__________*__________

Monday, February 14, 2005



The House of Delegates met at 1:00 p.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 Monday, February 14, 2005, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Messages from the Executive

Mr. Speaker, Mr. Kiss, presented the annual report for the fiscal years 2003-2004 of the West Virginia State Board of Architects, in accordance with section twelve, article one, chapter thirty of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the annual report for the period ending June 30, 2004, of the West Virginia Real Estate Commission, in accordance with section twelve-b, article one, chapter thirty of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the 2003-2004 West Virginia Education Statistical Summary, in accordance with the provisions of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Department of Transportation, Division of Motor Vehicles, for the fiscal year ending June 30, 2004, in accordance with the provisions of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the 2004 annual report of the West Virginia Board of Examiners for Speech-Language Pathology and Audiology, in accordance with article thirty-two, chapter thirty of the code; which was filed in the Clerk's Office.
Resolutions Introduced

Delegates Brown, Hatfield, Webster, Palumbo, Spencer, Wells, Hunt and Amores offered the following resolution, which was read by its title and referred to the Committee on Rules, as follows:
H. C. R. 6 - "Petitioning the United States Congress to allow a variance to the gross
vehicle weight limit of the approximately six miles of I-77 between Marmet, West Virginia and Chelyan, West Virginia to allow one hundred twenty thousand pounds of gross vehicle weight so that coal trucks may lawfully travel this section of highway".
Whereas, The West Virginia Legislature has enacted legislation that allows trucks to pass through the town of Chesapeake, West Virginia with a gross vehicle weight of one hundred twenty thousand pounds; and
Whereas, This legislation allows upwards of four hundred of these trucks to pass through Chesapeake daily, creating environmental and safety hazards of dust, speed and close proximity to parked vehicles, children in school zones and on the streets; and
Whereas, Before this legislation was passed increasing the gross vehicle weight limit, all of these trucks consistently had an overweight gross vehicle weight of one hundred sixty thousand pounds and used I-77 between Marmet, West Virginia and Chelyan, West Virginia; and
Whereas, I-77 weight limits are regulated by the United States Department of Transportation's Federal Highway Administration and not the State of West Virginia; therefore, be it
Resolved by the legislature of West Virginia:

That the Legislature of West Virginia hereby petitions the United States Congress to allow a variance to the weight limit of this approximate six miles of I-77 to allow one hundred twenty thousand pounds of gross vehicle weight so that these trucks can lawfully travel this section of highway.
On motion for leave, a Joint Resolution was introduced, read by its title and referred as follows:
By Delegates Longstreth, Caputo and Manchin:
H. J. R. 6 - "Proposing an amendment to the Constitution of the State of West Virginia, amending section one-b, article ten thereof, relating to homestead exemption increase; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment"; to the Committee Constitutional Revision then the Judiciary.
Bills Introduced

On motions for leave, bills were introduced, read by their titles, and severally referred as follows:
By Delegates Walters and Morgan:
H. B. 2287 - "A Bill to amend and reenact §5A-3-37 of the Code of West Virginia, 1931, as amended, relating to creating a vendor preference for state purchasing and purchases by political subdivisions of the state in corporations that maintain their principle places of business in West Virginia and receive over fifty percent of their revenues in this state"; to the Committee on Government Organization then Finance.
By Delegates Stemple and Boggs:
H. B. 2288 - "A Bill to amend and reenact §7-14D-2, §7-14D-3, §7-14D-4, §7-14D-5, §7-14D-7, §7-14D-8, §7-14D-8a, §7-14D-13, §7-14D-15, §7-14D-16 and §7-14D-18 of the Code of West Virginia, 1931, as amended; and to amend and reenact §7-14E-1 of said code, all relating to including conservation officers into the Deputy Sheriff Retirement System Act"; to the Committee on Pensions and Retirement then Finance.
By Delegates Spencer, Amores and Walters:
H. B. 2289 - "A Bill to amend and reenact §61-7-4 of the Code of West Virginia, 1931, as amended, relating to requiring stricter controls, oversight and purchasing practices of the sheriff's concealed weapon fund"; to the Committee on Political Subdivisions then the Judiciary.
By Delegate Louisos:
H. B. 2290 - "A Bill to amend and reenact §29A-5-1, §29A-5-2, §29A-5-3 and §29A-5-4 of the Code of West Virginia, 1931, as amended, all relating to contested cases under the administrative procedures act; and providing for jury trials in certain cases"; to the Committee on the Judiciary.
By Delegate Louisos:
H. B. 2291 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-4-21, relating to prohibiting the payment for the abortion-inducing drug RU-486 as a benefit under any health care insurance plan offered by the State to public employees"; to the Committee on Health and Human Resources then the Judiciary.
By Delegate Beane:
H. B. 2292 - "A Bill to amend and reenact §50-1-2 of the Code of West Virginia, 1931, as amended, relating to adding a magistrate to those serving Wood County"; to the Committee on the Judiciary then Finance.
By Delegates Amores, Hrutkay and Spencer:
H. B. 2293 - "A Bill to amend and reenact §18-29-10 of the code of West Virginia, 1931, as amended; to further amend said code by adding thereto a new section, designated §18-29-10a; to amend and reenact §29-6A-12 of said code; and to amend said code by adding thereto a new section, designated §29-6A-13, all relating to grievance procedures for education and state employees; providing for mediation procedures; and authorizing arbitration and establishing procedural rules therefor"; to the Committee on Education then the Judiciary.
By Delegates Hrutkay, Butcher and Tucker:
H. B. 2294 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §24G-1-1, §24G-1-2, §24G-1-3, §24G-1-4, §24G-1-5, §24G-1-6, §24G-1-7, §24G-1-8, §24G-1-9 and §24G-1-10, all relating to expanding wireless infrastructure within this State; legislative findings and purpose; definitions; wireless infrastructure council created; council powers and duties; long term leases of state-owned property authorized for construction, placement and operation of wireless infrastructure; exemption from Purchasing Division requirements; lease requirements; revolving fund created; deposits; fund use; and disbursements"; to the Committee on Government Organization then Finance.
By Delegates Louisos, Caputo, Browning and Hatfield:
H. B. 2295 - "A Bill to amend and reenact §22A-2-46 of the code of West Virginia, 1931, as amended, relating to requiring a certified person to examine underground mine after cutting and welding has been performed"; to the Committee on the Judiciary then Finance.
By Delegates Stemple, Campbell, Varner, Swartzmiller and Michael:
H. B. 2296 - "A Bill to amend and reenact §59-1-14 of the Code of West Virginia, 1931, as amended, relating to increasing service of process fees charged by the sheriff; and providing that two dollars of the fees charged and collected by the sheriff for service of process be placed in the Deputy Sheriff Retirement Fund and that three dollars of the increased fees be placed in the general revenue account of the county commission"; to the Committee on Finance.
By Delegates Browning and Staton:
H. B. 2297 - "A Bill to amend and reenact §5-10B-4 of the Code of West Virginia, 1931, as amended, relating to contributions to government employees deferred plans"; to the Committee on Pensions and Retirement then Finance.
By Delegates Caputo, Tucker and Butcher:
H. B. 2298 - "A Bill to amend and reenact §22A-2-46 of the code of West Virginia, 1931, as amended, relating to requiring a certified person to examine underground mine after cutting and welding has been performed"; to the Committee on Industry and Labor, Economic Development and Small Business then the Judiciary.
By Delegates Hatfield and Mahan:
H. B. 2299 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §9-10-1, §9-10-2, §9-10-3, §9-10-4, §9-10-5, §9-10-6 and §9-10-7, all relating to prohibiting certain nursing homes from using state funds for activities unrelated to the provision of health care services; and authorizing civil actions for enforcement; and authorizing civil penalties"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Caputo, Stalnaker and Perdue:
H. B. 2300 - "A Bill to amend and reenact §20-5-18 of the Code of West Virginia, 1931, as

amended, relating to making the fifty percent discount on campground rental fees at state parks for West Virginia citizens sixty-two years of age or older available year-round"; to the Committee on Agriculture and Natural Resources then Finance.
By Delegates Romine, Walters and Schoen:
H. B. 2301 - "A Bill to amend the Code of West Virginia, 1931 as amended, by adding thereto a new section, designated §33-42-9, relating to prohibiting the performance of any abortion when the woman seeking it is doing so solely on account of the gender of the fetus; prescribing a criminal penalty for violations of the section"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Perry, Pino, Stemple and Beach:
H. B. 2302 - "A Bill to amend and reenact §17C-5-4 and §17C-5-7 of the Code of West Virginia, 1931, as amended, all relating to providing that law-enforcement officers may seek a warrant to draw blood from those arrested for driving under the influence to determine blood alcohol content when the arrested refuses to submit to a secondary chemical test"; to the Committee on the Judiciary then Finance.
By Delegates Frich, Walters and Romine:
H. B. 2303 - "A Bill to amend and reenact §60-4-23 of the Code of West Virginia, 1931, as amended, relating to regulating businesses offering exotic entertainment; authorizing the Commissioner of the Alcohol Beverage Control Commission to license all businesses offering exotic entertainment; defining terms; regulating the conduct of performances; removing time periods in which application for license may be made; providing opportunity for public comment; establishing standards for approval of application; requiring Commissioner to issue license if certain criteria are met; setting time limit in which decision on application must be rendered; providing for prompt judicial review; providing that exhaustion of administration remedies is not required; setting effective date; and directing Commissioner to promulgate emergency rules"; to the Committee on the Judiciary then Finance.
By Delegates Hall:
H. B. 2304 - "A Bill to amend and reenact §1-2-2 of the code of West Virginia, 1931, as amended, relating to the apportionment of the membership of the House of Delegates; and adding a fifty-ninth delegate district consisting of portions of Mason and Putnam counties"; to the Committee on the Judiciary.
By Delegates Hamilton, Howard, Duke and Sumner:
H. B. 2305 - "A Bill to amend and reenact §5-16-13 of the code of West Virginia, 1931, as amended, relating to providing for the continuance of medical coverage for the spouse of a deceased retired employee for any period previously purchased with accumulated leave"; to the Committee on Pensions and Retirement then Finance.
By Delegates Boggs, Swartzmiller and Hamilton:
H. B. 2306 - "A Bill to amend and reenact §4-1-23 of the Code of West Virginia, 1931, as amended; and to amend and reenact §5-1-20 of said code, all relating to requiring that annual reports be recorded on CD-Rom for distribution"; to the Committee on Government Organization .
By Delegates Iaquinta, Crosier, Talbott and Staton:
H. B. 2307 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60A-4-401a, relating to establishing threshold quantities of certain controlled substances to trigger prima facie evidence of intent to deliver if possessed by an individual"; to the Committee on the Judiciary.
By Delegates Caputo, Manchin, Mahan, Tucker, Perdue and Butcher:
H. B. 2308 - "A Bill to amend and reenact §22-3-9 of the Code of West Virginia, 1931, as amended, relating to mining extension permits; and requiring an applicant for a mining extension to provide a copy of the permit application to a representative of the miners at that mine"; to the Committee on the Judiciary then Finance.
By Delegates Border, Campbell, Browning and Michael:
H. B. 2309 - "A Bill to amend and reenact §9-2-9 of the code of West Virginia, 1931, as amended, relating to responsibilities of the Secretary of the Department of Health and Human Resources; and requiring that the Secretary consider a method to obtain medicaid reimbursement to retail pharmacies for the cost of certain prescriptions that are prescribed in a dosage that is less than the smallest available package and there is a reasonable expectation that the remaining portion of the broken package cannot be sold."; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Perry, Pino, Beach, and Ennis:
H. B. 2310 - "A Bill to amend and reenact §2-2-1 of the Code of West Virginia, 1931, as amended, relating to making 'Good Friday' a legal holiday"; to the Committee on Government Organization then Finance.
By Delegates Hamilton, Sobonya, Wakim, Iaquinta, Azinger and Browning:
H. B. 2311 - "A Bill to amend and reenact §11-5-1 of the Code of West Virginia, 1931, as amended, relating to exempting one motor vehicle owned by a resident of this State on active duty in the United States military from ad valorem taxes for any taxable year the person is in the military"; to the Committee on Finance.
By Delegates Azinger and Long:
H. B. 2312 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-6-14a, relating to requiring grab bars to be installed in all hotel and motel tubs and showers"; to the Committee on to Judiciary.
By Delegates Azinger and Evans:
H. B. 2313 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-18-1, §11-18-2, §11-18-3, §11-18-3a, §11-18-3b, §11-18-4, §11-18-5, §11-18-6, §11-18-7 and §11-18-8, all relating to imposing an excise tax on the sale or rental of obscene materials"; to the Committee on to Finance.
By Delegates Caputo and Tucker:
H. B. 2314 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §20-5-22, relating to providing a ten percent discount to West Virginia residents for lodging, camping and other recreational activities at state parks and forests"; to the Committee on Agriculture and Natural Resources then Finances.
By Delegates Paxton, Crosier, Romine and Hamilton:
H. B. 2315 - "A Bill to amend and reenact §18-2E-8b of the code of West Virginia, 1931, as amended, relating to providing for a framework to avoid imposition of policies and practices on the public schools that distract from a thorough and efficient education; making findings and expressing legislative intent; requiring fiscal notes on policies, rules and programs affecting public schools and outlining applicable costs; providing alternative conditions under which policies, rules and programs may be adopted and the consequences of such; and providing for an audit of capacity to implement certain past policies, rules and programs; and, requiring the issuance of a report of recommendations"; to the Committee on Education then Finance.
By Delegate Schoen:
H. B. 2316 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17-15-9, relating to making it unlawful to offer for sale or sell products created, wholly or in part, by jail inmates and providing criminal penalty"; to the Committee on the Judiciary then Finance.
By Delegate Ron Thompson:
H. B. 2317 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-17, relating to the larceny of equipment from a municipal or voluntary fire department; making the offense a felony regardless of the value of equipment; and providing criminal penalty"; to the Committee on the Judiciary.
By Delegate Ron Thompson:
H. B. 2318 - "A Bill to amend of the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §9-5-11d, relating to requiring the State Medicaid Agency to furnish medicaid recipients monthly itemized statements of services rendered and claimed for reimbursement by providers"; to the Committee on Health and Human Resources then Finance.
By Delegate Ron Thompson:
H. B. 2319 - "A Bill to amend and reenact §18-7A-36 of the code of West Virginia, 1931, as amended, relating to requiring a study by the Joint Committee on Pensions and Retirement regarding all issues involved in a merger of the Teachers' Defined Contribution Retirement System with the State Teachers Retirement System"; to the Committee on Pensions and Retirement then Finance.
By Delegates Browning and Staton:
H. B. 2320 - "A Bill to amend and reenact §18-7A-13a of the code of West Virginia, 1931, as amended, relating to the state teachers retirement system; providing that retired members may accept contract employment for up to one hundred forty days with a county board of education and still receive their retirement benefits"; to the Committee on Pensions and Retirement then Finance.
By Delegates Craig and Morgan:
H. B. 2321 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-7A-26t, relating to providing a cost-of-living provision for certain persons retired under the teachers retirement system"; to the Committee on Pensions and Retirement then Finance.
By Delegates Craig, Amores and Kominar:
H. B. 2322 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-21-12g, relating to creating an income tax deduction for taxpayers who volunteer two hundred or more hours to a charitable organization as defined in Section 501(c)(3) of the Internal Revenue Code of 2003, as amended; and providing a civil fine for violations"; to the Committee on Finance.
By Delegate Stalnaker:
H. B. 2323 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-10-22h; and to amend said code by adding thereto a new section, designated §18-7A-26t, all relating to increasing retirement benefits for teachers and public employees by fifty dollars a month"; to the Committee on Pensions and Retirement then Finance.
By Delegate Stalnaker (By Request):
H. B. 2324 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §9-8-1 and §9-8-2, all relating to making elder-care and in-home health care available to all seniors aged sixty-five or older, on a sliding scale based on ability to pay"; to the Committee on Health and Human Resources then Finance.
By Delegate Walters:
H. B. 2325 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §22-5A-1, §22-5A-2 and §22-5A-3, all relating to establishing the West Virginia Protection of Air Quality Related Values Act"; to the Committee on the Judiciary.
By Delegates Ron Thompson, Perdue and Kominar:
H. B. 2326 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-5U-1, §16-5U-2 and §16-5U-3, all relating to the creation of a forensic dental office to provide an authoritative resource to identify unknown individuals by means of dental records; providing for the appointment of a director by the Governor; selection of skilled teams to provide services in mass disasters and other occurrences; duties; facilities; salaries and fees; removal of director; and requiring hearing upon removal"; to the Committee on Government Organization then Finance.
By Stalnaker, Varner and Beane:
H. B. 2327 - "A Bill to amend and reenact §11-6C-1 of the Code of West Virginia, 1931, as amended, relating to including boat retailers in the special method for appraising dealer vehicle inventory"; to the Committee on the Judiciary then Finance.
By Delegate Amores:
H. B. 2328 - "A Bill to amend and reenact §6-9A-11 of the code of West Virginia, 1931, as amended, relating to advisory opinions of the West Virginia ethics commission committee generally and providing that reliance on a written advisory opinion is a defense in certain actions"; to the Committee on the Judiciary.
By Delegates Ennis, Swartzmiller and G. White:
H. B. 2329 - "A Bill to amend and reenact §61-11A-4 of the Code of West Virginia, 1931, as amended, relating to authorizing a court to order a defendant to contribute monetarily or through hours of service to a local crime victim's assistance program or juvenile mediation program which meets certain requirements"; to the Committee on the Judiciary.
By Delegates Doyle, Talbott, Manchin, Webster, Houston, Canterbury and Evans: H. B. 2330 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §20-10-1, §20-10-2, §20-10-3, §20-10-4, §20-10-5, §20-10-6, §20-10-7, §20-10-8, §20-10-9, §20-10-10, §20-10-11, §20-10-12, §20-10-13 and §20-10-14, all relating to requiring the use of returnable containers for soft drinks, soda water, carbonated natural or mineral water, other nonalcoholic carbonated drinks and for beer, ale or other malt drinks of any alcoholic content and for certain other beverage containers; requiring the use of unredeemed bottle deposits; prescribing the powers and duties of certain state agencies and officials; and prescribing penalties and remedies"; to the Committee on the Judiciary.
By Delegates Ennis, Cann, Frich, Perry, Trump, Stemple and Ellem:
H. B. 2331 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-2-30, relating to establishing the 'Unborn Victims of Violence Act'; recognizing a fetus as a person for purposes of being a victim of certain crimes of violence against the person; specifying penalties; providing definitions and exceptions; certain convictions not barred; and severability"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Browning and Staton:
H. B. 2332 - "A Bill to amend and reenact §17A-3-14 of the code of West Virginia, 1931, as amended, relating to providing for a special license plate honoring coal miners and providing that certain proceeds go to a special fund for use by the National Coal Heritage Area Authority for the benefit of the national coal heritage area"; to the Committee on Roads and Transportation then the Judiciary.
By Delegates Ron Thompson, Brown, DeLong, Mahan, Pino, Hrutkay and Ellem:
H. B. 2333 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §22-27-1, §22-27-2, §22-27-3, §22-27-4, §22-27-5, §22-27-6, §22- 27-7, §22-27-8, §22-27-9, §22-27-10, §22-27-11, and §22-27-12, all relating to establishing a program to encourage voluntary reclamation of lands adversely affected by mining by limiting the liability which could arise as a result of the voluntary reclamation of abandoned lands or reduction and abatement of water pollution; stating legislative purpose and intent; setting forth legislative findings; providing definitions for applicable terms; defining eligibility for the protections and immunities; setting forth specific exemptions from liability for landowners; setting forth specific exemptions from liability for persons who provide equipment at no cost or at cost for a reclamation project; and providing exceptions to coverage under the proposed legislation"; to the Committee on the Judiciary.
By Mr. Speaker (Mr. Kiss), Delegates Michael, Perdue, Amores, Brown and Palumbo:
H. B. 2334 - "A Bill to amend and reenact §49-5D-3a of the Code of West Virginia, 1931, as amended, relating to limiting child out-of-state placements"; to the Committee on the Judiciary.
By Delegates Ron Thompson, Brown, DeLong, Amores, Mahan, Pino and Ellem:
H. B. 2335 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding

thereto a new section, designated §29-3-16c, relating to establishing safety standards for bed and breakfast establishments; providing findings relating to the need for special fire code standards for bed and breakfasts; defining the term 'bed and breakfast establishment'; providing exemption from certain fire code standards; establishing fire safety standards for bed and breakfasts; prohibiting municipal and local governments from adopting stricter standards; authorizing the fire commission to promulgate rules; authorizing variance from certain requirements; and authorizing division of culture and history to provide recommendations regarding historical preservation of structures"; to the Committee on the Judiciary.
Consent Calendar

First Reading

The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
H. B. 2102, Making tongue splitting a crime unless performed by a licensed physician,
Com. Sub. for H. B. 2128, Authorizing the Executive Director of the Regional Jail and
Correctional Facility Authority to establish an inmate furlough program,
And,
H. B. 2129, Creating misdemeanor offense of motion picture piracy.
House Calendar

First Reading

Com. Sub. for H. B. 2015,
Providing employer immunity from civil liability for job related information disclosed regarding former employees; on first reading, coming up in regular order, was read a first time and ordered to second reading.
Miscellaneous Business

Delegate Mahan asked and obtained unanimous consent that the remarks of Delegate Pino concerning the life, accomplishments and the pioneering spirit in the whitewater rafting industry of Mr. Jon Dragan, delivered to call attention to his passing on Saturday last, be printed in the Appendix to the Journal.
Delegate Stephens announced the death on this morning of the Honorable O. B. Collins, former member of the House of Delegates from Tucker County.
Delegate Caputo asked and obtained unanimous consent that the remarks of Delegate DeLong, concerning an article which appeared in his local newspaper over the weekend and the alleged inaccuracy of the reporting, be printed in the Appendix to the Journal.
At 1:37 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00 a.m., Tuesday, February 15, 2005.