total amount of damages for each category of economic loss found by the trier of
fact;
(3) The total amount of allowable collateral source payments received or to be received by
the plaintiff for the medical injury which was the subject of the verdict in each category of economic
loss; and
(4) The total amount of any premiums or contributions paid by the plaintiff in exchange for
the collateral source payments in each category of economic loss found by the trier of fact.
(e) The court shall subtract the total premiums the plaintiff was found to have paid in each
category of economic loss from the total collateral source benefits the plaintiff received with regard
to that category of economic loss to arrive at the net amount of collateral source payments.
(f) The court shall then subtract the net amount of collateral source payments received or to
be received by the plaintiff in each category of economic loss from the total amount of damages
awarded the plaintiff by the trier of fact for that category of economic loss to arrive at the adjusted
verdict.
(g) The court shall not reduce the verdict rendered by the trier of fact in any category of
economic loss to reflect:
(1) Amounts paid to or on behalf of the plaintiff which the collateral source has a right to
recover from the plaintiff through subrogation, lien or reimbursement;
(2) Amounts in excess of benefits actually paid or to be paid on behalf of the plaintiff by a
collateral source in a category of economic loss;
(3) The proceeds of any individual disability or income replacement insurance paid for
entirely by the plaintiff;
(4) The assets of the plaintiff or the members of the plaintiff's immediate family; or
(5) A settlement between the plaintiff and another tortfeasor.
(h) After determining the amount of the adjusted verdict, the court shall enter judgment in
accordance with the provisions of section nine.
§55-7B-9b. Limitations on third-party claims.
An action may not be maintained against a health care provider pursuant to this article by
or on behalf of a third-party nonpatient for rendering or failing to render health care services to a
patient whose subsequent act is a proximate cause of injury or death to the third party unless the
health care provider rendered or failed to render health care services in willful and wanton or
reckless disregard of a foreseeable risk of harm to third persons. Nothing in this section shall be
construed to prevent the personal representative of a deceased patient from maintaining a wrongful
death action on behalf of such patient pursuant to article seven of this chapter or to prevent a
derivative claim for loss of consortium arising from injury or death to the patient arising from the
negligence of a health care provider within the meaning of this article.
55-7B-9c. Limit on liability for treatment of emergency conditions for which patient is
admitted to a designated trauma center
; exceptions; emergency rules.
(a) In any action brought under this article for injury to or death of a patient as a result of
health care services or assistance rendered in good faith and necessitated by an emergency condition
for which the patient enters a health care facility designated by the office of emergency medical
services as a trauma center, including health care services or assistance rendered in good faith by
a licensed EMS agency or an employee of an licensed EMS agency, the total amount of civil
damages recoverable shall not exceed five hundred thousand dollars, exclusive of interest computed
from the date of judgment.
(b) The limitation of liability in subsection (a) of this section also applies to any act or
omission of a health care provider in rendering continued care or assistance in the event that surgery
is required as a result of the emergency condition within a reasonable time after the patient's
condition is stabilized.
(c) The limitation on liability provided under subsection (a) of this section does not apply
to any act or omission in rendering care or assistance which: (1) Occurs after the patient's condition
is stabilized and the patient is capable of receiving medical treatment as a nonemergency patient;
or (2) is unrelated to the original emergency condition.
(d) In the event that: (1) A physician provides follow-up care to a patient to whom the
physician rendered care or assistance pursuant to subsection (a) of this section; and (2) a medical
condition arises during the course of the follow-up care that is directly related to the original
emergency condition for which care or assistance was rendered pursuant to said subsection, there
is rebuttable presumption that the medical condition was the result of the original emergency
condition and that the limitation on liability provided by said subsection applies with respect to that
medical condition.
(e) There is a rebuttable presumption that a medical condition which arises in the course of
follow-up care provided by the designated trauma center health care provider who rendered good faith care or assistance for the original emergency condition is directly related to the original
emergency condition where the follow-up care is provided within a reasonable time after the
patient's admission to the designated trauma center.
(f) The limitation on liability provided under subsection (a) of this section does not apply
where health care or assistance for the emergency condition is rendered:
(1) In willful and wanton or reckless disregard of a risk of harm to the patient; or
(2) In clear violation of established written protocols for triage and emergency health care
procedures developed by the office of emergency medical services in accordance with subsection
(e) of this section. In the event that the office of emergency medical services has not developed a
written triage or emergency medical protocol by the effective date of this section, the limitation on
liability provided under subsection (a) of this section does not apply where health care or assistance
is rendered under this section in violation of nationally recognized standards for triage and
emergency health care procedures.
(g) The office of emergency medical services shall, prior to the effective date of this section,
develop a written protocol specifying recognized and accepted standards for triage and emergency
health care procedures for treatment of emergency conditions necessitating admission of the patient
to a designated trauma center.
(h) In its discretion, the office of emergency medical services may grant provisional trauma
center status for a period of up to one year to a health care facility applying for designated trauma
center status. A facility given provisional trauma center status is eligible for the limitation on
liability provided in subsection (a) of this section. If, at the end of the provisional period, the facility
has not been approved by the office of emergency medical services as a designated trauma center,
the facility will no longer be eligible for the limitation on liability provided in subsection (a) of this
section.
(i) The commissioner of the bureau for public health may grant an applicant for designated
trauma center status a one-time only extension of provisional trauma center status, upon submission by the facility of a written request for extension, accompanied by a detailed explanation and plan
of action to fulfill the requirements for a designated trauma center. If, at the end of the six-month
period, the facility has not been approved by the office of emergency medical services as a
designated trauma center, the facility will no longer have the protection of the limitation on liability
provided in subsection (a) of this section.
(j) If the office of emergency medical services determines that a health care facility no longer
meets the requirements for a designated trauma center, it shall revoke the designation, at which time
the limitation on liability established by subsection (a) of this section shall cease to apply to that
health care facility for services or treatment rendered thereafter.
(k) The Legislature hereby finds that an emergency exists compelling promulgation of an
emergency rule, consistent with the provisions of this section, governing the criteria for designation
of a facility as a trauma center or provisional trauma center and implementation of a statewide
trauma/emergency care system. The Legislature therefore directs the secretary of the department
of health and human resources to file, on or before the first day of July, two thousand three,
emergency rules specifying the criteria for designation of a facility as a trauma center or provisional
trauma center in accordance with nationally accepted and recognized standards and governing the
implementation of a statewide trauma/emergency care system. The rules governing the statewide
trauma/emergency care system shall include, but not be limited to:
(1) System design, organizational structure and operation, including integration with the
existing emergency medical services system;
(2) Regulation of facility designation, categorization and credentialing, including the
establishment and collection of reasonable fees for designation; and
(3) System accountability, including medical review and audit to assure system quality. Any
medical review committees established to assure system quality shall include all levels of care,
including emergency medical service providers, and both the review committees and the providers shall qualify for all the rights and protections established in article three-c, chapter thirty of this
code.
§55-7B-10. Effective date; applicability of provisions.
(a) The provisions of House Bill 149, enacted during the first extraordinary session of the
Legislature, 1986, shall be effective at the same time that the provisions of Enrolled Senate Bill 714,
enacted during the Regular session, 1986, become effective, and the provisions of said House Bill
149 shall be deemed to amend the provisions of Enrolled Senate Bill 714. The provisions of this
article shall not apply to injuries which occur before the effective date of this said Enrolled Senate
Bill 714.
(b) The amendments to this article as provided in House Bill 601, enacted during the sixth
extraordinary session of the Legislature, two thousand one, apply to all causes of action alleging
medical professional liability which are filed on or after the first day of March, two thousand two.
(b) The amendments to this article provided in Enrolled Committee Substitute for House Bill
No. 2122 during the regular session of the Legislature, two thousand three, apply to all causes of
action alleging medical professional liability which are filed on or after the first day of July, two
thousand three.
And,
That both house recede from their respective positions as to the amendment of the Senate
to the title of the bill and agree to the same as follows:
Com. Sub. for H. B. 2122 - "A Bill to amend and reenact section two, article eleven-a,
chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to
amend chapter eleven of said code by adding thereto a new article, designated article thirteen-t; to
amend section five, article twelve, chapter twenty-nine of said code; to amend and reenact sections
six and fourteen, article twelve-b of said chapter; to further amend said chapter by adding thereto
a new article, designated article twelve-c; to amend and reenact section fourteen, article three,
chapter thirty of said code; to amend and reenact section twelve-a, article fourteen of said chapter; to amend article two, chapter thirty-three of said code by adding thereto a new section, designated
section nine-a; to amend and reenact sections fourteen, fourteen-a, fourteen-d and thirty-three of
article three of said chapter; to amend and reenact section fifteen-a, article four of said chapter; to
amend and reenact sections two and three, article twenty-b of said chapter; to further amend said
article by adding thereto a new section, designated section three-a; to amend and reenact sections
two through eleven, inclusive, article twenty-f of said chapter; to further amend said article by
adding thereto a new section, designated section one-a; to amend and reenact section twenty-four,
article twenty-five-a of said chapter; to amend and reenact section twenty-six, article twenty-five-d
of said chapter; to amend and reenact section four, article ten, chapter thirty-eight of said code; to
amend and reenact sections one, two, three, six, seven, eight, nine and ten, article seven-b, chapter
fifty-five of said code; and to further amend said article by adding thereto three new sections,
designated sections nine-a, nine-b and nine-c, all relating to medical professional liability generally;
transferring funds from board of risk and insurance management and from tobacco settlement
medical trust fund; providing a personal income tax credit for physicians based upon payment of
certain medical malpractice liability insurance premiums paid; setting forth legislative findings and
purpose; defining terms; creating tax credit and providing eligibility; establishing amount and time
period for credit; allowing unused credit to carry forward; providing for the application of the credit;
providing for the computation and application of credit; authorizing tax commissioner to promulgate
legislative rules relating to the credit; establishing burden of proof relating to claiming the credit;
allowing the board and risk and insurance management to include critical access hospitals as
charitable or public service organizations eligible for receiving insurance coverage; authorizing the
board of risk and insurance management to issue certain coverage to non-transferred health care
providers; terminating authority of board of risk and insurance management to issue certain medical
professional liability insurance upon transfer of assets to the physicians' mutual insurance company;
creating board to study the feasibility of and propose a mechanism for funding the patient injury
compensation fund; establishing term, authority and directives of the board; granting certain duties and conditionally authorizing the board of risk and insurance management to promulgate legislative
and emergency rules; requiring the board of medicine and the board of osteopathy to take certain
disciplinary actions against physicians and surgeons in certain circumstances; providing for a limited
diversion of premium taxes on certain insurance policies; providing a one time assessment on all
insurance carriers; prohibiting predatory rates and reduced rates designed to gain market share;
requiring additional reporting requirements for insurance carriers providing medical malpractice
coverage; providing for the creation of a physicians' mutual insurance company and the concomitant
novation of certain board of risk and insurance management medical professional liability insurance
programs; setting forth additional legislative findings and purpose; providing terms and conditions
for transfer of specified assets and moneys to the physicians' mutual; defining terms; prohibiting
company from taking certain actions; requiring premium taxes to be applied toward restoring West
Virginia tobacco medical trust fund; returning premium taxes to originally allocated sources after
moneys have been restored to the tobacco settlement medical trust fund; waiver of taxes under
certain circumstances; providing for governance and organization of the company; specifying
composition of company's board of directors; creating a special account to receive funds transferred
from the tobacco settlement medical trust fund; imposing a one time assessment on certain licensed
physicians for the privilege of practicing in West Virginia; exempting certain physicians from
assessment; requiring competitive bidding in certain circumstances; exempting company from
certain requirements imposed on other mutual insurance companies by the insurance commission;
providing for additional reporting requirements and actuarial studies for the company; authorizing
transfer of funds from special account and of certain assets, obligations and liabilities of the board
of risk and insurance management to the company on a certain date and establishing other terms and
conditions associated with he transfer; increasing exemption available to certain physician and
surgeon debtors in bankruptcy proceedings; providing additional legislative findings and purposes
relating to medical professional liability; defining terms; adding an element of proof in certain
malpractice claims; altering notice requirements for malpractice claims; modifying the qualifications for experts who testify in medical professional liability actions; limiting liability for certain
noneconomic losses; providing a reversion provision; establishing conditional limitations on
settlement amounts conditional on creation of patient compensation fund; providing for limited
severability; eliminating joint, but not several, liability among multiple defendants in medical
professional liability actions; prohibiting consideration of certain third parties in malpractice cases;
eliminating a cause of action based on ostensible agency in certain circumstances; allowing for
reduction in damage awards for certain collateral source payments to plaintiffs; providing
mechanism for determining collateral source payments and damages distribution; providing for
calculation methodology for determining award payments; altering collection of economic damages
upon implementation of patient compensation fund; barring actions against health care providers
for certain third party claims; limiting civil liability for designated trauma center care; directing the
office of emergency medical services to designate hospitals as trauma centers and provisional
trauma centers; placing limitations on eligibility for trauma care caps; requiring the office of
emergency medical services to develop a written protocol containing recognized and accepted
standards for triage and emergency health procedures; authorizing the secretary of the department
of health and human resources to promulgate legislative and emergency rules; and establishing
effective date, applicable to all causes of action alleging medical professional liability."
Respectfully submitted,
Jon AmoresJeffery V. Kessler
Kevin J. CraigWalt Helmick
Virginia MahanJoseph M. Minard
K. Steven KominarRobert H. Plymale
Tim ArmsteadSarah M. Minear
Conferees on the partConferees on the part
of the House of Delegates. of the Senate
.
On motion of Delegate Amores, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 355), and there were--yeas
91, nays 4, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Butcher, Hrutkay, Spencer and Thompson, R.
Absent And Not Voting: Coleman, Frich, Hartman, Thompson, R.M. and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 2122) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 356), and there were--yeas 90, nays
4, absent and not voting 6, with the nays and absent and not voting being as follows:
Nays: Butcher, Perdue, Spencer and Thompson, R.
Absent And Not Voting: Coleman, Frederick, Frich, Hartman, R. M. Thompson and
Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2122) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Miscellaneous Business
Delegate Foster asked and obtained unanimous consent that the remarks of Delegate Amores
concerning his explanation of the Conference Committee Report on Com. Sub. for H. B. 2122 be
printed in the Appendix to the Journal.
Delegates Hartman and R. M. Thompson announced that they were absent when the votes
were taken on Roll Nos. 355 and 356, and that had they been present, they would have voted "Yea"
thereon.
Delegate Spencer submitted a written vote explanation to the Clerk on both the Conference
Committee Report and the passage of Com. Sub. for H. B. 2122, which was as follows:
Delegate Spencer. I voted "No" on acceptance of the conference committee report because I feel
the compromise contained in the report does not represent the House well.
I voted for the bill on the floor, but in the Senate many compromises and changes were made. Although
I support efforts to bring down the costs of medical liability insurance and most emphatically do support efforts
to retain our physicians in our state, I cannot support the conference report as reported to the House on March
4'th, 2003.
At 1:39 p.m., on motion of Delegate Staton, the House of Delegates recessed until 5:30 p.m.,
and reconvened at that time.
* * * * * * * * * *
Evening Session
* * * * * * * * * *
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
Chairman Proudfoot, from the Committee on Political Subdivisions, submitted the following
report, which was received:
Your Committee on Political Subdivisions has had under consideration:
S. B. 186, Defining aggrieved person for purposes of board of zoning appeals,
And reports the same back, with the recommendation that it do pass, but that it first be
referred to the Committee on the Judiciary.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 186)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on the Judiciary.
Chairman Proudfoot, from the Committee on Political Subdivisions, submitted the following
report, which was received:
Your Committee on Political Subdivisions has had under consideration:
Com. Sub. for S. B. 505, Providing municipal fire chiefs retain rank in certain cases,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass, but that it first be referred to the Committee on Government Organization.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 505) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the former direction of the Speaker, referred to the Committee on
Government Organization.
Chairman Proudfoot, from the Committee on Political Subdivisions, submitted the following
report, which was received:
Your Committee on Political Subdivisions has had under consideration:
Com. Sub. for S. B. 412, Eliminating landlord liability for tenant's delinquent utility
accounts; security deposits,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass, but that it first be referred to the Committee on the Judiciary.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 412) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the former direction of the Speaker, referred to the Committee on the
Judiciary.
Chairman H. White, from the Committee on Banking and Insurance, submitted the following
report, which was received:
Your Committee on Banking and Insurance has had under consideration:
S. B. 467, Allowing insurance agencies to operate as managing general agents; other
provisions,
And,
S.B. 484, Providing for rate regulation of title insurers,
And reports the same back, by unanimous vote of the committee, with the recommendation
that they each do pass, but that they first be referred to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 467
and S. B. 484) were each taken up for immediate consideration, read a first time, ordered to second
reading and then, in accordance with the former direction of the Speaker, referred to the Committee
on Finance.
Chairman H. White, from the Committee on Banking and Insurance, submitted the following
report, which was received:
Your Committee on Banking and Insurance has had under consideration:
S. B. 485, Authorizing insurance commissioner to enter into certain agreements and
compromises,
And reports the same back, by unanimous vote of the committee, with amendment, with the
recommendation that it do pass, as amended, but that it first be referred to the Committee on the
Judiciary.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 485)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on the Judiciary.
Chairman H. White, from the Committee on Banking and Insurance, submitted the following
report, which was received:
Your Committee on Banking and Insurance has had under consideration:
S. B. 628, Requiring farmers' mutual fire insurance companies to write certain percentage
in under-served areas; penalty,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee on the Judiciary.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 628)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on the Judiciary.
Chairman H. White, from the Committee on Banking and Insurance, submitted the following
report, which was received:
Your Committee on Banking and Insurance has had under consideration:
S. B. 356, Relating to insurance company holding systems and federal Gramm-Leach-Bliley
Act,
S. B. 475, Relating to rehabilitation and liquidation of insurers,
And,
S. B. 488, Establishing minimum surplus for farmers' mutual fire insurance companies,
And reports the same back, by unanimous vote of the committee, with the recommendation
that they each do pass, but that they first be referred to the Committee on the Judiciary.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 356,
S. B. 475 and S. B. 488) were taken up for immediate consideration, read a first time, ordered to
second reading and then, in accordance with the former direction of the Speaker, each referred to
the Committee on the Judiciary.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S.B. 637, Supplementing, amending, reducing and increasing items from state road fund to
department of transportation, division of motor vehicles,
S.B. 639, Making supplementary appropriation to department of transportation, division of
motor vehicles, driver's license reinstatement fund,
S.B. 642, Making supplementary appropriation to department of health and human resources,
division of human services,
S.B. 643, Making supplementary appropriation to bureau of commerce, division of natural
resources,
S.B. 645, Making supplementary appropriation of federal funds to public service
commission, motor carrier division,
S.B. 638, Making supplementary appropriation to department of military affairs and public
safety, division of corrections, parolee supervision fees,
S.B. 640, Making supplementary appropriation of federal funds to department of military
affairs and public safety, division of veterans' affairs,
S.B. 641, Making supplementary appropriation of federal funds to department of
administration, children's health insurance agency,
And,
S.B. 644, Making supplementary appropriation of federal funds to department of military
affairs and public safety, division of corrections,
And reports the same back with the recommendation that they each do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 637,
S. B. 639, S. B. 642, S. B. 643, S. B. 645, S. B. 638, S. B. 640, S. B. 641 and S. B. 644) were each
taken up for immediate consideration, read a first time and then ordered to second reading.
Chairman Perdue, from the Committee on Health and Human Resources, submitted the
following report, which was received:
Your Committee on Health and Human Resources has had under consideration:
Com. Sub. for S. B. 580, Providing for inspections of individual water supply and
wastewater systems; certification of inspectors,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 582) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the former direction of the Speaker, referred to the Committee on
Finance.
Chairman Perdue, from the Committee on Health and Human Resources, submitted the
following report, which was received:
Your Committee on Health and Human Resources has had under consideration:
Com. Sub. for S. B. 338, Establishing medicaid buy-in program for certain individuals with
disabilities,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended, and with the recommendation that second reference
to the Committee on Finance be dispensed with.
In the absence of objection, reference of the bill (Com. Sub. for S. B. 338) to the Committee
on Finance was abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 338) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent
Calendar.
Chairman Perdue, from the Committee on Health and Human Resources, submitted the
following report, which was received:
Your Committee on Health and Human Resources has had under consideration:
Com. Sub. for S. B. 136, Exempting mandatory immunizations for religious beliefs,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, and with the recommendation that second reference to the Committee on the Judiciary be
dispensed with.
In the absence of objection, reference of the bill (Com. Sub. for S. B. 136) to the Committee
on the Judiciary was abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 136) was taken up for immediate consideration, read a first time and then ordered to second
reading.
Chairman Perdue, from the Committee on Health and Human Resources, submitted the
following report, which was received:
Your Committee on Health and Human Resources has had under consideration:
S. B. 608, Allowing continuance of summary certificate of need reviews for proposed
behavioral health services,
And,
S. B. 652, Renaming Marion health care hospital John Manchin, Sr., health care center,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that they each do pass, as amended, and with the recommendation that the second
reference to the Committee on Government Organization be dispensed with.
In the absence of objection, reference of the bills (S. B. 608 and S. B. 652) to the Committee
on Government Organization was abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 608
and S. B. 652) were each taken up for immediate consideration, read a first time, ordered to second
reading and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent
Calendar.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S. B. 352, Reenacting jobs act,
S. B. 401, Exempting veterans' organizations from consumers sales and service tax,
S. B. 437, Requiring joint committee on government and finance approve certain
acquisitions, construction and long-term agreements,
S. B. 443, Establishing economic and infrastructure projects under development office
guidelines,
S. B. 538, Allowing supplemental assessment of personal property in certain cases,
S. B. 558, Establishing County and Municipal Economic Opportunity Development District
Acts,
S. B. 566, Increasing salaries of supreme court justices, circuit court and family court judges,
S. B. 647, Establishing and maintaining self-insurance account by investment management
board,
S.B. 649, Relating to use of waste tire remediation funds,
And,
S. B. 655, Creating public utilities tax loss restoration fund,
And reports the same back, without recommendation.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 352,
S. B. 401, S. B. 437, S. B. 443, S. B. 538, S. B. 558, S. B. 566, S. B. 647, S. B. 649 and S. B. 655)
were each taken up for immediate consideration, read a first time, ordered to second reading and
then, on motion of the same gentleman, recommitted to the Committee on Finance.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S.B. 76, Increasing amount from consolidated fund as loan to economic development
authority,
And reports the same back, with amendment, with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 76)
was taken up for immediate consideration, read a first time and then ordered to second reading.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 56, Prohibiting certain insurers to require persons under contract to use
mail-order pharmacy,
And reports the same back with the recommendation that it do pass.
Chairman Campbell, from the Committee on Pensions and Retirement, submitted the
following report, which was received:
Your Committee on Pensions and Retirement has had under consideration:
S. B. 455, Authorizing retirement credit for public employment in another state,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass, and with the recommendation that second reference of the bill to the Committee on
Finance be dispensed with.
In the absence of objection, reference of the bill (S. B. 455) to the Committee on Finance was
abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 455)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Campbell, from the Committee on Pensions and Retirement, submitted the
following report, which was received:
Your Committee on Pensions and Retirement has had under consideration:
S. B. 551, Increasing employee contribution to deputy sheriff retirement fund,
And reports the same back, by unanimous vote of the Committee, with a title amendment,
with the recommendation that it do pass, as amended, and with the recommendation that second
reference to the Committee on Finance be dispensed with.
In the absence of objection, reference of the bill (S. B. 551) to the Committee on Finance was
abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 551)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Cann, from the Committee on Industry and Labor and Economic Development
and Small Business, submitted the following report, which was received:
Your Committee on Industry and Labor and Economic Development and Small Business has
had under consideration:
S. B. 605, Establishing Community Improvement Act,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass, but that it first be referred to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 605)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on Finance.
On motions for leave, bills were introduced (Originating in the Committee on Finance and
reported with the recommendation that they each do pass), which were read by their titles, as
follows:
By Delegates Stalnaker, Evans, Doyle, Michael and Browning:
H. B. 3206 - "A Bill to supplementing, amending, reducing and increasing items of the
existing appropriations from the state fund, general revenue, to the department of tax and
revenue-tax division, fund 0470, fiscal year 2003, organization 0702, and the department of
transportation-aeronautics commission, fund 0582, fiscal year 2003, organization 0807,
supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June,
two thousand three,"
By Delegates Mezzatesta, Stalnaker, Cann, Evans, Leach, Houston and R. M.
Thompson:
H. B. 3207 - "A Bill to supplementing, amending, reducing and increasing items of the
existing appropriations from the state fund, general revenue, to the department of military affairs
and public safety-division of juvenile services, fund 0570, fiscal year 2003, organization 0620 and
the department of military affairs and public safety-division of corrections-correctional units, fund 0450, fiscal year 2003, organization 0688, supplementing and amending the appropriation for
the fiscal year ending the thirtieth day of June, two thousand three,"
By Delegates Mezzatesta, Stalnaker, Cann, Evans, Leach, Houston and R. M.
Thompson:
H. B. 3208 - "A Bill supplementing, amending, reducing and increasing items of the existing
appropriations from the state fund, general revenue, to the department of military affairs and public
safety-division of corrections-correctional units, fund 0450, fiscal year 2003, organization 0608,
supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June,
two thousand three,"
By Delegates Mezzatesta, Stalnaker, Cann, Evans, Leach, Houston and Proudfoot :
H. B. 3209 - "A Bill supplementing, amending, reducing and increasing items of the existing
appropriations from the state fund, general revenue, to the department of military affairs and public
safety-West Virginia parole board, fund 0440, fiscal year 2003, organization 0605, supplementing
and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand
three,"
And,
By Delegates Mezzatesta, Cann, Stalnaker, Houston and Evans:
H. B. 3210 - "A Bill supplementing, amending, reducing and increasing items of the existing
appropriations from the state fund, general revenue, to the department of military affairs and public
safety-division of protective services, fund 0585, fiscal year 2003, organization 0622,
supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June,
two thousand three."
At the respective requests of Delegate Staton, and by unanimous consent, the bills (H. B.
3206, H. B. 3207, H. B. 3208, H. B. 3209 and H. B. 3210) were each taken up for immediate
consideration, read a first time and then ordered to second reading.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S. B. 531, Exempting certain lodging franchise assessed fees from consumers sales and
service tax,
S. B. 626, Revising works act,
And,
S. B. 651, Creating academy of science and technology,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that they each do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 531,
S. B. 626 and S. B. 651) were each taken up for immediate consideration, read a first time, ordered
to second reading and then, in accordance with the provisions of House Rule 70a, were ordered to
the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 52, Eliminating certain bond on out-of-state defendants in automobile accident cases,
S. B. 95, Increasing length and width for certain vehicles,
Com. Sub. for S. B. 162, Expunging certain motor vehicle license information for
nineteen-year-olds,
Com. Sub. for S. B. 178, Relating to subject matter jurisdiction in family courts,
S. B. 341, Creating Uniform Interstate Enforcement of Domestic Violence Protection Orders
Act,
Com. Sub. for S. B. 372, Allowing state police to engage in political activities in certain
cases,
Com. Sub. for S. B. 395, Granting temporary grandparent visitation during divorce action;
technical corrections,
Com. Sub. for S. B. 399, Providing for criminal history checks for certain people working
with children on school property; exceptions,
S. B. 400, Allowing insurance commissioner to disclose confidential information in certain
cases,
Com. Sub. for S. B. 422, Allowing public service commission to change certain rates for
municipalities or cooperative utilities,
Com. Sub. for S. B. 424, Authorizing commissioner of corrections to consent to transfer of
convicted offenders under federal treaty; informed consent,
Com. Sub. for S. B. 440, Establishing Contractors Notice and Opportunity to Cure Act,
Com. Sub. for S. B. 453, Establishing domestic violence fatality review team,
S. B. 486, Requiring certified public accountant to notify insurer's board or audit committee
of adverse financial condition,
Com. Sub. for S. B. 494, Regulating fees between cemeteries, certain companies and
veterans for setting grave markers,
S. B. 503, Providing penalty for unauthorized access to government computers or computer
networks,
S. B. 527, Relating to property owner's liability for costs associated with waste tires,
Com. Sub. for S. B. 535, Providing mandatory carding for all purchasers of nonintoxicating
beer, wine and liquor; liability protection,
S. B. 589, Relating to common interest communities and condominiums; restrictive
covenants,
S. B. 635, Clarifying foster care services in relation to behavioral health,
S. B. 636, Exempting competitive bidding requirement for commodities and services by
nonprofit workshops,
S. B. 650, Defining waters of state,
S. B. 654, Extending supervision for certain sex offenders,
And,
S. B. 657, Relating to capitol company act,
And reports the same back, by unanimous vote of the Committee, without recommendation
as to their passage.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 52,
S. B. 95, Com. Sub. for S. B. 162, Com. Sub. for S. B. 178, S. B. 341, Com. Sub. for S. B.372, Com.
Sub. for S. B. 395, Com. Sub. for S. B. 399, S. B. 400, Com. Sub. for S. B. 422, Com. Sub. for S.
B. 424, Com. Sub. for S. B. 440, Com. Sub. for S. B. 453, S. B. 486, Com. Sub. for S. B. 494, S.
B. 503, S. B. 527, Com. Sub. for S. B. 535, S. B. 589, S. B. 635, S. B. 636, S. B. 650, S. B. 654 and
S. B. 657) were each taken up for immediate consideration, read a first time, ordered to second
reading and then, on motion of the same gentleman, recommitted to the Committee on the Judiciary.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 433, Relating to public employees insurance agency's cost-sharing and
coverage plan,
And,
S.B. 547, Relating to judges and justices and judicial retirement,
And reports the same back, with amendment, with the recommendation that they each do
pass.
At the respective requests of Delegate Staton, and by unanimous consent, S. B. 547 was
taken up for immediate consideration, read a first time and then ordered to second reading.
Chairman H. White, from the Committee on Banking and Insurance, submitted the following
report, which was received:
Your Committee on Banking and Insurance has had under consideration:
S. B. 534, Creating Third-Party Administrator Act,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended, but that it first be referred to the Committee on
Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 534)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on Finance.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 583, Creating coal resource transportation road system,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 583) was taken up for immediate consideration, read a first time and then ordered to second
reading.
Chairman Spencer, from the Joint Committee on Enrolled Bills, submitted the following
report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 5th
day of March, 2003, presented to His Excellency, the Governor, for his action, the following bills,
signed by the President of the Senate and the Speaker of the House of Delegates:
(S.B. 164), Continuing office of coalfield community development,
(S.B. 166), Continuing oil and gas inspectors' examining board,
(S.B. 414), Authorizing real estate commission to enter into license reciprocity agreements
with other states,
(S.B. 415), Continuing environmental quality board,
(S.B. 417), Continuing commission for deaf and hard-of-hearing,
(S.B. 461), Updating section of corporation net income tax act for federal income tax
purposes,
(S.B. 462), Updating certain terms in personal income tax act for federal income tax
purposes,
(S.B. 469), Continuing contractor licensing board,
(S.B. 471), Continuing board of pharmacy,
And,
(Com. Sub. for H. B. 2359), Allowing the state fire marshal to retain all of the special
revenue fees collected by his office.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
Com. Sub. for H. B. 2094, Regulating the release of fish, water animals and other aquatic
organisms into the waters of this state.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
Com. Sub. for H. B. 2301, Providing funding for necessary care of animals seized pursuant
to allegations of neglect.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
Com. Sub. for H. B. 2556, Requiring the insurance commissioner to issue an annual
communication to increase awareness of certain flood insurance issues.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2615, Authorizing the department of military affairs and public safety
to promulgate legislative rules.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section one, line one, by striking out "(a)".
On pages three and four, section one, by striking out all of subsection (b).
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2615 - "A Bill to amend and reenact article six, chapter sixty-four of
the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating generally to
the promulgation of administrative rules by the various executive or administrative agencies and the
procedures relating thereto; legislative mandate or authorization for the promulgation of certain
legislative rules by various executive or administrative agencies of the state; authorizing certain of
the agencies to promulgate certain legislative rules in the form that the rules were filed in the state
register; authorizing certain of the agencies to promulgate certain legislative rules with various
modifications presented to and recommended by the legislative rule-making review committee;
authorizing certain of the agencies to promulgate certain legislative rules as amended by the
Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various
modifications presented to and recommended by the legislative rule-making review committee and
as amended by the Legislature; authorizing the fire commission to promulgate a legislative rule
relating to the state building code; authorizing the juvenile facilities standards commission to promulgate a legislative rule relating to minimum standards for the structure, operation and
maintenance of juvenile detention and correctional facilities; and authorizing the state police to
promulgate a legislative rule relating to the state police career progression system."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 357), and there were--yeas
95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Sobonya.
Absent And Not Voting: Coleman, Ferrell, Frich and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2615) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 358), and there were--yeas 94, nays
1, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Sobonya.
Absent And Not Voting: Cann, Coleman, Ferrell, Frich and Mezzatesta.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2615) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 2696, Removing certain limitations on the commissioner of agriculture to increase fees
of certain services.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 2870, Specifying the jurisdiction of the PSC over, and the application of public utility
laws to, certain described electric generating facilities.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
H. B. 2891, Repealing the requirement that the tax commissioner annually report the amount
of gasoline and special fuel tax collected in each county.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section three, line four, by striking out the words "hereinafter".
On page two, section three, line six, by striking out the words "shall be" and inserting in lieu
thereof the word "is".
And,
On page two, section three, line nine, by striking out the words "shall be" and inserting in
lieu thereof the word "is".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 359), and there were--yeas
95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Schoen.
Absent And Not Voting: Cann, Coleman, Ferrell and Frich.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2891) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed and had changed the effective
date, to take effect from passage, of
Com. Sub. for H. B. 2965, Authorizing the division of corrections and the state fire marshal
to retire, transfer or dispose of canines used within these departments.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 360), and there were--yeas 96, nays
none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman, Ferrell and Frich.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2965) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 3014, Relating generally to "Main Street Fairness Act of 2003".
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything following the enacting clause and inserting in lieu
thereof the following:
That sections one-a, two, three, four, four-a, four-b, five, six, eight, nine-f, thirteen, fourteen,
sixteen, thirty-one and thirty-three, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that sections one, one-a,
two, three, three-a, four, five, six, seven, eight, nine, ten, ten-a, eleven, eighteen, twenty-one, twenty-
two, twenty-seven and twenty-nine, article fifteen-a of said chapter, be amended and reenacted; that
sections one, two, three and five, article fifteen-b of said chapter be amended and reenacted; and to
further amend said article by adding thereto twenty-one new sections, designated sections two-a,
eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, twenty-one, twenty-two,
twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty,
thirty-one and thirty-two, all to read as follows:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-1a. Legislative findings.
The Legislature hereby finds and declares that:
(1) It is the intent of the Legislature that the consumers sales tax imposed by the provisions
of article fifteen and the use tax imposed by the provisions of article fifteen-a of this chapter, eleven
of the code of West Virginia, one thousand nine hundred thirty-one, as amended be complementary
laws and wherever possible be construed and applied to accomplish such intent as to the imposition,
administration and collection of such these taxes; and
(2) On and after the first day of January, two thousand four, the taxes levied by this article
and article fifteen-a of this chapter shall also be administered and collected in accordance with the
provisions of article fifteen-b of this chapter.
§11-15-2. Definitions.
For the purpose of this article: (a) General. -- When used in this article and article fifteen-a
of this chapter, words defined in subsection (b) of this section shall have the meanings ascribed to
them in this section, except in those instances where a different meaning is provided in this article
or the context in which the word is used clearly indicates that a different meaning is intended by the
Legislature.
(b) Definitions. --
(a)(1) "Business" includes all activities engaged in or caused to be engaged in with the object
of gain or economic benefit, direct or indirect, and all activities of the state and its political
subdivisions which involve sales of tangible personal property or the rendering of services when
those service activities compete with or may compete with the activities of other persons.
(b)(2) "Communication" means all telephone, radio, light, light wave, radio telephone,
telegraph and other communication or means of communication, whether used for voice
communication, computer data transmission or other encoded symbolic information transfers and
shall include includes commercial broadcast radio, commercial broadcast television and cable
television.
(c)(3) "Contracting":
(1)(A) In general. -- "Contracting" means and includes the furnishing of work, or both
materials and work, for another (by a sole contractor, general contractor, prime contractor,
subcontractor or construction manager) in fulfillment of a contract for the construction, alteration,
repair, decoration or improvement of a new or existing building or structure, or any part thereof, or
for removal or demolition of a building or structure, or any part thereof, or for the alteration,
improvement or development of real property. Contracting means and also includes services
provided by a construction manager so long as the project for which the construction manager
provides the services results in a capital improvement to a building or structure or to real property.
(2)(B) Form of contract not controlling. -- An activity that falls within the scope of the
definition of contracting shall constitute constitutes contracting regardless of whether the contract
governing the activity is written or verbal and regardless of whether it is in substance or form a lump
sum contract, a cost-plus contract, a time and materials contract, whether or not open-ended, or any
other kind of construction contract.
(3)(C) Special rules. -- For purposes of this definition:
(A)(i) The term "structure" includes, but is not limited to, everything built up or composed
of parts joined together in some definite manner and attached or affixed to real property or which adds utility to real property or any part thereof or which adds utility to a particular parcel of property
and is intended to remain there for an indefinite period of time;
(B)(ii) The term "alteration" means, and is limited to, alterations which are capital
improvements to a building or structure or to real property;
(C)(iii) The term "repair" means, and is limited to, repairs which are capital improvements
to a building or structure or to real property;
(D)(iv) The term "decoration" means, and is limited to, decorations which are capital
improvements to a building or structure or to real property;
(E)(v) The term "improvement" means, and is limited to, improvements which are capital
improvements to a building or structure or to real property;
(F)(vi) The term "capital improvement" means improvements that are affixed to or attached
to and become a part of a building or structure or the real property or which add utility to real
property, or any part thereof, and that last or are intended to be relatively permanent. As used
herein, "relatively permanent" means lasting at least a year in duration without the necessity for
regularly scheduled recurring service to maintain the capital improvement. "Regular recurring
service" means regularly scheduled service intervals of less than one year;
(G)(vii) Contracting does not include the furnishing of work, or both materials and work, in
the nature of hookup, connection, installation or other services if the service is incidental to the retail
sale of tangible personal property from the service provider's inventory: Provided, That the hookup,
connection or installation of the foregoing is incidental to the sale of the same and performed by the
seller thereof or performed in accordance with arrangements made by the seller thereof. Examples
of transactions that are excluded from the definition of contracting pursuant hereto to this
subdivision include, but are not limited to, the sale of wall-to-wall carpeting and the installation of
wall-to-wall carpeting, the sale, hookup and connection of mobile homes, window air conditioning
units, dishwashers, clothing washing machines or dryers, other household appliances, drapery rods,
window shades, venetian blinds, canvas awnings, free standing industrial or commercial equipment and other similar items of tangible personal property. Repairs made to the foregoing are within the
definition of contracting if the repairs involve permanently affixing to or improving real property
or something attached thereto which extends the life of the real property or something affixed
thereto or allows or intends to allow the real property or thing permanently attached thereto to
remain in service for a year or longer; and
(H)(viii) The term "construction manager" means a person who enters into an agreement to
employ, direct, coordinate or manage design professionals and contractors who are hired and paid
directly by the owner or the construction manager. The business activities of a "construction
manager" as defined herein shall in this subdivision constitute contracting, so long as the project for
which the construction manager provides the services results in a capital improvement to a building
or structure or to real property.
(d)(1) (4) "Directly used or consumed" in the activities of manufacturing, transportation,
transmission, communication or the production of natural resources means used or consumed in
those activities or operations which constitute an integral and essential part of the activities, as
contrasted with and distinguished from those activities or operations which are simply incidental,
convenient or remote to the activities.
(2)(A) Uses of property or consumption of services which constitute direct use or
consumption in the activities of manufacturing, transportation, transmission, communication or the
production of natural resources includes include only:
(A)(i) In the case of tangible personal property, physical incorporation of property into a
finished product resulting from manufacturing production or the production of natural resources;
(B)(ii) Causing a direct physical, chemical or other change upon property undergoing
manufacturing production or production of natural resources;
(C)(iii) Transporting or storing property undergoing transportation, communication,
transmission, manufacturing production or production of natural resources;
(D)(iv) Measuring or verifying a change in property directly used in transportation,
communication, transmission, manufacturing production or production of natural resources;
(E)(v) Physically controlling or directing the physical movement or operation of property
directly used in transportation, communication, transmission, manufacturing production or
production of natural resources;
(F)(vi) Directly and physically recording the flow of property undergoing transportation,
communication, transmission, manufacturing production or production of natural resources;
(G)(vii) Producing energy for property directly used in transportation, communication,
transmission, manufacturing production or production of natural resources;
(H)(viii) Facilitating the transmission of gas, water, steam or electricity from the point of
their diversion to property directly used in transportation, communication, transmission,
manufacturing production or production of natural resources;
(I)(ix) Controlling or otherwise regulating atmospheric conditions required for
transportation, communication, transmission, manufacturing production or production of natural
resources;
(J)(x) Serving as an operating supply for property undergoing transmission, manufacturing
production or production of natural resources, or for property directly used in transportation,
communication, transmission, manufacturing production or production of natural resources;
(K)(xi) Maintenance or repair Maintaining or repairing of property, including maintenance
equipment, directly used in transportation, communication, transmission, manufacturing production
or production of natural resources;
(L)(xii) Storage Storing, removal or transportation of economic waste resulting from the
activities of manufacturing, transportation, communication, transmission or the production of natural
resources;
(M)(xiii) Engaging in pollution control or environmental quality or protection activity
directly relating to the activities of manufacturing, transportation, communication, transmission or the production of natural resources and personnel, plant, product or community safety or security
activity directly relating to the activities of manufacturing, transportation, communication,
transmission or the production of natural resources; or
(N)(xiv) Otherwise be used using as an integral and essential part of transportation,
communication, transmission, manufacturing production or production of natural resources.
(3)(B) Uses of property or services which do not constitute direct use or consumption in the
activities of manufacturing, transportation, transmission, communication or the production of natural
resources include, but are not limited to:
(A)(i) Heating and illumination of office buildings;
(B)(ii) Janitorial or general cleaning activities;
(C)(iii) Personal comfort of personnel;
(D)(iv) Production planning, scheduling of work or inventory control;
(E)(v) Marketing, general management, supervision, finance, training, accounting and
administration; or
(F)(vi) An activity or function incidental or convenient to transportation, communication,
transmission, manufacturing production or production of natural resources, rather than an integral
and essential part of these activities.
(e)(1) (5) "Directly used or consumed" in the activities of gas storage, the generation or
production or sale of electric power, the provision of a public utility service or the operation of a
utility business means used or consumed in those activities or operations which constitute an integral
and essential part of those activities or operation, as contrasted with and distinguished from activities
or operations which are simply incidental, convenient or remote to those activities.
(2)(A) Uses of property or consumption of services which constitute direct use or
consumption in the activities of gas storage, the generation or production or sale of electric power,
the provision of a public utility service or the operation of a utility business include only:
(A)(i) Tangible personal property, custom software or services, including equipment,
machinery, apparatus, supplies, fuel and power and appliances, which are used immediately in
production or generation activities and equipment, machinery, supplies, tools and repair parts used
to keep in operation exempt production or generation devices. For purposes of this subsection,
production or generation activities shall commence from the intake, receipt or storage of raw
materials at the production plant site;
(B)(ii) Tangible personal property, custom software or services, including equipment,
machinery, apparatus, supplies, fuel and power, appliances, pipes, wires and mains, which are used
immediately in the transmission or distribution of gas, water and electricity to the public, and
equipment, machinery, tools, repair parts and supplies used to keep in operation exempt transmission
or distribution devices, and these vehicles and their equipment as are specifically designed and
equipped for such those purposes are exempt from the tax when used to keep a transmission or
distribution system in operation or repair. For purposes of this subsection, transmission or
distribution activities shall commence from the close of production at a production plant or wellhead
when a product is ready for transmission or distribution to the public and shall conclude at the point
where the product is received by the public;
(C)(iii) Tangible personal property, custom software or services, including equipment,
machinery, apparatus, supplies, fuel and power, appliance, pipes, wires and mains, which are used
immediately in the storage of gas or water, and equipment, machinery, tools, supplies and repair
parts used to keep in operation exempt storage devices;
(D)(iv) Tangible personal property, custom software or services used immediately in the
storage, removal or transportation of economic waste resulting from the activities of gas storage, the
generation or production or sale of electric power, the provision of a public utility service or the
operation of a utility business;
(E)(v) Tangible personal property, custom software or services used immediately in pollution
control or environmental quality or protection activity or community safety or security directly relating to the activities of gas storage, generation or production or sale of electric power, the
provision of a public utility service or the operation of a utility business.
(3)(B) Uses of property or services which would not constitute direct use or consumption in
the activities of gas storage, generation or production or sale of electric power, the provision of a
public utility service or the operation of a utility business include, but are not limited to:
(A)(i) Heating and illumination of office buildings;
(B)(ii) Janitorial or general cleaning activities;
(C)(iii) Personal comfort of personnel;
(D)(iv) Production planning, scheduling of work or inventory control;
(E)(v) Marketing, general management, supervision, finance, training, accounting and
administration; or
(F)(vi) An activity or function incidental or convenient to the activities of gas storage,
generation or production or sale of electric power, the provision of public utility service or the
operation of a utility business.
(f) "Drugs" includes all sales of drugs or appliances to a purchaser upon prescription of a
physician or dentist and any other professional person licensed to prescribe.
(g)(6) "Gas storage" means the injection of gas into a storage reservoir or the storage of gas
for any period of time in a storage reservoir or the withdrawal of gas from a storage reservoir
engaged in by businesses subject to the business and occupation tax imposed by sections two and
two-e, article thirteen of this chapter.
(h)(7) "Generating or producing or selling of electric power" means the generation,
production or sale of electric power engaged in by businesses subject to the business and occupation
tax imposed by section two, two-d, two-m or two-n, article thirteen of this chapter.
(i)(8) "Gross proceeds" means the amount received in money, credits, property or other
consideration from sales and services within this state, without deduction on account of the cost of property sold, amounts paid for interest or discounts or other expenses whatsoever. Losses may not
be deducted, but any credit or refund made for goods returned may be deducted.
(9) "Includes" and "including," when used in a definition contained in this article, does not
exclude other things otherwise within the meaning of the term being defined.
(j) "Management information services" means, and is limited to, data processing, data
storage, data recovery and backup, programming recovery and backup, telecommunications,
computation and computer processing, computer programming, electronic information and data
management activities, or any combination of these activities, when such activity, or activities, is
not subject to regulation by the West Virginia public service commission and the activity, or
activities, is for the purpose of managing, planning for, organizing or operating, any industrial or
commercial business, or any enterprise, facility or facilities of an industrial or commercial business,
whether the industrial or commercial business or enterprise, facility or facilities of an industrial or
commercial business is located within or without this state and without regard to whether the
industrial or commercial business, or enterprise, facility or facilities of an industrial or commercial
business is owned by the provider of the management information services or by a "related person,"
as defined in Section 267(b) of the Internal Revenue Code of 1986, as amended.
(k) "Management information services facility" means a building, or any part thereof, or a
complex of buildings, or any part thereof, including the machinery and equipment located therein,
that is exclusively dedicated to providing management information services to the owner or operator
thereof or to another person.
(l)(10) "Manufacturing" means a systematic operation or integrated series of systematic
operations engaged in as a business or segment of a business which transforms or converts tangible
personal property by physical, chemical or other means into a different form, composition or
character from that in which it originally existed.
(n)(11) "Persons" "Person" means any individual, partnership, association, corporation,
limited liability company, limited liability partnership, or any other legal entity including this state or its political subdivisions or an agency of either, or the guardian, trustee, committee, executor or
administrator of any person.
(m)(12) "Personal service" includes those: (1)(A) Compensated by the payment of wages
in the ordinary course of employment; and (2)(B) rendered to the person of an individual without,
at the same time, selling tangible personal property, such as nursing, barbering, shoe shining,
manicuring and similar services.
(o)(13) Production of natural resource.
(1)(A) "Production of natural resources" means, except for oil and gas, the performance, by
either the owner of the natural resources or another, of the act or process of exploring, developing,
severing, extracting, reducing to possession and loading for shipment and shipment for sale, profit
or commercial use of any natural resource products and any reclamation, waste disposal or
environmental activities associated therewith and the construction, installation or fabrication of
ventilation structures, mine shafts, slopes, boreholes, dewatering structures, including associated
facilities and apparatus, by the producer or others, including contractors and subcontractors, at a coal
mine or coal production facility.
(2)(B) For the natural resources oil and gas, "production of natural resources" means the
performance, by either the owner of the natural resources, a contractor or a subcontractor, of the act
or process of exploring, developing, drilling, well-stimulation activities such as logging, perforating
or fracturing, well-completion activities such as the installation of the casing, tubing and other
machinery and equipment and any reclamation, waste disposal or environmental activities associated
therewith, including the installation of the gathering system or other pipeline to transport the oil and
gas produced or environmental activities associated therewith and any service work performed on
the well or well site after production of the well has initially commenced.
(3)(C) All work performed to install or maintain facilities up to the point of sale for
severance tax purposes would be is included in the "production of natural resources" and subject to
the direct use concept.
(4)(D) "Production of natural resources" does not include the performance or furnishing of
work, or materials or work, in fulfillment of a contract for the construction, alteration, repair,
decoration or improvement of a new or existing building or structure, or any part thereof, or for the
alteration, improvement or development of real property, by persons other than those otherwise
directly engaged in the activities specifically set forth in this subsection subdivision (13) as
"production of natural resources".
(p)(14) "Providing a public service or the operating of a utility business" means the
providing of a public service or the operating of a utility by businesses subject to the business and
occupation tax imposed by sections two and two-d, article thirteen of this chapter.
(q)(15) "Purchaser" means a person who purchases tangible personal property, custom
software or a service taxed by this article.
(r)(16) "Sale", "sales" or "selling" includes any transfer of the possession or ownership of
tangible personal property or custom software for a consideration, including a lease or rental, when
the transfer or delivery is made in the ordinary course of the transferor's business and is made to the
transferee or his or her agent for consumption or use or any other purpose. "Sale" also includes the
furnishing of a service for consideration.
(s)(17) "Service" or "selected service" includes all nonprofessional activities engaged in for
other persons for a consideration, which involve the rendering of a service as distinguished from the
sale of tangible personal property or custom software, but shall does not include contracting,
personal services or the services rendered by an employee to his or her employer or any service
rendered for resale.
(18) "Streamlined sales and use tax agreement" or "agreement", when used in this article,
shall have the same meaning as when used in article fifteen-b of this chapter, except when the
context in which the word agreement is used clearly indicates that a different meaning is intended
by the Legislature.
(t)(19) "Tax" includes all taxes, additions to tax, interest and penalties levied hereunder
under this article or article ten of this chapter.
(u)(20) "Tax commissioner" means the state tax commissioner or his or her delegate. The
term "delegate" in the phrase "or his or her delegate," when used in reference to the tax
commissioner, means any officer or employee of the state tax division duly authorized by the tax
commissioner directly, or indirectly by one or more redelegations of authority, to perform the
functions mentioned or described in this article or rules promulgated for this article.
(v)(21) "Taxpayer" means any person liable for the tax imposed by this article or additions
to tax, penalties and interest imposed by article ten of this chapter.
(w)(22) "Transmission" means the act or process of causing liquid, natural gas or electricity
to pass or be conveyed from one place or geographical location to another place or geographical
location through a pipeline or other medium for commercial purposes.
(x)(23) "Transportation" means the act or process of conveying, as a commercial enterprise,
passengers or goods from one place or geographical location to another place or geographical
location.
(y)(24) "Ultimate consumer" or "consumer" means a person who uses or consumes services
or personal property.
(z)(25) "Vendor" means any person engaged in this state in furnishing services taxed by this
article or making sales of tangible personal property or custom software. "Vendor" and "seller" are
used interchangeably in this article.
(c) Additional definitions. -- Other terms used in this article are defined in article fifteen-b
of this chapter, which definitions are incorporated by reference into article fifteen. Additionally,
other sections of this article may define terms primarily used in the section in which the term is
defined.
§11-15-3. Amount of tax; allocation of tax and transfers.
(a) Vendor to collect. -- For the privilege of selling tangible personal property or custom
software and for the privilege of dispensing furnishing certain selected services defined in sections
two and eight of this article, the vendor shall collect from the purchaser the tax as provided under
this article and article fifteen-b of this chapter, and shall pay the amount of tax to the tax
commissioner in accordance with the provisions of this article or article fifteen-b of this chapter.
(b) Beginning on the first day of March, one thousand nine hundred eighty-nine, the Amount
of tax. -- The general consumer sales and service tax imposed by this article shall be at the rate of
six cents on the dollar of sales or services, excluding gasoline and special fuel sales, which remain
taxable at the rate of five cents on the dollar of sales.
(c) Calculation tax on fractional parts of a dollar until January 1, 2004. -- There shall be
no tax on sales where the monetary consideration is five cents or less. The amount of the tax shall
be computed as follows:
(1) On each sale, where the monetary consideration is from six cents to sixteen cents, both
inclusive, one cent.
(2) On each sale, where the monetary consideration is from seventeen cents to thirty-three
cents, both inclusive, two cents.
(3) On each sale, where the monetary consideration is from thirty-four cents to fifty cents,
both inclusive, three cents.
(4) On each sale, where the monetary consideration is from fifty-one cents to sixty-seven
cents, both inclusive, four cents.
(5) On each sale, where the monetary consideration is from sixty-eight cents to eighty-four
cents, both inclusive, five cents.
(6) On each sale, where the monetary consideration is from eighty-five cents to one dollar,
both inclusive, six cents.
(7) If the sale price is in excess of one dollar, six cents on each whole dollar of sale price,
and upon any fractional part of a dollar in excess of whole dollars as follows: One cent on the fractional part of the dollar if less than seventeen cents; two cents on the fractional part of the dollar
if in excess of sixteen cents but less than thirty-four cents; three cents on the fractional part of the
dollar if in excess of thirty-three cents but less than fifty-one cents; four cents on the fractional part
of the dollar if in excess of fifty cents but less than sixty-eight cents; five cents on the fractional part
of the dollar if in excess of sixty-seven cents but less than eighty-five cents; and six cents on the
fractional part of the dollar if in excess of eighty-four cents. For example, the tax on sales from one
dollar and one cent to one dollar and sixteen cents, both inclusive, seven cents; on sales from one
dollar and seventeen cents to one dollar and thirty-three cents, both inclusive, eight cents; on sales
from one dollar and thirty-four cents to one dollar and fifty cents, both inclusive, nine cents; on sales
from one dollar and fifty-one cents to one dollar and sixty-seven cents, both inclusive, ten cents; on
sales from one dollar and sixty-eight cents to one dollar and eighty-four cents, both inclusive, eleven
cents and on sales from one dollar and eighty-five cents to two dollars, both inclusive, twelve cents:
Provided, That beginning the first day of January, two thousand four, tax due under this article shall
be calculated as provided in subsection (d) of this subsection and this subsection (c) does not apply
to sales made after the thirty-first day of December, two thousand three.
(d) Calculation of tax on fractional parts of a dollar after December 31, 2003. -- Beginning
the first day of January, two thousand four, the tax computation under subsection (b) of this section
shall be carried to the third decimal place, and the tax rounded up to the next whole cent whenever
the third decimal place is greater than four and rounded down to the lower whole cent whenever the
third decimal place is four or less. The vendor may elect to compute the tax due on a transaction
on a per item basis or on an invoice basis provided the method used is consistently used during the
reporting period.
(d)(e) No aggregation of separate sales transactions, exception for coin-operated devices.
-- Separate sales, such as daily or weekly deliveries, shall not be aggregated for the purpose of
computation of the tax even though such the sales are aggregated in the billing or payment therefor. Notwithstanding any other provision of this article, coin-operated amusement and vending machine
sales shall be aggregated for the purpose of computation of this tax.
(f) Rate of tax on certain mobile homes. -- Notwithstanding any provision of this article to
the contrary, after the thirty-first day of December, two thousand three, the tax levied on sales of
mobile homes to be used by the owner thereof as his or her principal year-round residence and
dwelling shall be an amount equal to six percent of fifty percent of the sales price.
(g) Construction; custom software. -- After the thirty-first day of December, two thousand
three, whenever the words "tangible personal property" or "property" appear in this article, the same
shall also include the words "custom software".
(h) Computation of tax on sales of gasoline and special fuel. -- The method of computation
of tax provided in this section does not apply to sales of gasoline and special fuel.
(e) Of the taxes collected under the provisions of this article, one sixth of such taxes
collected for the period subsequent to the thirty-first day of May, one thousand nine hundred
eighty-eight, prior to the first day of July, one thousand nine hundred eighty-nine, and not
attributable to or resulting from the repeal of section eleven of this article or attributable to tax on
purchases of gasoline and special fuel, shall be reasonably allocated, with allowance for refunds and
net of reasonable costs of administration, to and deposited by the tax commissioner in the special
account created in the treasury by section eight-a, article four-b, chapter twenty-three of this code,
not to exceed the amount sufficient for making timely repayment of the principal and interest under
the first payment due, by the thirtieth day of June, one thousand nine hundred eighty-nine, in
repayment for the moneys previously transferred from such pneumoconiosis fund.
§11-15-4. Purchaser to pay; accounting by vendor.
(a) The purchaser shall pay to the vendor the amount of tax levied by this article which shall
be is added to and constitute constitutes a part of the sales price, and shall be is collectible as such
by the vendor who shall account to the state for all tax paid by the purchaser.
The vendor shall keep the amount of tax paid separate from the proceeds of sale exclusive
of the tax unless authorized in writing by the tax commissioner to keep such amount of tax in a
different manner. Where such authorization is given, the state's claim shall be enforceable against
and shall take precedence over all other claims against the moneys commingled.
(b) The vendor shall keep records necessary to account for:
(1) The vendor's gross proceeds from sales of personal property and services;
(2) The vendor's gross proceeds from taxable sales;
(3) The vendor's gross proceeds from exempt sales;
(4) The amount of taxes collected under this article, which taxes shall be held in trust for the
state of West Virginia until paid over to the tax commissioner; and
(5) Any other information as required by this article, or article fifteen-b of this chapter, or
as required by the tax commissioner.
§11-15-4a. Failure to collect tax; liability of vendor.
If any vendor fails to collect the tax imposed by section three of this article, he the vendor
shall be personally liable for such the amount as he the vendor failed to collect, except as otherwise
provided in this article or article fifteen-b of this chapter.
§11-15-4b. Liability of purchaser; assessment and collection.
(a) General. -- If any purchaser refuses or otherwise does not pay to the vendor the tax
imposed by section three of this article, or in the case of a sale subject to section nine-c of this
article, a purchaser refuses to sign and present to the vendor a proper certificate indicating the sale
is not subject to this tax, or signs or presents to the vendor a false certificate, or after signing and
presenting a proper certificate uses the items purchased in such a manner that the sale would be
subject to the tax, he the purchaser shall be personally liable for the amount of tax applicable to the
transaction or transactions. Provided, That nothing herein relieves any purchaser who owes the tax
and who has not paid the tax imposed by section three of this article from liability therefor
(b) Collection of tax from purchaser. -- Nothing in this section relieves any purchaser who
owes the tax and who has not paid the tax imposed by section three of this article from liability for
payment of the tax. In such those cases the tax commissioner has authority to make an assessment
against such the purchaser, based upon any information within his or her possession or that may
come into his or her possession. This assessment and notice thereof shall be made and given in
accordance with sections seven and eight, article ten of this chapter.
(c) Liability of vendor. -- This section may not be construed as relieving the vendor from
liability for the tax, except as otherwise provided in this article or article fifteen-b of this chapter.
§11-15-5. Total amount collected is to be remitted.
No profit shall accrue to any person as a result of the collection of the tax levied by this
article notwithstanding the total amount of such the taxes collected may be in excess of the amount
for which such the person would be liable by the application of the levy of five percent rate of tax
levied by section three of this article to the vendor's gross proceeds of his from taxable sales and
services. and The total amount of all taxes collected by such person the vendor shall be returned
and remitted to the tax commissioner as hereinafter provided in this article or article fifteen-b of this
chapter.
§11-15-6. Vendor must show sale or service exempt; presumption.
In the case of sales subject to section nine-c of this article, the (a) The burden of proving that
a sale or service was exempt from the tax shall be upon the vendor, unless he the vendor takes from
the purchaser an exemption certificate signed by and bearing the address of the purchaser and setting
forth the reason for the exemption and substantially in the form prescribed by the tax commissioner:
Provided, That when the seller is registered under the streamlined sales and use tax agreement to
collect the tax imposed by this article, the exemption certificate shall be in the form prescribed by
the governing board of the streamlined sales and use tax agreement, and the signature of the
purchaser is not required unless a paper exemption certificate is furnished to the seller.
(b) To prevent evasion, it shall be is presumed that all sales and services are subject to the
tax until the contrary is clearly established.
§11-15-8. Furnishing of services included; exceptions.
The provisions of this article shall apply not only to selling tangible personal property and
custom software, but also to the furnishing of all services, except professional and personal services,
and except those services furnished by corporations businesses subject to the control of the public
service commission when the service or the manner in which it is delivered is subject to regulation
by the public service commission.
§11-15-9f. Exemption for sales and services subject to special district excise tax.
Notwithstanding any provision of this article to the contrary, any sale or service upon which
a special district excise tax is paid, pursuant to the provisions of section eleven, article thirteen-b,
chapter eight of this code, shall be is exempt from the tax imposed by this article: Provided, That
the special district excise tax does not apply to sales of gasoline and special fuel.
§11-15-13. Collection of tax when sale on credit.
A vendor doing business wholly or partially on a credit basis shall require the purchaser to
pay the full amount of tax due upon a credit sale at the time such sale is made or within thirty days
thereafter remit to the tax commissioner the tax due on the credit sale for the month in which the
credit transaction occurred.
§11-15-14. When separate records of sales required.
(a) Any vendor engaged in a business subject to this tax, who is at the same time engaged
in some other kind of business, occupation or profession, not taxable under this article, shall keep
records to show separately the transactions used in determining the tax base herein taxed under this
article.
(b) In the event such the person fails to keep such separate records there shall be levied upon
him the person a tax based upon the entire gross proceeds of both or all of his the person's
businesses.
§11-15-16. Tax return and payment; exception.
(a) Payment of tax. -- Subject to the exceptions set forth in subsection (b) of this section, the
taxes levied by this article shall be are due and payable in monthly installments, on or before the
fifteenth twentieth day of the month next succeeding the month in which the tax accrued, except as
otherwise provided in this article.
(b) Tax return. -- The taxpayer shall, on or before the fifteenth twentieth day of each month,
make out and mail to the tax commissioner a return for the preceding month, in the form prescribed
by the tax commissioner, showing:
(a)(1) The total gross proceeds of his the vendor's business for that the preceding month;
(b)(2) The gross proceeds of his the vendor's business upon which the tax is based;
(c)(3) The amount of the tax for which he the vendor is liable; and
(d)(4) Any further information necessary in the computation and collection of the tax which
the tax commissioner may require, except as otherwise provided in this article or article fifteen-b
of this chapter.
(c) Remittance to accompany return. -- Except as otherwise provided in this article or article
fifteen-b of this chapter, a remittance for the amount of the tax shall accompany the return.
Provided, That notwithstanding the provisions of section thirty of this article
(d) Deposit of collected tax. -- Tax collected by the tax commissioner shall be deposited as
provided in section thirty of this article, except that:
(1) Tax collected on sales of gasoline and special fuel shall be deposited in the state road
fund; and
(2) Any such sales tax collected by the alcohol beverage control commissioner from persons
or organizations licensed under authority of article seven, chapter sixty of this code shall be paid into
a revolving fund account in the state treasury, designated the drunk driving prevention fund, to be
administered by the commission on drunk driving prevention, subject to appropriations by the
Legislature. Provided, however, That any balances in the drunk driving prevention fund on the first day of July, one thousand nine hundred eighty-nine, and all moneys received into such fund during
the fiscal year commencing the first day of July, one thousand nine hundred eighty-nine, may, up
to a maximum of seven hundred fifty thousand dollars, be used by the department of public safety
for personal services, employee benefits and unclassified expenditures for the time period
commencing the first day of July, one thousand nine hundred eighty-nine, and ending the last day
of June, one thousand nine hundred ninety, subject to appropriation by the Legislature
(e) Return to be signed. -- A monthly return shall be signed by the taxpayer or his the
taxpayer's duly authorized agent, when a paper return is prepared and filed. When the return is filed
electronically, the return shall include the digital mark or digital signature, as defined in article three,
chapter thirty-nine-a of this code, or the personal identification number of the taxpayer, or the
taxpayer's duly authorized agent, made in accordance with any procedural rule that may be
promulgated by the tax commissioner.
(b)(f) Accelerated payment. --
(1) For calendar years beginning after the thirty-first day of December, one thousand nine
hundred ninety, Taxpayers whose average monthly installments for payment of the taxes levied by
this article and article fifteen-a of this chapter during the previous calendar year exceeds one
hundred thousand dollars, shall remit the tax attributable to the first fifteen days of June each year
on or before the twenty-third twentieth day of said month of June.
(2) For purposes of complying with subdivision (1) of this subsection (b) the taxpayer shall
remit an amount equal to the amount of tax imposed by this article and article fifteen-a of this
chapter on actual taxable sales of tangible personal property and custom software and sales of
taxable services during the first fifteen days of June or, at the taxpayer's election, the taxpayer may
remit an amount equal to fifty percent of the taxpayer's liability for tax under this article on taxable
sales of tangible personal property and custom software and sales of taxable services made during
the preceding month of May.
(3) For a business which has not been in existence for a full calendar year, the total tax due
from the business during such the prior calendar year shall be divided by the number of months,
including fractions of a month, that it was in business during such the prior calendar year; and if that
amount exceeds one hundred thousand dollars, the tax attributable to the first fifteen days of June
each year shall be remitted on or before the twenty-third twentieth day of said month of June as
provided in subdivision (2) of this subsection (b).
(4) When a taxpayer required to make an advanced payment of tax under subdivision (1) of
this subsection (b) makes out its the return for the month of June, which is due on the fifteenth
twentieth day of July, such the taxpayer may claim as a credit against its liability under this article
for tax on taxable transactions during the month of June, the amount of the advanced payment of
tax made under subdivision (1) of this subsection (b).
§11-15-31. Construction and severability.
If any of the provisions of this article are held invalid, such invalidation shall not affect other
provisions which can be given effect without the invalid provision and to this end the provisions of
this article are declared to be severable.
(a) Construction. -- If a court of competent jurisdiction finds that the provisions of this
article and of article fifteen-b of this chapter conflict and cannot be harmonized, then the provisions
of article fifteen-b shall control.
(b) Severability. -- If any section, subsection, subdivision, paragraph, sentence, clause or
phrase of this article is for any reason held to be invalid, unlawful or unconstitutional, that decision
may not affect the validity of the remaining portions of this article or any part thereof.
§11-15-33. Effective date.
(a) The provisions of this article as amended or added by Senate Bill No. 1 took effect on
the first day of March, one thousand nine hundred eighty-nine, and apply to all sales made on or
after that date: Provided, That if an effective date was expressly provided in a provision of such act,
that specific effective date controlled in lieu of this general effective date provision.
(b) The provisions of this article as amended or added by chapter two hundred one, Acts of
the Legislature, one thousand nine hundred eighty-nine, took effect on the first day of July, one
thousand nine hundred eighty-nine, and apply to all sales made on or after that date: Provided, That
if an effective date is expressly provided in any provision, that specific effective date shall control
in lieu of this general effective date provision.
(c) The provisions of this article as amended or added by Committee Substitute for House
Bill No. 4247 shall take effect on the first day of July, one thousand nine hundred ninety, and apply
to all sales made on or after that date: Provided, That if an effective date is expressly provided in
any provision of such act, that specific effective date shall control in lieu of this general effective
date provision with respect to such provision.
The provisions of this article as amended or added during the regular legislative session in
the year two thousand three shall take effect the first day of January, two thousand four, and apply
to all sales made on or after that date and to all returns and payments due on or after that day.
ARTICLE 15A. USE TAX.
§11-15A-1. Definitions.
The following words, terms and phrases, when (a) General. -- When used in this article and
article fifteen of this chapter, terms defined in subsection (b) of this section shall have the meanings
ascribed to them in this section, except in those instances where a different meaning is provided in
this article or the context in which the word is used clearly indicates that a different meaning is
required intended by the Legislature:
(1) (b) "Business" means any activity engaged in by any person, or caused to be engaged in
by any person, with the object of direct or indirect economic gain, benefit or advantage, and includes
any purposeful revenue generating activity in this state;
(2) "Consumer" means any person purchasing tangible personal property, custom software
or a taxable service from a retailer as defined in paragraph (7) of this subsection (b) or from a seller
as defined in section two, article fifteen-b of this chapter;
(3) "Lease" includes rental, hire and license;
(4) "Person" includes any individual, firm, partnership, joint venture, joint stock company,
association, public or private corporation, limited liability company, limited liability partnership,
cooperative, estate, trust, business trust, receiver, executor, administrator, any other fiduciary, any
representative appointed by order of any court or otherwise acting on behalf of others, or any other
group or combination acting as a unit, and the plural as well as the singular number;
(5) "Purchase" means any transfer, exchange or barter, conditional or otherwise, in any
manner or by any means whatsoever, for a consideration;
(6) "Purchase price" means the total amount for which tangible personal property is sold,
valued in money, whether paid in money or otherwise: Provided, That cash discounts allowed and
taken on sales shall not be included measure subject to the tax imposed by this article and has the
same meaning as sales price;
(7) "Retailer" means and includes every person engaging in the business of selling, leasing
or renting tangible personal property or custom software or furnishing a taxable service for use
within the meaning of this article, or in the business of selling, at auction, tangible personal property
or custom software owned by the person or others for use in this state: Provided, That when in the
opinion of the tax commissioner it is necessary for the efficient administration of this article to
regard any salesmen salespersons, representatives, truckers, peddlers or canvassers as the agents of
the dealers, distributors, supervisors, employees or persons under whom they operate or from whom
they obtain the tangible personal property sold by them, irrespective of whether they are making
sales on their own behalf or on behalf of such the dealers, distributors, supervisors, employers or
persons, the tax commissioner may so regard them and may regard the dealers, distributors,
supervisors, employers, or persons as retailers for purposes of this article;
(8) "Retailer engaging in business in this state" or any like term, unless otherwise limited
by federal statute, shall mean and include, but not be limited to any retailer having or maintaining,
occupying or using, within this state, directly or by a subsidiary, an office, distribution house, sales house, warehouse, or other place of business, or any agent (by whatever name called) operating
within this state under the authority of the retailer or its subsidiary, irrespective of whether such the
place of business or agent is located here permanently or temporarily, or whether such retailer or
subsidiary is admitted to do business within this state pursuant to section forty-nine, article one
fifteen, chapter thirty-one thirty-one-d of this code or article fourteen, chapter thirty-one-e of this
code;
(9) "Sale" means any transaction resulting in the purchase or lease of tangible personal
property, custom software or a taxable service from a retailer;
(10) "Seller" means a retailer, and includes every person selling or leasing tangible personal
property or custom software or furnishing a taxable service in a transaction which that is subject to
the tax imposed by this article;
(11) "Streamlined sales and use tax agreement" or "agreement," when used in this article,
shall have the same meaning as when used in article fifteen-b of this chapter, except when the
context in which the word agreement is used clearly indicates that a different meaning is intended
by the Legislature;
(12) "Tangible personal property" means tangible goods, wares and merchandise when sold
by a retailer for use in this state personal property that can be seen, weighed, measured, felt, or
touched, or that is in any manner perceptible to the senses. "Tangible personal property" includes,
but is not limited to, electricity, water, gas, and prewritten computer software;
(11)(13) "Tax commissioner" or "commissioner" means the state tax commissioner, or his
or her delegate. The term "delegate" in the phrase "or his or her delegate," when used in reference
to the tax commissioner, means any officer or employee of the state tax division duly authorized by
the tax commissioner directly, or indirectly by one or more redelegations of authority, to perform
the functions mentioned or described in this article or rules promulgated for this article;
(13)(14) "Taxpayer" includes any person within the meaning of this section, who is subject
to a tax imposed by this article, whether acting for himself or herself or as a fiduciary; and
(14)(15) "Use" means and includes:
(A) The exercise by any person of any right or power over tangible personal property or
custom software incident to the ownership, possession or enjoyment of such the property, or by any
transaction in which possession of or the exercise of any right or power over tangible personal
property, custom software or the result of a taxable service is acquired for a consideration, including
any lease, rental or conditional sale of tangible personal property or custom software; or
(B) The use or enjoyment in this state of the result of a taxable service. As used in this
definition subdivision (15), "enjoyment" includes a purchaser's right to direct the disposition of the
property or the use of the taxable service, whether or not the purchaser has possession of the
property.
The term "use" does not include the keeping, retaining or exercising any right or power over
tangible personal property, custom software or the result of a taxable service for the purpose of
subsequently transporting it outside the state for use thereafter solely outside this state.
(b) Additional definitions. -- Other terms used in this article are defined in articles fifteen
and fifteen-b of this chapter, which definitions are incorporated by reference into article fifteen-a.
Additionally, other sections of this article may define terms primarily used in the section in which
the term is defined.
§11-15A-1a. Legislative findings.
The Legislature hereby finds and declares that:
(1) It is the intent of the Legislature that the use tax imposed by the provisions of article
fifteen-a and the consumers sales tax imposed by the provisions of article fifteen chapter eleven of
the Code of West Virginia, one thousand nine hundred thirty-one, as amended, of this chapter be
complementary laws and wherever possible be construed and applied to accomplish such the intent
as to the imposition, administration and collection of such these taxes; and
(2) On and after the first day of January, two thousand four, the taxes levied by this article
and article fifteen of this chapter shall also be administered and collected in accordance with the
provisions of article fifteen-b of this chapter.
§11-15A-2. Imposition of tax; six percent tax rate; inclusion of services as taxable; transition
rules; allocation of tax and transfers.
(a) An excise tax is hereby levied and imposed on the use in this state of tangible personal
property, custom software or taxable services, to be collected and paid as hereinafter provided in this
article or article fifteen-b of this chapter, at the rate of six percent of the purchase price of such the
property or taxable services, except as otherwise provided in this article.
(b) Calculation of tax on fractional parts of a dollar. -- The tax computation under
subsection (a) of this section shall be carried to the third decimal place and the tax rounded up to the
next whole cent whenever the third decimal place is greater than four and rounded down to the lower
whole cent whenever the third decimal place is four or less. The vendor may elect to compute the
tax due on a transaction on a per item basis or on an invoice basis provided the method used is
consistently used during the reporting period.
(c) "Taxable services," for the purposes of this article, means services of the nature that are
subject to the tax imposed by article fifteen of this chapter. In this article, wherever the words
"tangible personal property" or "property" appear, the same shall include the words "or taxable
services," where the context so requires.
(b)(d) Such Use tax is hereby imposed upon every person using tangible personal property,
custom software or taxable services service within this state. That person's liability is not
extinguished until such the tax has been paid. A receipt with the tax separately stated thereon issued
by a retailer engaged in business in this state, or by a foreign retailer who is authorized by the tax
commissioner to collect the tax imposed by this article, relieves the purchaser from further liability
for the tax to which the receipt refers.
(c)(e) Purchases of tangible personal property or taxable services made for the government
of the United States or any of its agencies by ultimate consumers shall be is subject to the tax
imposed by this section. Industrial materials and equipment owned by the federal government
within the state of West Virginia of a character not ordinarily readily obtainable within the state,
shall not be is not subject to use tax when sold, if such the industrial materials and equipment would
not be subject to use taxes if such were sold outside of the state for use in West Virginia.
(d)(f) This article shall does not apply to purchases made by counties or municipal
corporations.
(e) The provisions of this section, as amended, shall apply on and after the first day of
March, one thousand nine hundred eighty-nine, except where another internal specific effective date
controls.
(f) Of the taxes collected under the provisions of this article, one sixth of such taxes collected
for the period subsequent to the thirty-first day of May, one thousand nine hundred eighty-eight, and
prior to the first day of July, one thousand nine hundred eighty-nine, and not attributable to or
resulting from the repeal of section eleven, article fifteen of this chapter or attributable to tax on
gasoline and special fuel, shall be reasonably allocated, with allowances for refunds and net of
reasonable costs of administration, to, and deposited by the tax commissioner in the special account
created in the treasury by section eight-a, article four-b, chapter twenty-three of this code, not to
exceed the amount sufficient for making timely repayment of the principal and interest under the
first payment due, by the thirtieth day of June, one thousand nine hundred eighty-nine, in repayment
for the moneys previously transferred from such pneumoconiosis fund.
§11-15A-3. Exemptions.
(a) The use in this state of the following tangible personal property, custom software and
services is hereby specifically exempted from the tax imposed by this article to the extent specified:
(1) All articles of tangible personal property and custom software brought into the state of
West Virginia by a nonresident individual thereof for his or her use or enjoyment while temporarily within this state or while passing through this state, except gasoline and special fuel: Provided, That
fuel contained in the supply tank of a motor vehicle that is not a motor carrier shall may not be
taxable.
(2) Tangible personal property, custom software or services, the gross receipts from the sale
of which are exempt from the sales tax by the terms of article fifteen, chapter eleven of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, and the property or services are
being used for the purpose for which it was exempted.
(3) Tangible personal property, custom software or services, the gross receipts or the gross
proceeds from the sale of which are required to be included in the measure of the tax imposed by
article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, and upon which the tax imposed by said article fifteen has been paid.
(4) Tangible personal property, custom software or services, the sale of which in this state
is not subject to the West Virginia consumers sales tax.
(5) Mobile Fifty percent of the measure of tax on mobile homes utilized by the owners
thereof as their principal year-round residence and dwelling. Provided, That use of these mobile
homes shall be subject to tax at the three percent rate
(b) The provisions of this section, as amended in the year two thousand three, shall apply on
and after the first day of July, one thousand nine hundred eighty-seven January, two thousand four.
§11-15A-3a. Moving residence or business into state.
The tax imposed by this article shall does not apply to tangible personal property, custom
software or services purchased outside this state for use outside this state by a person who at that
time was a nonresident natural person, or a business entity not actually doing business within this
state, who or which later brings such tangible personal property or custom software into this state
in connection with his or her establishment of a permanent residence or business in this state:
Provided, That such the property was purchased more than six months prior to the date it was first brought into this state, or six months prior to the establishment of such his or her residence or
business, whichever first occurs.
§11-15A-4. Evidence of use.
For the purpose of the proper administration of this article to prevent evasion of the tax,
evidence that tangible personal property, custom software or a service was sold by any person for
delivery in this state shall be is prima facie evidence that such the tangible personal property, custom
software or service was sold for use in this state.
§11-15A-5. How collected.
The tax herein imposed in section two of this article shall be collected in the following
manner:
(1) The tax upon the use of all tangible personal property, custom software or services, which
is sold by a retailer engaging in business in this state, or by such any other retailer as the tax
commissioner shall authorize authorizes pursuant to section seven of this article, or article fifteen
-b of this chapter, shall be collected by such the retailer and remitted to the state tax commissioner,
pursuant to the provisions of sections six through ten, inclusive, of this article, or by the seller
registered under article fifteen-b of this chapter, in accordance with the provisions of this article and
article fifteen-b of this chapter.
(2) The tax upon the use of all tangible personal property, custom software and taxable
services not paid pursuant to subsection subdivision (1) of this section, shall be paid to the tax
commissioner directly by any person using such the property or service within this state, pursuant
to the provisions of section eleven of this article.
§11-15A-6. Collection by retailer.
(a) Every retailer engaging in business in this state and making sales of tangible personal
property, custom software or taxable services for delivery into this state, or with the knowledge,
directly or indirectly, that the property or service is intended for use in this state, that are not
exempted under the provisions of section three of this article, shall at the time of making such the sales, whether within or without the state, collect the tax imposed by this article from the purchaser,
and give to the purchaser a receipt therefor in the manner and form prescribed by the tax
commissioner, if the tax commissioner shall, prescribes by regulation so prescribe rule.
(b) Each such retailer shall list with the tax commissioner the name and address of all his the
retailer's agents operating in this state, and the location of any and all distribution or sales houses
or offices or other places of business in this state of the retailer and the retailer's agent or agents.
§11-15A-7. Foreign retailers.
The tax commissioner may, in his or her discretion, upon application authorize the collection
of the tax herein imposed in section two of this article by any retailer not engaging in business
within this state, who, to the satisfaction of the tax commissioner, furnishes adequate security to
insure collection and payment of the tax. Such The retailer shall be issued, without charge, a permit
to collect such the tax in such the manner, and subject to such regulations the rules and agreements
as the tax commissioner shall prescribe prescribes. When so authorized, it shall be is the duty of
such the retailer to collect the tax upon all tangible personal property, custom software and services
sold to his the retailer's knowledge for use within this state, in the same manner and subject to the
same requirements as a retailer engaging in business within this state. Such The authority and
permit may be canceled when, at any time, the tax commissioner considers the security inadequate,
or that such the tax can more effectively be collected from the person using such the property or
taxable service in this state.
§11-15A-8. Absorbing tax; criminal penalty.
(a) It shall be is unlawful for any retailer to advertise or hold out or state to the public or to
any purchaser, consumer or user, directly or indirectly, that the tax or any part thereof imposed by
this article will be assumed or absorbed by the retailer or that it will not be added to the selling price
of the property or taxable service sold, or if added that it or any part thereof will be refunded.
(b) The tax commissioner shall have has the power to adopt and promulgate rules and
regulations for adding such the tax, or the equivalent thereof, by providing different methods applying uniformly to retailers within the same general classification for the purpose of enabling
such retailers to add and collect, as far as practicable, the amount of such the tax.
(c) Any person violating any of the provisions of this section within this state shall be
is guilty of a misdemeanor, and subject to the penalties provided in section twenty of this article
seven, article nine of this chapter.
§11-15A-9. Tax as debt.
The tax herein required to be collected by any retailer pursuant to sections six, six-a or seven
of this article, or by any seller or certified service provider pursuant to article fifteen-b of this
chapter, and any tax collected by any retailer, seller or certified service provider pursuant to said
section six, six-a or seven of this article, or article fifteen-b of this chapter, shall constitute
constitutes a debt owed by the retailer, seller or certified service provider to this state. The amount
of tax collected shall be held in trust for the state of West Virginia until paid over to the tax
commissioner.
§11-15A-10. Payment to tax commissioner.
(a) Each retailer required or authorized, pursuant to section six, six-a or seven, or pursuant
to article fifteen-b of this chapter, to collect the tax herein imposed in section two of this article, is
required to pay to the tax commissioner the amount of the tax on or before the fifteenth twentieth
day of the month next succeeding each quarterly period calendar month, except as otherwise
provided in this article or article fifteen-b of this chapter.
(b) Each certified service provider for a Model I seller shall pay to the tax commissioner the
tax levied by this article on or before the twentieth day of the month next succeeding the calendar
month in which the tax accrued, except as otherwise provided in this article or article fifteen-b of
this chapter.
(b)(c) At that time, each retailer, seller or certified service provider shall file with the tax
commissioner a return for the preceding quarterly monthly period, except as otherwise provided in
this article or article fifteen-b of this chapter, in the form prescribed by the tax commissioner showing the sales price of any or all tangible personal property, custom software and taxable
services sold by the retailer or seller during the preceding quarterly period, the use of which is
subject to the tax imposed by this article, and any other information the tax commissioner may deem
consider necessary for the proper administration of this article. The return shall be accompanied by
a remittance of the amount of the tax, for the period covered by the return, except as otherwise
provided in this article or article fifteen-b of this chapter: Provided, That where the tangible
personal property or custom software is sold under a conditional sales contract, or under any other
form of sale wherein the payment of the principal sum, or a part of the sum is extended over a period
longer than sixty days from the date of the sale, the retailer may collect and remit each quarterly
monthly period that portion of the tax equal to six percent of that portion of the purchase price
actually received during the quarterly monthly period. The tax commissioner, if he or she deems
it necessary in order to insure payment to the state of the amount of the tax, may in any or all cases
require returns and payments of the amount to be made for other than quarterly periods.
(c)(d) The tax commissioner may, upon request and a proper showing of the necessity to do
so, grant an extension of time not to exceed thirty days for making any return and payment.
(d)(e) Returns shall be signed by the retailer or seller or his or her duly authorized agent, and
must be certified by him or her to be correct, except as otherwise provided in this article or article
fifteen-b of this chapter.
(f) Accelerated payment. --
(1) For calendar years beginning after the thirty-first day of December, two thousand two,
taxpayers whose average monthly payment of the taxes levied by this article and article fifteen of
this chapter during the previous calendar year exceeds one hundred thousand dollars, shall remit the
tax attributable to the first fifteen days of June each year on or before the twentieth day of said
month of June.
(2) For purposes of complying with subdivision (1) of this subsection, the taxpayer shall
remit an amount equal to the amount of tax imposed by this article and article fifteen of this chapter on actual taxable sales of tangible personal property and custom software and sales of taxable
services during the first fifteen days of June or, at the taxpayer's election, taxpayer may remit an
amount equal to fifty percent of taxpayer's liability for tax under this article on taxable sales of
tangible personal property and custom software and sales of taxable services made during the
preceding month of May.
(3) For a business which has not been in existence for a full calendar year, the total tax due
from the business during the prior calendar year shall be divided by the number of months, including
fractions of a month, that it was in business during the prior calendar year; and if that amount
exceeds one hundred thousand dollars, the tax attributable to the first fifteen days of June each year
shall be remitted on or before the twentieth day of said month of June as provided in subdivision (2)
of this subsection.
(4) When a taxpayer required to make an advanced payment of tax under subdivision (1) of
this subsection makes out its return for the month of June, which is due on the twentieth day of July,
the taxpayer may claim as a credit against its liability under this article for tax on taxable
transactions during the month of June, the amount of the advanced payment of tax made under
subdivision (1) of this subsection.
§11-15A-10a. Credit for sales tax liability paid to another state.
(a) A person is entitled to a credit against the tax imposed by this article on the use of a
particular item of tangible personal property, custom software or service equal to the amount, if any,
of sales tax lawfully paid to another state for the acquisition of that property or service: Provided,
That the amount of credit allowed shall does not exceed the amount of use tax imposed on the use
of the property in this state.
(b) For purposes of this section:
(1) "Sales tax" includes a sales tax or compensating use tax imposed on the use of tangible
personal property or a service by the state in which the sale occurred; and
(2) "State" includes the District of Columbia but does not include any of the several
territories organized by Congress.
(c) This section shall apply to claims for refund or credit of use tax filed after the thirty-first
day of August, one thousand nine hundred eighty-six, for taxable purchases made on or after the first
day of July, one thousand nine hundred eighty-five, that were legally subject to a sales tax or
compensating use tax paid in another state and then also taxed under this article.
§11-15A-11. Liability of user.
(a) Any person who uses any tangible personal property, custom software or the results of
a taxable service upon which the tax herein imposed has not been paid either to a retailer or direct
to the tax commissioner is liable for the amount of the nonpayment, and persons required by law to
hold a West Virginia business registration certificate shall on or before the fifteenth day of the
month next succeeding each quarterly period pay the tax herein imposed in section two of this article
upon all the property and services used by him or her during the preceding quarterly period and
accompanied by returns the tax commissioner prescribes: Provided, That if the aggregate annual
tax liability of any person under this article is six hundred dollars or less, the person shall, in lieu
of the quarterly payment and filing, pay the tax on or before the fifteenth day of the first month next
succeeding the end of his or her taxable year, and shall file the annual return as may be prescribed
by the tax commissioner. The tax commissioner may, by nonemergency legislative rules
promulgated pursuant to article three, chapter twenty-nine-a of this code, change the foregoing
minimum amounts.
(b) Any individual who is not required by law to hold a West Virginia business registration
certificate, who uses any tangible personal property or taxable service upon which the West Virginia
use tax has not been paid either to a retailer or directly to the tax commissioner is liable for the West
Virginia use tax upon property or taxable services and, notwithstanding the amount of the annual
aggregate annual tax liability, shall pay the use tax imposed upon all property or taxable services
used by him or her during the taxpayer's federal taxable year on or before the fifteenth day of April of the taxpayer's next succeeding federal tax year, and shall file the annual return therewith as the
tax commissioner may authorize or require.
(c) All of the provisions of section ten with reference to quarterly or annual returns and
payments are applicable to the returns and payments required under this section.
(d) The amendments to this section enacted in the year two thousand are effective for tax
years beginning on or after the first day of January, two thousand one.
§11-15A-18. Seller must show sale not at retail; presumption.
(a) The burden of proving that a sale was not taxable shall be upon the seller, unless, for sales
subject to section three-c of this article, he the seller, in good faith, takes from the purchaser a
certificate signed by and bearing the address of the purchaser setting forth the reason for exemption
of the sale from imposition of the tax.
(b) Notwithstanding subsection (a) of this section, a seller who is registered under the
streamlined sales and use tax agreement to collect this tax is relieved of the good faith requirement
for the taking of an exemption certificate in accordance with article fifteen-b of this chapter, and any
rule promulgated by the governing board for the agreement.
(c) To prevent evasion it shall be is presumed that all proceeds are subject to the tax until the
contrary is clearly established.
(d) This certificate shall be substantially in the form prescribed by the tax commissioner:
Provided, That when the seller is registered under the streamlined sales and use tax agreement to
collect the tax imposed by this article, the exemption certificate taken shall conform with
requirements of the streamlined sales and use tax agreement and any rules prescribed by the
governing board for the agreement.
§11-15A-21. Books; examination.
(a) Every retailer required or authorized to collect taxes imposed by this article and every
person using in this state tangible personal property, custom software or taxable services purchased
on or after the first day of July, one thousand nine hundred fifty-one, shall keep such records, receipts, invoices, and other pertinent papers as the tax commissioner shall require requires, in such
any form as the tax commissioner shall require requires.
(b) In addition to the tax commissioner's powers set forth in article ten of this chapter, the
tax commissioner or any of his or her duly authorized agents is hereby authorized to examine the
books, papers, records and equipment of any person who either:
(1) Is selling tangible personal property, custom software or taxable services; or
(2) Is liable for the tax imposed by this article, and to investigate the character of the
business of any such person in order to verify the accuracy of any return made, or if no return was
made by such the person, to ascertain and determine the amount due under the provisions of this
article. Any such books, papers and records shall be made available within this state for such
examination upon reasonable notice when the tax commissioner shall deem it advisable and shall
so order. However, where the taxpayer's records must be kept out-of-state, the taxpayer may upon
being notified by the tax commissioner that an examination is to be made, elect to do one of the
following:
(1) Forthwith transport the required records to a convenient point in West Virginia and notify
the tax commissioner that they are available; or
(2) Pay the reasonable traveling expenses of the tax commissioner's representatives from
Charleston, West Virginia, to the out-of-state place where the records are kept, and return, and
reasonable living expenses of such representatives while engaged in their examination.
§11-15A-22. Canceling or revoking permits.
Whenever any retailer engaging in business in this state, or authorized to collect the tax
herein imposed in this article pursuant to section seven of this article, fails to comply with any of
the provisions of this article or any orders, or rules or regulations of the tax commissioner prescribed
and adopted for this article under article ten of this chapter, the tax commissioner may, upon notice
and hearing, hereinafter provided, by order, cancel the business registration certificate, if any, issued
to such the retailer under article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, or if such the retailer is a corporation authorized to do business
in this state under section forty-nine, article one, chapter thirty-one of said article fifteen, chapter
thirty-one-d of this code or article fourteen, chapter thirty-one-e of this code, may certify to the
secretary of state a copy of an order finding that such the retailer has failed to comply with certain
specified provisions, orders, or rules or regulations. The secretary of state shall, upon receipt of such
certified copy the certification, revoke the permit authorizing said the corporation to do business in
this state, and shall issue a new permit only when such the corporation shall have has obtained from
the tax commissioner an order finding that such the corporation has complied with its obligations
under this article. No order authorized in this section shall be made until the retailer is given an
opportunity to be heard and to show cause why such the order should not be made, and he the
corporation shall be given twenty days' notice of the time, place and purpose of such the hearing,
which shall be heard as provided in section nine, article ten ten-a of this chapter. The tax
commissioner shall have the power in his or her discretion to issue a new business registration
certificate after such canceling the business registration certificate is canceled.
§11-15A-27. Construction; partial unconstitutionality.
The provisions of this article shall be deemed to be severable and if for any reason any
provision shall be determined to be unconstitutional or invalid, such determination shall not be held
to affect any other provision hereof.
(a) If a court of competent jurisdiction finds that the provisions of this article and of article
fifteen-b of this chapter conflict and cannot be harmonized, then the provisions of article fifteen-b
shall control.
(b) If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this
article is for any reason held to be invalid, unlawful or unconstitutional, that decision does not affect
the validity of the remaining portions of this article or any part thereof.
§11-15A-29. Effective date.
(a) The provisions of this article as amended or added by Senate Bill No. 1 took effect on
the first day of March, one thousand nine hundred eighty-nine, and apply to all purchases made or
used in this state on or after that date: Provided, That if an effective date was expressly provided
in a provision of such act, that specific effective date controlled in lieu of this general effective date
provision.
(b) The provisions of this article as amended or added by this act shall take effect on the first
day of July, one thousand nine hundred eighty-nine, and apply to all purchases made or used in this
state on or after that date: Provided, That if an effective date is expressly provided in such
provision, that specific effective date shall control in lieu of this general effective date provision.
The provisions of this article, as amended or added during the regular legislative session in the year
two thousand three, shall take effect the first day of January, two thousand four, and apply to all
sales made on or after that date and to all returns and payments due on or after that day.
ARTICLE 15B. STREAMLINED SALES AND USE TAX ADMINISTRATION ACT.
§11-15B-1. Title.
The provisions of this article shall be known as and referred to as the "Simplified
"Streamlined Sales and Use Tax Administration Act."
§11-15B-2. Definitions.
As used in this article: (a) General. -- When used in this article and articles fifteen and
fifteen-a of this chapter, words defined in subsection (b) of this section shall have the meanings
ascribed to them in this section, except in those instances where a different meaning is distinctly
expressed or the context in which the term is used clearly indicates that a different meaning is
intended by the Legislature.
(b) Terms defined. --
(1) "Agent" means a person appointed by a seller to represent the seller before the member
states.
(1)(2) "Agreement" means the streamlined sales and use tax agreement, as defined in section
two-a of this article.
(3) "Alcoholic beverages" means beverages that are suitable for human consumption and
contain one-half of one percent or more of alcohol by volume.
(2)(4) "Certified automated system" or "CAS" means software certified jointly by the states
that are signatories to under the agreement to calculate the tax imposed by each jurisdiction on a
transaction, determine the amount of tax to remit to the appropriate state, and maintain a record of
the transaction.
(3)(5) "Certified service provider" or "CSP" means an agent certified jointly by the states
that are signatories to under the agreement to perform all of the seller's sales tax functions.
(6) "Computer" means an electronic device that accepts information in digital or similar form
and manipulates the information for a result based on a sequence of instructions.
(7) "Computer software" means a set of coded instructions designed to cause a "computer"
or automatic data processing equipment to perform a task.
(8) "Delivered electronically" means delivered to the purchaser by means other than tangible
storage media.
(9) "Delivery charges" means charges by the seller of personal property or services for
preparation and delivery to a location designated by the purchaser of personal property or services
including, but not limited to, transportation, shipping, postage, handling, crating, and packing.
(10) "Dietary supplement" means any product, other than "tobacco," intended to supplement
the diet that:
(A) Contains one or more of the following dietary ingredients:
(i) A vitamin;
(ii) A mineral;
(iii) A herb or other botanical;
(iv) An amino acid;
(v) A dietary substance for use by humans to supplement the diet by increasing the total
dietary intake; or
(vi) A concentrate, metabolite, constituent, extract or combination of any ingredient
described in subparagraph (i) through (v) of this subdivision;
(B) Is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form, or if
not intended for ingestion in such a form, is not represented as conventional food and is not
represented for use as a sole item of a meal or of the diet; and
(C) Is required to be labeled as a dietary supplement, identifiable by the "Supplemental
Facts" box found on the label as required pursuant to 21 C.F.R. §101.36, or in any successor section
of the code of federal regulations.
(11) "Direct mail" means printed material delivered or distributed by United States mail or
other delivery service to a mass audience or to addressees on a mailing list provided by the
purchaser or at the direction of the purchaser when the cost of the items are not billed directly to the
recipients. "Direct mail" includes tangible personal property supplied directly or indirectly by the
purchaser to the direct mail seller for inclusion in the package containing the printed material.
"Direct mail" does not include multiple items of printed material delivered to a single address.
(12) "Drug" means a compound, substance or preparation, and any component of a
compound, substance or preparation, other than food and food ingredients, dietary supplements or
alcoholic beverages:
(A) Recognized in the official United States pharmacopoeia, official homeopathic
pharmacopoeia of the United States, or official national formulary, and supplement to any of them;
(B) Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease
in humans; or
(C) Intended to affect the structure or any function of the human body.
(13) "Durable medical equipment" means equipment including repair and replacement parts
for the equipment, but does not include "mobility enhancing equipment", which:
(A) Can withstand repeated use;
(B) Is primarily and customarily used to serve a medical purpose;
(C) Generally is not useful to a person in the absence of illness or injury; and
(D) Is not worn in or on the body.
(14) "Electronic" means relating to technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities.
(15) "Entity-based exemption" means an exemption based on who purchases the product or
service or who sells the product or service.
(16) "Food and food ingredients" means substances, whether in liquid, concentrated, solid,
frozen, dried or dehydrated form, that are sold for ingestion or chewing by humans and are
consumed for their taste or nutritional value. "Food and food ingredients" does not include alcoholic
beverages or tobacco.
(17) "Includes" and "including" when used in a definition contained in this article is not
considered to exclude other things otherwise within the meaning of the term being defined.
(18) "Lease" includes rental, hire and license. "Lease" means any transfer of possession or
control of tangible personal property for a fixed or indeterminate term for consideration. A lease
or rental may include future options to purchase or extend.
(A) "Lease" does not include:
(i) A transfer of possession or control of property under a security agreement or deferred
payment plan that requires the transfer of title upon completion of the required payments;
(ii) A transfer or possession or control of property under an agreement that requires the
transfer of title upon completion of required payments and payment of an option price does not
exceed the greater of one hundred dollars or one percent of the total required payments; or
(iii) Providing tangible personal property along with an operator for a fixed or indeterminate
period of time. A condition of this exclusion is that the operator is necessary for the equipment to perform as designed. For the purpose of this subparagraph, an operator must do more than maintain,
inspect, or set-up the tangible personal property.
(B) This definition shall be used for sales and use tax purposes regardless if a transaction is
characterized as a lease or rental under generally accepted accounting principles, the Internal
Revenue Code, the uniform commercial code, or other provisions of federal, state or local law.
(19) "Load and leave" means delivery to the purchaser by use of a tangible storage media
where the tangible storage media is not physically transferred to the purchaser.
(20) "Mobility enhancing equipment" means equipment, including repair and replacement
parts to the equipment, but does not include "durable medical equipment", which:
(A) Is primarily and customarily used to provide or increase the ability to move from one
place to another and which is appropriate for use either in a home or a motor vehicle;
(B)Is not generally used by persons with normal mobility; and
(C) Does not include any motor vehicle or equipment on a motor vehicle normally provided
by a motor vehicle manufacturer.
(21) "Model I seller" means a seller that has selected a certified service provider as its agent
to perform all the seller's sales and use tax functions, other than the seller's obligation to remit tax
on its own purchases.
(22) "Model II seller" means a seller that has selected a certified automated system to
perform part of its sales and use tax functions, but retains responsibility for remitting the tax.
(23) "Model III seller" means a seller that has sales in at least five member states, has total
annual sales revenue of at least five hundred million dollars, has a proprietary system that calculates
the amount of tax due each jurisdiction, and has entered into a performance agreement with the
member states that establishes a tax performance standard for the seller. As used in this definition,
a seller includes an affiliated group of sellers using the same proprietary system.
(4)(24) "Person" means an individual, trust, estate, fiduciary, partnership, limited liability
company, limited liability partnership, corporation or any other legal entity.
(25) "Personal service" includes those:
(A) Compensated by the payment of wages in the ordinary course of employment; and
(B) Rendered to the person of an individual without, at the same time, selling tangible
personal property, such as nursing, barbering, manicuring and similar services.
(26) "Prescription" means an order, formula or recipe issued in any form of oral, written,
electronic, or other means of transmission by a duly licensed practitioner authorized by the laws of
this state to issue prescriptions.
(27) "Prewritten computer software" means "computer software," including prewritten
upgrades, which is not designed and developed by the author or other creator to the specifications
of a specific purchaser.
(A) The combining of two or more prewritten computer software programs or prewritten
portions thereof does not cause the combination to be other than prewritten computer software.
(B) "Prewritten computer software" includes software designed and developed by the author
or other creator to the specifications of a specific purchaser when it is sold to a person other than the
purchaser. Where a person modifies or enhances computer software of which the person is not the
author or creator, the person is considered to be the author or creator only of the person's
modifications or enhancements.
(C) "Prewritten computer software" or a prewritten portion thereof that is modified or
enhanced to any degree, where the modification or enhancement is designed and developed to the
specifications of a specific purchaser, remains prewritten computer software: Provided, That where
there is a reasonable, separately stated charge or an invoice or other statement of the price given to
the purchaser for the modification or enhancement, the modification or enhancement does not
constitute prewritten computer software.
(28) "Product-based exemption" means an exemption based on the description of the product
or service and not based on who purchases the product or service or how the purchaser intends to
use the product or service.
(29) "Prosthetic device" means a replacement, corrective, or supportive device including
repair and replacement parts for the device worn on or in the body to:
(A) Artificially replace a missing portion of the body;
(B) Prevent or correct physical deformity or malfunction of the body; or
(C) Support a weak or deformed portion of the body.
(30) "Protective equipment" means items for human wear and designed as protection of the
wearer against injury or disease or as protections against damage or injury of other persons or
property but not suitable for general use.
(31) "Purchase price" means the measure subject to the tax imposed by article fifteen or
article fifteen-a of this chapter and has the same meaning as sales price.
(32) "Purchaser" means a person to whom a sale of personal property is made or to whom
a service is furnished.
(33) "Registered under this agreement" means registration by a seller with the member states
under the central registration system provided in article four of the agreement.
(34) "Retail sale" or "sale at retail" means:
(A) Any sale or lease for any purpose other than for resale as tangible personal property,
sublease or subrent; and
(B) Any sale of a service other than a service purchased for resale.
(35)(A) "Sales price" means the measure subject to the tax levied by this article and includes
the total amount of consideration, including cash, credit, property and services, for which personal
property or services are sold, leased or rented, valued in money, whether received in money or
otherwise, without any deduction for the following:
(i) The seller's cost of the property sold;
(ii) The cost of materials used, labor or service cost, interest, losses, all costs of
transportation to the seller, all taxes imposed on the seller, and any other expense of the seller;
(iii) Charges by the seller for any services necessary to complete the sale, other than delivery
and installation charges;
(iv) Delivery charges;
(v) Installation charges;
(vi) The value of exempt personal property given to the purchaser where taxable and exempt
personal property have been bundled together and sold by the seller as a single product or piece of
merchandise; and
(vii) Credit for the fair market value of any trade-in.
(B) "Sales price" does not include:
(i) Discounts, including cash, term or coupons that are not reimbursed by a third party that
are allowed by a seller and taken by a purchaser on a sale;
(ii) Interest, financing, and carrying charges from credit extended on the sale of personal
property, goods or services, if the amount is separately stated on the invoice, bill of sale or similar
document given to the purchaser; and
(iii) Any taxes legally imposed directly on the consumer that are separately stated on the
invoice, bill of sale or similar document given to the purchaser.
(5)(36) "Sales tax" means the tax levied under article fifteen of this chapter.
(6)(37) "Seller" means any person making sales, leases or rentals of personal property or
services.
(38) "Service" or "selected service" includes all nonprofessional activities engaged in for
other persons for a consideration, which involve the rendering of a service as distinguished from the
sale of tangible personal property, but does not include contracting, personal services, services
rendered by an employee to his or her employer, any service rendered for resale, or any service
furnished by a business that is subject to the control of the public service commission when the
service or the manner in which it is delivered is subject to regulation by the public service
commission of this state.
(7)(39) "State" means any state of the United States and the District of Columbia.
(40) "Tangible personal property" means personal property that can be seen, weighed,
measured, felt, or touched, or that is in any manner perceptible to the senses. "Tangible personal
property" includes, but is not limited to, electricity, water, gas, and prewritten computer software.
(41) "Tax" includes all taxes levied under articles fifteen and fifteen-a of this chapter, and
additions to tax, interest and penalties levied under article ten of this chapter.
(42) "Tax commissioner" means the state tax commissioner or his or her delegate. The term
"delegate" in the phrase "or his or her delegate," when used in reference to the tax commissioner,
means any officer or employee of the state tax division duly authorized by the tax commissioner
directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned
or described in this article or rules promulgated for this article.
(43) "Taxpayer" means any person liable for the taxes levied by articles fifteen and fifteen-a
of this chapter or any additions to tax, penalties imposed by article ten of this chapter.
(44) "Tobacco" means cigarettes, cigars, chewing or pipe tobacco, or any other item that
contains tobacco.
(8)(45) "Use tax" means the tax levied under article fifteen-a of this chapter.
(46) "Use based exemption" means an exemption based on the purchaser's use of the product
or service.
(47) "Vendor" means any person furnishing services taxed by article fifteen or fifteen-a of
this chapter, or making sales of tangible personal property or custom software. "Vendor" and
"seller" are used interchangeably in this article and in article fifteen and fifteen-a of this chapter.
(c) Additional definitions. -- Other terms used in this article are defined in articles fifteen
and fifteen-a of this chapter, which definitions are incorporated by reference into article fifteen-b.
Additionally, other sections of this article may define terms primarily used in the section in which
the term is defined.
§11-15B-2a. Streamlined sales and use tax agreement defined.
As used in this article and articles fifteen and fifteen-a of this chapter, the term "streamlined
sales and use tax agreement" or "agreement" means the agreement adopted the twelfth day of
November, two thousand two, by states that enacted authority to engage in multistate discussions
similar to that provided in section four of this article, except when the context in which the term is
used clearly indicates that a different meaning is intended by the Legislature. "Agreement" does
not include any substantive changes in the agreement adopted after the Legislature enacts this
section in the year two thousand three.
§11-15B-3. Legislative findings.
(a) The Legislature finds that a simplified streamlined sales and use tax administration
system will reduce and over time eliminate the burden and cost for all vendors to collect this state's
sales and use tax. The Legislature further finds that this state should participate in multistate
discussions to review and/or amend the terms of the agreement to simplify and modernize sales and
use tax administration in order to substantially reduce the burden of tax compliance for all sellers
and for all types of commerce.
(b) The Legislature finds that the streamlined sales and use tax agreement adopted the twelfth
day of November, two thousand two, by representatives of the states participating in multistate
discussions to amend and implement the agreement substantially complies with the requirements
of section seven of this article, as enacted in the year two thousand two, and that this state should
now sign the agreement.
§11-15B-5. Authority to enter agreement.
Subject to approval of the Legislature, by concurrent resolution or general law, the
(a) The tax commissioner is authorized and directed to enter into the streamlined sales and
use tax agreement, after the thirtieth day of June, two thousand three, with one or more states to
simplify and modernize sales and use tax administration in order to substantially reduce the burden
of tax compliance for all sellers and for all types of commerce.
(b) In furtherance of the agreement, the tax commissioner is authorized to act jointly with
other states that are members of the agreement to establish standards for certification of a certified
service provider and certified automated system and establish performance standards for multistate
sellers. The tax commissioner is further authorized to take other actions reasonably required to
implement the provisions set forth in this article. Other actions authorized by this section include,
but are not limited to, the adoption of rules and the joint procurement, with other member states, of
goods and services in furtherance of the cooperative agreement. The tax commissioner or the
commissioner's designee is authorized to represent this state before the other states that are
signatories to the agreement.
§11-15B-11. Seller registration under streamlined sales tax agreement.
(a) General. -- A seller that registers to collect West Virginia sales and use taxes using the
online sales and use tax registration system established under the streamlined sales and use tax
agreement is not required to also register under article twelve of this chapter unless the seller has
sufficient presence in this state that provides at least the minimum contacts necessary for a
constitutionally sufficient nexus for this state to require registration and payment of the registration
tax under article twelve of this chapter.
(b) Registration by agent. -- A person appointed by a seller to represent the seller before the
states that are members of the streamlined sales tax agreement may register the seller under the
agreement under uniform procedures adopted by the member states. The appointment of an agent
shall be in writing and submitted to a member state if requested by a member.
(c) Cancellation of registration. -- A seller registered under the streamlined sales and use
tax agreement may cancel its registration at any time under uniform procedures adopted by the
member states.
§11-15B-12. Effect of seller registration and participation in streamlined sales and use tax
administration.
(a) Collection of tax. -- By registering under the streamlined sales use tax agreement, the
seller agrees to collect and remit sales and use taxes for all taxable sales into this state, as well as
for all other states participating in the agreement. Subsequent withdrawal or revocation of a member
state does not relieve a seller of its responsibility to remit taxes previously or subsequently collected
on behalf of the state.
(b) Effect of registration. -- A member state, or a state that has withdrawn or been expelled
from the streamlined sales and use tax agreement, may not use registration with the central
registration system and the collection of sales and use taxes in the member states as a factor in
determining whether the seller has a nexus with that state for any tax at any time.
§11-15B-13. Amnesty for registration.
(a) Subject to the limitations in this section:
(1) The tax commissioner shall provide amnesty for uncollected or unpaid sales or use tax
to a seller who registers to pay or to collect and remit applicable sales or use tax on sales made to
purchasers in this state in accordance with the terms of the streamlined sales and use tax agreement:
Provided, That the seller was not registered in this state in the twelve-month period preceding the
effective date of this state's participation in the streamlined sales and use tax agreement.
(2) The amnesty precludes assessment for uncollected or unpaid sales or use tax together
with additions to tax, penalty or interest for sales made during the period the seller was not
registered in this state: Provided, That registration under the agreement occurs within twelve
months after the effective date of this state's participation in the streamlined sales and use tax
agreement.
(b) Exceptions. -- The amnesty is not available:
(1) To a seller with respect to any matter or matters for which the seller received notice of
the commencement of an audit and which audit is not yet finally resolved including any related
administrative and judicial processes; or
(2) For sales or use taxes already paid or remitted to the state or to taxes collected by the
seller for this state.
(c) Period of amnesty. -- The amnesty is fully effective, absent the seller's fraud or
intentional misrepresentation of a material fact, as long as the seller continues registration under the
agreement and continues payment or collection and remittance of applicable sales or use taxes for
a period of at least thirty-six months. The statute of limitations applicable to asserting a tax liability
during this thirty-six month period is tolled.
(d) Effect of amnesty. -- The amnesty is applicable only to sales or use taxes due from a
seller in its capacity as a seller and not to sales or use taxes due from a seller in its capacity as a
buyer.
§11-15B-14. General transaction sourcing definitions.
(a) Definition of receive or receipt. -- For the purposes of subsection (a), section fifteen of
this article, the terms "receive" and "receipt" mean:
(1) Taking possession of tangible personal property;
(2) Making first use of services; or
(3) Taking possession or making first use of custom software, whichever comes first.
(b) Limitation. -- The terms "receive" and "receipt" do not include possession by a shipping
company on behalf of the purchaser.
§11-15B-15. General transaction sourcing rules.
(a) General rule. -- For purposes of articles fifteen and fifteen-a of this chapter, the retail
sale, excluding lease or rental, of a product shall be sourced as follows:
(1) When the product is received by the purchaser at a business location of the seller, the sale
is sourced to that business location.
(2) When the product is not received by the purchaser at a business location of the seller, the
sale is sourced to the location where receipt by the purchaser or the purchaser's designated donee occurs, including the location indicated by instructions for delivery to the purchaser or donee, known
to the seller.
(3) When subdivisions (1) and (2) of this subsection do not apply, the sale is sourced to the
location indicated by an address for the purchaser that is available from the business records of the
seller that are maintained in the ordinary course of the seller's business when use of this address
does not constitute bad faith.
(4) When subdivisions (1), (2), and (3) of this subsection do not apply, the sale is sourced
to the location indicated by an address for the purchaser obtained during the consummation of the
sale, including the address of a purchaser's payment instrument, if no other address is available,
provided use of this address does not constitute bad faith.
(5) When none of the previous subdivisions of this subsection apply, including the
circumstance in which the seller is without sufficient information to apply the previous rules, then
the location will be determined by the address from which tangible personal property was shipped,
or computer software delivered electronically was first available for transmission by the seller, or
from which the service was provided: Provided, That any location that merely provided the digital
transfer of the product sold is disregarded for these purposes.
(b) Lease or rental. -- The lease or rental of tangible personal property, other than property
identified in subsection (c) or subsection (d) of this section, shall be sourced as follows:
(1) For a lease or rental that requires recurring periodic payments, the first periodic payment
is sourced the same as a retail sale in accordance with the provisions of subsection (a) of this section.
Periodic payments made subsequent to the first payment are sourced to the primary property location
for each period covered by the payment. The primary property location is as indicated by an address
for the property provided by the lessee that is available to the lessor from its records maintained in
the ordinary course of business, when use of this address does not constitute bad faith. The property
location may not be altered by intermittent use at different locations, such as use of business
property that accompanies employees on business trips and service calls.
(2) For a lease or rental that does not require recurring periodic payments, the payment is
sourced the same as a retail sale in accordance with the provisions of subsection (a) of this section.
(3) This subsection does not affect the imposition or computation of sales or use tax on leases
or rentals based on a lump sum or accelerated basis, or on the acquisition of property for lease.
(c) Vehicles. -- The lease or rental of motor vehicles, trailers, semi-trailers, or aircraft that
do not qualify as transportation equipment, as defined in subsection (d) of this section, shall be
sourced as follows:
(1) For a lease or rental that requires recurring periodic payments, each periodic payment is
sourced to the primary property location. The primary property location is indicated by an address
for the property provided by the lessee that is available to the lessor from its records maintained in
the ordinary course of business, when use of this address does not constitute bad faith. This location
shall not be altered by intermittent use at different locations.
(2) For a lease or rental that does not require recurring periodic payments, the payment is
sourced the same as a retail sale in accordance with the provisions of subsection (a) of this section.
(3) This subsection does not affect the imposition or computation of sales or use tax on leases
or rentals based on a lump sum or accelerated basis, or on the acquisition of property for lease.
(d) Sale or lease or rental of transportation equipment. -- The retail sale, including lease or
rental, of transportation equipment is sourced the same as a retail sale in accordance with the
provisions of subsection (a) of this section, notwithstanding the exclusion of lease or rental in
subsection (a) of this section. "Transportation equipment" means any of the following:
(1) Locomotives and railcars that are utilized for the carriage of persons or property in
interstate commerce.
(2) Trucks and truck-tractors with a gross vehicle weight rating of ten thousand pounds or
greater, trailers, semitrailers, or passenger buses that are:
(A) Registered through the international registration plan; and
(B) Operated under authority of a carrier authorized and certificated by the United States
department of transportation or another federal authority to engage in the carriage of persons or
property in interstate commerce.
(3) Aircraft that are operated by air carriers authorized and certificated by the U.S.
department of transportation or another federal or foreign authority to engage in the carriage of
persons or property in interstate or foreign commerce.
(4) Containers designed for use on and component parts attached or secured on the items set
forth in subdivisions (1) through (3) of this subsection.
§11-15B-16. Application of general sourcing rule and exclusions from the rules.
(a) General. -- Sellers who collect the taxes levied by articles fifteen and fifteen-a of this
chapter shall source the retail sale of a product, as provided in section fifteen of this article. As used
in this section, the term "product" includes tangible personal property, custom software or a service,
or any combination thereof.
(b) Scope of sourcing rule. -- The provisions of section fifteen of this article only apply to
determine a seller's obligation to pay or collect and remit a sales or use tax with respect to the
seller's retail sale of a product. Section fifteen of this article does not affect the obligation of a
purchaser or lessee to remit tax on the use of the product to the taxing jurisdiction of that use.
(c) Exceptions. -- The sourcing rules in this section and section fifteen of this article do not
apply to telecommunications services.
§11-15B-17. Direct mail sourcing.
(a) General. -- Notwithstanding section fifteen of this article, a purchaser of direct mail that
is not a holder of a direct pay permit shall provide to the seller in conjunction with the purchase
either a "direct mail form" or information to show the jurisdictions to which the direct mail is
delivered to recipients.
(1) Upon receipt of the direct mail form, the seller is relieved of all obligations to collect,
pay, or remit the applicable tax and the purchaser is obligated to pay or remit the applicable tax on a direct pay basis. A direct mail form remains in effect for all future sales of direct mail by the seller
to the purchaser until revoked in writing.
(2) Upon receipt of information from the purchaser showing the jurisdictions to which the
direct mail is delivered to recipients, the seller shall collect the tax according to the delivery
information provided by the purchaser. In the absence of bad faith by the seller, the seller is relieved
of any further obligation to collect tax on any transaction where the seller has collected tax pursuant
to the delivery information provided by the purchaser.
(b) When purchaser does not have direct pay permit and does not provide direct mail form.
-- If the purchaser of direct mail does not have a direct pay permit and does not provide the seller
with either a direct mail form or delivery information, as required by subsection (a) of this section,
the seller shall collect the tax according to subdivision (5), subsection (a), section fifteen of this
article. Nothing in this subsection (b) shall limit a purchaser's obligation for sales or use tax to any
state to which the direct mail is delivered.
(c) Direct pay permit. -- If a purchaser of direct mail provides the seller with documentation
of direct pay authority, the purchaser may not be required to provide a direct mail form or delivery
information to the seller.
§11-15B-18. Multiple points of use of certain products and services.
(a) General. -- Notwithstanding the provisions of section fifteen of this article, a business
purchaser that is not a holder of a direct pay permit that knows at the time of the business purchase
of a digital good, computer software delivered electronically, or a service that the digital good,
computer software delivered electronically, or service will be concurrently available for use in more
than one jurisdiction shall deliver to the seller in conjunction with the purchase a "multiple points
of use" or "MPU exemption" form disclosing this fact.
(1) Upon receipt of the MPU exemption form, the seller is relieved of all obligation to
collect, pay, or remit the applicable tax and the purchaser shall be obligated to collect, pay, or remit
the applicable tax on a direct pay basis.
(2) A purchaser delivering the MPU exemption form may use any reasonable, but consistent
and uniform, method of apportionment that is supported by the purchaser's business records as they
exist at the time of the consummation of the sale.
(3) The MPU exemption form remains in effect for all future sales by the seller to the
purchaser, except as to the subsequent sale's specific apportionment that is governed by the principle
of subdivision (2) of this subsection and the facts existing at the time of the sale, until revoked in
writing.
(b) Holders of direct pay permits. -- A holder of a direct pay permit may not be required to
deliver a MPU exemption form to the seller. A direct pay permit holder shall follow the provisions
of subdivision (2), subsection (a) of this section in apportioning the tax due on a digital good,
computer software delivered electronically, or a service that will be concurrently available for use
in more than one jurisdiction.
[§11-15B-19 and §11-15B-20 Reserved.]
§11-15B-21. Notice for state tax changes.
(a) General. -- The tax commissioner shall provide sellers with as much advance notice as
practicable of a rate change for a tax levied by article fifteen or fifteen-a of this chapter.
(b) Effective date of rate changes. -- Unless the Legislature expressly provides a different
effective date for a rate change, the change shall take effect on the first day of the calendar quarter
that begins on or after the effective date of the act of the Legislature that makes the rate change and
that is more than sixty days after passage of the bill making the rate change.
(c) Notification of changes to tax base. -- The tax commissioner shall make reasonable
efforts to notify sellers of legislative changes to the tax base and to amendments to sales and use tax
rules, as that term is defined in section two, article one, chapter twenty-nine-a of this code.
(d) Liability of seller. -- Failure of a seller to receive notice or failure of the state to provide
notice of a rate change or a change in the tax base, or to limit the effective date of a rate change,
does not relieve the seller of its obligation to collect sales or use taxes for this state.
§11-15B-22. Effective date of rate changes for certain services.
The effective date of rate changes for services covering a service period starting before and
ending after the statutory effective date is as follows:
(1) For a rate increase, the new rate applies to the first billing period starting on or after the
effective date.
(2) For a rate decrease, the new rate applies to bills rendered on or after the effective date.
§11-15B-23. Enactment of exemptions.
(a) Product-based exemptions. -- The Legislature may enact a product-based exemption
from the taxes levied by article fifteen and fifteen-a of this chapter without restriction if the
streamlined sales and use tax agreement does not have a definition for the product or for a term that
includes the product. If the agreement has a definition for the product or for a term that includes the
product, the Legislature may exempt all items included within the definition but may not exempt
only part of the items included within the definition, unless the streamlined sales and use tax
agreement sets out the exemption for part of the items as an acceptable variation.
(b) Entity-based or use-based exemption. -- The Legislature may enact an entity-based or
use-based exemption from a tax levied by article fifteen or fifteen-a of this chapter without
restriction if the streamlined sales and use tax agreement does not have a definition for the product
whose use or purchase by a specific entity is exempt or for a term that includes the product. If the
agreement has a definition for the product whose use or specific purchase is exempt, the Legislature
may enact an entity-based or use-based exemption that applies to that product, as long as the
exemption utilizes the streamline sales and use tax agreement definition of the product. If the
agreement does not have a definition for the product whose use or specific purchase is exempt but
has a definition for a term that includes the product, the Legislature may enact an entity-based or
use-based exemption for the product without restriction.
(c) Construction. -- For purposes of complying with the requirements in this section, the
inclusion of a product within the definition of tangible personal property is disregarded.
§11-15B-24. Administration of exemptions.
(a) General. -- When a purchaser claims an exemption under article fifteen or fifteen-a of
this chapter:
(1) A seller registered under the streamlined sales and use tax agreement shall obtain
identifying information of the purchaser and the reason for claiming a tax exemption at the time of
the purchase, as determined by the governing board established pursuant to the agreement. A seller
not registered under the agreement shall obtain identifying information of the purchaser and the
reason for claiming a tax exemption at the time of purchase, as determined by the tax commissioner.
(2) A purchaser is not required to provide a signature to claim an exemption from tax unless
a paper exemption certificate is used.
(3) The seller shall use the standard form for claiming an exemption electronically that is
adopted by the governing board administering the streamlined sales and use tax agreement.
(4) The seller shall obtain the same information for proof of a claimed exemption regardless
of the medium in which the transaction occurred.
(5) The tax commissioner may utilize a system wherein the purchaser exempt from the
payment of the tax is issued an identification number that is presented to the seller at the time of the
sale.
(6) The seller shall maintain proper records of exempt transactions and provide the records
to the tax commissioner or the tax commissioner's designee.
(7) The tax commissioner shall administer use-based and entity-based exemptions when
practicable through a direct pay permit, an exemption certificate, or another means that does not
burden sellers.
(8) The tax commissioner shall relieve sellers registered under the streamlined sales and use
tax agreement that follow the requirements of this section from any tax otherwise applicable if it is
determined that the purchaser improperly claimed an exemption and shall hold the purchaser liable for the nonpayment of tax. This relief from liability does not apply to a seller who fraudulently fails
to collect the tax or solicits purchasers to participate in the unlawful claim of an exemption.
§11-15B-25. Uniform tax returns.
(a) General. -- A seller who registers with this state under the streamlined sales tax
agreement is required to file one sales/use tax return with the tax commissioner for each taxing
period.
(b) Due date of return. -- This return shall be due on the twentieth day of the month
following the month in which the transaction subject to tax occurred.
(c) Additional information returns. -- The tax commissioner shall allow any Model I, Model
II, or Model III seller to submit its sales and use tax returns in a simplified format that does not
include more data fields than permitted by the governing board administering the streamlined sales
and use tax agreement. The tax commissioner may require additional informational returns to be
submitted not more frequently than every six months under a staggered system developed by the
governing board administering the streamlined sales and use tax agreement.
(d) The tax commissioner shall allow any seller that is registered with this state under the
streamlined sales and use tax agreement, which does not have a legal requirement to register in this
state under article twelve of this chapter, and is not a Model I, II, or III seller, to submit its sales and
use tax returns as follows:
(1) Upon registration, the tax commissioner shall provide to the seller the returns required
by this state.
(2) The tax commissioner may require a seller to file a return anytime within one year of the
month of initial registration, and future returns may be required on an annual basis in succeeding
years.
(3) In addition to the returns required in subdivision (2) of this subsection, a seller shall
submit a return by the twentieth day of the month following any month in which the seller
accumulated state and local tax funds for the state in the amount of one thousand dollars or more.
(4) The tax commissioner shall participate with other states that are members of the
streamlined sales and use tax agreement in developing a more uniform sales and use tax return that,
when completed, is available to all sellers.
(5) All Model I, II, and III sellers shall file returns electronically after the first day of
January, two thousand four.
§11-15B-26. Uniform rules for remittances of funds.
(a) General. -- Only one remittance is required for each return except as provided in this
section.
(b) When electronic remittance required. -- All remittances from sellers under Models I, II,
and III shall be remitted electronically after the thirty-first day of December, two thousand three.
(c) Method of remittance. -- Electronic payments shall be made using either the ACH credit
or ACH debit method.
(d) Alternative method. -- The tax commission shall provide by rule, which may be an
existing rule, an alternative method for making "same day" payments if an electronic funds transfer
fails.
(e) Format of data accompany remittance. -- Any data that accompanies a remittance shall
be formatted using uniform tax type and payment type codes approved by the governing board
administering the streamlined sales and use tax agreement.
§11-15B-27. Uniform rules for recovery of bad debt.
(a) General. -- A deduction from taxable sales is allowed for bad debts. Any deduction
taken that is attributed to bad debts may not include interest or any amount upon which the sales or
use tax imposed by this state was not previously paid.
(b) "Bad debt" defined. -- The term "bad debt" has the same meaning as when used in the
federal definition of "bad debt" in 26 U.S.C. Sec. 166 as the basis for calculating bad debt recovery.
However, the amount calculated pursuant to 26 U.S.C. Sec. 166 is adjusted to exclude:
(1) Financing charges or interest;
(2) Sales or use taxes charged on the purchase price;
(3) Uncollectible amounts on property that remain in the possession of the seller until the full
purchase price is paid;
(4) Expenses incurred in attempting to collect any debt; and
(5) Repossessed property.
(c) When deduction may be taken. -- Bad debts may be deducted on the return for the period
during which the bad debt is written off as uncollectible in the claimant's books and records and is
eligible to be deducted for federal income tax purposes. For purposes of this section, a claimant who
is not required to file federal income tax returns may deduct a bad debt on a return filed for the
period in which the bad debt is written off as uncollectible in the claimant's books and records and
would be eligible for a bad debt deduction for federal income tax purposes if the claimant was
required to file a federal income tax return.
(d) Subsequent recovery. -- If a deduction is taken for a bad debt and the debt is
subsequently collected, in whole or in part, the tax on the amount collected shall be paid and
reported on the return filed for the period in which the collection is made.
(e) When bad debt deduction exceeds taxable sales. -- When the amount of bad debt exceeds
the amount of taxable sales for the period during which the bad debt is written off, a refund claim
may be filed within the period specified in section fourteen, article ten of this chapter, for filing a
claim for refund or sales or use tax, except that the statute of limitations shall be measured from the
due date of the return on which the bad debt could first be claimed.
(f) When certified service provider is used. -- Where filing responsibilities of the seller have
been assumed by a certified service provider, the certified service provider may claim, on behalf of
the seller, any bad debt allowance provided by this section. The certified service provider shall
credit or refund to the seller the full amount of any bad debt allowance or refund received under this
section.
(g) Reporting of payment received on previously claimed bad debt. -- For the purposes of
reporting a payment received on a previously claimed bad debt, any payments made on a debt or
account is applied first proportionally to the taxable price of the property or service and the sales tax
thereon, and secondly to interest, service charges, and any other charges.
(h) Allocation. -- In situations where the books and records of the party claiming the bad
debt allowance support an allocation of the bad debts among two or more states that are members
of the streamlined sales and use tax agreement, the allocation is permitted.
§11-15B-28. Confidentiality and privacy protections under Model I.
(a) Purpose. -- The purpose of this section is to set forth the policy of this state for the
protection of the confidentiality rights of all participants in the streamlined sales and use tax
administration and collection system and of the privacy interests of consumers who deal with Model
I sellers.
(b) Certain terms defined. -- As used in this section:
(1) The term "confidential taxpayer information" means all information that is protected
under section five-d, article ten of this chapter;
(2) The term "personally identifiable information" means information that identifies a
person; and
(3) The term "anonymous data" means information that does not identify a person.
(c) Certified service providers. -- With very limited exceptions, a certified service provider
shall perform its tax calculation, remittance, and reporting functions without retaining the personally
identifiable information of consumers.
(d) Certification of service providers. -- The governing board administering the streamlined
sales and use tax agreement may certify a service provider only if that certified service provider
certifies that:
(1) Its system has been designed and tested to ensure that the fundamental precept of
anonymity is respected;
(2) That personally identifiable information is only used and retained to the extent necessary
for the administration of Model I with respect to exempt purchasers;
(3) It provides consumers clear and conspicuous notice of its information practices, including
what information it collects, how it collects the information, how it uses the information, how long,
if at all, it retains the information and whether it discloses the information to member states. This
notice is satisfied by a written privacy policy statement accessible by the public on the official web
site of the certified service provider;
(4) Its collection, use and retention of personally identifiable information is limited to that
required by the states that are members of the streamlined sales and use tax agreement to ensure the
validity of exemptions from taxation that are claimed by reason of a consumer's status or the
intended use of the goods or services purchased; and
(5) It provides adequate technical, physical, and administrative safeguards as to protect
personally identifiable information from unauthorized access and disclosure.
(e) State notification of privacy policy. -- The tax commissioner shall provide public
notification to consumers, including their exempt purchasers, of this state's practices relating to the
collection, use and retention of personally identifiable information.
(f) Destruction of confidential information. -- When any personally identifiable information
that has been collected and retained by the tax commissioner is no longer required for the purposes
set forth in subdivision (4), subsection (d) of this section, the information shall no longer be retained
by the tax commissioner.
(g) Review and correction by individuals. -- When personally identifiable information
regarding an individual is retained by or on behalf of the tax commissioner, the commissioner shall
provide reasonable access by an individual to his or her own information in the commissioner's
possession and a right to correct any inaccurately recorded information.
(h) Discovery by other persons. -- If anyone other than the individual, or a person authorized
in writing by the individual, seeks to discover personally identifiable information, the tax
commissioner shall make a reasonable and timely effort to notify the individual of the request.
(i) Enforcement. -- This privacy policy shall be enforced by the tax commissioner or the
attorney general of this state.
(j) Service provider's confidentiality policy may be more restrictive. -- This privacy policy
does not preclude the governing board administering the streamlined sales and use tax agreement
from certifying a certified service provider whose privacy policy is more protective of confidential
taxpayer information or personally identifiable information than is required by the agreement or the
laws of this state.
§11-15B-29. Customer refund procedure.
(a) General. -- The customer refund procedures set forth in this section apply when a
purchaser seeks a return of over-collected sales or use taxes from the seller.
(b) Applicability. -- These customer refund procedures provide the first course of remedy
available to purchasers seeking a return of over-collected sales or use taxes from the seller. A cause
of action against the seller for the over-collected sales or use taxes does not accrue until a purchaser
has provided written notice to a seller and the seller has had sixty days to respond. The notice to the
seller must contain the information necessary to determine the validity of the request.
(c) Presumption of reasonable business practice. -- In connection with a purchaser's request
from a seller of over-collected sales or use taxes, a seller is presumed to have a reasonable business
practice, if in the collection of the sales or use taxes, the seller:
(1) Uses either a certified service provider or a certified automated system, including a
proprietary system, that is certified by the state; and
(2) Has remitted to the state all taxes collected less any allowable deductions, credits, or
collection allowances.
(d) Statute of limitations. -- Nothing in this section shall operate to extend any person's time
to seek from the tax commissioner a refund of sales or use taxes collected or remitted by a seller in
error.
§11-15B-30. Monetary allowances for new technological models for sales tax collection;
delayed effective date.
(a) Monetary allowance under Model I. --
(1) The tax commissioner shall provide a monetary allowance to a certified service provider
in Model I. This allowance shall be in accordance with the terms of the contract between the
governing board of the streamlined sales and use tax agreement and the certified service provider.
The details of this monetary allowance shall be developed and provided through the contract
process. The contract shall provide that the allowance be funded entirely from money collected in
Model I.
(2) The contract between the governing board and the certified service provider may base
the monetary allowance to a certified service provider on one or more of the following:
(A) A base rate that applies to taxable transactions processed by the certified service
provider; or
(B) For a period not to exceed twenty-four months following a voluntary seller's registration
through the agreement's central registration process, a percentage of tax revenue generated for a
member state by the voluntary seller for each member state for which the seller does not have a
requirement to register to collect the tax.
(b) Monetary allowance for Model II sellers. -- The monetary allowance to sellers under
Model II may be based on the following:
(1) All sellers shall receive a base rate for a period not to exceed twenty-four months
following the commencement of participation by a seller. The base rate is set by the governing
board of the streamlined sales and use tax agreement after the base rate has been established for Model I certified service providers. This allowance is in addition to any vendor or seller discount
afforded by each member state at the time.
(2) Following the conclusion of the twenty-four month period, a seller will only be entitled
to a vendor discount afforded under each member state's law at the time the base rate expires.
(c) Monetary allowance for Model III sellers and all other sellers that are not under Models
I or II. -- A monetary allowance to sellers under Model III and to all other sellers that are not under
Models I or II may be allowed based on the following:
(1) For a period not to exceed twenty-four months following a voluntary seller's registration
through the agreement's central registration process, a percentage of tax revenue generated for a
member state by the voluntary seller for each member state for which the seller does not have a
requirement to register to collect the tax; and
(2) Vendor discounts afforded under each member state's law.
(d) Prohibition on allowance or payment of monetary allowances. -- Notwithstanding
subsections (a), (b) and (c) of this section, the tax commissioner may not allow any vendor, seller
or certified service provider any monetary allowance, discount or other compensation for collecting
and remitting the taxes levied by articles fifteen and fifteen-a of this chapter, or for making and
filing the periodic reports required by this article, or articles fifteen and fifteen-a of this chapter,
until this section is amended by the Legislature.
(e) Findings and declarations. -- The Legislature finds that the vendor cost of collection
study was not completed for use by the governing board of the streamlined sales and use tax
agreement or this Legislature before this Legislature was asked to authorize the tax commissioner
to sign the streamlined sales and use tax agreement. Additionally, no preliminary findings or
conclusions of the study regarding vendor costs of collection are available upon which the tax
commissioner or the Legislature can reasonably project the effect the payment of the monetary
allowances provided for in subsections (a) through (c) of this section will have on net sales and use
tax collections. Because the cost of allowing monetary allowances under collection Models I through IV may reduce net sales and use tax collections, at least in the early years of the agreement,
because many states including this state are experiencing revenue shortfalls, and because the
Legislature is constitutionally required to pass a balanced budget, the Legislature finds and declares
that it is both reasonable and prudent to delay approving this aspect of the agreement until adequate
information does become available and the effect the monetary allowances will have on West
Virginia sales and use tax collections can reasonably be quantified. The Legislature declares its
support for the streamlined sales and use tax agreement by adopting in this enactment all substantive
changes in West Virginia's sales and use tax laws necessary for West Virginia's sales and use tax
laws to be in substantial compliance with the streamlined sales and use tax agreement. Additionally,
the Legislature declares that it can quickly act to reconsider subsection (d) of this section once the
requisite information becomes available.
§11-15B-31. Conflict; partial unconstitutionality.
(a) Conflict. -- If a court of competent jurisdiction finds that the provisions of this article and
of article fifteen-a of this chapter conflict and cannot be harmonized, then the provisions of this
article shall control.
(b) Severability. -- If any section, subsection, subdivision, paragraph, sentence, clause or
phrase of this article is for any reason held to be invalid, unlawful or unconstitutional, that decision
does not affect the validity of the remaining portions of this article or any part thereof.
§11-15B-32. Effective date.
The provisions of this article, as amended or added during the regular legislative session in
the year two thousand three, shall take effect the first day of January, two thousand four, and apply
to all sales made on or after that date and to all returns and payments due on or after that day, except
as otherwise expressly provided in section five of this article.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3014 - "A Bill to amend and reenact sections one-a, two, three, four,
four-a, four-b, five, six, eight, nine-f, thirteen, fourteen, sixteen, thirty-one and thirty-three, article
fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as
amended; to amend and reenact sections one, one-a, two, three, three-a, four, five, six, seven, eight,
nine, ten, ten-a, eleven, eighteen, twenty-one, twenty-two, twenty-seven and twenty-nine, article
fifteen-a of said chapter; to amend and reenact sections one, two, three and five, article fifteen-b of
said chapter; and to further amend said article fifteen-b by adding thereto twenty-one new sections,
designated sections two-a, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen,
twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-
eight, twenty-nine, thirty, thirty-one and thirty-two, all relating generally to "Main Street Fairness
Act of 2003", amending consumers sales and service and use tax laws to conform to requirements
of streamlined sales and use tax agreement; incorporating in this state's sales and use tax laws
certain substantive provisions of agreement pertaining to definitions, administration, collection and
enforcement of sales and use taxes; renaming simplified sales and use tax administration act as
streamlined sales and use tax administration act; authorizing tax commissioner to sign agreement;
specifying effective dates; deleting obsolete language and making other technical changes."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 361), and there were--yeas
89, nays 6, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Ellem, Louisos, Overington and Schoen.
Absent And Not Voting: Blair, Cann, Coleman, Ferrell and Frich.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3014) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 3019, Finding and declaring certain claims against the state and its agencies to be
moral obligations of the state.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of
concurrent resolutions of the House of Delegates, as follows:
H. C. R. 2, Naming the bridge located at the Huntington Business and Industrial Park in
Huntington, Cabell County, the "James Vincent Owens Bridge",
H. C. R. 25, Designating November as "Alzheimer's Awareness Month",
H. C. R. 37, Requesting a study of planning for the safe evacuation from the state capitol
complex of people with disabilities,
H. C. R. 47, Requesting a study on the powers, duties and functions of the governor's
cabinet on children and families,
And,
H. C. R. 49, Requesting a study on the costs and benefits associated with West Virginia's
deer population.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of
Delegates and the passage, as amended, of
Com. Sub. for S. B. 450, Creating automated tax administration system.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage of
S. B. 658 - "A Bill making a supplementary appropriation from the balance of moneys
remaining unappropriated for the fiscal year ending the thirtieth day of June, two thousand three,
to the department of health and human resources - division of human services - James 'Tiger'
Morton catastrophic illness fund, fund 5454, fiscal year 2003, organization 0511, all supplementing
and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand
three."
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 658)
was taken up for immediate consideration, read a first time, ordered to second reading and then
referred to the Committee on Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage of
S. B. 659 - "A Bill making a supplementary appropriation from the balance of moneys
remaining unappropriated for the fiscal year ending the thirtieth day of June, two thousand three,
to the West Virginia state board of examiners for licensed practical nurses, fund 8517, fiscal year
2003, organization 0906, all supplementing and amending the appropriation for the fiscal year
ending the thirtieth day of June, two thousand three."
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 659)
was taken up for immediate consideration, read a first time, ordered to second reading and then
referred to the Committee on Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage of
S. B. 660 - "A Bill supplementing, amending, reducing and increasing items of the existing
appropriations from the state road fund to the department of transportation, division of highways, fund 9017, fiscal year 2003, organization 0803, all supplementing and amending the appropriations
for the fiscal year ending the thirtieth day of June, two thousand three."
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 660)
was taken up for immediate consideration, read a first time, ordered to second reading and then
referred to the Committee on Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the
concurrence of the House of Delegates in the adoption of the following concurrent resolution, which
was read by its title and referred to the Committee on Rules:
S. C. R. 10 - "Requesting the Joint Committee on Government and Finance continue to
study county and municipal land-use planning and consider revisions to the state's planning and
zoning laws."
Whereas, The infrastructure of many counties and cities within the State of West Virginia
may need to be upgraded for the changing needs of populations and the future development of
communities; and
Whereas, The duties and powers of local governing bodies, county and municipal planning
commissions, zoning authorities and zoning appeal boards may need to be revised to address the
health, safety, convenience and welfare of the population and its infrastructure needs; and
Whereas, Pursuant to Senate Concurrent Resolution No. 38 adopted in regular session,
2002, the Legislature studied this topic during the 2002-2003 interim session and has recommended
that this subject receive further study during the 2003-2004 interim session; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to continue to
study county and municipal land-use planning and consider revisions to the state's planning and
zoning laws; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the
concurrence of the House of Delegates in the adoption of the following concurrent resolution, which
was read by its title and referred to the Committee on Rules:
S. C. R. 32 - "Requesting the Joint Committee on Government and Finance study the
Medicaid Waiver program for the senior population of West Virginia."
Whereas, The senior population continues to become a large percentage of the West
Virginia population; and
Whereas, This population is living longer due to improvements in health care, but improved
health care has also created a population of seniors who are in fragile health; and
Whereas, The senior population of West Virginia would rather remain in their home and
be as independent as possible; and
Whereas, It is more economically efficient to provide some health care and supportive
services in the home; and
Whereas, The West Virginia Medicaid Waiver program may save significant money by
providing these services in the home instead of institutional care; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
Medicaid Waiver program for the senior population of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Legislature in December, 2003, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That, due to the immediacy of the situation, the members of the
Legislature recommend that the Department of Health and Human Resources lift the freeze it
imposed on this program until this study and its recommendations are concluded; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the
concurrence of the House of Delegates in the adoption of the following concurrent resolution, which
was read by its title and referred to the Committee on Rules:
S. C. R. 37 - "Requesting the Joint Committee on Government and Finance study creating
a single hunting, fishing and trapping license for West Virginia residents."
Whereas, A great number of West Virginia residents enjoy participating in the recreational
activities of hunting, fishing and trapping; and
Whereas, West Virginia residents' participation in these activities has a large impact on the
West Virginia economy; and
Whereas, A single license would entitle West Virginia residents to hunt, fish and trap
during the appropriate season without purchasing any additional state licenses or stamps; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study creating
a single hunting, fishing and trapping license for West Virginia residents; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together
with any drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the
concurrence of the House of Delegates in the adoption of the following concurrent resolution, which
was read by its title and referred to the Committee on Rules:
S. C. R. 42 - "Requesting the Joint Committee on Government and Finance appoint an
interim committee to study the feasibility of providing retirement programs for emergency medical
services personnel, Division of Natural Resources conservation officers, Division of Corrections
employees and Division of Juvenile Services employees."
Whereas, Emergency medical services personnel, Division of Natural Resources
conservation officers, Division of Corrections employees and Division of Juvenile Services
employees must meet unique physical qualifications for their jobs; and
Whereas, These employees must endure demanding and stressful circumstances on the job
that often lead to early retirement; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to appoint an
interim committee to study the feasibility of providing retirement programs for emergency medical
services personnel, Division of Natural Resources conservation officers, Division of Corrections
employees and Division of Juvenile Services employees; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the
concurrence of the House of Delegates in the adoption of the following concurrent resolution, which
was read by its title and referred to the Committee on Rules:
Com. Sub. for S. C. R. 44 - "Requesting the Division of Highways name the Harper Road
Bridge spanning I-64/I-77 at Beckley the 'Lewis N. McManus - Statesman and Speaker of the House
of Delegates - Memorial Bridge'."
Whereas, Lewis N. McManus, former Speaker of the House of Delegates, was an
exemplary public servant, outstanding citizen, gentleman and statesman of the highest caliber; and
Whereas, Lewis N. McManus, who passed away December 18, 2002, at the age of seventy-
three, was a positive and compassionate voice in state politics, not only as Speaker of the House of
Delegates, where he served with honor and distinction for nearly six years during the 1970s, but in
all endeavors that he undertook, whether in public or private life; and
Whereas, Lewis N. McManus, a native of Raleigh County, also served as President of the
University of Charleston, as Associate Vice President at Charles Ryan and Associates, as an
assistant to the President of West Virginia University and as a commentator for West Virginia Public
Radio; and
Whereas, Lewis N. McManus was a rare political figure who had the unique ability to
transcend politics in order to promote the best interests of the citizens of this state. He was truly a
statesman of the highest character and intellect; and
Whereas, Lewis N. McManus left a proud legacy to the citizens of this state, as a statesman,
public servant and private citizen; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways name the Harper Road Bridge
spanning I-64/I-77 at Beckley the "Lewis N. McManus - Statesman and Speaker of the House of
Delegates - Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to erect a memorial
plaque at the entry way of each end of the bridge with a prominent and legible inscription stating
the following: "The Lewis N. McManus - Statesman and Speaker of the House of Delegates -
Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the University of Charleston, Charles Ryan and Associates, West Virginia University,
the West Virginia Public Broadcasting Corporation and the Raleigh County Commission.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the
concurrence of the House of Delegates in the adoption of the following concurrent resolution, which
was read by its title and referred to the Committee on Rules:
S. C. R. 46 - "Requesting the Joint Committee on Government and Finance appoint an
interim committee to review the current need for and feasibility of existing state legislative rules,
procedural rules, interpretive rules, policies, guidance, directives and programs that may be more
Stringent than the corresponding federal regulations promulgated by the Office of Surface Mining
Reclamation and Enforcement."
Whereas, The efficient and effective administration of the mining regulatory program in
the State of West Virginia is of utmost importance to the people of the State of West Virginia;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to appoint a six-
member interim committee composed of three members of the House of Delegates and three
members of the Senate to make proposed findings, conclusions and recommendations on the
efficient and effective administration of the mining regulatory program in West Virginia; and, be
it
Further Resolved, That the West Virginia Coal Association shall identify issues of concern
on or before May 1, 2003, relating to specifically identified and prioritized legislative rules,
procedural rules, interpretive rules, policies, guidance, directives and programs that may be more
stringent than the corresponding federal regulations promulgated by the Office of Surface Mining
Reclamation and Enforcement; and, be it
Further Resolved, That the West Virginia Department of Environmental Protection will
undertake a review of the issues identified by the West Virginia Coal Association and evaluate the
current needs or feasibility of the same and report to the interim committee no later than October
1, 2003; and, be it
Further Resolved, That beginning May 1, 2003, and ending January 1, 2004, the West
Virginia Department of Environmental Protection will provide a monthly report to the interim
committee containing the following information:
1. The number of mining permit applications, including amendments and revisions pending,
at the Division of Mining and Reclamation and the acreage associated with the pending applications.
2. The number of mining permit applications, including revisions and amendments,
approved by the Department of Mining and Reclamation and the acreage associated with the
approvals.
3. The number of applications received for Phase I, Phase II and Phase III bond release and
the acreage associated with the bond release applications.
4. The number of applications for Phase I, Phase II and Phase III bond release approved by
the Division of Mining and Reclamation and the acreage associated with the approvals; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the
concurrence of the House of Delegates in the adoption of the following concurrent resolution, which
was read by its title and referred to the Committee on Rules:
S. C. R. 50 - "Requesting the Joint Committee on Government and Finance study providing
for certain requirements for hospital overtime policies."
Whereas, It is essential that health care workers providing direct patient care be available
to meet the needs of patients; and
Whereas, Quality patient care may be jeopardized by health care workers who may work
long hours in hospitals; and
Whereas, Health care workers, especially nurses, may be leaving their profession because
of work-place stress, long work hours and deprecation of their essential role in the delivery of
quality, direct patient care; and
Whereas, It is necessary to safeguard the efficiency, health and general well-being of health
care workers in hospitals, as well as the health and general well-being of the persons who utilize
their services; and
Whereas, It is further necessary that health care workers be aware of their rights and duties
with regard to hospital overtime policies; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study providing
for certain requirements for hospital overtime policies; and, be it
Further Resolved, That the Joint Committee on Government and Finance consult with health
care workers, including, but not limited to, registered professional nurses, licenced practical nurses
and certified nurse assistants; representatives of health care facilities, including private and public
hospitals; representatives from the Department of Health and Human Resources; and the
Commissioner of Labor; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
At 6:45 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00
a.m., Thursday, March 6, 2003.