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Friday, April 8, 2005
The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered by Reverend Father P. Edward Sadie, Rector, Sacred Heart Co- Cathedral,
Charleston.
Following the invocation, the Speaker requested the members to remain standing for a few
moments of silent tribute to the memory of recently deceased Pope John Paul II, interred this day
in Rome.
The House then stood in silent tribute.
The House was then led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Thursday, April 7, 2005, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
proceeded to the Ninth Order of Business for the purpose of considering a resolution on Unfinished
Business.
Special Calendar
Unfinished Business
The Clerk then read the following resolution:
House Resolution No. 38
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
"Memorializing the outstanding life of Charles H. Haden II, accomplished jurist, who loved history,
had a lifelong reverence for the law and was passionately devoted to West Virginia and its
people."
Whereas, Charles H. Haden II, who once was the longest serving chief judge on the federal
bench died Saturday, April 17, 2004 in his home in Charleston, West Virginia at the age of 66.
Married to Priscilla Ann Miller on June 2, 1956, they were the parents of three children.
In the early 1960's Charles H. Haden II, newly admitted to the West Virginia bar after
graduation from West Virginia University Law School, became an associate in his father's well
established law firm.
In 1963, "Chuck" Haden was elected to the House of Delegates when he was just 26, and
he was named the outstanding freshmen member of the Legislature at the end of his term two years
later. In 1968, he was the Republican nominee for Attorney General. Although he was not well
known beyond Morgantown and Monongalia County when the campaign began and, although he did
not win election, he collected more votes than any other GOP candidate except six-term U.S. Rep.
Arch Moore Jr., who was elected Governor.
Governor Moore then appointed him as Tax Commissioner, where he proved adept at
working with a Democratic majority in the Legislature. On June 21, 1972, Governor Moore
appointed him to fill a vacancy on the West Virginia Supreme Court of Appeals. In 1974, he was
elected to a full term and became Chief Justice, becoming the first Republican elected to the court
in more than half a century. He served only a year of his term when President Gerald Ford
nominated him to the federal bench on November 21, 1975.
At the age of 38, he had found his home as a judge. He built a reputation for holding court
for extraordinary hours, handing down tough sentences, and maintaining unbending standards of
decorum. To hear cases across the district, he traveled often and traveled light. He would show up for a trial and announce to lawyers: "This is a two-shirt case." That meant he had packed two white
shirts and intended to conclude the proceedings by the time they needed laundering.
In 1982, he became Chief Judge in the court's Southern District in Charleston. By the time
the uproar over the mountaintop removal case made him a household name in 1998, he was one of
the senior chief judges in the country's federal courts. U.S. Chief Justice William Rhenquist named
him chairman of the executive committee of the Judicial Conference of the United States, a panel
of judges that oversees administrative matters of the federal judicial system.
Outside the courtroom, he was still the affable "Chuck Haden" who had served in the
Legislature and who had run for Attorney General, but when he put on the robe and stepped into his
role as judge, he was very conscious and protective of his position and demanding of respect for the
court.
He was instrumental in rewriting the amendment to the State Constitution that reshaped the
judiciary in West Virginia.
As Chief Judge of the Southern District of West Virginia from 1982 to 2002, he implemented
initiatives to computerize court files, cut down on unneeded jury duties and locate the district court,
bankruptcy court and federal probation offices in one building.
He continued to hold hearings and issue orders until a few days before his death and it was
said of him at that time that he was "the epitome of what a judge should be"; therefore, be it
Resolved by the House of Delegates:
That regret is hereby expressed by the members of the House of Delegates at the death of
Charles H. Haden II, accomplished jurist, who loved history, had a lifelong reverence for the law and
was passionately devoted to West Virginia and its people; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby requested to prepare
certified copies of this resolution for Priscilla Ann Haden, his surviving wife, and his surviving
children.
The question now being on the adoption of the resolution, the yeas and nays were taken (Roll No. 493), 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: Amores, Doyle, Fragale and Hall.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the resolution (H. R. 38) adopted.
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. 63, Requesting the Joint Committee on Government and Finance study the West
Virginia Board of Dental Examiners whether the Board is sufficiently carrying out its purpose,
H. C. R. 88, Requesting the West Virginia Division of Highways to name State Route 25
from Glen Jean to Thurmond in Fayette County the "Jon Dragan Road",
S. C. R. 74, Requesting Joint Committee on Government and Finance study fiscal affairs of
state water and sewer utilities,
And reports the same back with the recommendation that they each be adopted.
Messages from the Executive
Mr. Speaker, Mr. Kiss, presented the 2004 West Virginia Youth Services Annual Report and
Comprehensive Plan Update for the West Virginia Department of Health and Human Resource, in
accordance with section seven, article five-b, chapter forty-nine of the Code; which was filed in the
Clerk's Office.
Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor,
advising that on April 6, 2005, he approved H. B. 2129, Com. Sub. for H. B. 2764, S. B. 153 and
S. B. 229.
Resolutions Introduced
Mr. Speaker, Mr. Kiss, and Delegates Sumner, Mahan, Susman, Ron Thompson, Amores, Anderson, Argento, Armstead, Ashley, Azinger, Barker, Beach, Beane, Blair, Boggs, Border, Brown,
Browning, Butcher, Campbell, Cann, Canterbury, Carmichael, Craig, Crosier, DeLong, Doyle, Duke,
Eldridge, Ellem, Ennis, Evans, Ferrell, Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston,
Howard, Hrutkay, Hunt, Iaquinta, Kominar, Lane, Leach, Leggett, Long, Longstreth, Louisos,
Marshall, Martin, Michael, Miley, Moore, Morgan, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino,
Poling, Porter, Proudfoot, Roberts, Romine, Rowan, Schadler, Schoen, Sobonya, Spencer, Stalnaker,
Staton, Stemple, Stephens, Stevens, Swartzmiller, Tabb, Talbott, Tansill, R. Thompson, Trump,
Tucker, Varner, Wakim, Walters, Webster, Wells, G. White, H. White, Williams, Wysong and Yost
offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 101 - "Requesting the Joint Committee on Government and Finance to study the
manufactured housing industry in this state to determine whether there is a need to provide additional
remedies to purchasers and owners of manufactured housing for latent defects, substandard
installation and breach of warranties."
Whereas, The manufactured housing industry in this state generally offers residents of this
state quality and affordable housing that would not be available otherwise; and
Whereas, Often, after the manufactured house is constructed, delivered to the site, placed
on the foundation and the owners move in, defects appear that were not evident at the time of sale
or move in; and
Whereas, Purchasers and owners are faced with unexpected additional expenses for repair
of these defects and correcting installation mistakes and obtaining satisfaction of warranties; and
Whereas, Purchasers and owners of manufactured housing should have all the remedies
necessary to recover the cost and expense of making the repairs, correcting the mistakes and
enforcing warranties; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
manufactured housing industry in this state to determine whether there is a need to provide additional remedies to purchasers and owners of manufactured housing for latent defects, substandard
installation and breach of warranties; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, two thousand six, on its finding, conclusions and recommendations
together with drafts of any legislation 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.
Consent Calendar
Third Reading
The following bills on third reading, coming up in regular order, were each read a third time:
S. B. 162, Modifying time authority may allocate tax credits under Capital Company Act,
Com. Sub. for S. B. 223, Relating to vesting retirement benefits for certain members of the
rmilitary,
S. B. 236, Requiring health care facilities train staff, employees and contractors on
Alzheimer's disease and related dementia,
S. B. 278, Relating to lists of stockholders of banking institutions and bank holding
companies,
S. B. 282, Continuing School Building Authority,
S. B. 285, Continuing Division of Culture and History,
S. B. 286, Continuing Public Defender Services,
Com. Sub. for S. B. 341, Authorizing Department of Health and Human Resources
promulgate legislative rules,
Com. Sub. for S. B. 353, Authorizing Department of Transportation promulgate legislative
rules,
Com. Sub. for S. B. 357, Authorizing Department of Revenue promulgate legislative rules,
Com. Sub. for S. B. 382, Authorizing Department of Administration promulgate legislature
rules,
Com. Sub. for S. B. 386, Authorizing Department of Military Affairs and Public Safety
promulgate legislative rules,
Com. Sub. for S. B. 427, Relating to health maintenance organizations,
S. B. 452, Continuing Board of Risk and Insurance Management,
Com. Sub. for S. B. 455, Relating to financing of environmental control activities by certain
electrical utilities,
S. B. 492, Relating to claims against state,
Com. Sub. for S. B. 498, Clarifying responsibility of Prosecuting Attorneys Institute; other
provisions,
Com. Sub. for S. B. 575, Authorizing crossbow hunting for disabled persons,
S. B. 583, Relating to appealing orders from family court to circuit court,
S. B. 584, Allowing Bureau for Child Support Enforcement enter orders for modification of
child support amounts,
S. B. 640, Allowing notary public and commissioner use stamped imprint,
S. B. 643, Relating to taxable income of resident estate or trust,
Com. Sub. for S. B. 646, Excluding certain homeowners' associations proceeds from
business and occupation tax,
S. B. 659, Clarifying definition of "money transmission",
Com. Sub. for S. B. 670, Relating to electing supervisors for conservation districts,
S. B. 691, Relating to termination of tenancy of factory-built home,
S. B. 699, Relating to shareholders' simultaneous participation in corporate meeting,
Com. Sub. for S. B. 716, Creating Regional Jail Operators Partial Reimbursement Fund,
S. B. 736, Repealing superceded sections relating to proffers and conditions for final plat
approval,
And,
S. B. 749, Authorizing change in official name of public service district in certain cases.
Delegates Trump and Tucker requested to be excused from voting on the passage of S. B.
286 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentlemen from voting, stating that they were members
of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no
direct personal or pecuniary interest therein.
Delegate Armstead requested to be excused from voting on the passage of Com. Sub. for S.
B. 382 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of
a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct
personal or pecuniary interest therein.
Delegates Beane, Ellem, Howard, Hunt, Lane, Manchin, Miley, Schoen, Ron Thompson and
Trump requested to be excused from voting on the passage of S. B. 286 under the provisions of
House Rule 49.
The Speaker refused to excuse the members from voting, stating that they were members of
a class of persons possibly to be affected by the passage of the bill and that they demonstrated no
direct personal or pecuniary interest therein.
Delegate Walters requested to be excused from voting on the passage of S. B. 452 under the
provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of
a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct
personal or pecuniary interest therein.
The Speaker further stated that this ruling will stand as the judgment of the Chair and of the
House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as
established by our sovereign, non-reviewable Constitutional authority, and shall be binding in all other potential venues.
On the passage of the bills, the yeas and nays were taken (Roll No. 494), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bills (S. B. 162, Com. Sub. for S. B. 223, S. B. 236, S. B. 278, S. B. 282, S. B. 285, S.
B. 286, Com. Sub. for S. B. 341, Com. Sub. for S. B. 353, Com. Sub. for S. B. 357, Com. Sub. for
382, Com. Sub. for S. B. 386, Com. Sub. for S. B. 427, S. B. 452, Com. Sub. for S. B. 455, S. B.
492, Com. Sub. for S. B. 498, Com. Sub. for S. B. 575, S. B. 583, S. B. 584, S. B. 640, S. B. 643,
Com. Sub. for S. B. 646, S. B. 659, Com. Sub. for S. B. 670, S. B. 691, S. B. 699, Com. Sub. for S.
B. 716, S. B. 736 and S. B. 749) passed.
Delegates Staton and Browning requested that the Clerk record them as voting "nay" on the
passage of Com. Sub. for S. B. 575.
An amendment to the title of S. B. 583, recommended by the Committee on the Judiciary,
was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 583 - "A Bill to amend and reenact §51-2A-11, §51-2A-14 and §51-2A-16 of the Code
of West Virginia, 1931, as amended, all relating to appealing orders from the Family Court to the
Circuit Court."
An amendment to the title of S. B. 643, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 643 -- "A Bill to amend and reenact §11-21-18 and §11-21-30 of the Code of West
Virginia, 1931, as amended, all relating generally to personal income tax; providing that in
determining West Virginia taxable income of electing small business trusts, income attributable to
S corporation stock held by trust shall be included; authorizing equitable relief when statutory
computation of tax for nonresident individuals, estates and trusts and part-year resident individuals
produces result that is out of all proportion to amount of taxpayer's West Virginia source income; correcting erroneous cross-reference to code section concerning part-year residents; and providing
for effective date."
An amendment to the title of Com. Sub. for S. B. 716, recommended by the Committee on
Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 716 -- "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §31-20-10b; to amend and reenact §50-3-1, §50-3-2 and §50-3-4a
of said code; and to amend and reenact §59-1-11 and §59-1-28a of said code, all relating to creating
the Regional Jail Operations and Partial Reimbursement Fund; calculation of reimbursement to
counties and municipalities; providing duties of the state treasurer; requiring report from the regional
jail and correctional facility authority; setting date for first reimbursement; and increasing court costs
for criminal and civil proceedings."
Delegate Staton moved that S. B. 162 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 525), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 162) takes effect from its passage.
Delegate Staton moved that S. B. 282 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 526), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 282) takes effect July 1, 2005.
Delegate Staton moved that S. B. 285 take effect July 1, 2005.
On this question, the yeas and nays were(Roll No. 527), and there were--yeas 99, nays none,
absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 285) takes effect July 1, 2005.
Delegate Staton moved that S. B. 286 take effect July 1, 2005.
On this question, the yeas and nays were taken(Roll No. 528), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 286)takes effect July 1 2005.
Delegate Staton moved that the bill (Com. Sub. for S. B. 341) take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 529), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Fragale
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 S. B. 341) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 353 take effect from its passage.
On this question, the yeas and nays were taken(Roll No. 530), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Fragale.
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 S. B. 353) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 357 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 531), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Fragale.
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 S. B. 357) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 382 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 532), and there were--yeas 97, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Fragale.
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 S. B. 382) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 386 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 533), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Fragale.
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 S. B. 386) takes effect from its passage.
Delegate Staton moved that S. B. 452 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 534), and there were--yeas 97, nays
2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Hall and Schoen.
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 452) takes effect July 1, 2005.
Delegate Staton moved that Com. Sub. for S. B. 455 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 535), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
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 S. B. 455) takes effect from its passage.
Delegate Staton moved that S. B. 492 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 536), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 492) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 498 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 537), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Staton.
Absent And Not Voting: Fragale.
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 S. B. 498) takes effect July 1, 2005.
Delegate Staton moved that Com. Sub. for S. B. 670 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 538), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
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 S. B. 670) takes effect from its passage.
Delegate Staton moved that S. B. 699 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 539), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 699) takes effect from its passage.
Delegate Staton moved that S. B. 736 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 540), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 736) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 716 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 544), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ennis and Fragale.
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 S. B. 716) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates on the Consent Calendar bills and request concurrence on those requiring the same.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage of
S. B. 514 - "A Bill to amend and reenact §6-7-2 of the Code of West Virginia, 1931, as
amended; to amend and reenact §51-1-10a of said code; to amend and reenact §51-2-13 of said code;
and to amend and reenact §51-2A-6 of said code, all relating generally to the salaries of the
Governor, Attorney General, State Treasurer, State Auditor, Secretary of Agriculture, Secretary of State, Supreme Court Justices, judges of circuit courts and family court judges; and effective dates."
At the respective requests of Delegate Staton, and by unanimous consent, reference of the
bill (Com. Sub. for S. B. 514) to a committee was dispensed with and taken up for immediate
consideration and read a first time and ordered to second reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 541), and there were--yeas 91, nays
8, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair, Border, Duke, Frich, Hamilton, Lane, Overington and Porter.
Absent And Not Voting: Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a second time and advanced to third reading, with the right to amend.
Consent Calendar
Second Reading
Com. Sub. for S. B. 147, Limiting purchase of substances used in production of
methamphetamine; on second reading, coming up in regular order, was read a second time.
An amendment to the bill, recommended by the Committee on the Judiciary, was reported
by the Clerk, and adopted amending the bill on page three, following the enacting clause, by striking
out the remainder of the bill and inserting in lieu thereof the following language:
"That §60A-1-101 of the Code of West Virginia, 1931, as amended, be amended and
reenacted; that §60A-2-212 of said code be amended and reenacted; that §60A-3-308 of said code
be amended and reenacted; that §60A-4-401 and §60A-4-409 of the code be amended and reenacted;
that §60A-9-4 and §60A-9-5 be amended and reenacted; and that said code be amended by adding
thereto a new article, designated §60A-10-1, §60A-10-2, §60A-10-3, §60A-10-4, §60A-10-5, §60A-
10-6, §60A-10-7, §60A-10-8, §60A-10-9, §60A-10-10, §60A-10-11, §60A-10-12, §60A-10-13, §60A-10-14 and §60A-10-15, all to read as follows:
ARTICLE 1. DEFINITIONS.
§60A-1-101. Definitions.
As used in this act:
(a) 'Administer' means the direct application of a controlled substance whether by injection,
inhalation, ingestion or any other means to the body of a patient or research subject by:
(1) A practitioner (or, in his presence, by his authorized agent); or
(2) The patient or research subject at the direction and in the presence of the practitioner.
(b) 'Agent' means an authorized person who acts on behalf of or at the direction of a
manufacturer, distributor or dispenser. It does not include a common or contract carrier, public
warehouseman or employee of the carrier or warehouseman.
(c) 'Bureau' means the 'Bureau of Narcotics and Dangerous Drugs, United States Department
of Justice' or its successor agency.
(d) 'Controlled substance' means a drug, substance or immediate precursor in Schedules I
through V of article two.
(e) 'Counterfeit substance' means a controlled substance which, or the container or labeling
of which, without authorization, bears the trademark, trade name or other identifying mark, imprint,
number or device, or any likeness thereof, of a manufacturer, distributor or dispenser other than the
person who in fact manufactured, distributed or dispensed the substance.
(f) 'Imitation controlled substance' means: (1) A controlled substance which is falsely
represented to be a different controlled substance; (2) a drug or substance which is not a controlled
substance but which is falsely represented to be a controlled substance; or (3) a controlled substance
or other drug or substance or a combination thereof which is shaped, sized, colored, marked,
imprinted, numbered, labeled, packaged, distributed or priced so as to cause a reasonable person to
believe that it is a controlled substance.
(g) 'Deliver' or 'delivery' means the actual, constructive or attempted transfer from one person to another of: (1) A controlled substance, whether or not there is an agency relationship; (2)
a counterfeit substance; or (3) an imitation controlled substance.
(h) 'Dispense' means to deliver a controlled substance to an ultimate user or research subject
by or pursuant to the lawful order of a practitioner, including the prescribing, administering,
packaging, labeling or compounding necessary to prepare the substance for that delivery.
(i) 'Dispenser' means a practitioner who dispenses.
(j) 'Distribute' means to deliver, other than by administering or dispensing, a controlled
substance, a counterfeit substance or an imitation controlled substance.
(k) 'Distributor' means a person who distributes.
(l) 'Drug' means: (1) Substances recognized as drugs in the official 'United States
Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or official National
Formulary', or any supplement to any of them; (2) substances intended for use in the diagnosis, cure,
mitigation, treatment or prevention of disease in man or animals; (3) substances (other than food)
intended to affect the structure or any function of the body of man or animals; and (4) substances
intended for use as a component of any article specified in clause (1), (2) or (3) of this subdivision.
It does not include devices or their components, parts or accessories.
(m) 'Immediate precursor' means a substance which the 'West Virginia Board of Pharmacy'
(hereinafter in this act referred to as the State Board of Pharmacy) has found to be and by rule
designates as being the principal compound commonly used or produced primarily for use and which
is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled
substance, the control of which is necessary to prevent, curtail or limit manufacture.
(n) 'Manufacture' means the production, preparation, propagation, compounding, conversion
or processing of a controlled substance, either directly or indirectly or by extraction from substances
of natural origin, or independently by means of chemical synthesis, or by a combination of extraction
and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or
relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging
or labeling of a controlled substance:
(1) By a practitioner as an incident to his administering or dispensing of a controlled
substance in the course of his professional practice; or
(2) By a practitioner, or by his authorized agent under his supervision, for the purpose of, or
as an incident to, research, teaching or chemical analysis and not for sale.
(o) 'Marijuana' means all parts of the plant 'Cannabis sativa L.', whether growing or not; the
seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt,
derivative, mixture or preparation of the plant, its seeds or resin. It does not include the mature
stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any
other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except
the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable
of germination.
(p) 'Narcotic drug' means any of the following, whether produced directly or indirectly by
extraction from substances of vegetable origin or independently by means of chemical synthesis, or
by a combination of extraction and chemical synthesis:
(1) Opium and opiate and any salt, compound, derivative or preparation of opium or opiate.
(2) Any salt, compound, isomer, derivative or preparation thereof which is chemically
equivalent or identical with any of the substances referred to in paragraph (1) of this subdivision, but
not including the isoquinoline alkaloids of opium.
(3) Opium poppy and poppy straw.
(4) Coca leaves and any salt, compound, derivative or preparation of coca leaves and any salt,
compound, isomer, derivative or preparation thereof which is chemically equivalent or identical with
any of these substances, but not including decocainized coca leaves or extractions of coca leaves
which do not contain cocaine or ecgonine.
(q) 'Opiate' means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming
or addiction-sustaining liability. It does not include, unless specifically designated as controlled
under section two hundred one, article two of this chapter, the dextrorotatory isomer of 3-methoxy-n-
methylmorphinan and its salts (dextromethorphan). It does not include its racemic and levorotatory
forms.
(r) 'Opium poppy' means the plant of the species 'Papaver somniferum L.', except its seeds.
(s) 'Person' means individual, corporation, government or governmental subdivision or
agency, business trust, estate, trust, partnership or association, or any other legal entity.
(t) 'Placebo' means an inert medicament or preparation administered or dispensed for its
psychological effect, to satisfy a patient or research subject or to act as a control in experimental
series.
(u) 'Poppy straw' means all parts, except the seeds, of the opium poppy after mowing.
(v) 'Practitioner' means:
(1) A physician, dentist, veterinarian, scientific investigator or other person licensed,
registered or otherwise permitted to distribute, dispense, conduct research with respect to, or to
administer a controlled substance in the course of professional practice or research in this state.
(2) A pharmacy, hospital or other institution licensed, registered or otherwise permitted to
distribute, dispense, conduct research with respect to, or to administer a controlled substance in the
course of professional practice or research in this state.
(w) 'Production' includes the manufacture, planting, cultivation, growing or harvesting of
a controlled substance.
(x) 'State', when applied to a part of the United States, includes any state, district,
commonwealth, territory, insular possession thereof and any area subject to the legal authority of the
United States of America.
(y) 'Ultimate user' means a person who lawfully possesses a controlled substance for his own
use or for the use of a member of his household or for administering to an animal owned by him or by a member of his household.
ARTICLE 2. STANDARDS AND SCHEDULES.
§60A-2-212. Schedule V.
(a) Schedule V shall consist of the drugs and other substances, by whatever official name,
common or usual name, chemical name, or brand name designated, listed in this section.
(b) Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any
material, compound, mixture or preparation containing any of the following narcotic drugs and their
salts, as set forth below:
(1) Buprenorphine.
(c) Narcotic drugs containing nonnarcotic active medicinal ingredients. Any compound,
mixture or preparation containing any of the following narcotic drugs or their salts calculated as the
free anhydrous base or alkaloid in limited quantities as set forth below, which shall include one or
more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound,
mixture or preparation valuable medicinal qualities other than those possessed by the narcotic drug
alone:
(1) Not more than 200 milligrams of codeine per 100 milliliters or per 100 grams;
(2) Not more than 100 milligrams of dihydrocodeine per 100 milliliters or per 100 grams;
(3) Not more than 100 milligrams of ethylmorphine per 100 milliliters or per 100 grams;
(4) Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of
atropine sulfate per dosage unit;
(5) Not more than 100 milligrams of opium per 100 milliliters or per 100 grams;
(6) Not more than 0.5 milligrams of difenoxin and not less than 25 micrograms of atropine
sulfate per dosage unit.
(d) Stimulants. Unless specifically exempted or excluded or unless listed in another schedule,
any material, compound, mixture or preparation which contains any quantity of the following
substances having a stimulant effect on the central nervous system, including its salts, isomers and salts of isomers:
(1) Pyrovalerone.
(e) Any compound, mixture or preparation containing as its single active ingredient
ephedrine, pseudoephedrine or phenylpropanolamine, their salts or optical isomers, or salts of optical
isomers except products which are for pediatric use primarily intended for administration to children
under the age of twelve.
ARTICLE 3. REGULATION OF MANUFACTURE, DISTRIBUTION AND DISPENSING
OF CONTROLLED SUBSTANCES.
§60A-3-308. Prescriptions.
(a) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate
user, no controlled substance in Schedule II may be dispensed without the written prescription of a
practitioner.
(b) In emergency situations, as defined by rule of the said appropriate department, board or
agency, Schedule II drugs may be dispensed upon oral prescription of a practitioner, reduced
promptly to writing and filed by the pharmacy. Prescription shall be retained in conformity with the
requirements of section three hundred six of this article. No prescription for a Schedule II substance
may be refilled.
(c) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate
user, a controlled substance included in Schedule III or IV, which is a prescription drug as
determined under appropriate state or federal statute, shall not be dispensed without a written or oral
prescription of a practitioner. The prescription shall not be filled or refilled more than six months
after the date thereof or be refilled more than five times, unless renewed by the practitioner.
(d) (1) A controlled substance included in Schedule V shall not be distributed or dispensed
other than for a medicinal purpose: Provided, That buprenorphine shall be dispensed only by
prescription pursuant to subsections (a), (b) and (c) of this section: Provided, however, That the
controlled substances included in subsection (e), section two hundred twelve, article two of this chapter shall be dispensed, sold or distributed only by a physician, in a pharmacy by a pharmacist
or pharmacy technician, or healthcare professional.
(2) If the substance described in subsection (e), section two hundred twelve, article two of
this chapter is dispensed, sold or distributed in a pharmacy:
(A) The substance shall be dispensed, sold or distributed only by a pharmacist or a pharmacy
technician; and
(B) Any person purchasing, receiving or otherwise acquiring any such substance shall
produce a photographic identification issued by a state or federal governmental entity reflecting his
or her date of birth.
ARTICLE 4. OFFENSES & PENALTIES
§60A-4-401. Prohibited acts A; penalties.
(a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or
possess with intent to manufacture or deliver, a controlled substance.
Any person who violates this subsection with respect to:
(i) A controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of
a felony, and, upon conviction, may be imprisoned in the state correctional facility for not less than
one year nor more than fifteen years, or fined not more than twenty-five thousand dollars, or both;
(ii) Any other controlled substance classified in Schedule I, II or III, is guilty of a felony, and,
upon conviction, may be imprisoned in the state correctional facility for not less than one year nor
more than five years, or fined not more than fifteen thousand dollars, or both;
(iii) A substance classified in Schedule IV, is guilty of a felony, and, upon conviction, may
be imprisoned in the state correctional facility for not less than one year nor more than three years,
or fined not more than ten thousand dollars, or both;
(iv) A substance classified in Schedule V, is guilty of a misdemeanor, and, upon conviction,
may be confined in jail for not less than six months nor more than one year, or fined not more than
five thousand dollars, or both: Provided, That for offenses relating to any substance classified as Schedule V in article ten of this chapter, the penalties established in article ten of this chapter apply.
(b) Except as authorized by this act, it is unlawful for any person to create, deliver, or possess
with intent to deliver, a counterfeit substance.
Any person who violates this subsection with respect to:
(i) A counterfeit substance classified in Schedule I or II which is a narcotic drug, is guilty of
a felony, and, upon conviction, may be imprisoned in the state correctional facility for not less than
one year nor more than fifteen years, or fined not more than twenty-five thousand dollars, or both;
(ii) Any other counterfeit substance classified in Schedule I, II, or III, is guilty of a felony,
and, upon conviction, may be imprisoned in the state correctional facility for not less than one year
nor more than five years, or fined not more than fifteen thousand dollars, or both;
(iii) A counterfeit substance classified in Schedule IV, is guilty of a felony, and, upon
conviction, may be imprisoned in the state correctional facility for not less than one year nor more
than three years, or fined not more than ten thousand dollars, or both;
(iv) A counterfeit substance classified in Schedule V, is guilty of a misdemeanor, and, upon
conviction, may be confined in jail for not less than six months nor more than one year, or fined not
more than five thousand dollars, or both: Provided, That for offenses relating to any substance
classified as Schedule V in article ten of this chapter, the penalties established in article ten of this
chapter apply.
(c) It is unlawful for any person knowingly or intentionally to possess a controlled substance
unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of his professional practice, or except as otherwise authorized
by this act. Any person who violates this subsection is guilty of a misdemeanor, and disposition may
be made under section 407, subject to the limitations specified in said section 407, or upon
conviction, such person may be confined in jail not less than ninety days nor more than six months,
or fined not more than one thousand dollars, or both: Provided, That notwithstanding any other
provision of this act to the contrary, any first offense for possession of less than 15 grams of marijuana shall be disposed of under said section 407.
(d) It is unlawful for any person knowingly or intentionally:
(1) To create, distribute or deliver, or possess with intent to distribute or deliver, an imitation
controlled substance; or
(2) To create, possess or sell or otherwise transfer any equipment with the intent that such
equipment shall be used to apply a trademark, trade name, or other identifying mark, imprint, number
or device, or any likeness thereof, upon a counterfeit substance, an imitation controlled substance,
or the container or label of a counterfeit substance or an imitation controlled substance.
(3) Any person who violates this subsection is guilty of a misdemeanor, and, upon
conviction, may be imprisoned in jail for not less than six months nor more than one year, or fined
not more than five thousand dollars, or both. Any person being eighteen years old or more, who
violates subdivision (1) of this subsection, and, in so doing distributes or delivers an imitation
controlled substance to a minor child who is at least three years younger than such person, is guilty
of a felony, and, upon conviction, may be imprisoned in the state correctional facility for not less
than one year nor more than three years, or fined not more than ten thousand dollars, or both.
(4) The provisions of subdivision (1) of this subsection shall not apply to a practitioner who
administers or dispenses a placebo.
§60A-4-409. Prohibited acts -- Transportation of controlled substances into state; penalties.
(a) Except as otherwise authorized by the provisions of this code, it shall be unlawful for any
person to transport into this state a controlled substance with the intent to deliver the same or with
the intent to manufacture a controlled substance.
(b) Any person who violates this section with respect to:
(1) A controlled substance classified in Schedule I or II which is a narcotic drug, shall be
guilty of a felony, and, upon conviction, may be imprisoned in the state correctional facility for not
less than one year nor more than fifteen years, or fined not more than twenty-five thousand dollars,
or both;
(2) Any other controlled substance classified in Schedule I, II or III, shall be guilty of a
felony, and, upon conviction, may be imprisoned in the state correctional facility for not less than
one year nor more than five years, or fined not more than fifteen thousand dollars, or both;
(3) A substance classified in Schedule IV, shall be guilty of a felony, and, upon conviction,
may be imprisoned in the state correctional facility for not less than one year nor more than three
years, or fined not more than ten thousand dollars, or both;
(4) A substance classified in Schedule V, shall be guilty of a misdemeanor, and, upon
conviction, may be confined in jail for not less than six months nor more than one year, or fined not
more than five thousand dollars, or both: Provided, That for offenses relating to any substance
classified as Schedule V in article ten of this chapter, the penalties established in article ten of this
chapter apply.
(c) The offense established by this section shall be in addition to and a separate and distinct
offense from any other offense set forth in this code.
ARTICLE 9. CONTROLLED SUBSTANCES MONITORING.
§60A-9-4. Required information.
(a) Whenever a medical services provider dispenses a controlled substance listed in the
provisions of section two hundred six, article two of this chapter or whenever a prescription for the
controlled substance is filled by: (i) A pharmacist or pharmacy in this state; (ii) a hospital, or other
health care facility, for out-patient use; or (iii) a pharmacy or pharmacist licensed by the Board of
Pharmacy, but situated outside this state for delivery to a person residing in this state, the medical
services provider, health care facility, pharmacist or pharmacy shall, in a manner prescribed by rules
promulgated by the Board of Pharmacy under this article, report the following information, as
applicable:
(1) The name, address, pharmacy prescription number and Drug Enforcement Administration
controlled substance registration number of the dispensing pharmacy;
(2) The name, address and birth date of the person for whom the prescription is written;
(3) The name, address and Drug Enforcement Administration controlled substances
registration number of the practitioner writing the prescription;
(4) The name and national drug code number of the Schedule II, III and IV controlled
substance dispensed;
(5) The quantity and dosage of the Schedule II, III and IV controlled substance dispensed;
(6) The date the prescription was filled; and
(7) The number of refills, if any, authorized by the prescription.
(b) The Board of Pharmacy may prescribe by rule promulgated under this article the form to
be used in prescribing a Schedule II, III and IV substance if, in the determination of the Board, the
administration of the requirements of this section would be facilitated.
(c) Products regulated by the provisions of article ten of this chapter shall be subject to
reporting pursuant to the provisions of this article to the extent set forth in article ten of this chapter.
(c) (d) Reporting required by this section is not required for a drug administered directly to
a patient or a drug dispensed by a practitioner at a facility licensed by the state: Provided, That the
quantity dispensed is limited to an amount adequate to treat the patient for a maximum of seventy-
two hours with no greater than two 72-hour cycles in any fifteen-day period of time.
§60A-9-5. Confidentiality; limited access to records; period of retention; no civil liability for
required reporting.
The information required by this article to be kept by the State Board of Pharmacy is
confidential and is open to inspection only by inspectors and agents of the State Board of Pharmacy,
members of the West Virginia State Police expressly authorized by the Superintendent of the West
Virginia State Police to have access to the information, authorized agents of local law-enforcement
agencies as a member of a drug task force, authorized agents of the federal Drug Enforcement
Administration, duly authorized agents of the Bureau for Medical Services and the Workers'
Compensation Commission, duly authorized agents of licensing boards of practitioners in this state
and other states authorized to prescribe Schedules II, III and IV controlled substances, prescribing practitioners and pharmacists and persons with an enforceable court order or regulatory agency
administrative subpoena: Provided, That all information released by the State Board of Pharmacy
must be related to a specific patient or a specific individual or entity under investigation by any of
the above parties except that practitioners who prescribe controlled substances may request specific
data related to their Drug Enforcement Administration controlled substance registration number or
for the purpose of providing treatment to a patient. The Board shall maintain the information
required by this article for a period of not less than five years. Notwithstanding any other provisions
of this code to the contrary, data obtained under the provisions of this article may be used for
compilation of educational, scholarly or statistical purposes as long as the identities of persons or
entities remain confidential. No individual or entity required to report under section four of this
article may be subject to a claim for civil damages or other civil relief for the reporting of
information to the Board of Pharmacy as required under and in accordance with the provisions of
this article.
ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.
§60A-10-1. Short title.
The provisions of this article shall be known and referred to as the Methamphetamine
Laboratory Eradication Act.
§60A-10-2. Purpose; findings.
The Legislature finds:
(a) That the illegal production and distribution of methamphetamine is an increasing problem
nationwide and particularly prevalent in rural states such as West Virginia.
(b) That methamphetamine is a highly addictive drug that can be manufactured in small and
portable laboratories. These laboratories are operated by individuals who manufacture the drug in
a clandestine and unsafe manner, often resulting in explosions and fires that can injure not only the
individuals involved but their families, neighbors, law-enforcement officers and firemen.
(c) That use of methamphetamine can result in fatal kidney and lung disorders, brain damage, liver damage, blood clots, chronic depression, hallucinations, violent and aggressive behavior,
malnutrition, disturbed personality development, deficient immune system and psychosis. Children
born to mothers who are abusers of methamphetamine can be born addicted and suffer birth defects,
low birth weight, tremors, excessive crying, attention deficit disorder and behavior disorders.
(d) That in addition to the physical consequences to an individual who uses
methamphetamine, usage of the drug also produces an increase in automobile accidents, explosions
and fires, increased criminal activity, increased medical costs due to emergency room visits,
increases in domestic violence, increased spread of infectious diseases and a loss in worker
productivity.
(e) That environmental damage is another consequence of the methamphetamine epidemic.
Each pound of methamphetamine produced leaves behind five to six pounds of toxic waste.
Chemicals and byproducts that result from the manufacture of methamphetamine are often poured
into plumbing systems, storm drains or directly onto the ground. Cleanup of methamphetamine
laboratories is extremely resource-intensive, with an average remediation cost of five thousand
dollars.
(f) That it is in the best interest of every West Virginian to develop a viable solution to
address the growing methamphetamine problem in the State of West Virginia. The Legislature finds
that restricting access to over-the-counter drugs used to facilitate production of methamphetamine
is necessary to protect the public safety of all West Virginians.
(g) That it is further in the best interests of every West Virginian to create impediments to
the manufacture of methamphetamine by requiring persons purchasing chemicals necessary to the
process to provide identification.
§60A-10-3. Definitions.
In this article:
(a) 'Board of Pharmacy' or 'Board' means the West Virginia Board of Pharmacy established
by the provisions of article five, chapter thirty of this code.
(b) 'Designated precursor' means any drug product made subject to the requirements of this
article by the provisions of section seven of this article.
(c) 'Distributor' means any person within this state or another state, other than a
manufacturer or wholesaler, who sells, delivers, transfers or in any manner furnishes a drug product
to any person who is not the ultimate user or consumer of the product;
(d) 'Drug product' means a pharmaceutical product that contains as its single active
ingredient ephedrine, pseudoephedrine or phenylpropanolamine or a substance identified on the
supplemental list provided for in section seven of this article which may be sold without a
prescription and which is labeled for use by a consumer in accordance with the requirements of the
laws and rules of this state and the federal government.
(e) 'Ephedrine' means ephedrine, its salts or optical isomers or salts of optical isomers.
(f) 'Manufacturer' means any person within this state who produces, compounds packages
or in any manner initially prepares for sale or use any drug product or any such person in another
state if they cause the products to be compounded, packaged or transported into this state.
(g) 'Phenylpropanolamine' means phenylpropanolamine, its salts, optical isomers and salts
of optical isomers.
(h) 'Pseudoephedrine' means pseudoephedrine, its salts, optical isomers and salts of optical
isomers.
(i) 'Precursor' means any substance which may be used along with other substances as a
component in the production and distribution of illegal methamphetamine.
(j) 'Pharmacist' means an individual currently licensed by this state to engage in the practice
of pharmacy and pharmaceutical care as defined in subsection (t), section one-b, article fifty, chapter
thirty of this code.
(k) 'Pharmacy' means any drugstore, apothecary or place within this state where drugs are
dispensed and sold at retail or display for sale at retail and pharmaceutical care is provided outside
of this state where drugs are dispensed and pharmaceutical care is provided to residents of this state.
(l) 'Pharmacy counter' means an area in the pharmacy restricted to the public where
controlled substances are stored and housed and where controlled substances may only be sold,
transferred or dispensed by a pharmacist or pharmacy technician.
(m) 'Pharmacy technician' means a registered technician who meets the requirements for
registration as set forth in article five, chapter thirty of this code.
(n) 'Retail establishment' means any entity or person within this state who sells, transfers or
distributes goods, including over-the-counter drug products, to an ultimate consumer.
(o) 'Schedule V' means the schedule of controlled substances set out in section two hundred
twelve, section two of this chapter.
(p) 'Single active ingredient' means those ingredients listed on a drug product package as the
only active ingredient in over-the-counter medication or identified on the Schedule maintained by
the Board of Pharmacy as being primarily used in the illegal production and distribution of
methamphetamine.
(q) 'Superintendent of the State Police' or 'Superintendent' means the Superintendent of the
West Virginia State Police as set forth in section five, article two, chapter fifteen of this code.
(r) 'Wholesaler' means any person within this state or another state, other than a
manufacturer, who sells, transfers or in any manner furnishes a drug product to any other person in
this state for the purpose of being resold.
§60A-10-4. Purchase, receipt, acquisition and possession of substances to be used as precursor
to manufacture of methamphetamine or another controlled substance; offenses;
exceptions; penalties.
(a) Any person who within any thirty-day period knowingly purchases, receives or otherwise
possesses more than three packages of a drug product containing as its single active ingredient
ephedrine, pseudoephedrine or phenylpropanolamine or more than nine grams of ephedrine,
pseudoephedrine or phenylpropanolamine in any form shall be guilty of a misdemeanor and, upon
conviction, shall be confined in a jail for not more than one year, fined not more than one thousand dollars, or both.
(b) Notwithstanding the provisions of subsection (a) of this section, any person convicted of
a second or subsequent violation of the provisions of said subsection or a statute or ordinance of the
United States or another state which contains the same essential elements shall be guilty of a felony
and, upon conviction, shall be confined in a state correctional facility for not less than one nor more
than five years, fined not more than twenty-five thousand dollars, or both.
(c) The provisions of subsection (a) of this section shall not apply to:
(1) Drug products which are for pediatric use primarily intended for administration to
children under the age of twelve;
(2) Drug products which have been determined by the Board of Pharmacy to be in a form
which is unamenable to being used for the manufacture of methamphetamine;
(3) Persons lawfully possessing drug products in their capacities as distributors, wholesalers,
manufacturers, pharmacists, pharmacy technicians, health care professionals or persons possessing
such drug products pursuant to a valid prescription;
(d) Notwithstanding any provision of this code to the contrary, any person who knowingly
possesses any amount of ephedrine, pseudoephedrine, phenylpropanolamine or other designated
precursor with the intent to use it in the manufacture of methamphetamine or who knowingly
possesses a substance containing ephedrine, pseudoephedrine or phenylpropanolamine or their salts,
optical isomers or salts of optical isomers in a state or form which is, or has been altered or
converted from the state or form in which these chemicals are, or were, commercially distributed
shall be guilty of a felony and, upon conviction, shall be confined in a state correctional facility for
not less than two nor more than ten years, fined not more than twenty-five thousand dollars, or both.
(e) (1) Any pharmacy, wholesaler, manufacturer or distributor of drug products containing
as their single active ingredient ephedrine, pseudoephedrine, phenylpropanolamine, their salts or
optical isomers or salts of optical isomers or other designated precursor shall obtain a registration
annually from the State Board of Pharmacy as described in section six of this article. Any such pharmacy, wholesaler, manufacturer or distributor shall keep complete records of all sales and
transactions as provided in section eight of this article. The records shall be gathered and maintained
pursuant to legislative rule promulgated by the Board of Pharmacy.
(2) Any drug products possessed without a registration as provided in this section are subject
to forfeiture upon conviction for a violation of this section.
(3) In addition to any administrative penalties provided by law, any violation of this
subsection is a misdemeanor, punishable upon conviction by a fine in an amount not more than ten
thousand dollars.
§60A-10-5. Restrictions on the sale, transfer or delivery of certain drug products; penalties.
(a) No pharmacy or individual may display, offer for sale or place a drug product containing
as its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or other
designated precursor where the public may freely access the drug product. All such drug products
or designated precursors shall be placed behind a pharmacy counter where access is restricted to a
pharmacist, a pharmacy technician or other pharmacy employee.
(b) All storage of drug products regulated by the provisions of this section shall be in a
controlled and locked access location that is not accessible by the general public and shall maintain
strict inventory control standards and complete records of quantity of the product maintained in bulk
form.
(c) No pharmacy shall sell, deliver or provide any drug product regulated by the provisions
of this section to any person who is under the age of eighteen.
(d) If a drug product regulated by the provisions of this section is transferred, sold or
delivered, the individual, pharmacy or retail establishment transferring, selling or delivering the drug
product shall require the person purchasing, receiving or otherwise acquiring the drug product to:
(1) Produce a government-issued photo identification showing his or her date of birth; and
(2) Sign a form containing the information set forth in subsection (b), section eight of this
article and attesting to the validity of such information. Any person who knowingly makes a false representation or statement pursuant to the requirements of this section shall be guilty of a
misdemeanor and, upon conviction, be confined in a jail for not more than six months, fined not
more than five thousand dollars, or both.
(e) This section does not apply to drug products that are dispensed pursuant to a prescription,
are pediatric products primarily intended for administration, according to label instructions, to
children under twelve years of age.
(f) Any violation of this section is a misdemeanor, punishable upon conviction by a fine in
an amount not more than ten thousand dollars.
§60A-10-6. Registration to sale, manufacture or distribute products; rule-making authority.
The State Board of Pharmacy shall propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this code to require that every wholesaler,
manufacturer or distributor of any drug product containing as their single active ingredient ephedrine
or pseudoephedrine or a substance identified on the supplemental list provided for in section seven
of this article shall obtain a registration and permit issued by the State Board of Pharmacy to sale,
distribute or transfer the product containing as their single active ingredient ephedrine,
pseudoephedrine or phenylpropanolamine.
§60A-10-7. Restricted products; rule-making authority.
(a) On or before the first day of July, two thousand five, the Board of Pharmacy shall
promulgate emergency and legislative rules pursuant to the provision of article three, chapter twenty-
nine-a of this code to implement a program wherein the Board of Pharmacy shall consult with the
Superintendent of the State Police in identifying drug products which are a designated precursor, in
addition to those that contain as their single active ingredient ephedrine, pseudoephedrine or
phenylpropanolamine, that are commonly being used in the production and distribution of
methamphetamine. Those drug products which the Superintendent of the State Police have
demonstrated by empirical evidence are commonly used in the manufacture of methamphetamine
shall be added to a supplemental list of controlled substances listed in subsection (e), section two hundred twelve, article two of this chapter and shall be subject to all of the restrictions of this article.
These rules established pursuant to this section shall include:
(1) A process whereby pharmacies are made aware of all drug products that contain as their
single active ingredient ephedrine, pseudoephedrine and phenylpropanolamine that will be listed as
a Schedule V substance and must be sold, transferred or dispensed from behind a pharmacy counter;
(2) A process whereby pharmacies and retail establishments are made aware additional drug
products added to Schedule V that are required to be placed behind the pharmacy counter for sale,
transfer or distribution can be periodically reviewed and updated.
(b) At any time after the first day of July, two thousand five, the Board of Pharmacy, upon
the recommendation of the Superintendent of the State Police, shall promulgate emergency and
legislative rules pursuant to the provision of article three, chapter twenty-nine-a of this code to
implement an updated supplemental list of products containing the controlled substances ephedrine,
pseudoephedrine or phenylpropanolamine as an active ingredient or any other drug used as a
precursor in the manufacture of methamphetamine, which the Superintendent of the State Police has
demonstrated by empirical evidence is being used in the manufacture of methamphetamine. This
listing process shall comport with the requirements of subsection (a) of this section.
§60A-10-8. Reporting requirements; confidentiality.
(a) Whenever there is a sale, retail, transfer or distribution of any drug product referred to in
subsection (e), section two-hundred twelve, article two of this chapter or another designated
precursor, the pharmacist or pharmacy technician making the sale, transfer or distribution shall report
the following information for inclusion in the central repository established pursuant to article nine
of this chapter:
(1) The date of the transaction;
(2) The name, address and driver's license or state-issued identification number of the
person; and
(3) The name, the quantity of packages and total gram weight of the product or products purchased, received or otherwise acquired.
(b) The information required by this section shall be the property of the state and a pharmacy
shall have no duty to retain a copy of the information in any format once the information has been
reported to the Board of Pharmacy as required by this section.
§60A-10-9. Persons mandated to report suspected injuries related to methamphetamine
production; failure to report; penalty.
(a) When any medical, dental or mental health professional, Christian Science practitioner,
religious healer or emergency medical services personnel has reason to believe that an injury is the
direct result of exposure to the production of methamphetamine such person shall immediately, and
not more than forty-eight hours after such suspicion arises, report the circumstances or cause a report
to be made to a state, county or local law-enforcement agency.
(b) Any person required by this section to report a suspected methamphetamine-related injury
who knowingly and intentionally fails to do so or knowingly and intentionally prevents another
person acting reasonably from doing so shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than one hundred dollars or imprisoned in jail not more than ten
days, or both fined and imprisoned.
§60A-10-10. Authority of the Superintendent of the State Police to leverage grant funds.
The Superintendent of the State Police is encouraged to leverage available grant funds from
individuals, foundations, corporations, the federal government, governmental agencies and other
organizations or institutions, make and sign any agreement to and perform any act that may be
necessary to effectuate these grants. The grant funds shall be dedicated toward a drug court, to
provide training programs to state and local prosecutors and law-enforcement agents for the
investigation and prosecution of methamphetamine offenses and to enhance funding available to
jails.
§60A-10-11. Reporting to the Legislative Oversight Commission on Health and Human
Resources Accountability.
On or before the first day of December, two thousand five, the Superintendent of the West
Virginia State Police shall submit a report including findings, conclusions and recommendations,
together with drafts of any legislation necessary, to improve the effectiveness of a reduction in illegal
methamphetamine production and distribution to the Legislative Oversight Commission on Health
and Human Resources Accountability for consideration.
§60A-10-12. Exposure of children to methamphetamine manufacturing; penalties.
(a) Any person eighteen years of age or older who knowingly causes or permits a minor to
be present in a location where methamphetamine is manufactured or attempted to be manufactured
is guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less
than one nor more than five years, fined not more than ten thousand dollars, or both.
(b) Notwithstanding the provisions of subsection (a) of this section, the penalty for a violation
of said subsection when the child suffers serious bodily injury as such is defined in the provisions
of section one, chapter eight-b of this code shall be confined in a state correctional facility for not
less than three nor more than fifteen years, fined not more than twenty-five thousand dollars, or both.
§60A-10-13. Exposure of first responders to manufacture methamphetamine; penalties
Any person who as a result of or in the course of unlawfully and intentionally manufacturing
methamphetamine, cause a police officer, probation officer, humane officer, emergency medical
service personnel, firefighter, state fire marshal or employee, division of forestry employee, county
correctional employee or state correctional employee, acting in his or her official capacity to ingest,
inhale, or be dermally exposed to a chemical, product, by-product, residue, or substance involved
in the manufacture or attempted manufacture of such controlled substance, without prior knowledge
of such, and thereby causes bodily injury to such persons, shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than five hundred nor more than five thousand dollars and
confined in a correctional facility for not less than one year nor more than five years. A violation
of this section shall constitute a separate offense from the manufacture of attempt to manufacture
methamphetamine.
§60A-10-14. Illegal storage of anhydrous ammonia; exceptions.
(a) Any person who stores or conveys anhydrous ammonia in a container that:
(1) Is not approved by the United States Department of Transportation to hold anhydrous
ammonia; or
(2) Was not constructed to meet state and federal industrial health and safety standards for
holding anhydrous ammonia is guilty of a felony and, upon conviction, shall be confined in a state
correctional facility for a determinate period not to exceed five years, fined not more than ten
thousand dollars, or both.
(b) The provisions of this section shall not apply to persons authorized by federal or state law,
rule or regulation to handle and dispose of hazardous waste or toxic substances while engaged in
such conduct.
(c) Any damages arising out of the unlawful possession of, storage of or tampering with
anhydrous ammonia equipment shall be the sole responsibility of the person or persons unlawfully
possessing, storing or tampering with anhydrous ammonia. In no case shall liability for damages
arising out of the unlawful possession of, storage of or tampering with anhydrous ammonia or
anhydrous ammonia equipment extend to the lawful owner, installer, maintainer, designer,
manufacturer, possessor or seller of the anhydrous ammonia or anhydrous ammonia equipment,
unless such damages arise out of the acts or omissions of the owner, installer, maintainer, designer,
manufacturer, possessor or seller that constitute negligent misconduct to abide by the laws regarding
anhydrous ammonia possession and storage.
§60A-10-15. Iodine solution greater than 1.5 percent; prescription or permit required;
offenses; penalties.
(a) A person may offer to sell, sell or distribute an iodine matrix only:
(1) As a prescription drug, pursuant to a prescription issued by a veterinarian or physician
licensed within the state; or
(2) To a person who is actively engaged in the legal practice of animal husbandry of livestock, as defined in section eight, article one, chapter four of this code.
(b) Prescriptions issued under this section:
(1) Shall provide for a specified number of refills;
(2) May be issued by any means authorized by the Board of Pharmacy; and
(3) May be filled by a person other than the veterinarian or physician issuing the prescription.
(c) A person offering iodine matrix for sale:
(1) Shall store the iodine matrix so that the public does not have access to the iodine matrix
without the direct assistance or intervention of a retail employee;
(2) Shall keep a record, which may consist of sales receipts of each person purchasing iodine
matrix; and
(3) Shall, if necessary to ascertain the identity of the purchaser, ask for proof of identification
from the purchaser.
(d) A person engaging in a regulated transaction pursuant to the provisions of subsection (a)
of this section is guilty of a misdemeanor if he or she offers to sell, sells or distributes an iodine
matrix to a person who:
(1) Does not present a prescription or is not engaged in animal husbandry, as required under
subsection (a) of this section; or
(2) Is not excepted under subsection (g) of this section.
(e) A person is guilty of a misdemeanor who:
(1) Possesses an iodine matrix without proof of obtaining the solution in compliance with
subsection (a) of this section; or
(2) Offers to sell, sells or distributes an iodine matrix in violation of said subsection;
(f) The provisions of subdivision (1), subsection (e) of this section do not apply to:
(1) A chemistry or chemistry-related laboratory maintained by:
(A) A public or private regularly established secondary school; or
(B) A public or private institution of higher education that is accredited by a regional or national accrediting agency recognized by the United States Department of Education:
(2) A veterinarian licensed to practice pursuant to the provisions of article ten, chapter thirty
of this code;
(3) A health care facility; or
(4) A veterinarian, physician, pharmacist, retail distributor, wholesaler, manufacturer,
warehouseman or common carrier, or an agent of any of these persons who possesses an iodine
matrix in the regular course of lawful business activities.
(g) As used in this section, 'iodine matrix' means iodine at a concentration greater than 1.5
percent, by weight, in a matrix or solution."
The bill was then read to third reading.
Com. Sub. for S. B. 198, Relating to fire safety standards for bed and breakfast
establishments; 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 five, section sixteen-c, line fifty-six, following the words "to
grade", by inserting a period and striking out the remainder of the sentence.
Com. Sub. for S. B. 450, Prohibiting compensation of board members from receiving
compensation for certain travel days; on second reading, coming up in regular order, was read a
second time and ordered to third reading.
S. B. 703, Providing consistency in filing procedures for all organization types and cleaning
up outdated language; on second reading, coming up in regular order, was read a second time and
ordered to third reading.
S. B. 735, Relating to cancellation of motor vehicle agreement; on second reading, coming
up in regular order, was read a second time and ordered to third reading.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"§17A-6A-7. Notice provisions.
Notwithstanding any agreement, prior to the termination, cancellation, nonrenewal or
discontinuance of any dealer agreement, the manufacturer or distributor shall furnish notice of the
termination, cancellation, nonrenewal or discontinuance to the new motor vehicle dealer as follows:
(a) Except as otherwise provided in subdivision (c) or (d) this subsection section, notice shall be
made not less than one hundred twenty days prior to the effective date of the termination,
cancellation, nonrenewal or discontinuance.
(b) Notice shall be by certified mail with restrictive delivery to the new motor vehicle dealer
principal and shall contain the following:
(i) (1) A statement of intention to terminate, cancel, not renew or discontinue the dealer
agreement;
(ii) (2) A detailed written statement of all reasons for the termination, cancellation,
nonrenewal or discontinuance. The statement shall include, at a minimum, a complete explanation
of each reason upon which the manufacturer or distributor relies to support its proposed action, along
with all supporting documentation which is material to the proposed action and available to the
manufacturer or distributor at the time of termination, cancellation, nonrenewal or discontinuance;
and
(iii) (3) The date on which the termination, cancellation, nonrenewal or discontinuance takes
effect.
(c) Notwithstanding subdivision (a) of this subsection, notice shall be made not less than
thirty days prior to the effective date of the termination, cancellation, nonrenewal or discontinuance
for any of the following reasons:
(i) (1) Insolvency of the new motor vehicle dealer or the filing of any petition by or against
the new motor vehicle dealer under any bankruptcy or receivership law;
(ii) (2) Failure of the new motor vehicle dealer to conduct his or her customary sales and
service operations during his or her customary business hours for seven consecutive business days;
(iii) (3) Conviction of the new motor vehicle dealer or its principal owners of a crime, but
only if the crime is punishable by imprisonment in excess of one year under the law under which the
dealer was convicted or the crime involved theft, dishonesty or false statement regardless of the
punishment;
(iv) (4) Revocation of a motor vehicle dealership license in accordance with section eighteen,
article six of this chapter; or
(v) (5) A fraudulent misrepresentation by the new motor vehicle dealer to the manufacturer
or distributor, which is material to the dealer agreement.
(d) Notwithstanding subdivision (a) of this subsection, notice shall be made not less than
twelve months prior to the effective date of a termination, cancellation, nonrenewal or
discontinuance if a manufacturer or distributor discontinues production of the new motor vehicle
dealer's product line or discontinues distribution of the product line in this state.
(e) Except as provided in subdivision (c) of this subsection, any motor vehicle dealer who
receives a notice of intent to discontinue, cancel or not renew a dealer agreement may, within a 120-
day notice period, file a petition or complaint for a determination of whether such action is an unfair
or prohibited discontinuation, cancellation or nonrenewal. Dealer agreements and certificates of
appointment shall continue in effect until a final determination of the issues raised in such petition
or complaint by the motor vehicle dealer. A discontinuance, cancellation or nonrenewal is unfair
if it is:
(1) Not clearly permitted by the dealer agreement;
(2) Not undertaken for good cause; or
(3) Is based on an alleged breach of the franchise agreement which is not in fact a material
and substantial breach.
(f) No replacement dealer shall be named for this point or location to engage in business and
the dealer's agreement shall remain in effect until a final judgement is entered after all appeals are
exhausted: Provided, That when a motor vehicle dealer appeals a decision upholding a discontinuation, cancellation or nonrenewal under subdivisions (f) and (g) of this section, the dealer
agreement shall remain in effect pending exhaustion of all appeals only if the motor vehicle dealer
establishes a likelihood of success on appeal and that the public interest will not be harmed by
keeping the dealer agreement in effect pending entry of final judgement after such appeal.
(g) If a transfer of ownership is proposed after a notice to discontinue, cancel or not renew
a dealer agreement is received but, prior to the final determination, including exhaustion of all
appellate remedies of a motor vehicle dealer's complaint or petition contesting such action, the
termination proceedings shall be stayed, without bond, during the period the transfer is being
reviewed by the manufacturer or distributor. During the period that the transfer is being reviewed
by the manufacturer or distributor, the dealer agreement shall remain in full force and effect, and the
motor vehicle dealer shall retain all rights and remedies pursuant to the terms and conditions of the
dealer agreement and applicable law. This shall include, but is not limited to, all rights of transfer
under subdivision (2), section ten, article six-a, chapter seventeen of this code until such time as the
manufacturer or distributor has accepted or rejected the proposed transfer. If the proposed transfer
is rejected, the motor vehicle dealer shall retain all of its rights pursuant to section sixteen of said
article to a judicial determination as to whether the manufacturer or distributor's rejection is in
compliance with the provisions of subdivision (2), section ten of said article and during the pendency
of such judicial proceeding, and any related appellate proceedings, the termination proceedings shall
remain stayed without bond, the dealer agreement shall remain in full force and effect and the motor
vehicle dealer shall retain all rights and remedies pursuant to the terms and conditions of the dealer
agreement and applicable law including all rights of transfer. If a transfer is approved by the
manufacturer or distributor or mandated by law, the termination proceedings shall be dismissed with
prejudice as moot."
The bill was then ordered to third reading.
S. B. 737, Establishing time limit for licensing board to issue final ruling; on second
reading, coming up in regular order, was read a second time and ordered to third reading.
The Clerk announced that, pursuant to House Rule 70a, the following requests had been
filed with him for the removal of bills from the Consent Calendar to the House Calendar:
Com. Sub. for S. B. 147, on third reading, Consent Calendar, to the House Calendar, by
Delegate Trump.
Special Calendar
Unfinished Business
S. C. R. 34, Requesting Division of Highways name bridge on Route 13, Raleigh County,
"Sergeant Billy Ray Holmes 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.
H. R. 36, Encouraging the 109th Congress to enact multi-emission legislation that will
provide reduction targets for nitrogen oxide, sulfur dioxide and mercury; coming up in regular order,
as unfinished business, was reported by the Clerk and adopted.
H. R. 39, Commemorating the life and lamenting the death of the Honorable Elizabeth V.
Hallanan; coming up in regular order, as unfinished business, was read by the Clerk, as follows:
House Resolution No. 39
(By Mr. Speaker, Mr. Kiss, and Delegates Staton and Trump)
"Commemorating the life and lamenting the death of the Honorable Elizabeth V. Hallanan, Senior
District Court Judge for the Southern District of West Virginia, a model of judicial integrity,
pioneering accomplishments and extraordinary public servant."
Whereas, Elizabeth V. Hallanan was one of the very few women to attend West Virginia
University Law School in the 1940's and as she later recalled it "was 135 men and me".
Elizabeth Hallanan was admitted to the State Bar in 1951 and she practiced law when she
was not involved in public service. In 1956, she was elected to the House of Delegates from
Kanawha County; in 1957, she was appointed as Assistant Commissioner of Public Institutions; and in 1959, she was the first woman to preside over a trial-level court in West Virginia, when Governor
Cecil Underwood appointed her to become a Kanawha County Juvenile Court Judge. President
Ronald Reagan appointed her as the first woman Federal District Court Judge in West Virginia in
1983; and
Elizabeth Hallanan was a champion of women, encouraging them to seek positions of
responsibility in the public and private sectors and she was a protector of children as she ordered
major changes in how child support is collected and used to improve the welfare of children. She
was at the center of the controversy over the enactment of legislation to allow school-led silent
prayer in West Virginia's schools when as a devout Roman Catholic, she struck down the law after
she became convinced that it violated the establishment of religion clause in the First Amendment
to the Constitution.
Judge Hallanan was known to run her courtroom firmly, but with dignity and courtesy and
she was interested in other people - to her, everyone was on the same level. In the end, the news of
her death was overshadowed by the death of President Reagan who appointed her to the United
States District Court, but her life, as a model of judicial integrity, pioneering accomplishments as
a woman in positions of authority and responsibility traditionally held by men and her sense of
fairness and respect for people, is truly a life well lived; therefore, be it
Resolved by the House of Delegates:
That the members of the House of Delegates hereby express gratitude for the outstanding life
and accomplishments of the Honorable Elizabeth V. Hallanan, Senior District Court Judge for the
Southern District of West Virginia, and lament her death on June 8, 2004, at the age of seventy nine,
leaving as a legacy for all West Virginians a model of judicial integrity, pioneering accomplishments
and a life well lived; and, be it
Further Resolved, That the Clerk of the House of Delegates prepare certified copies of this
Resolution for her niece, D. Blake Hallanan, great niece Caroline Hallanan and nephews Walter
Simms Hallanan III and Paul M. Hallanan.
The question now being on the adoption of the resolution, Delegate Mahan demanded the
yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 542), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Boggs, Ennis and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the resolution (H. R. 39) adopted.
H. R. 40, Commemorating the life of C. Farrell Johnson, former member of the House of
Delegates from the County of Nicholas; coming up in regular order, as unfinished business, was read
by the Clerk, as follows:
House Resolution No. 40
(By Mr. Speaker, Mr. Kiss and Delegate Argento )
"Commemorating the life of C. Farrell Johnson, gentleman, soldier, and former member of the
House of Delegates from the County of Nicholas."
Whereas, C. Farrell Johnson was born on November 14, 1925, the son of the late Roy and
Elsie Johnson; and
Whereas, Mr. Johnson unselfishly served this Country as a member of the United States
Army during World War II; and
WHEREAS, He was married on May 21, 1949, to Sara A. Malcolm and they had two
children: Jeanie J. Brown and Kellie J. (deceased); and
Whereas, Mr. Johnson, who resided at Summersville in Nicholas County, served his State
with honor and distinction in this Legislative Body, first being elected in 1986, and thereafter,
winning reelection in 1988, 1990 and 1992; and
Whereas, Mr. Johnson was also a three-term member of City Council and Mayor of
Summersville; and
Whereas, While a member of the House of Delegates, Mr. Johnson served as Vice Chair
of the Committee on Agriculture and Natural Resources, and additionally, he served on the
Committees on Finance and Political Subdivisions; and
Whereas, Mr. Johnson's departure from this earthly life should not go unnoticed; therefore, be it
Resolved by the House of Delegates:
That regret is hereby expressed by the members of the House of Delegates at the passing
away of C. Farrell Johnson, gentleman, soldier, and former member of the House of Delegates; and,
be it
Further Resolved, That the Clerk of the House of Delegates is hereby requested to provide
certified copies of this Resolution to surviving family members of C. Farrell Johnson and to the
Nicholas County Commission.
The question now being on the adoption of the resolution, Delegate Argento demanded the
yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 543), 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: Boggs, Campbell, Ennis and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the resolution (H. R. 40) adopted.
H. R. 41, In memory of Samuel A. Ellis, former member of the House of Delegates from
Harrison County; coming up in regular order, as unfinished business, was read by the Clerk as
follows:
House Resolution No. 41
(By Mr. Speaker, Mr. Kiss, and Delegates Cann, Iaquinta, Fragale and Miley )
"In memory of Samuel A. Ellis, gentleman, businessman and former member of the House of
Delegates from Harrison County."
Whereas, Samuel A. Ellis was born on October 12, 1913, in Willard, West Virginia, the son
of the late Anthony and Marie Theresa Allessio; and
Whereas, Mr. Ellis unselfishly served his Community as a school teacher and band director
at Roosevelt-Wilson High School, where he was later instrumental in organizing and directing the
R-W Alumni Band; and
Whereas, Mr. Ellis was an astute businessman, having partnered with his brothers in the
Ellis Restaurant and Drive-In Theater from 1950 to 1981; and
Whereas, Mr. Ellis, who resided at Clarksburg in Harrison County, served his State with
honor and distinction as a member of the House of Delegates, elected thereto in 1949; and
Whereas, Mr. Ellis was an active Alumnus of Salem College in the 1930 and 1940's and
he led the "Sammy Ellis Orchestra", a popular dance band; and
Whereas, Mr. Ellis passed away on March 25, 2005; and
Whereas, Mr. Ellis' departure from this life should not go unnoticed; therefore, be it
Resolved by the House of Delegates:
That regret is hereby expressed by the members of the House of Delegates at the death of
Samuel A. Ellis, gentleman, businessman and former member of the House of Delegates; and, be it
Further Resolved, That the Clerk of the House of Delegates provide a certified copy of this
Resolution to the Harrison County Commission and to Mr. Ellis' sons, Richard L. Ellis of Atlanta,
Georgia, David J. Ellis of Charleston, West Virginia and Sam J. Ellis of New York, New York, in
care of David J. Ellis of Charleston.
The resolution was then adopted.
H. C. R. 49, Opposing the further designation of additional federal wilderness acreage within
the Monongahela National Forest in the State of West Virginia; coming up in regular order, as
unfinished business, were reported by the Clerk and adopted.
Delegates Beach, Brown, Doyle, Hatfield, Mahan, Tabb, Webster and Wysong requested that
the Clerk show that they had voted "Nay" on the adoption of H. C. R 49.
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. 75, Requesting the Joint Committee on Government and Finance to study statutory
standards and requirements governing practice of mid-level health care occupations and underwriting
guideline governing issuance of medical professional liability policies; 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. 83, Requesting the Secondary School Activities Commission to consider a rule
amendment to provide at least two classes of competition in the end-of-school tournaments; 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. 84, Requesting the Joint Committee on Government and Finance to make a study
on education proposals of the West Virginia Department of Education entitled: West Virginia
ACHIEVES (5-year plan); 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. 99, Recommending that West Virginia's National representatives research methods
for securing waivers that would help the state better tailor No Child Left Behind for West Virginia
students; 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.
Action On Senate Messages
The House next proceeded to take up consideration of a message received from the Senate
on yesterday, as to
H. B. 2150, Expanding the possible venues where a child neglect or abuse petition may be
filed.
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 one, line four, after the word "child" by striking out the comma and
inserting the words "resides, or if the petition is being brought by the Department, in the county in which the".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
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. 545), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2150) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House next proceeded to take up consideration of a message received from the Senate
on yesterday, as to
Com. Sub. for H. B. 2417, Relating to compressed gas container safe transport,
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 six-a, line nineteen, by striking out the words "shall not apply" and
inserting in lieu thereof the words "are not applicable".
And,
On page two, section six-a, line twenty, after the word "purposes" by inserting the words "or
to respiratory health care products in use by the person operating the vehicle".
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. 546), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Armstead and Fragale.
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. 2417) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House next proceeded to take up consideration of a message received from the Senate
on yesterday, as to
Com. Sub. for H. B. 2669, Authorizing miscellaneous boards and agencies 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 five, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That article 9, chapter 64 of the Code of West Virginia, 1931, as amended, be amended and
reenacted to read as follows:
ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO
PROMULGATE LEGISLATIVE RULES.
§64-9-1. Board of Acupuncture.
The legislative rule filed in the state register on the second day of September, two thousand
three, under the authority of section seven, article thirty-six, chapter thirty, of this code, modified by
the Board of Acupuncture to meet the objections of the Legislative Rule-Making Review Committee
and refiled in the state register on the fourteenth day of October, two thousand four, relating to the
Board of Acupuncture (dispensing of materia medica, formulary and legend drugs, 32 CSR 2), is
disapproved and not authorized.
§64-9-2. Department of Agriculture.
(a) The legislative rule filed in the state register on the twenty-seventh day of August, two
thousand four, under the authority of section two, article nine, chapter nineteen, of this code,
modified by the Department of Agriculture 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
four, relating to the Department of Agriculture (animal disease control, 61 CSR 1), is authorized, with the following amendments:
On page twelve, paragraph 6.19.b.C., after the words 'pullorum/typhoid' by changing the
period to a semicolon and inserting the word 'and';
and
On page twelve, paragraph 6.19.b.D. by striking out the entire paragraph and inserting in lieu
thereof the following: 'a United States Department of Agriculture Form 9-3 stating that a minimum
of 20 birds per flock or the entire flock of 20 birds or less had a negative test for avian influenza
within 10 days prior to import. The test shall be a NPIP approved procedure.'
(b) The legislative rule filed in the state register on the fourth day of August, two thousand
four, under the authority of section three, article two-b, chapter nineteen, of this code, relating to the
Department of Agriculture (inspection of meat and poultry, 61 CSR 16), is authorized.
(c) The legislative rule filed in the state register on the twenty-seventh day of August, two
thousand four, under the authority of section three, article fourteen, chapter nineteen, of this code,
modified by the Department of Agriculture to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on the twenty-fourth day of November, two
thousand four, relating to the Department of Agriculture (commercial feed, 61 CSR 5), is authorized.
§64-9-3. Board of Chiropractic Examiners.
The legislative rule filed in the state register on the twenty-sixth day of August, two thousand
four, under the authority of section five, article sixteen, chapter thirty, of this code, modified by the
Board of Chiropractic Examiners to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the state register on the first day of February, two thousand five, relating
to the Board of Chiropractic Examiners (chiropractic practice, 4 CSR 1), is authorized, with the
following amendments:
On page two, paragraph 3.1.d.1, after the word "subdivision", by striking the reference
"3.1.c.2" and inserting in lieu thereof the reference "3.1.d.3";
On page two, paragraph 3.1.d.3, subparagraph 2, after the words "set forth in", by striking
the code reference "W. Va. Code §30-16-6(a)(5)" and inserting in lieu thereof the code reference "W. Va. Code §30-16-6(b)(5)";
On page seven, subsection 11.2, after the words "The Board", by striking the word "my" and
inserting in lieu thereof the word "may";
And,
On page nine, subsection 15.5., by striking out the words "That upon" and inserting in lieu
thereof the word "Upon"'.
§64-9-4. Contractor Licensing Board.
The legislative rule filed in the state register on the twenty-seventh day of August, two
thousand four, under the authority of section five, 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 twenty-fifth day of January, two thousand
five, relating to the Contractor Licensing Board (West Virginia contractor licensing act, 28 CSR 2),
is authorized, with the following amendments:
On page two, subdivision 3.9.a, after the word "five" by inserting the word "hundred";
On page seven, subdivision 3.30., after the word "repair." by inserting the words "A
residential contractor is considered licensed for all crafts required in the construction, repair or
improvement of a residential structure, as that term is defined in subsection 3.33 of this rule, except
those crafts for which local ordinance or state law other than W. Va. Code § 21-11-1, et seq, require
licensure, such as the electrician's license required by the Office of the State Fire Marshal under the
provisions of W. Va. Code §29-3b-1, et seq.";
On page fifteen, subdivision 8.1, after the word "person." by striking out the word "The" and
inserting in lieu thereof the words "After an administrative hearing, as provided for in Section 9 of
this rule, the";
On page fifteen, subdivision 8.1, after the word "license." by striking out the remainder of
the subdivision;
And,
On page fifteen, after subdivision 8.3, by inserting a new subdivision, designated subdivision 8.4, to read as follows: "The Board shall, in accordance with Section 9 of this rule, provide for an
administrative hearing before a penalty is assessed."
§64-9-5. Board of Dental Examiners.
(a) The legislative rule filed in the state register on the twenty-fifth day of August, two
thousand four, under the authority of section six, 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 fifteenth day of February, two thousand five,
relating to the Board of Dental Examiners (rule for the board of dental examiners, 5 CSR 1), is
authorized.
(b) The legislative rule filed in the state register on the twenty-fifth day of August, two
thousand four, under the authority of section thirteen hundred four, article thirteen, chapter thirty-
one-b, 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 fifteenth day of
February, two thousand five, relating to the Board of Dental Examiners (formation and approval of
professional limited liability companies, 5 CSR 2), is authorized, with the following amendment:
On page one, subsection 3.4., line four, after the words "filing fee" by inserting the words
"of $200", and after the words "renewal fee" by striking out the words "as set forth in the Board's
fee schedule 5CSR3" and inserting in lieu thereof the words "of $150".
(c) The legislative rule filed in the state register on the twenty-fifth day of August, two
thousand four, under the authority of section six, 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 fifteenth day of February, two thousand five,
relating to the Board of Dental Examiners (formation and approval of dental corporations, 5 CSR
6), is authorized.
§64-9-6. Family Protection Services Board.
The legislative rule filed in the state register on the twenty-seventh day of August, two
thousand four, under the authority of section four hundred four, 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 eighteenth day
of February, two thousand five, relating to the Family Protection Services Board (perpetrator
intervention programs licensure for correctional institutions, 191 CSR 5), is authorized, with the
following amendments:
On page eight, subsection 4.6., by striking out the word "shall", and inserting in lieu thereof
the word "may" and after the word "subdivision" by striking out the letter "d" and inserting in lieu
thereof the letter "c".
§64-9-7. Governor's Committee on Crime, Delinquency and Correction
.
(a) The legislative rule filed in the state register on the fifteenth day of June, two thousand
four, 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 twenty-sixth day
of July, two thousand four, relating to the Governor's Committee on Crime, Delinquency and
Correction (law enforcement training standards, 149 CSR 2), is authorized.
(b) The legislative rule filed in the state register on the ninth day of August, two thousand
four, under the authority of section one thousand one hundred two, article twenty-seven, chapter
forty-eight, of this code, relating to the Governor's Committee on Crime, Delinquency and
Correction (protocol for law enforcement response to domestic violence, 149 CSR 3), is authorized.
(c) The legislative emergency rule filed in the state register on the twenty-third day of
November, two thousand four, under the authority of section three, article two, chapter seventeen-G,
of this code, relating to the Governor's Committee on Crime, Delinquency and Correction (motor
vehicle stop data collection standards for the study of racial profiling, 149 CSR 5), is disapproved
and not authorized.
§64-9-8. Hatfield-McCoy Regional Recreation Authority.
The legislative rule filed in the state register on the eighth day of April, two thousand four,
under the authority of section one, article fourteen, chapter twenty, of this code, modified by the
Hatfield-McCoy Regional Recreation Authority to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on the twenty-fifth of January, two
thousand five, relating to the Hatfield-McCoy Regional Recreation Authority (use of facilities, 204
CSR 1), is authorized, with the following amendments:
On page four, after subsection 3.5, by adding a new subsection, designated subsection 3.6,
to read as follows:
"3.6. No person may operate an ATV on any road or highway with a center line or more than
two lanes within the Hatfield-McCoy enforcement area except for the purpose of crossing the road
or highway at an angle of approximately ninety degrees to the direction of the highway and at a place
where no obstruction prevents a quick and safe crossing. An ATV operator is permitted to crossing
the road or highway if:
a. The vehicle is brought to a complete stop before crossing the shoulder or main traveled
way of the highway;
b. The operator yields his or her right-of-way to all oncoming traffic that constitutes an
immediate potential hazard; and
c. Both the headlight and taillight are illuminated when the crossing is made if the vehicle
is so equipped.";
On page four, by redesignating subsection 3.6. as subsection 3.7. and by renumbering the
remaining subsections accordingly;On page six, after subsection 4.1., by inserting a new
subsection, designated subsection 4.2., to read as follows:
"4.2. No person under the age of eighteen may operate an ATV without a written statement,
signed by the minor's parent or guardian certifying that:
a. Any machine operated by the minor will be of a model that is recommended by the
manufacturer as appropriate to the minor's age and size;
b. All rules governing the use of the Area have been reviewed by the parent or guardian and
explained to the minor in sufficient detail to enable the minor to abide by the rules; and
c. Any minor under the age of sixteen will remain under the supervision of and within the
sight of the parent or guardian at all times.";
On page six, by redesignating subsection 4.2. as subsection 4.3.;
On page six, by redesignating subsection 4.3. as subsection 4.4., and at the end of the
subsection, by inserting the following: "No person may operate an ATV with a passenger under the
age of eighteen unless the operator has, at a minimum, a level two intermediate driver's license or
its equivalent or is eighteen years of age or older.";
On page six, by redesignating subsection 4.4. as subsection 4.6. and by renumbering the
remaining subsections accordingly;
And,
On page seven, subsection 5.2., after the words "When operated from", by striking out the
words "one-half hour after" and after the words "sunset to", by striking out the words "one-half hour
before".
§64-9-9. Board of Examiners of Land Surveyors.
The legislative rule filed in the state register on the seventeenth day of May, two thousand
four, under the authority of section four, article thirteen-a, chapter thirty, of this code, modified by
the Board of Examiners of Surveyors to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the state register on the fourth day of February, two thousand five, relating
to the Board of Examiners of Land Surveyors (minimum standards for the practice of land surveying
in West Virginia, 23 CSR 1), is authorized, with the following amendments:
On page four, by striking out subdivisions 5.3.1. and 5.3.2 and by inserting in lieu thereof two
new subdivisions to read as follows:
"5.3.a. To be eligible for 'retired' status, a licensee must have an active or inactive license,
be at least 62 years of age, and certify that he or she is no longer practicing surveying or supervising
any employees who perform surveying activities in West Virginia.
5.3.a.1. A licensee on retired status may not affix his or her P.S. seal to any surveying
documents.
5.3.a.2. A licensee on retired status is not required to pay an annual license renewal fee or
to complete Professional Development Hours (PDHs).
5.3.a.3. The Board will issue to each licensee on retired status a certificate noting the
honorific title of 'Professional Surveyor, Retired.'
5.3.a.4. Before returning to the active practice of surveying a licensee on retired status must
complete delinquent Professional Development Hours (PDHs) for each year on retired status up to
a maximum of 16 PDHs and must pay the current license renewal fee.
5.3.b. Any licensee may apply for 'inactive' status for a period of up to one year, ending on
June 30.
5.3.b.1. A licensee on inactive status may not provide surveying services or receive any
compensation for any type of surveying activities conducted in West Virginia.
5.3.b.2. A licensee on inactive status is not required to complete the required number of
Professional Development Hours (PDHs).
5.3.b.3. A licensee on inactive status is required to pay the annual license renewal fee and any
required late fees accrued for the license period unless the licensee applies to the Board and is
granted an exemption. A licensee may request an exemption from the renewal fee if he or she can
demonstrate with supporting documentation that during the license year he or she will be serving on
active duty in the Armed Forces of the United States for a period of more than 120 consecutive days
or experiencing physical disability, illness or other extenuating circumstances.
5.3.b.4. The Board will issue to each licensee who is granted inactive status an annual license
card noting 'Inactive Status'.
5.3.b.5. A licensee on inactive status who elects to return to the active practice of surveying
must complete Professional Development Hours (PDHs) for each year on inactive status up to a
maximum of 16 PDHs."]
§64-9-10. Board of Examiners of Licensed Practical Nurses.
The legislative rule filed in the state register on the eighteenth day of August, two thousand
four, under the authority of section seven-a, article seven-a, chapter thirty, of this code, relating to
the Board of Examiners of Licensed Practical Nurses (fees for services rendered by the Board, 10
CSR 4), is authorized.
§64-9-11. Public Service Commission.
The legislative rule filed in the state register on the fourth day of March, two thousand four,
under the authority of section two, article eight, chapter twenty-four, of this code, modified by the Public Service Commission to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the state register on the twenty-first day of January, two thousand five,
relating to the Public Service Commission (statewide telephone information and referral 211 service,
150 CSR 29), is authorized.
§64-9-12. Radiologic Technology Board of Examiners.
The legislative rule filed in the state register on the tenth day of June, two thousand four,
under the authority of section five, article twenty-three, chapter thirty, of this code, modified by the
Radiologic Technology Board of Examiners to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on the twenty-sixth day of July, two thousand
four, relating to the Radiologic Technology Board of Examiners (Board rule, 18 CSR 1), is
authorized.
§64-9-13. Board of Examiners for Registered Professional Nurses.
The legislative rule filed in the state register on the seventeenth day of August, two thousand
four, under the authority of section eight-a, article seven, chapter thirty, of this code, modified by the
Board of Examiners for Registered Professional Nurses to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the state register on the twenty-ninth day of
September, two thousand four, relating to the Board of Examiners for Registered Professional Nurses
(fees for services rendered by the Board, 19 CSR 12), is authorized, with the following amendments:
On page one, subsection 2.9., by striking out the subsection in its entirety and inserting in
lieu thereof the following:
"2.9. Reinstatement of Lapsed License $50.00";
And,
On page two, by striking out subsections 2.23. and 2.24., in their entirety and inserting in lieu
thereof the following:
"2.23. Midwife License $20.00
2.24. Midwife License Renewal $10.00".
§64-9-14. Secretary of State.
The legislative rule filed in the state register on the twenty-seventh day of August, two thousand four, authorized under the authority of section thirteen, article two, chapter three, of this
code, relating to the Secretary of State (agencies designated to provide voter registration services,
153 CSR 28), is authorized.
§64-9-15. Board of Examiners for Speech-Language Pathology and Audiology.
The legislative rule filed in the state register on the ninth day of August, two thousand four,
under the authority of section ten, article thirty-two, chapter thirty, of this code, modified by the
Board of Examiners for Speech-Language Pathology and Audiology to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the state register on the thirteenth day
of December, two thousand four, relating to the Board of Examiners for Speech-Language Pathology
and Audiology (speech-language pathology and audiology assistants, 29 CSR 2), is authorized, with
the following amendment:
On page one, subsection 2.5., after the word "licensure", by inserting the words "and who
assumes legal responsibility for services provided by an assistant".
§64-9-16. State Treasurer.
The legislative rule filed in the state register on the eighteenth day of August, two thousand
four, under the authority of section six, article three-a, chapter twelve, of this code, modified by the
State Treasurer to meet the objections of the Legislative Rule-Making Review Committee and refiled
in the state register on the seventh day of February, two thousand five, relating to the State Treasurer
(procedures for fees in collections by charge, credit or debit card or by electronic payment, 112 CSR
12), is authorized.
§64-9-17. Board of Veterinary Medicine.
(a) The legislative rule filed in the state register on the eleventh day of August, two thousand
three, 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 fourteenth day of June, two thousand four, relating
to the Board of Veterinary Medicine (organization and operation, 26 CSR 1), is authorized, with the
following amendments:
On page two, subsection 3.4., the last line, by striking out the words "or upon the written request of any three (3) members of the Board";
On page two, subsection 3.6., by striking out "$150.00" and inserting in lieu thereof
"$100.00";
On page four, subsection 4.7., line four, after the words "not qualified to take the
examination, the" by striking out the word "Board" and inserting in lieu thereof the words
"Secretary- Treasurer";
On page four, subsection 4.7., after the words "The Board shall refund", by striking out the
words "fifty percent of the";
On page four, subsection 5.4., after the word "The" at the beginning of the subsection, by
striking out the word "Board" and inserting in lieu thereof the words "Secretary-Treasurer";
And,
On page six, subsection 7.1., after the words "On or", by striking out the word "about" and
inserting in lieu thereof the word "before".
(b) The legislative rule filed in the state register on the eleventh day of August, two thousand
three, under the authority of section nine, article ten-a, 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 fourteenth day of June, two thousand four, relating
to the Board of Veterinary Medicine (certified animal euthanasia technicians, 26 CSR 5), is
authorized.
(c) The legislative rule filed in the state register on the ninth day of August, two thousand
three, 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-first day of January, two thousand five,
relating to the Board of Veterinary Medicine (schedule of fees, 26 CSR 6), is authorized, with the
following amendments:
On page one, by striking out all of subsections 2.1 through 2.8, and inserting in lieu thereof
the following:
"2.1 Veterinarian application and examination fee$295.00
2.2 Veterinarian license fee$5.00
2.3 Duplicate license$15.00
2.4 Annual renewal fee$225.00
2.5 Temporary permit$100.00
2.6 Temporary permit renewal fee$25.00
2.7 Written confirmation of licensure, registration or
certification by West Virginia$25.00
2.8 North American Veterinary License Exam (NAVLE)
eligibility processing fee$50.00."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment,
with amendment as follows:
Oon page eleven, section nine, line seven by striking out the comma and the following words
"be at least 62 years of age" and on line twenty-three by striking the words "for a period of up to one
year, ending on June 30".
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 547), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Fragale.
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. 2669) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 548), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Fragale.
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. 2669) 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.
Local Calendar
First Reading
S. B. 522, Extending time for Hurricane council to meet as levying body; on first reading,
coming up in regular order, was read a first time and ordered to second reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 549), and there were--yeas 95, nays
1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Carmichael, Eldridge, Fragale and Wakim.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a second time.
On motion of Delegate Proudfoot, the bill was amended on page one following the enacting
clause by striking out the remainder of the bill and inserting in lieu thereof the following:
"THE CITY COUNCIL OF HURRICANE MEETING AS A LEVYING BODY EXTENDED.
§1. Extending time for the city of Hurricane to meet as a levying body for election of
additional levies to maintain the level of funding for the street department and the
police department.
Notwithstanding the provisions of article eight, chapter eleven of the Code of West Virginia,
one thousand nine hundred thirty-one, as amended, to the contrary, the city council of Hurricane is
hereby authorized to extend the time for its meeting as a levying body and certifying its actions to
the State Tax Commissioner and the State Auditor from between the seventh and twenty-eighth days of March and the third Tuesday in April until the thirty-first day of May, two thousand five, for the
purpose of submitting to the voters of the city of Hurricane the continuation of an additional city levy
to maintain the level of funding for the street department and the police department where
necessary."
The bill was then ordered to third reading.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 550),
and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being
as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 522) passed.
On motion of Delegate Proudfoot the title of the bill was amended to read as follows:
S. B. 522-"A Bill to extend the time for the city council of Hurricane to meet as a levying
body for the purpose of presenting to the voters of the city of Hurricane an election to continue an
additional city levy to maintain the level of funding for the street department and the police
department from between the seventh and twenty-eighth days of March and the third Tuesday in
April until the thirty-first day of May, two thousand five."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 551), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 522) 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.
Special Calendar
-Continued-
Third Reading
Com. Sub. for S. B. 30, Discontinuing use of prior approval system of insurance rate and
form filing; other provisions; on third reading was postponed to the completion of bills on second
reading.
Com. Sub. for S. B. 94, Providing additional flexibility for school instructional support and
enhancement days; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 552),
and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being
as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 94) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 94 - "A Bill to amend and reenact §18-5-45 of the Code of West
Virginia, 1931, as amended, relating to the school calendar; defining terms; correcting references;
providing additional flexibility for instructional support and enhancement days; and authorizing
limited use of accrued instructional time for professional development and continuing education for
certain purposes."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 191, Relating to implementation of modified mental hygiene
procedures; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 553),
and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Lane.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 191) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 191 -- "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §27-5-11, relating to mental hygiene proceedings
generally; authorizing implementation of a modified mental hygiene procedure in limited number
of counties relating to persons who are medication-dependent and who have had at least one prior
conviction for a crime of violence against the person within the previous twenty-four months related
to mental illness or two prior hospitalizations within the previous twenty-four months due to mental
illness; directing cooperation of Secretary of Department of Health and Human Resources and
Supreme Court of Appeals in developing modified procedures; authorizing use of treatment
compliance orders in certain judicial circuits; authorization for hospitalization and treatment for up
to forty-eight hours prior to probable cause hearing for medication-dependent individuals who meet
requirements; reporting requirements; expiration date; time limits; requirements of petitions;
procedures; required findings; hearings; and forms required for procedures."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 554), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Fragale.
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 S. B. 191) 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.
S. B. 248, Relating to requirement that technology expenditures be made in accordance with
Education Technology Strategic Plan;on third reading, coming up in regular order, was read a third
time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 555),
and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being
as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 248) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 248 - "A Bill to amend and reenact §18-2J-1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5,
§18-2J-6, and §18-2J-7 of the Code of West Virginia, 1931, as amended, relating to public and
higher education technology strategic plan; making findings and stating intent and purpose;
providing for advisory council for educational technology; providing powers and duties; providing
for goals and strategies for technology strategic plan; requiring legislative rule incorporating
technology strategic plan; requiring allocation and expenditure of technology appropriations in
accordance with rule with certain exceptions; report to legislative oversight commission."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 556), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 248) 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.
S. B. 283, Continuing Health Care Authority; on third reading, coming up in regular order, was read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 557),
and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Hall.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 283) passed.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 557),
and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Hall.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 283) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 558), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Manchin.
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 283) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 418, Providing insurance reform by expanding and providing funding
and expanded powers for Office of Consumer Advocacy; on third reading, coming up in regular
order, with amendments pending, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
on page two, following the enacting clause, by striking out the remainder of the bill and inserting in
lieu thereof, the following language:
"That §33-2-9, §33-2-16 and §33-2-17 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that §33-3-33 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §33-6-15a; that said code be amended by
adding thereto two new sections, designated §33-11-4a and §33-11-4b; that §33-11-6 of said code
be amended and reenacted; and that said code be amended by adding thereto a new section,
designated §33-20-4a, all to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-9. Examination of insurers, agents, brokers and solicitors; access to books, records, etc.
(a) The purpose of this section is to provide an effective and efficient system for examining
the activities, operations, financial condition and affairs of all persons transacting the business of
insurance in this state and all persons otherwise subject to the jurisdiction of the Commissioner. The
provisions of this section are intended to enable the Commissioner to adopt a flexible system of
examinations which directs resources as may be considered appropriate and necessary for the
administration of the insurance and insurance-related laws of this state.
(b) For purposes of this section, the following definitions shall apply:
(1) 'Commissioner' means the Commissioner of Insurance of this state;
(2) 'Company' or 'insurance company' means any person engaging in or proposing or
attempting to engage in any transaction or kind of insurance or surety business and any person or
group of persons who may otherwise be subject to the administrative, regulatory or taxing authority
of the Commissioner, including, but not limited to, any domestic or foreign stock company, mutual
company, mutual protective association, farmers mutual fire companies, fraternal benefit society,
reciprocal or interinsurance exchange, nonprofit medical care corporation, nonprofit health care
corporation, nonprofit hospital service association, nonprofit dental care corporation, health
maintenance organization, captive insurance company, risk retention group or other insurer
regardless of the type of coverage written, benefits provided or guarantees made by each;
(3) 'Department' means the Department of Insurance of this state; and
(4) 'Examiners' means the Commissioner of Insurance or any individual or firm having been
authorized by the Commissioner to conduct an examination pursuant to this section, including, but
not limited to, the commissioner's deputies, other employees, appointed examiners or other
appointed individuals or firms who are not employees of the Department of Insurance.
(c) The Commissioner or his or her examiners may conduct an examination under this section
of any company as often as the Commissioner in his or her discretion considers appropriate. The
Commissioner or his or her examiners shall at least once every five years visit each domestic insurer
and thoroughly examine its financial condition and methods of doing business and ascertain whether
it has complied with all the laws and regulations of this state. The Commissioner may also examine
the affairs of any insurer applying for a license to transact any insurance business in this state.
(d) The Commissioner or his or her examiners shall, at a minimum, conduct an examination
of every foreign or alien insurer licensed in this state not less frequently than once every five years.
The examination of an alien insurer may be limited to its United States business: Provided, That in
lieu of an examination under this section of any foreign or alien insurer licensed in this state, the
Commissioner may accept an examination report on the company as prepared by the insurance
department for the company's state of domicile or port-of-entry state until the first day of January,
one thousand nine hundred ninety-four. Thereafter, the reports may only be accepted if:
(1) The insurance department was at the time of the examination accredited under the
National Association of Insurance Commissioners' Financial Regulation Standards and Accreditation
Program; or
(2) The examination is performed under the supervision of an accredited insurance
department or with the participation of one or more examiners who are employed by an accredited
state insurance department and who, after a review of the examination work papers and report, state
under oath that the examination was performed in a manner consistent with the standards and
procedures required by their insurance department.
(e) In scheduling and determining the nature, scope and frequency of examinations conducted
pursuant to this section, the Commissioner may consider such matters as the results of financial statement analyses and ratios, changes in management or ownership, actuarial opinions, reports of
independent certified public accountants and other criteria as set forth in the examiners' handbook
adopted by the National Association of Insurance Commissioners and in effect when the
Commissioner exercises discretion under this section.
(f) For purposes of completing an examination of any company under this section, the
Commissioner may examine or investigate any person, or the business of any person, insofar as the
examination or investigation is, in the sole discretion of the Commissioner, necessary or material to
the examination of the company.
(g) The Commissioner may also cause to be examined, at the times as he or she considers
necessary, the books, records, papers, documents, correspondence and methods of doing business
of any agent, broker, excess lines broker or solicitor licensed by this state. For these purposes, the
Commissioner or his or her examiners shall have free access to all books, records, papers, documents
and correspondence of all the agents, brokers, excess lines brokers and solicitors wherever the books,
records, papers, documents and records are situate. The Commissioner may revoke the license of any
agent, broker, excess lines broker or solicitor who refuses to submit to the examination.
(h) In addition to conducting an examination, the Commissioner or his or her examiners may,
as the Commissioner considers necessary, analyze or review any phase of the operations or methods
of doing business of an insurer, agent, broker, excess lines broker, solicitor or other individual or
corporation transacting or attempting to transact an insurance business in the State of West Virginia.
The Commissioner may use the full resources provided by this section in carrying out these
responsibilities, including any personnel and equipment provided by this section as the
Commissioner considers necessary.
(i) Examinations made pursuant to this section shall be conducted in the following manner:
(1) Upon determining that an examination should be conducted, the Commissioner or his or
her designee shall issue an examination warrant appointing one or more examiners to perform the
examination and instructing them as to the scope of the examination. The appointment of any
examiners pursuant to this section by the Commissioner shall not be subject to the requirements of
article three, chapter five-a of this code, except that the contracts and agreements shall be approved as to form and conformity with applicable law by the Attorney General. In conducting the
examination, the examiner shall observe those guidelines and procedures set forth in the examiners'
handbook adopted by the National Association of Insurance Commissioners. The Commissioner may
also employ any other guidelines or procedures as the Commissioner may consider appropriate;
(2) Every company or person from whom information is sought, its officers, directors and
agents shall provide to the examiners appointed under subdivision (1) of this subsection timely,
convenient and free access at all reasonable hours at its offices to all books, records, accounts,
papers, documents and any or all computer or other recordings relating to the property, assets,
business and affairs of the company being examined. The officers, directors, employees and agents
of the company or person shall facilitate the examination and aid in the examination so far as it is
in their power to do so;
(3) The refusal of any company, by its officers, directors, employees or agents, to submit to
examination or to comply with any reasonable written request of the examiners shall be grounds for
suspension, revocation, refusal or nonrenewal of any license or authority held by the company to
engage in an insurance or other business subject to the commissioner's jurisdiction. Any proceedings
for suspension, revocation, refusal or nonrenewal of any license or authority shall be conducted
pursuant to section eleven of this article;
(4) The Commissioner or his or her examiners shall have the power to issue subpoenas, to
administer oaths and to examine under oath any person as to any matter pertinent to the examination,
analysis or review. The subpoenas shall be enforced pursuant to the provisions of section six of this
article;
(5) When making an examination, analysis or review under this section, the Commissioner
may retain attorneys, appraisers, independent actuaries, independent certified public accountants,
professionals or specialists with training or experience in reinsurance, investments or information
systems or other professionals and specialists as examiners, the cost of which shall be borne by the
company which is the subject of the examination, analysis or review or, in the commissioner's
discretion, paid from the commissioner's examination revolving fund. The Commissioner may
recover costs paid from the commissioner's examination revolving fund pursuant to this subdivision from the company upon which the examination, analysis or review is conducted unless the subject
of the examination, analysis or review is an individual described in subdivision (2), subsection (q)
of this section;
(6) Nothing contained in this section may be construed to limit the commissioner's authority
to terminate or suspend any examination, analysis or review in order to pursue other legal or
regulatory action pursuant to the insurance laws of this state. The Commissioner or his or her
examiners may at any time testify and offer other proper evidence as to information secured during
the course of an examination, analysis or review whether or not a written report of the examination
has at that time either been made, served or filed in the commissioner's office;
(7) Nothing contained in this section may be construed to limit the commissioner's authority
to use and, if appropriate, to make public any final or preliminary examination report, any examiner
or company workpapers or other documents or any other information discovered or developed during
the course of any examination, analysis or review in the furtherance of any legal or regulatory action
which the commissioner may, in his or her sole discretion, consider appropriate. An examination
report, when filed, shall be admissible in evidence in any action or proceeding brought by the
Commissioner against an insurance company, its officers or agents and shall be prima facie evidence
of the facts stated therein.
(j) Examination reports prepared pursuant to the provisions of this section shall comply with
the following requirements:
(1) All examination reports shall be comprised of only facts appearing upon the books,
records or other documents of the company, its agents or other persons examined or as ascertained
from the testimony of its officers or agents or other persons examined concerning its affairs and any
conclusions and recommendations the examiners find reasonably warranted from the facts;
(2) No later than sixty days following completion of the examination the examiner in charge
shall file with the Commissioner a verified written report of examination under oath. Upon receipt
of the verified report, the Commissioner shall transmit the report to the company examined, together
with a notice which shall afford the company examined a reasonable opportunity of not more than
ten days to make a written submission or rebuttal with respect to any matters contained in the examination report;
(3) Within thirty days of the end of the period allowed for the receipt of written submissions
or rebuttals the Commissioner shall fully consider and review the report, together with any written
submissions or rebuttals and any relevant portions of the examiner's workpapers and enter an order:
(A) Adopting the examination report as filed or with modification or corrections. If the
examination report reveals that the company is operating in violation of any law, rule or prior order
of the Commissioner, the Commissioner may order the company to take any action the
Commissioner considers necessary and appropriate to cure the violation; or
(B) Rejecting the examination report with directions to the examiners to reopen the
examination for purposes of obtaining additional data, documentation or information and refiling
pursuant to subdivision (2) of this subsection; or
(C) Calling for an investigatory hearing with no less than twenty days' notice to the company
for purposes of obtaining additional documentation, data, information and testimony;
(4) All orders entered pursuant to this subsection shall be accompanied by findings and
conclusions resulting from the commissioner's consideration and review of the examination report,
relevant examiner workpapers and any written submissions or rebuttals. Any order issued pursuant
to paragraph (A), subdivision (3) of this subsection shall be considered a final administrative
decision and may be appealed pursuant to section fourteen of this article and shall be served upon
the company by certified mail, together with a copy of the adopted examination report. Within thirty
days of the issuance of the adopted report the company shall file affidavits executed by each of its
directors stating under oath that they have received a copy of the adopted report and related orders.
(k) Hearings conducted pursuant to this section shall be subject to the following
requirements:
(1) Any hearing conducted pursuant to this section by the Commissioner or the
commissioner's authorized representative shall be conducted as a nonadversarial confidential
investigatory proceeding as necessary for the resolution of any inconsistencies, discrepancies or
disputed issues apparent upon the face of the filed examination report or raised by or as a result of
the commissioner's review of relevant workpapers or by the written submission or rebuttal of the company. Within twenty days of the conclusion of any hearing, the Commissioner shall enter an
order pursuant to paragraph (A), subdivision (3), subsection (j) of this section;
(2) The Commissioner may not appoint an examiner as an authorized representative to
conduct the hearing. The hearing shall proceed expeditiously with discovery by the company limited
to the examiner's workpapers which tend to substantiate any assertions set forth in any written
submission or rebuttal. The Commissioner or the commissioner's representative may issue subpoenas
for the attendance of any witnesses or the production of any documents considered relevant to the
investigation whether under the control of the Commissioner, the company or other persons. The
documents produced shall be included in the record and testimony taken by the Commissioner or the
commissioner's representative shall be under oath and preserved for the record. Nothing contained
in this section shall require the Commissioner to disclose any information or records which would
indicate or show the existence or content of any investigation or activity of a criminal justice agency;
(3) The hearing shall proceed with the Commissioner or the commissioner's representative
posing questions to the persons subpoenaed. Thereafter, the company and the department may
present testimony relevant to the investigation. Cross-examination may be conducted only by the
Commissioner or the commissioner's representative. The company and the Commissioner shall be
permitted to make closing statements and may be represented by counsel of their choice.
(l) Adoption of the examination report shall be subject to the following requirements:
(1) Upon the adoption of the examination report under paragraph (A), subdivision (3),
subsection (j) of this section, the Commissioner may continue to hold the content of the examination
report as private and confidential information for a period of ninety days except to the extent
provided in subdivision (6), subsection (i) of this section. Thereafter, the Commissioner may open
the report for public inspection so long as no court of competent jurisdiction has stayed its
publication;
(2) Nothing contained in this section may prevent or be construed as prohibiting the
Commissioner from disclosing the content of an examination report, preliminary examination report
or results or any matter relating thereto or the results of any analysis or review to the insurance
department of this or any other state or country or to law-enforcement officials of this or any other state or agency of the federal government at any time, so long as the agency or office receiving the
report or matters relating thereto agrees in writing to hold it confidential and in a manner consistent
with this section;
(3) In the event the Commissioner determines that regulatory action is appropriate as a result
of any examination, analysis or review, he or she may initiate any proceedings or actions as provided
by law;
(4) All working papers, recorded information, documents and copies thereof produced by,
obtained by or disclosed to the Commissioner or any other person in the course of an examination,
analysis or review made under this section must be given confidential treatment and are not subject
to subpoena and may not be made public by the Commissioner or any other person, except to the
extent provided in subdivision (5), subsection (i) of this section. Access may also be granted in
accordance with section nineteen of this article. The parties must agree in writing prior to receiving
the information to provide to it the same confidential treatment as required by this section unless the
prior written consent of the company to which it pertains has been obtained.
(m) The Commissioner may require any examiner to furnish a bond in such amount as
Commissioner may determine to be appropriate and the bond shall be approved, filed and premium
paid, with suitable proof submitted to the Commissioner, prior to commencement of employment
by the Commissioner. No examiner may be appointed by the Commissioner if the examiner, either
directly or indirectly, has a conflict of interest or is affiliated with the management of or owns a
pecuniary interest in any person subject to examination under this section. This section shall not be
construed to automatically preclude an examiner from being:
(1) A policyholder or claimant under an insurance policy;
(2) A grantor of a mortgage or similar instrument on the examiner's residence to a regulated
entity if done under customary terms and in the ordinary course of business;
(3) An investment owner in shares of regulated diversified investment companies; or
(4) A settlor or beneficiary of a 'blind trust' into which any otherwise impermissible holdings
have been placed;
(5) Notwithstanding the requirements of this subsection, the Commissioner may retain, from time to time, on an individual basis qualified actuaries, certified public accountants or other similar
individuals who are independently practicing their professions even though these persons may, from
time to time, be similarly employed or retained by persons subject to examination under this section.
(n) Personnel conducting examinations, analyses or reviews of either a domestic, foreign or
alien insurer shall be compensated for each day worked at a rate set by the Commissioner. The
personnel shall also be reimbursed for their travel and living expenses at the rate set by the
Commissioner. Other individuals who are not employees of the Department of Insurance shall all
be compensated for their work, travel and living expenses at rates approved by the Commissioner
or as otherwise provided by law. As used in this section, the costs of an examination, analysis or
review means:
(1) The entire compensation for each day worked by all personnel, including those who are
not employees of the Department of Insurance, the conduct of the examination, analysis or review
calculated as hereinbefore provided;
(2) Travel and living expenses of all personnel, including those who are not employees of
the Department of Insurance, directly engaged in the conduct of the examination, analysis or review
calculated at the rates as hereinbefore provided for;
(3) All other incidental expenses incurred by or on behalf of the personnel in the conduct of
any authorized examination, analysis or review.
(o) (1) All property and casualty insurers subject to the provisions of this section shall
annually pay to the commissioner on or before the first day of July, one thousand nine hundred
ninety-one, and every first day of July thereafter an examination assessment fee of up to five
thousand eight hundred dollars. Four hundred fifty dollars of this fee shall be paid to the treasurer
of the state to the credit of a special revolving fund to be known as the 'Commissioner's Examination
Revolving Fund' which is hereby established; up to four thousand two hundred dollars shall be paid
to the treasurer of the state to the credit of the Unfair Claims Settlement Practice Trust Fund
established in section four-b, article eleven of this chapter, and three hundred fifty dollars shall be
paid to the treasurer of the state. If the Trust Fund has moneys in excess of one million dollars, the
examination assessment fee shall be eight hundred dollars and the five thousand dollar fee shall only be reinstated at whatever amount the Commissioner deems necessary to maintain the Fund, if the
Fund value goes below one million dollars. The commissioner may at his or her discretion, upon
notice to the insurers subject to this section subsection, increase this examination assessment fee or
levy an additional examination assessment fee of two hundred fifty dollars. In no event may the total
examination assessment fee, including any additional examination assessment fee levied, exceed one
five thousand five two hundred fifty hundred dollars per insurer in any calendar year.
(o) (2) All insurers other than property and casualty insurers subject to the provisions of this
section shall annually pay to the commissioner on or before the first day of July, one thousand nine
hundred ninety-one, and every first day of July thereafter an examination assessment fee of eight
hundred dollars. Four hundred fifty dollars of this fee shall be paid to the treasurer of the state to the
credit the Commissioner's Examination Revolving Fund and three hundred fifty dollars shall be paid
to the treasurer of the state. The commissioner may at his or her discretion, upon notice to the
insurers subject to this subsection, increase this examination assessment fee or levy an additional
examination assessment fee of two hundred fifty dollars. In no event may the total examination
assessment fee, including any additional examination assessment fee levied, exceed one thousand
five hundred dollars per insurer in any calendar year.
(p) The moneys collected by the Commissioner from an increase or additional examination
assessment fee shall be paid to the Treasurer of the State to be credited to the commissioner's
examination revolving fund. Any funds expended or obligated by the Commissioner from the
commissioner's examination revolving fund may be expended or obligated solely for defrayment of
the costs of examinations, analyses or reviews of the financial affairs and business practices of
insurance companies, agents, brokers, excess lines brokers, solicitors or other individuals or
corporations transacting or attempting to transact an insurance business in this state made by the
Commissioner pursuant to this section or for the purchase of equipment and supplies, travel,
education and training for the commissioner's deputies, other employees and appointed examiners
necessary for the Commissioner to fulfill the statutory obligations created by this section.
(q) The Commissioner may require other individuals who are not employees of the
Department of Insurance who have been appointed by the Commissioner to conduct or participate in the examination, analysis or review of insurers, agents, brokers, excess lines brokers, solicitors
or other individuals or corporations transacting or attempting to transact an insurance business in this
state to:
(1) Bill and receive payments directly from the insurance company being examined, analyzed
or reviewed for their work, travel and living expenses as previously provided for in this section; or
(2) If an individual agent, broker or solicitor is being examined, analyzed or reviewed, bill
and receive payments directly from the commissioner's examination revolving fund for their work,
travel and living expenses as previously provided for in this section. The Commissioner may recover
costs paid from the commissioner's examination revolving fund pursuant to this subdivision from
the person upon whom the examination, analysis or review is conducted.
(r) The Commissioner and his or her examiners shall be entitled to immunity to the following
extent:
(1) No cause of action shall arise nor shall any liability be imposed against the Commissioner
or his or her examiners for any statements made or conduct performed in good faith while carrying
out the provisions of this section;
(2) No cause of action shall arise, nor shall any liability be imposed, against any person for
the act of communicating or delivering information or data to the Commissioner or his or her
examiners pursuant to an examination, analysis or review made under this section if the act of
communication or delivery was performed in good faith and without fraudulent intent or the intent
to deceive;
(3) The Commissioner or any examiner shall be entitled to an award of attorney's fees and
costs if he or she is the prevailing party in a civil cause of action for libel, slander or any other
relevant tort arising out of activities in carrying out the provisions of this section and the party
bringing the action was not substantially justified in doing so. For purposes of this section, a
proceeding is 'substantially justified' if it had a reasonable basis in law or fact at the time that it was
initiated;
(4) This subsection does not abrogate or modify in any way any constitutional immunity or
common law or statutory privilege or immunity heretofore enjoyed by any person identified in subdivision (1) of this subsection.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-16. Office of Consumer Advocacy established; Director of Consumer Advocacy;
promulgation of rules.
(a) There is hereby created within the agency of the Insurance Commissioner the Office of
Consumer Advocacy. The position of Director of the Office of Consumer Advocacy shall be is a
full-time position. and The Director shall be appointed by the commissioner Governor for a term
of four years to coincide with the term of the Governor and may be discharged only for failure to
carry out the duties of the office or for other good and sufficient cause: Provided, That the current
Director of the Office of Consumer Advocacy or other appointee of the Commissioner shall continue
in the position until the Governor appoints a new Director.
(b) The Insurance Commissioner shall provide office space, equipment and supplies for the
office.
(c) The Director shall may promulgate rules pursuant to article three, chapter twenty-nine-a
of this code in order to effect the purposes of this section and sections seventeen and section eighteen
of this article.
(d) On or before the first day of each regular session of the Legislature, the Director shall file
with the Governor, the Clerk of the Senate and the Clerk of the House of Delegates a report detailing
the actions taken by the division in the preceding calendar year.
§33-2-17. Office of Consumer Advocacy.
(a) In addition to the authority established under the rules promulgated by the Director, the
Office of Consumer Advocacy is authorized to:
(1) Institute, intervene in, or otherwise participate in, as an advocate for the public interest
and the interests of insurance consumers, proceedings in state and federal courts, before
administrative agencies, or before the Health Care Cost Review Authority, concerning applications
or proceedings before the Health Care Cost Review Authority or the review of any act, failure to act
or order of the Health Care Cost Review Authority;
(2) At the request of one or more policyholders, or whenever the public interest is served, to advocate the interests of those policyholders in proceedings arising out of any filing made with the
Insurance Commissioner by any insurance company or relating to any complaint alleging an unfair
or deceptive act or practice in the business of insurance.
(3) At the request of one or more third-party claimant who does not have legal representation
at a hearing on his or her claim, or whenever the public interest is served, to advocate the interests
of those third-party claimants in proceedings arising out of any filing made with the Insurance
Commissioner by any insurance company or relating to any third-party complaint alleging an unfair
claims settlement practice;
(3) (4) Institute, intervene in or otherwise participate in, as an advocate for the public interest
and the interests of insurance consumers, proceedings in state and federal courts, before
administrative agencies, or before the Insurance Commissioner, concerning applications or
proceedings before the Commissioner or the review of any act, failure to act or order of the Insurance
Commissioner;
(4) (5) Review and compile information, data and studies of the reasonable and customary
rate schedules of health care providers and health insurers for the purposes of reviewing,
establishing, investigating, or supporting any policy regarding health care insurance rates;
(5) (6) Exercise all the same rights and powers regarding examination and cross-examination
of witnesses, presentation of evidence, rights of appeal and other matters as any party in interest
appearing before the Insurance Commissioner or the Health Care Cost Review Authority;
(6) (7) Hire consultants, experts, lawyers, actuaries, economists, statisticians, accountants,
clerks, stenographers, support staff, assistants and other personnel necessary to carry out the
provisions of this section and sections sixteen and eighteen of this article, which personnel shall be
paid from special revenue funds appropriated for the use of the office;
(7) (8) Contract for the services of technically qualified persons in the area of insurance
matters to assist in the preparation and presentation of matters before the courts, the Insurance
Commissioner, administrative agencies or the Health Care Cost Review Authority, which persons
shall be paid from special revenue funds appropriated for the use of the office;
(8) (9) Make recommendations to the Legislature concerning legislation to assist the office in the performance of its duties;
(9) (10) Communicate and exchange data and information with other federal or state
agencies, divisions, departments, or officers and with other interested parties, including, but not
limited to, health care providers, insurance companies, consumers or other interested parties; and
(10) (11) Perform other duties to effect the purposes of the office.
(b) The provisions of this section do not apply to any filing made by an insurance company,
or act or order performed or issued by the Commissioner, or complaint filed by a policyholder with
the Commissioner prior to the thirtieth day of June, one thousand nine hundred ninety-one. All
proceedings and orders in connection with these prior matters shall be governed by the law in effect
at the time of the filing, or performance or issuance of the act or order.
(c) Nothing in this section may be construed to authorize the Director to participate in the
review and consideration of any rate filing made pursuant to this chapter.
(c) The scope of authority granted under this section and section sixteen of this article is
restricted to matters related to health care costs and health insurance policies, subscriber contracts
issued by organizations under article twenty-four of this chapter, health care corporations under
article twenty-five of this chapter, health maintenance organizations under article twenty-five-a of
this chapter, contracts supplemental to health insurance policies, and other matters related to health
insurance issues identified by rules of the commissioner promulgated under section one of this article
and chapter twenty-nine-a of this code.
ARTICLE 3. LICENSING, FEES & TAXATION OF INSURERS.
§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 and
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, two thousand five, 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-half of 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 surplus lines coverage, by the surplus lines licensee, 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 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.
(e) The allocation, distribution and use of revenues provided in the fire protection fund Fire
Protection Fund are subject to the provisions of sections eight-a and eight-b, article fifteen, chapter
eight of this code.
ARTICLE 6. THE INSURANCE POLICY.
§33-6-15a. Notation of consumer cost savings.
Each policy issued following enactment of this provision during the two thousand five
regular session, during the year following the effective date, shall display in a prominent location on
the policy itself or on an insert included with each policy and provided to each policyholder,
statements as following:
(1) 'YOUR COSTS FOR THIS POLICY (HAVE/HAVE NOT) BEEN REDUCED BY
(insert savings amount here) BECAUSE OF CIVIL JUSTICE REFORMS ENACTED BY THE
WEST VIRGINIA LEGISLATURE IN 2005, AND SIGNED INTO LAW BY THE GOVERNOR;
and
(2) 'YOUR COST FOR THIS POLICY HAS BEEN REDUCED BY (insert savings amount
here) BECAUSE OF PREMIUM SURCHARGE REDUCTIONS ENACTED BY THE WEST
VIRGINIA LEGISLATURE IN 2005 AND SIGNED INTO LAW BY THE GOVERNOR'.
If the insurer did not offer the type of insurance provided by the policy in two thousand four,
the requirement for these statements do not apply.
ARTICLE 11. UNFAIR TRADE PRACTICES.
§33-11-4a. Complaints by third-party claimants; elimination of private cause of action.
(a) A third-party claimant may not bring a private cause of action or any other action against
any person for an unfair claims settlement practice. A third-party claimant's sole remedy against a
person for an unfair claims settlement practice or the bad faith settlement of a claim is the filing of
an administrative complaint with the Commissioner in accordance with subsection (b) of this section.
A third-party claimant may not include allegations of unfair claims settlement practices in any underlying litigation against an insured.
(b) A third-party claimant may file an administrative complaint against a person for an
alleged unfair claims settlement practice with the Commissioner. The administrative complaint shall
be filed as soon as practicable but in no event later than one year following the actual or implied
discovery of the alleged unfair claims settlement practice.
(1) The administrative complaint shall be on a form provided by the Commissioner and shall
state with specificity the following information and such other information as the Commissioner may
require:
(A) The statutory provision, if known, which the person allegedly violated;
(B) The facts and circumstances giving rise to the violation;
(C) The name of any individual or other entity involved in the violation; and
(D) Reference to specific policy language that is relevant to the violation, if known.
(2) If the administrative complaint is deficient, the Commissioner shall contact the third-party
claimant within fifteen days of receipt of the complaint to obtain the necessary information.
(3) Upon receipt of a sufficiently complete administrative complaint, the Commissioner must
provide the person against whom the administrative complaint is filed written notice of the alleged
violation.
(4) If the person against whom the administrative complaint was filed substantially corrects
the circumstances that gave rise to the violation or offers to resolve the complaint in a manner found
reasonable by the Commissioner within sixty days after receiving the notice from the Commissioner
pursuant to subdivision (3) of this subsection, the Commissioner shall close the complaint and no
further action shall lie on the matter, either by the Commissioner or by the third party.
(5) The person that is the recipient of a notice from the Commissioner pursuant to
subdivision (3) of this subsection shall report to the Commissioner on the disposition of the alleged
violation within fifteen days of the disposition but no later than sixty days from receipt of notice of
the complaint from the Commissioner.
(c) If the third-party claim is not resolved within the sixty-day period described in subdivision
(4), subsection (b) of this section through either the person's substantial correction of the circumstances giving rise to the alleged violation or an offer from the person to resolve the
administrative complaint that is found to be reasonable by the Commissioner, the Commissioner
shall conduct any investigation he or she considers necessary to determine whether the allegations
contained in the administrative complaint are meritorious.
(d) Following the time period and investigation provided in subsection (c) of this section, if
the Commissioner finds that merit exists for a complaint and the complaint has not been resolved,
the Commissioner shall forward a complete copy of the complaint to the Office of Consumer
Advocacy, and if at his or her discretion, may order further investigation and hearing to determine
if the person has committed an unfair claims settlement practice with such frequency as to constitute
a general business practice. Notice of any hearing shall be provided to all parties. The Commissioner
shall assign a time and place for a hearing and shall notify the parties of the hearing by written notice
at least ten days in advance thereof. The hearing shall be held within ninety days from the date of
filing the complaint unless the complaint has been successfully resolved pursuant to subdivision (4),
subsection (b) of this section, or continued by agreement of all parties or by the Commissioner for
good cause. The Commissioner shall cause hearings to be conducted in the geographical region of
the state where the complainant resides. The Commissioner may promulgate rules pursuant to article
three, chapter twenty-nine-a of this code necessary pursuant to the authority of this chapter, to
establish procedures to conduct hearings pursuant to this section and chapter.
(e) If the Commissioner finds that the person has committed the unfair claim settlement
practice with such frequency as to constitute a general business practice, the Commissioner may
proceed to take administrative action he or she considers appropriate in accordance with section six
of this article or as otherwise provided in this chapter. If the Commissioner finds that the person
engaged in any method of competition, act or practice that involves an intentional violation of
subdivision (9), section four of this article, and even though it has not been established that the
person engaged in a general business practice, the Commissioner may proceed to take administrative
action he or she considers appropriate in accordance with subsection (b), section six of this article.
The person is entitled to notice and hearing in connection with the administrative proceeding.
(f) A finding by the Commissioner that the actions of a person constitute a general business practice may only be based on the existence of substantially similar violations in a number of
separate claims or causes of action.
(g) A good faith disagreement over the value of an action or claim or the liability of any party
to any action or claim is not an unfair claims settlement practice.
(h) The Commissioner, pursuant to article three, chapter twenty-nine-a of this code, may
promulgate by emergency rule standards for subsection (9), section four of this article.
(i) Nothing in this section in any way limits the rights of the Commissioner to investigate and
take action against a person which the Commissioner has reason to believe has committed an unfair
claims settlement practice or has consistently resolved administrative complaints by third-party
claimants within the sixty-day period set forth in subdivision (4), subsection (b) of this section.
(j) Definitions:
(1) 'Third-party claimant' means any individual, corporation, association, partnership or any
other legal entity asserting a claim against any individual, corporation, association, partnership or
other legal entity insured under an insurance policy or insurance contract for the claim in question.
(2) 'Unfair claims settlement practice' means a violation of subsection (9), section four of
this article.
(3) 'Underlying litigation' means a third-party claimant's lawsuit involving a claim against
an insured.
(4) 'Underlying claim' means the claim by a third-party claimant against an insured.
§33-11-4b. Unfair Claims Settlement Practice Trust Fund.
(a) There is hereby created a special account in the state treasury, designated the 'Unfair
Claims Settlement Practice 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 or other refund earned thereon, a proper credit to the fund. Funds paid into the
account may also be derived from the following sources:
(1) Payments received pursuant to section nine, article two of this chapter; and
(2) Any appropriations by the Legislature which may be made for this purpose.
(b) The moneys from the principal in the fund shall be expended by the Commissioner to compensate claimants as provided in section four-a and six of this article.
§33-11-6. Violations, cease and desist and penalty orders and modifications thereof.
If, after notice and hearing, the Commissioner determines that any person has engaged in or
is engaging in any method of competition, act or practice in violation of the provisions of this article
or any rules or regulations promulgated by the Commissioner thereunder, the Commissioner shall
issue an order directing such the person to cease and desist from engaging in such the method of
competition, act or practice and, in addition thereto, the Commissioner may at his or her discretion
order any one or more of the following:
(a) Require the payment to the State of West Virginia of a penalty in a sum not exceeding one
thousand dollars for each and every act or violation, but not to exceed an aggregate penalty of ten
thousand dollars, unless the person knew or reasonably should have known he or she was in violation
of this article, in which case the penalty shall be not more than exceed five thousand dollars for each
and every act or violation, but not to exceed an aggregate penalty of fifty one hundred thousand
dollars in any six-month period.
(b) In the event the act involves an intentional violation of subdivision (9), section four of
this article, and even though it has not been established that the person engaged in a general business
practice, require the payment to the State of West Virginia of a penalty in a sum not to exceed ten
thousand dollars.
(c) Require the payment to the State of West Virginia of a penalty in a sum not exceeding two
hundred fifty thousand dollars if the Commissioner finds that the insurer committed or performed
unfair claims settlement practices with such frequency as to indicate a general business practice.
(b) (d) Revoke or suspend the license of such any person if he or she knew, or reasonably
should have known, that he or she was in violation of this article.
(e) Provide restitution from the Unfair Claims Settlement Practice Trust Fund to a claimant
who has suffered damages as a result of a general business practice or from an egregious act by a
person whether or not the act constituted a pattern corresponding to an unfair claim settlement
practice committed with such frequency as to constitute a general business practice. Restitution
provided herein may include (1) actual economic damages and (2) non-economic damages not to exceed ten thousand dollars. Restitutions may not be given for attorney fees and punitive damages.
(f) It is expressly understood and intended that the provisions of subsection (e) of this section
do not create a private cause of action against the person that has committed an unfair claims
settlement practice. In the event that any provision of subsection (e)(1) is found to be
unconstitutional or is deemed by any court of competent jurisdiction to create a private cause of
action, then subsection (e) shall be void.
(g) Any person aggrieved by an order of the Commissioner under this article may seek
judicial review of the order as provided in section fourteen, article two of this chapter.
(c) (h) No order of the Commissioner pursuant to this article or order of any court to enforce
it, or holding of a hearing, shall in any manner relieve or absolve any person affected by such the
order or hearing from any other liability, penalty or forfeiture under law.
(i) The provisions of this section do not apply to medical professional liability insurance
claims pursuant to article seven-b chapter fifty-five and workers compensation insurance policies
governed by article two-c, chapter twenty three of this code.
ARTICLE 20. RATES AND RATING ORGANIZATIONS.
§33-20-4a. Biannual rate filings for certain insurance lines.
On or before the first day of July, two thousand five, the Commissioner shall promulgate
legislative rules pursuant to article three, chapter twenty-nine-a of this code establishing procedures
whereby each insurer providing five percent or more of insurance coverage in this state for private
passenger automobile insurance and property insurance obtained for personal or family needs shall
biannually submit rate filings required under this section: Provided, That the requirements under this
subsection shall terminate on the first day of July, two thousand nine."
On motion of Mr. Speaker, Mr. Kiss, and Delegates Staton, Varner, Amores and Michael,
the amendment was amended on page twenty-two, following line sixteen, by striking out the
language of §33-3-33 in its entirety and inserting in lieu thereof the following:
"§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)(1) For the purpose of providing additional revenue for volunteer fire departments,
part-volunteer fire departments and 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. After the thirtieth day of June, two
thousand five, the surcharge shall be imposed as specified in subdivisions (2)and (3) of this
subsection.
(2) After the thirtieth day of June, two thousand five, through the thirty-first day of
December, two thousand five, for the purpose of providing additional revenue for volunteer fire
departments, part-volunteer fire departments and to provide additional revenue to the public
employees insurance agency, there is hereby authorized and imposed on and after the first day of
July, two thousand five, 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.
(3) After the thirty-first day of December, two thousand five, for the purpose of providing
additional revenue for volunteer fire departments and part-volunteer fire departments, there is hereby
authorized and imposed 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 fifty-five hundreths of one percent of the taxable premium for each such policy.
(4) 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 surplus lines coverage, by the surplus lines licensee, 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)(1) 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. 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. After the thirtieth day of June, two thousand five, the money received from the
surcharge shall be distributed as specified in subdivisions (2) and (3) of this subsection.
(2)(A) After the thirtieth day of June, two thousand five, through the thirty-first day of
December, two thousand five, all money from the policy surcharge shall be collected by the
Commissioner who shall disburse one-half of the money received from the surcharge into the 'Fire
Protection Fund' for distribution as provided in subdivision (1) of this subsection. The remaining
portion of moneys collected shall be transferred into the fund in the state treasury of the public
employees insurance agency into which are deposited the proportionate shares made by agencies of
this state of the public employees insurance agency costs of those agencies.
(3) After the thirty-first day of December, two thousand five, all money from the policy
surcharge shall be collected by the Commissioner who shall disburse all of the money received from
the surcharge into the 'Fire Protection Fund' for distribution as provided in subdivision (1) of this
subsection.
(1)(4) Before each distribution date to volunteer fire companies or departments, 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.
(e) The allocation, distribution and use of revenues provided in the fire protection fund Fire
Protection Fund are subject to the provisions of sections eight-a and eight-b, article fifteen, chapter
eight of this code."
On motion of Delegate Amores, the amendment was amended on page on page eighteen, line
fourteen, by inserting a new §33-2-15d, to read as follows:
"§33-2-15d. Report to the Legislature.
(a) By the first day of January, two thousand seven, the commissioner shall submit a report
to the Legislature. The report shall contain analysis of the impact of legislation enacted during the
two thousand five regular legislative session upon rates and insurance availability in the state.
(b) The Insurance Commissioner shall by proposal of legislative or procedural rules, pursuant
to article three, chapter thenty-nine-a of this code, put forth analytical criteria and methodology of
all factors to be considered in the report. This purpose of this section is to assure that all relevant
factors of concern to the Legislature regarding the effect of the reforms enacted in this article, any
savings to consumers, the promotion of insurance availability and impacts on insurance industry
services and performance are fully reviewed and addressed."
On motion of Delegate Amores, the committee amendment was then amended on page on
page eighteen, section sixteen, line twenty, following the word "position" and the period, by
inserting the following sentence: "The Director shall be an attorney licensed in the state of West
Virginia."
On motion of Delegate Amores, the committee amendment was then amended on page thirty-
three, section six, line twenty-three, by following the words "provisions of" by inserting the
following: "Section four-a of this article and subsection (e) of this section".
Delegates Rick Thompson, Caputo, Webster, Ellem, Walters, Manchin, Tucker, Argento,
Martin, Miley, Yost, Butcher, Hatfield, Talbott, Poling, Marshall, Hrutkay, Longstreth, Spencer,
Stephens, Brown, DeLong, Barker, Iaquinta, Hunt, Eldridge and Wells moved to amend the
committee amendment on page fourteen, line twenty, subsection (o), by striking out said subsection
(o) in its entirety, and inserting in lieu thereof a new subsection (o) to read as follows:
"(o) All insurers subject to the provisions of this section shall annually pay to the
commissioner on or before the first day of July, one thousand nine hundred ninety-one, and every
first day of July thereafter an examination assessment fee of eight hundred dollars. Four hundred
fifty dollars of this fee shall be paid to the treasurer of the state to the credit of a special revolving
fund to be known as the 'Commissioner's Examination Revolving Fund' which is hereby established
and three hundred fifty dollars shall be paid to the treasurer of the state. The commissioner may at
his or her discretion, upon notice to the insurers subject to this section, increase this examination
assessment fee or levy an additional examination assessment fee of two hundred fifty dollars. In no
event may the total examination assessment fee, including any additional examination assessment
fee levied, exceed one thousand five hundred dollars per insurer in any calendar year."
On page twenty-five, section fifteen-a, line thirteen, by striking the word "(1)", and on lines
17 through 20 by striking all of subdivision (2).
On pages twenty-six through thirty, by striking section four in its entirety and inserting in lieu
thereof the following:
"§33-11-4a. Limitations of third-party causes of action.
The following provisions apply to all third-party claims and actions against an insurer for a violation of this article:
(a) A cause of action by a third-party for a violation of this article does not arise and a
complaint may not be filed until the underlying action or claim is resolved and all appeals are
exhausted.
(b) A complaint alleging a third-party cause of action under the provisions of this article shall
contain specific factual allegations setting forth the violations of this article which constitute a
general business practice. Any third-party complaint failing to specifically allege each fact necessary
to support a prima facie cause of action shall be dismissed by the court.
(c) An alleged specific violation of this article may not be admitted into evidence in more
than three separate third-party civil actions in order to establish a general business practice
proscribed by the provisions of this article. The burden of proof is on the defendant to demonstrate
to the court that the alleged violation has been received into evidence in at least three other actions.
(d) Neither an insurance company representative nor an agent of an insurance company may
be made a defendant in a third-party action unless the representative or agent was directly involved
in an alleged violation or alleged violations of this article and participated in or approved any act or
failure to act which is a violation of this article. The activities of any insurance company
representative or agent shall be specifically alleged in the complaint or the insurance company
representative or agent shall be dismissed by the court as a party to the action.
(e) Unless reversed on appeal, a judgment in favor of a defendant in any civil action
extinguishes all related claims and actions for violation of the provisions of this article.
(f) The settlement of any claim or action may include settlement of all potential third-party
claims or actions which are related thereto or which may arise therefrom. A release given in
consideration for settlement of a claim or action may include a release of any and all persons who
may be potentially liable for violations of this article arising out of or related to the underlying claim
or action which was settled and released."
On pages thirty and thirty-one, by striking §33-11-4b in its entirety.
And,
On pages thirty-two, thirty-three and thirty-four, by striking out subsections (e), (f), (g) and (i) from §33-11-6, and re-lettering remaining subsections of Section 6 alphabetically.
On the adoption of the amendment to the amendment, Delegate Rick Thompson demanded
the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 560), and there were--yeas
34, nays 66, absent and not voting none, with the yeas being as follows:
Yeas: Argento, Barker, Beane, Brown, Butcher, Caputo, DeLong, Eldridge, Ellem, Fragale,
Hatfield, Hrutkay, Hunt, Iaquinta, Longstreth, Louisos, Manchin, Marshall, Martin, Miley, Moore,
Perdue, Poling, Spencer, Stephens, Susman, Talbott, Thompson, Rick, Tucker, Walters, Webster,
Wells, Wysong and Yost.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegates DeLong and Walters moved to amend the bill on page twenty-two, section sixteen,
lines 3 through 5, by striking out subsection (c) in its entirety and inserting in lieu thereof the
following:
"The Director may participate and review any rate filing made pursuant to this chapter. The
Commissioner shall consider the Director's comments when making any rate filing decision."
On the adoption of the amendment to the amendment, Delegate Walters demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 561), and there were--yeas
40, nays 60, absent and not voting none, with the yeas being as follows:
Yeas: Anderson, Argento, Armstead, Barker, Brown, Butcher, Canterbury, Caputo,
Carmichael, DeLong, Duke, Eldridge, Fragale, Hatfield, Howard, Hrutkay, Hunt, Iaquinta, Lane,
Longstreth, Manchin, Marshall, Martin, Miley, Moore, Palumbo, Perdue, Poling, Romine, Rowan,
Schadler, Spencer, Talbott, Tansill, Thompson, Rick, Tucker, Walters, Webster, Wells and Yost.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
The Judiciary Committee amendment, as amended, was then adopted.
The bill was then read a third time.
The Speaker stated that numerous members had requested rulings for various reasons as to
the provisions of House Rule 49. He then requested that all attorney-members who either file or
defend claims to stand and they were as follows:
Delegates Webster, Palumbo, Hunt, Miley, Beane, Rick Thompson, Armstead, Howard,
Manchin, Trump, Schoen. Lane and Ellem.
The Speaker stated his ruling was that even if the aforementioned had a direct pecuniary
interest in the bill, which was uncertain, such interest would be as a member of a class of persons
affected and, therefore, he would require the aforementioned members to vote.
The Speaker then requested all members who are insurance agents to stand, and they were:
Delegates Ashley, Hall, Hamilton, Morgan, Ron Thompson, Trump, Walters, G. White and
H. K. White.
To those members the Speaker stated that the ruling was the same, that any pecuniary interest
in the bill would be as members of a class and, therefore, he would not excuse them from voting.
The Speaker next stated that he would consider all 100 members of the House as potential
policyholders, and ruled that to the extent that there may be a direct pecuniary interest, it would be
as a class and all members were required to vote on the bill.
The Speaker then stated that he would rule that all members or members who had spouses
who were participants in PEIA were members of a class of persons and required all members to vote.
Delegate Schoen then requested a ruling on Rule 49, stating that she had been a victim of a
car accident and that the accident had not yet gone to court.
To the request of Delegate Schoen, the Speaker stated that she demonstrated a potential third-
party claim which had not yet been filed, and that because it was uncertain whether she had a direct
pecuniary interest in the passage of the bill, he ruled that because of the lack of pecuniary interest,
she would be required to vote, but further ruled that due to the personal interest she demonstrated,
he excused her from voting on the passage of the bill.
Delegates Sobonya and Spencer likewise requested rulings as to Rule 49, each stating that
they had children who potentially had third-party bad faith claims. The Speaker ruled that Delegates
Sobonya and Spencer were required to vote since it was uncertain that either had a direct pecuniary interest in the bill, stating that their children who had potential claims were of the age of legal
majority and that any potential interest would not affect the Delegates directly.
The Speaker further stated that this ruling will stand as the judgment of the Chair and of the
House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as
established by our sovereign, non-reviewable Constitutional authority, and shall be binding in all
other potential venues.
Rule 49 Unanimous Consent Request
and
Order of the House
At the request of Delegate Staton, and by unanimous consent, the House of Delegates then
ordered that all rulings of the Chair upon requests by members of the House during this Regular
Session of the Legislature rendered pursuant to Rule 49 of the Rules of the House of Delegates be
considered as continuing rulings as to all passage votes upon such bills and resolutions, including
those votes occurring subsequent to the vote immediately following the request for a ruling, such that
a request by a member for a ruling under Rule 49, once having been ruled upon by the Speaker, need
not be repeated or renewed by the member thereafter.
The question being on the passage of the bill (Com. Sub. for S. B. 418), the yeas and nays
were taken (Roll No. 562), and there were--yeas 70, nays 29, excused 1, with the nays and excused
being as follows:
Nays: Argento, Barker, Beane, Boggs, Brown, Butcher, Cann, Caputo, Eldridge, Fragale,
Hatfield, Hrutkay, Hunt, Iaquinta, Longstreth, Manchin, Marshall, Martin, Miley, Moore, Perdue,
Porter, Spencer, Talbott, Thompson, Rick, Tucker, Walters, Webster and Yost.
Excused from voting: Schoen.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 418) passed.
On motion of Mr. Speaker, Mr. Kiss, and Delegates Staton, Varner, Amores, and Michael,
the title of the bill was amended to read as follows:
Com. Sub. for S. B. 418 -- "A Bill to amend and reenact §33-2-9, §33-2-16 and §33-2-17 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new
section, designated §33-2-15d; to amend and reenact §33-3-33 of said code; to amend said code by
adding thereto a new section, designated §33-6-15a; to amend said code by adding thereto two new
sections, designated §33-11-4a and §33-11-4b; to amend and reenact §33-11-6 of said code; and to
amend said code by adding thereto a new section, designated §33-20-4a, all relating generally to the
regulation of insurance; increasing certain fees for property and casualty insurers; limiting these
certain fees upon meeting special fund funding threshold; providing that Insurance Commissioner
shall conduct a study and promulgate rules relating thereto; providing that the Director of Consumer
Advocacy be appointed by the Governor; requiring that the Director of Consumer Advocacy be a
licensed lawyer; expanding the authority of the Office of Consumer Advocacy; reducing a surcharge
on fire and casualty insurance polices; modifying distribution of surcharge; providing for notice of
savings in certain insurance policies; eliminating a cause of action for unfair claims settlement
practices by third parties; establishing procedures for the filing, investigation and processing of
administrative complaints by third-party claimants; defining certain terms; establishing special
account to award restitution; providing for limited administrative restitution to third-party claimants
in certain circumstances; providing for penalties for engaging in unfair claims settlement practices
or general business practices; providing a internal contingent voiding provision; providing for
judicial review of administrative process; limiting applicability of Act; and establishing that certain
insurers shall submit rate filings biannually."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegate Carmichael asked and obtained unanimous consent that the remarks of Delegate
Rick Thompson concerning S. B. 418 be printed in the Appendix to the Journal.
Delegate Doyle announced that he was absent when the vote was taken on Roll No. 493, and
had he been present he would have voted "Yea" thereon.
At 3:12 p.m., on motion of Delegate Staton, the House of Delegates recessed until 5:00 p.m.,
and reconvened at that time.
*************
Evening Session
*************
On motion of Delegate Staton, S. B. 30, Discontinuing use of prior approval system of
insurance rate and form filing; other provisions,
was taken up for further consideration.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk,
on
page two, following the enacting clause, by striking out the remainder of the bill and inserting in
lieu thereof the following:
"That §33-2-20 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that said code be amended by adding thereto a new section, designated §33-2-21; that §33-6-8 of said
code be amended and reenacted; that §33-16-2 of said code be amended and reenacted; that §33-
16B-1 and §33-16B-3 of said code be amended and reenacted; that §33-17-8 of said code be
amended and reenacted; that said code be amended by adding thereto four new sections, designated
§33-17A-4a, §33-17A-4b, §33-17A-4c and 33-17A-12; and that §33-20-4 of said code be amended
and reenacted, all to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-20. Authority of Commissioner to allow withdrawal of insurance carriers from doing
business in the state.
(a) Notwithstanding any provision of the code to the contrary, the Commissioner may,
consistent with the provisions of this section, authorize an insurer to withdraw from the line of
automobile liability insurance for personal, private passenger automobiles covered by article six-a
of this chapter or from doing business entirely in this state if:
(1) The insurer has submitted and received approval from the Commissioner of a withdrawal
plan; and
(2) The insurer demonstrates to the satisfaction of the Commissioner that allowing the insurer
to withdraw would be in the best interest of the insurer, its policyholders and the citizens of this
state.
(b) Any insurer that elects to nonrenew or cancel the particular type or line of insurance
coverage provided for by section five, article seventeen-a of this chapter shall submit to the Insurance Commissioner a withdrawal plan for informational purposes only prior to cancellation or nonrenewal
of all its business in this state.
(c) The Commissioner shall promulgate rules pursuant to chapter twenty-nine-a of this code
setting forth the criteria for withdrawal plans: Provided, That the procedural rules previously
promulgated setting forth the criteria for withdrawal plans, which rules were made effective the
twenty-fifth day of September, two thousand four, shall continue in effect in the same manner as if
this section had not been amended during the first extraordinary session of the Legislature in two
thousand five.
§33-2-21. Authority of Insurance Commissioner to regulate workers compensation industry;
authority of Insurance Commissioner to administer chapter twenty-three
of the Code of West Virginia.
(a) Upon the termination of the Workers' Compensation Commission pursuant to chapter
twenty-three of this code, the powers and duties heretofore imposed upon the Workers'
Compensation Commission as they relate to general administration of the provisions of chapter
twenty-three of this code are hereby transferred to and imposed upon the Insurance Commissioner.
(b) Unless otherwise specified in chapter twenty-three of this code, upon termination of the
Workers' Compensation Commission, the duties imposed upon the Workers' Compensation
Commission as they relate to the award and payment of disability and death benefits and the review
of claims in articles four and five, chapter twenty-three of this code will be imposed upon the
Employers Mutual Insurance Company established pursuant to article two-c, chapter twenty-three
of this code, a private carrier offering workers' compensation insurance in this state and self-insured
employers. Whenever reference is made to the Workers' Compensation Commissioner in those
articles, the duty prescribed shall apply to the Employers Mutual Insurance Company, a private
carrier or self-insured employer, as applicable.
(c) From the effective date of this enactment, the Insurance Commissioner shall regulate all
insurers licensed to transact workers' compensation insurance in this state and all of the provisions
of this chapter shall apply to such insurers, unless otherwise exempted by statute.
ARTICLE 6. THE INSURANCE POLICY.
§33-6-8. Filing of forms.
(a) Except as provided in section eight, article seventeen of this chapter (fire and marine
forms), no No insurance policy form, no group certificate form, no insurance application form where
a written application is required and is to be made a part of the policy and no rider, endorsement or
other form to be attached to any policy shall be delivered or issued for delivery in this state by an
insurer unless it has been filed with the Commissioner and, to the extent required by subdivision (1),
subsection (b) of this section, approved by the Commissioner, except that as to group insurance
policies delivered outside this state, only the group certificates to be delivered or issued for delivery
in this state shall be filed for approval with the Commissioner. This section shall does not apply to
policies, riders, endorsements or forms of unique character designed for and used with relation to
insurance upon a particular subject, or which relate to the manner of distribution of benefits or to the
reservation of rights and benefits under life or accident and sickness insurance policies, and are used
at the request of the individual policyholder, contract holder or certificate holder, nor to the surety
bond forms.
(b)(1) Every such filing shall be made Forms for non-commercial lines shall be filed by an
insurer not no less than sixty days in advance of any such delivery. At the expiration of such sixty
days the sixty day period, unless the period was extended by the commissioner to obtain additional
information from the insurer, the form so filed shall be is deemed to be approved unless prior thereto
it has been was affirmatively approved or disapproved by the commissioner. Approval of any such
form by the commissioner shall constitute constitutes a waiver of any unexpired portion of such
waiting the sixty day period. The commissioner may at any time, after notice and for cause shown,
withdraw any such approval.
(2) Forms for (A) commercial lines property and casualty risks and (B) any mass marketed
life and/or health insurance policy offered to members of any association by the association, shall
be filed with the commissioner and need not be approved by the commissioner prior to use. The
commissioner may, within the first thirty days after receipt of the form, request information to ensure
compliance with applicable statutory provisions and may disapprove forms not in compliance with
the provisions of this chapter. If the commissioner does not disapprove the form within the thirty day period, the form is effective upon its first use after filing.
(c) Any order of the Commissioner disapproving any such form or withdrawing a previous
approval shall state the grounds therefor.
(c) When an insurer does not submit supporting information with the form filing that allows
the commissioner to determine whether the form meets all applicable statutory requirements, the
commissioner shall require the insurer to furnish supporting information. The sixty day period for
personal lines risks shall be suspended on the date the Commissioner requests additional information
and shall recommence on the date the Commissioner receives the supporting information is received:
Provided, That the Commissioner shall have no less than fifteen days from receipt of the supporting
information to act. The commissioner may request additional information after the initial sixty-day
period with respect to non-commercial lines, or thirty-day period with respect to commercial lines
and mass-marketed life and/or health insurance to associations, to ensure continuing compliance with
applicable statutory provisions and may at any time, after notice and for cause shown, withdraw any
approval or disapprove any form: Provided, however, That any disapproval by the commissioner of
any form or withdrawal of a previous approval shall state the grounds therefor and shall include a
notice that the insurer may request a hearing on the denial or withdrawal of approval.
(d) The Commissioner may, by order, exempt from the requirements of this section for so
long as he or she deems considers proper any insurance document or form or type thereof as
specified in such the order, to which, in his or her opinion, this section may not practicably be
applied, or the filing and approval of which are, in his or her opinion, not desirable or necessary for
the protection of the public.
(e) Notwithstanding any other provisions of this section, any mass marketed life and/or health
insurance policy offered to members of any association by the association shall be exempt from the
provision requiring prior approval under this section: Provided, That for For purposes of this section:
the association shall
(1) An association must have a minimum of sixty-one members at the outset of the issuance
of the mass-marketed life and/or health insurance policy and shall have been organized and
maintained in good faith for purposes other than that of obtaining or providing insurance. Provided, however, That the The association shall also have been in active existence for at least two years and
shall have a constitution and bylaws which provide that: (i) (A) The association holds annual
meetings to further purposes of its members; (ii) (B) except in the case of credit unions, the
association collects dues or solicits contributions from members; and (iii) C) the members have
voting privileges and representation on the governing board and committees that exist under the
authority of the association: Provided, further, That upon written application by an association and
for good cause shown, the Commissioner may grant an exemption to the association from the
minimum member requirements of this section.
(2) "Commercial lines" means insurance for business and professional interests, except that
it does not include medical malpractice insurance.
(3) "Non-commercial lines" means all insurance other than commercial lines and includes
medical malpractice and insurance for personal, family and household needs.
(f) This section shall apply also applies to any form used by domestic insurers for delivery
in a jurisdiction outside West Virginia if the insurance supervisory official of such the jurisdiction
informs the Commissioner that such the form is not subject to approval or disapproval by such the
official and upon the Commissioner's order requiring the form to be submitted to him or her for the
that purpose. The applicable same standards applicable to forms for domestic use shall apply to such
forms as apply to forms for domestic use used by domestic insurers for delivery in a jurisdiction
outside West Virginia.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS.
§33-16-2. Eligible groups.
Any insurer licensed to transact accident and sickness insurance in this state may issue group
accident and sickness policies coming within any of the following classifications:
(a) (1) A policy issued to an employer, who shall be considered the policyholder, insuring
at least ten employees of such the employer, for the benefit of persons other than the employer, and
conforming to the following requirements:
(1) (A) If the premium is paid by the employer the group shall comprise all employees or all
of any class or classes thereof determined by conditions pertaining to the employment; or
(2) (B) If the premium is paid by the employer and employees jointly, or by the employees,
the group shall comprise not less than seventy percent of all employees of the employer or not less
than seventy-five percent of all employees of any class or classes thereof determined by conditions
pertaining to the employment;
(3) C) The term "employee" as used herein shall be is considered to include the officers,
managers and employees of the employer, the partners, if the employer is a partnership, the officers,
managers and employees of subsidiary or affiliated corporations of a corporation corporate employer,
and the individual proprietors, partners and employees of individuals and firms, the business of
which is controlled by the insured employer through stock ownership, contract or otherwise. The
term "employer" as used herein may be considered to include any municipal or governmental
corporation, unit, agency or department thereof and the proper officers, as such, of any
unincorporated municipality or department thereof, as well as private individuals, partnerships and
corporations.
(b) A policy issued to an association which has been in existence for at least one year, which
has a constitution and bylaws and which has been organized and is maintained in good faith for
purposes other than that of obtaining insurance, insuring at least ten members of the association for
the benefit of persons other than the association or its officers or trustees, as such;
(2) A policy issued to an association or to a trust or to the trustees of a fund established,
created or maintained for the benefit of members of one or more associations. The association or
associations shall have at the issuance of the policy a minimum of one hundred persons and have
been organized and maintained in good faith for purposes other than that of obtaining insurance;
shall have been in active existence for at least one year; and shall have a constitution and bylaws that
provide that: The association or associations hold regular meetings not less than annually to further
the purposes of the members; except for credit unions, the association or associations collect dues
or solicit contributions from members; and the members have voting privileges and representation
on the governing board and committees. The policy is subject to the following requirements:
(A) The policy may insure members of the association or associations, employees thereof or
employees of members, or one or more of the preceding or all of any class or classes for the benefit of persons other than the employee's employer.
(B) The premium for the policy shall be paid from:
(i) Funds contributed by the association or associations;
(ii) Funds contributed by covered employer members;
(iii) Funds contributed by both covered employer members and the association or
associations;
(iv) Funds contributed by the covered persons; or
(v) Funds contributed by both the covered persons and the association, associations or
employer members.
(C) Except as provided in paragraph (D), a policy on which no part of the premium is to be
derived from funds contributed by the covered persons specifically for their insurance must insure
all eligible persons, except those who reject coverage in writing.
(D) An insurer may exclude or limit the coverage on any person as to whom evidence of
individual insurability is not satisfactory to the insurer.
(E) A small employer, as defined in subdivision (r),section two, article sixteen-d of this
chapter, insured under an eligible group policy provided in this subdivision shall also be subject to
the marketing and rate practices provisions in article sixteen-d of this chapter.
(c) (3) A policy issued to a bona fide association;
(d) (4) A policy issued to a college, school or other institution of learning or to the head or
principal thereof, insuring at least ten students, or students and employees, of the institution;
(e) (5) A policy issued to or in the name of any volunteer fire department, insuring all of the
members of the department or all of any class or classes thereof against any one or more of the
hazards to which they are exposed by reason of the membership but in each case not less than ten
members;
(f) (6) A policy issued to any person or organization to which a policy of group life insurance
may be issued or delivered in this state, to insure any class or classes of individuals that could be
insured under the group life policy; and
(7) A policy issued to cover any other substantially similar group which in the discretion of the Commissioner may be subject to the issuance of a group accident and sickness policy or contract.
ARTICLE 16B. ACCIDENT AND SICKNESS RATES.
§33-16B-1. Filing and approval of accident and sickness rates.
Premium rate charges for any individual or group accident and sickness insurance policy, or
for any group accident and sickness insurance policy issued pursuant to this chapter certificate or
other evidence of insurance issued, endorsed or delivered in this state shall be filed with the
Commissioner for a waiting period of sixty days before such the charges become effective. At the
expiration of such sixty days the premium rate charges so filed shall be are deemed approved unless
prior thereto the charges have been affirmatively approved or disapproved by the Commissioner.
The Commissioner shall disapprove accident and health insurance premium rates which are
not in compliance with the requirements of this chapter or any rule promulgated by the
Commissioner pursuant to section two of this article. The Commissioner shall send written notice
of such the disapproval to the insurer. The Commissioner may approve the premium rates before
the sixty-day period expires by giving written notice of approval.
§33-16B-3. Exceptions.
This article shall does not apply to policies issued to group accident and health insurance
plans upon which premiums are negotiated with the individual group policyholder and are based on
the historic and projected loss experience of the group to be insured experienced rated.
ARTICLE 17. FIRE AND MARINE INSURANCE.
§33-17-8. Filing of forms.
(a) No fire or marine policy, rider or endorsement to be attached to any policy covering any
risk located or to be performed in West Virginia shall be delivered or issued for delivery in this state
unless either that form is: (1) Filed with and approved by the Commissioner; or (2) conforms to
applicable legislative rules approved by of the Commissioner; or (3) is identical as to language to
a policy, rider or endorsement approved by the Commissioner; or (4) qualifies under subsection (c)
of this section. If the use of any such form under the provisions of clause subdivision (2) above by
any insurer or by the members and subscribers of any rating organization shall be is so extensive that
in the opinion of the Commissioner the public interest requires, the Commissioner may require that such the form be filed with him or her by such the insurer or by such the rating organization on
behalf of its members and subscribers.
(b) The procedure for filing and approval or disapproval of forms under this section shall be
that is provided in paragraphs (b), (c), (d), and (e) of section eight, of article six of this chapter.
Grounds for disapproval shall be are those set forth in section nine of said article. Such filings
Filings may be made on behalf of any insurer by a rating organization licensed as such under the
provisions of article twenty of this chapter. This section shall does not apply to ocean marine
policies, riders or endorsements, or to forms on specially rated inland marine risks.
(c) For commercial lines risks, a fire or marine policy, rider or endorsement is subject to the
provisions of section six, article eight of this chapter governing other commercial lines form filings
as defined in section eight, article six of this chapter.
ARTICLE 17. FIRE AND MARINE INSURANCE.
§33-17-9. Total or partial fire loss.
(a) All insurers issuing policies providing fire insurance on real property situate in West
Virginia shall be liable, in case of total loss by fire or otherwise, as stated in the policy, for the whole
amount of insurance stated in the policy, upon such real property; and in case of partial loss by fire
or otherwise, as aforesaid, of the real property insured, the liability shall be for the total amount of
such the partial loss, not to exceed the whole amount of insurance upon such the real property as
stated in the policy. This section shall does not apply where such insurance has been procured from
two or more insurers covering the same interest in such real property.
(b) Notwithstanding the provisions of subsection (a) of this section, if the policy contains a
provision that requires the insured to actually repair or replace the damaged or destroyed structure
in order to be indemnified for the cost of the repair or replacement, the liability of the insurer shall
be as prescribed by the policy.
(c) The Commissioner may promulgate rules to implement the provisions of this section.
ARTICLE 17A. PROPERTY INSURANCE DECLINATION, TERMINATION AND
DISCLOSURE.
§33-17A-4a. Alternative method for nonrenewal for property insurance.
(a) On or after the first day of July, two thousand five, an insurer may nonrenew a property
insurance policy for any reason that is consistent with its underwriting standards.
(b) Notwithstanding any other provisions in this section, race, religion, nationality, ethnic
group, age, sex, marital status or other reason prohibited by the provisions of this chapter may not
be considered as a reason for nonrenewal.
(c) Notwithstanding the provisions of subsection (c), section four of this article, a nonrenewal
may only be issued pursuant to the provisions of this section upon notice to the named insured at
least thirty days before the end of the policy period of the insurer's election not to renew the policy.
(d) Commencing the first day of July, two thousand five, the total number of nonrenewal
notices issued by the insurer each year pursuant to this section that result in nonrenewals may not
exceed one percent per year of the total number of the policies of the insurer in force at the end of
the previous calendar year in this state: Provided, That the total number of such nonrenewal notices
issued each year to insureds within any given county in this state that result in nonrenewals may not
exceed one percent per year of the total number of policies in force in that county at the end of the
previous calendar year: Provided, however, That an insurer may nonrenew one policy per year in
any county if the applicable percentage limitation results in less than one policy.
(e) A notice issued pursuant to this section shall state the specific reason or reasons for
refusal to renew and shall advise the named insured that nonrenewal of the policy for any reason is
subject to a hearing and review as provided in section seven of this article: Provided, That the
hearing shall relate to whether the nonrenewal of the policy was issued for a discriminatory reason,
was based upon inadequate notice, was based on an underwriting standard found by the
Commissioner to be in violation of this chapter or causes the insurer to exceed the percentage
limitations, or percentage limitations by county, of nonrenewal notices set forth in this section. The
notice shall also advise the insured of possible eligibility for coverage through the West Virginia
Essential Property Insurance Association.
(f) Each insurer licensed to write property insurance policies in this state shall file with the
Commissioner a copy of its underwriting standards, including any amendments or supplements. The
Commissioner shall review and examine the underwriting standards to ensure that they are consistent with generally accepted underwriting principles. The underwriting standards filed with the
Commissioner shall be considered confidential by law and privileged, are exempt from disclosure
pursuant to chapter twenty-nine-b of this code, are not open to public inspection, are not subject to
subpoena, are not subject to discovery or admissible in evidence in any criminal, civil or
administrative action and are not subject to production pursuant to court order. The Commissioner
may promulgate legislative rules pursuant to chapter twenty-nine-a of this code to implement the
provisions of this section.
(g) Each insurer that has elected to issue nonrenewal notices pursuant to the percentage
limitations provided in this section shall report to the Commissioner, on or before the thirtieth day
of September of each year the total number of nonrenewal notices issued in this state and in each
county of this state for the preceding year and the specific reason or reasons for the nonrenewals by
county.
§33-17A-4b. Manner of making election relating to nonrenewals.
(a) Each insurer licensed to write property insurance policies in this state as of the first day
of July, two thousand five, may elect to issue all nonrenewal notices either pursuant to subsection
(c), section four of this article or section four-a of this article. Each insurer must notify the
Commissioner of its election on or before the first day of July, two thousand five, and shall remain
bound by the election for a period of five years. For each subsequent five-year period, each insurer
shall notify the Commissioner of its election to issue all nonrenewal notices either pursuant to
subsection (c), section four of this article or section four-a of this article. The failure of an insurer
to notify the Commissioner of its election by the first day of July, two thousand five, will be
considered to be an election by the insurer to issue all nonrenewal notices pursuant to subsection (c),
section four of this article and the insurer will be bound by the election for a period of five years.
(b) An insurer that is not licensed to write property insurance policies in this state as of the
first day of July, two thousand five, but which becomes licensed to write property insurance policies
after that date shall, no later than four years after the date the insurer becomes licensed to write the
policies, make an election to issue all nonrenewal notices either pursuant to subsection (c), section
four of this article or section four-a of this article and shall notify the Commissioner of its election. If the insurer elects to issue all nonrenewal notices pursuant to section four-a of this article, the total
number of nonrenewals may not exceed the percentage limitations set forth in that section. An
insurer first becoming licensed to issue property insurance policies in this state after the first day of
July, two thousand five, shall be bound by its election for a period of five years and for each
subsequent five-year period shall notify the Commissioner of its election to issue all nonrenewal
notices either pursuant to subsection (c), section four of this article or section four-a of this article.
(c) An insurer that elects to issue nonrenewals pursuant to subsection (c), section four of this
article may include as a permitted reason for nonrenewal of a policy, in addition to the reasons
enumerated in section five of this article, two or more paid claims under a policy within a period of
thirty-six months, each of which occurs after the first day of July, two thousand five.
§33-17A-4c. Report to the Legislature.
By the first day of January, two thousand ten, the Commissioner shall submit a report to the
Legislature. The report shall contain the following:
(1) An analysis of the impact of legislation enacted during the two thousand five legislative
session upon rates and insurance availability in the state; and
(2) Statistics reflecting the rate history of insurers conducting business in West Virginia from
the first day of July, two thousand five, until the first day of July, two thousand nine.
§33-6-15a. Notation of consumer cost savings.
Each policy issued following enactment of this provision during the two thousand five
regular session, during the year following the effective date, shall display in a prominent location on
the policy itself or on an insert included with each policy and provided to each policyholder,
statements as following:
(1) "YOUR COSTS FOR THIS POLICY (HAVE/HAVE NOT) BEEN REDUCED BY
(insert savings amount here) BECAUSE OF INSURANCE LAW REFORMS ENACTED BY THE
WEST VIRGINIA LEGISLATURE IN 2005, AND SIGNED INTO LAW BY THE GOVERNOR.
If the insurer did not offer the type of insurance provided by the policy in two thousand four,
the requirement for these statements do not apply.
ARTICLE 20. RATES AND RATING ORGANIZATIONS.
§33-20-4. Rate filings.
(a) (1) Every insurer shall file with the Commissioner every manual of classifications,
territorial rate areas established pursuant to subdivision (2), subsection (c), section three of this
article, rules and rates, every rating plan and every modification of any of the foregoing which it
proposes to use for casualty insurance to which this article applies.
(2) Every insurer shall file with the Commissioner, except as to inland marine risks which
by general custom of the business are not written according to manual rates or rating plans, every
manual, minimum, class rate, rating schedule or rating plan and every other rating rule and every
modification of any of the foregoing which it proposes to use for fire and marine insurance to which
this article applies. Specific inland marine rates on risks specially rated, made by a rating
organization, shall be filed with the Commissioner.
(b) Every such filing shall state the proposed effective date thereof and shall indicate the
character and extent of the coverage contemplated. When a filing is not accompanied by the
information upon which the insurer supports such the filing and the Commissioner does not have
sufficient information to determine whether such the filing meets the requirements of this article, he
or she shall require such the insurer to furnish the information upon which it supports such the filing
and in such that event the waiting period shall commence as of the date such the information is
furnished. The information furnished in support of a filing may include: (1) The experience or
judgment of the insurer or rating organization making the filing; (2) the experience or judgment of
the insurer or rating organization in the territorial rate areas established by subdivision (2),
subsection (c), section three of this article; (3) its interpretation of any statistical data it relies upon;
(4) the experience of other insurers or rating organizations; or (5) any other relevant factors. A filing
and any supporting information shall be is 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 such the statement prior to the effective date of the filing, the Commissioner shall mail or
deliver a copy of such the statement to the filer, which may file such a reply as it may desire to make. This section shall is not be applicable to any memorandum or statement of any kind by any employee
of the Commissioner.
(c) An insurer may satisfy its obligation to make such a filing by becoming a member of, or
a subscriber to, a licensed rating organization which makes such filings and by authorizing the
Commissioner to accept such filings on its behalf: Provided, That nothing contained in this article
shall be construed as requiring any insurer to become a member of or a subscriber to any rating organization.
(d) The Commissioner shall review filings as soon as reasonably possible after they have
been made in order to determine whether they meet the requirements of this article.
(e) Subject to the exceptions specified in subsections (f), and (g) and (h) of this section, each
filing shall be on file for a waiting period of sixty days before it becomes effective. Upon written
application by such an 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. A filing shall
be deemed to meet the requirements of this article unless disapproved by the Commissioner within
the waiting period.
(f) Any special filing with respect to a surety bond required by law or by court or executive
order or by order, rule or regulation of a public body, not covered by a previous filing, shall become
effective when filed and shall be deemed to meet the requirements of this article until such time as
the Commissioner reviews the filing and so long thereafter as the filing remains in effect.
(g) Specific inland marine rates on risks specially rated by a rating organization shall become
effective when filed and shall be deemed to meet the requirements of this article until such time as
the Commissioner reviews the filing and so long thereafter as the filing remains in effect.
(h) Rates for commercial lines property and casualty risks must be filed with the
Commissioner and the filings need not be approved by the Commissioner. The Commissioner may
request additional information to ensure compliance with applicable statutory standards, but if the
Commissioner does not disapprove the filing within the initial thirty-day period after receipt, the rate
filing will become effective upon first usage after filing: Provided, That the Commissioner may at
any time thereafter, after notice and for cause shown, disapprove any rate filing.
(h) (i) Under such legislative rules and regulations as he shall adopt, the Commissioner may, by written order, suspend or modify the requirement of filing as to any kind of insurance, subdivision
or combination thereof, or as to classes of risks, the rates for which cannot practicably be filed before
they are used. Such These orders and rules and regulations shall be made known to insurers and
rating organizations affected thereby. The Commissioner may make such any examination as he or
she may deem consider advisable to ascertain whether any rates affected by such an order meet the
standards set forth in subsection (b), section three of this article.
(i) (j) Upon the written application of the insured, stating his or her reasons therefor, filed
with and approved by the Commissioner, a rate in excess of that provided by a filing otherwise
applicable may be used on any specific risks.
(j) (k) No insurer shall make or issue a contract or policy except in accordance with the
filings which are in effect for said that insurer as provided in this article. or in accordance with
subsection (h) or (i) of this section. This subsection shall does not apply to contracts or policies for
inland marine risks as to which filings are not required.
(k) (l) In instances when an insurer files a request for an increase of automobile liability
insurance rates in the amount of fifteen percent or more, the Insurance Commissioner shall provide
notice of such the increase with the office of the Secretary of State to be filed in the state register and
shall provide interested persons the opportunity to comment on such the request up to the time the
Commissioner approves or disapproves such the rate increase.
(m) For purposes of this section, "commercial" means commercial lines as defined in (e) (2)
of section eight, article six of this chapter."
Delegate Perdue moved to amend the committee amendment on page twenty-four, section
33-20-4, line one, following the word "Commissioner" by inserting a period and striking out the
remainder of the sentence.
On page twenty-four, section 33-20-4, line four, following the word "not" by striking out the
word "disapprove" and inserting in lieu thereof the word "approve".
And,
On page twenty-four, section 33-20-4, line seven, following the word "Provided" and striking
out the remainder of that proviso and inserting in lieu thereof "That, the Commissioner may not approve any rate filing more than six months after the date of such filing."
The result of a viva voce vote being inconclusive, a division of the House was called for.
Whereupon,
A rising vote disclosed that 30 members having cast an affirmative vote, less than the
requisite majority, the Speaker declared the amendment rejected.
Delegates Manchin and Miley moved to amend the amendment on page twenty-two, section
four, line seven, following the words "any other relevant factor" by changing the period to a comma,
and inserting the words "provided that no rate filing shall include, as a consideration in the setting
of rates, and individual's credit report, credit score and/or the information contained in a credit report
or credit score".
On the adoption of the amendment to the amendment, Delegate Manchin demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 563), and there were--yeas
34, nays 65, absent and not voting 1, with the yeas and absent and not voting being as follows:
Yeas: Argento, Barker, Boggs, Brown, Butcher, Caputo, DeLong, Duke, Eldridge, Ellem,
Hatfield, Hrutkay, Hunt, Iaquinta, Lane, Longstreth, Louisos, Manchin, Marshall, Martin, Miley,
Perdue, Poling, Roberts, Schoen, Spencer, Susman, Talbott, Thompson, Rick, Tucker, Walters,
Webster, Wells and Yost.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
On motion of Delegate Webster the amendment was amended on page fifteen, section 33-17-
9, line two, by striking subsections (b) and (c) in their entirety.
On the adoption of the amendment to the amendment, Delegate Webster demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 564), and there were--yeas
52, nays 47, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Mr. Speaker, Mr. Kiss, and Amores, Anderson, Ashley, Azinger, Beane, Blair, Boggs, Border, Campbell, Cann, Craig, Crosier, Doyle, Evans, Ferrell, Frederick, Frich, Hall, Hamilton,
Hartman, Kominar, Leach, Leggett, Long, Michael, Moore, Morgan, Overington, Pino, Porter,
Proudfoot, Roberts, Romine, Rowan, Schadler, Sobonya, Stalnaker, Stevens,, Sumner, Swartzmiller,
Thompson, Ron, Trump, Varner, Wakim, White, H. and Williams.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the
amendment to the amendment was adopted.
Delegate Caputo moved to amend the committee amendment on page
nineteen, section four-
b, line fourteen, by striking the word "two" and inserting in lieu thereof the word "three".
On the adoption of the amendment to the amendment, Delegate Caputo demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 565), and there were--yeas
43, nays 54, absent and not voting 3, with the yeas and absent and not voting being as follows:
Yeas: Argento, Armstead, Barker, Brown, Butcher, Canterbury, Caputo, Duke, Eldridge,
Ellem, Ferrell, Frich, Hamilton, Hartman, Howard, Hrutkay, Hunt, Iaquinta, Lane, Longstreth,
Louisos, Manchin, Marshall, Martin, Miley, Moore, Paxton, Perdue, Poling, Porter, Romine,
Schadler, Sobonya, Spencer, Stephens, Stevens, Talbott, Tansill, Thompson, Rick, Tucker, Walters,
Webster and Wells.
Absent And Not Voting: Fragale, Schoen and Yost.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
The amendment offered by the Committee on the Judiciary as amended was then adopted.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 566),
and there were--yeas 75, nays 24, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Argento, Barker, Butcher, Caputo, Eldridge, Hatfield, Hrutkay, Hunt, Iaquinta,
Longstreth, Louisos, Manchin, Marshall, Martin, Miley, Moore, Perdue, Poling, Thompson, Rick, Tucker, Walters, Webster, Wells and Yost.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 30) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 30 -- "A Bill to amend and reenact §33-2-20 of the Code of West
Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §33-2-
21; to amend and reenact §33-6-8 of said code; to amend said code by adding thereto a new section,
designated §33-6-15a; that §33-16-2 of said code be amended and reenacted; to amend and reenact
§33-16B-1 and §33-16B-3 of said code; to amend and reenact §33-17-8 and 33-17-9 of said code;
to amend said code by adding thereto three new sections, designated §33-17A-4a, §33-17A-4b and
§33-17A-4c and to amend and reenact §33-20-4 of said code, all relating to insurance reforms;
allowing the Commissioner to permit automobile insurers to withdraw from doing business in this
state; requiring insurer to submit a plan; permitting promulgation of rules; redesignating a section
of the insurance code enacted as part of the bill assigning workers' compensation duties to the
Insurance Commissioner; clarifying that certain rules remain in effect; exempting commercial
insurance lines from the requirement of prior approval of rates and forms; establishing requires for
prior approval; creating a presumption of prospective relief when forms are disapproved and
providing factors to be considered in determining whether relief should be retroactive; defining
terms; providing definitions; clarifying that certain health insurance forms marketed to associations
must be filed with the Commissioner; providing that commercial and certain health insurance forms
marketed to associations are effective upon first use after filing; providing certain requirements for
association policies; clarifying that prior rate approval applies to health insurance certificates and
endorsements; providing for filing of fire and marine insurance rider or endorsement review;
providing an alternative method for nonrenewal of property insurance; providing a manner of
electing an alternative method; requiring report to the Legislature; providing for a notation of savings
on policies; and providing alternative methods of determining insurer liability in cases of loss to real property."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 435, Creating method municipal courts can recover certain uncollectible
fines; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 567),
and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Frich and Lane.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 435) passed.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the title to read as follows:
S. B. 435 -- "A Bill to amend and reenact §8-10-2b of the Code of West Virginia, 1931, as
amended; and to amend and reenact §17B-3-3c and §15B-3-9 of said code, all relating to
consequences of not paying fines and fees; requiring notice of possibility of withholding of income
tax refund under certain circumstances; providing that Tax Commissioner may withhold income tax
refund under certain circumstances; providing for distribution of income tax refund withheld;
providing Tax Commissioner's administrative fee; providing Tax Commissioner authority to
promulgate rules; authorizing reissuance of notice by municipal court under certain circumstances;
providing for continuance of driver's license suspension under certain circumstances; creating fund
for administrative fee and providing for expenditures from the fund; providing for consequences of
erroneous imposition of fines or fees; and increasing fees."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 456, Relating to cure offer from merchant or seller to consumer; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 568),
and there were--yeas 85, nays 13, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Barker, Butcher, Caputo, Eldridge, Hrutkay, Louisos, Manchin, Marshall, Martin,
Miley, Moore, Webster and Wells.
Absent And Not Voting: Fragale and Thompson, Ron.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 456) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 458, Permitting transfer of State Police for certain inappropriate
conduct; relocation expense; on third reading, coming up in regular order, with an amendment
pending, was reported by the Clerk.
On motion of Delegate Michael, the bill was amended on page two, section twenty, line four,
following the word "substantiated" by inserting the words "and substantial".
On page two, section twenty, line seven, following the word "conduct" by inserting the words
"that has occurred within the past four years and".
On page two, section twenty, line ten following the word "made" by inserting "for political
reasons or".
On page two, section twenty, line eleven following the word "paragraph" by inserting a
period and striking out the words "or political reasons" and the period.
On motion of Delegate Palumbo, the bill was amended on page four, section twenty, line
forty-five, following the word "family" and the period, by inserting the words "However, any
transferred member who was transferred because of inappropriate personal or professional conduct
shall only be given a relocation expense of three hundred dollars if the transfer necessitated the
relocation of the member's family."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 569), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Talbott and Tucker.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 458) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 558, Relating to management and investment of public funds; on third
reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous
consent, placed at the foot of the calendar.
Com. Sub. for S. B. 588, Relating to cruelty to animals and intervention program for certain
youths; on third reading, coming up in regular order, with an amendment pending, was reported by
the Clerk.
On motion of Delegate Amores, the bill was amended on page three, line eighteen, after "(b)"
by striking out the remainder of the bill and inserting in lieu thereof the following:
"The Department of Juvenile Services shall establish a task force to create an Animal Cruelty
Early Intervention Program. Services provided by the Department for Juvenile Services in the
Animal Cruelty Early Intervention Program shall be consistent with the provisions of article five-b
of this chapter and shall be designed to develop skills and supports within families and to resolve
problems related to the juveniles who have engaged in animal cruelty. Services may include, but are
not limited to, referral of juveniles and parents, guardians or custodians and other family members
to services for psychiatric or other medical care, or psychological, welfare, legal, educational or other
social services, as appropriate to the needs of the juvenile and his or her family.
(c) The effective date for this section is the first day of July, two thousand six.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-19. Cruelty to animals; penalties; exclusions.
(a) If any person cruelly mistreats, abandons or withholds proper sustenance, including food,
water, shelter or medical treatment, necessary to sustain normal health and fitness or to end suffering
or abandons any animal to die, or intentionally, knowingly or recklessly leaves an animal unattended
and confined in a motor vehicle when physical injury to or death of the animal is likely to result, or
rides an animal when it is physically unfit, or baits or harasses any animal for the purpose of making
it perform for a person's amusement, or cruelly chains any animal or uses, trains or possesses any
domesticated animal for the purpose of seizing, detaining or maltreating any other domesticated
animal, he or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less
than three hundred nor more than one two thousand dollars or confined in jail not more than six
months, or both.
(b) If any person intentionally tortures, or mutilates or maliciously kills an animal, or causes,
procures or authorizes any other person to torture, mutilate or maliciously kill an animal, he or she
is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility not less
than one nor more than three five years and be fined not less than one thousand dollars nor more than
five thousand dollars. For the purposes of this subsection, 'torture' means an action taken for the
primary purpose of inflicting pain.
(c) Any person, other than a licensed veterinarian or a person acting under the direction or
with the approval of a licensed veterinarian, who knowingly and willfully administers or causes to
be administered to any animal participating in any contest any controlled substance or any other drug
for the purpose of altering or otherwise affecting said animal's performance is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less than one five hundred nor more
than one two thousand dollars.
(d) Any person convicted of a violation of this section shall forfeit his or her interest in any
animal and all interest in the animal shall vest in the humane society or county pound of the county
in which said the conviction was rendered and the person shall, in addition to any fine imposed, be
liable for any costs incurred or to be incurred by the humane society or county pound as a result.
(e) For the purpose of this section, the term 'controlled substance' shall have has the same
meaning ascribed to it by subsection (d), section one hundred one, article one, chapter sixty-a of this code.
(f) The provisions of this section do not apply to lawful acts of hunting, fishing, trapping or
animal training or farm livestock, poultry, gaming fowl or wildlife kept in private or licensed game
farms if kept and maintained according to usual and accepted standards of livestock, poultry, gaming
fowl or wildlife or game farm production and management, nor to humane use of animals or
activities regulated under and in conformity with the provisions of 7 U. S. C. §2131, et seq., and the
regulations promulgated thereunder, as both statutes and regulations are in effect on the effective
date of this section.
(g) Notwithstanding the provisions of subsection (a) of this section, any person convicted of
a second or subsequent violation of said subsection is guilty of a misdemeanor and shall be confined
in jail for a period of not less than ninety days nor more than one year, fined not less than five
hundred dollars nor more than two three thousand dollars, or both. The incarceration set forth in this
subsection shall be mandatory unless the provisions of subsection (h) of this section are complied
with.
(h) (1) Notwithstanding any provision of this code to the contrary, no person who has been
convicted of a violation of the provisions of subsection (a) or (b) of this section may be granted
probation until the defendant has undergone a complete psychiatric or psychological evaluation and
the court has reviewed the evaluation. Unless the defendant is determined by the court to be
indigent, he or she shall be responsible for the cost of said evaluation.
(2) For any person convicted of a violation of subsection (a) or subsection (b) of this section,
the court may, in addition to the penalties provided in this section, impose a requirement that he or
she complete a program of anger management intervention for perpetrators of animal cruelty. Unless
the defendant is determined by the court to be indigent, he or she shall be responsible for the cost
of the program.
(i) In addition to any other penalty which can be imposed for a violation of this section, a
court shall prohibit any person so convicted from possessing, owning or residing with any animal
or type of animal for a period of five years following entry of a misdemeanor conviction and fifteen
years following entry of a felony conviction. A violation under this subsection is a misdemeanor punishable by a fine not exceeding two thousand dollars and forfeiture of the animal."
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 570),
and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being
as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 588) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 603, Relating to higher education; on third reading, coming up in
regular order, was, at the request of Delegate Staton, and by unanimous consent, laid over one day.
S. B. 664, Providing county clerk assist Secretary of State in determining validity of
nominating petitions; on third reading, coming up in regular order, was, on motion of Delegate
Staton, laid upon the table.
Com. Sub. for S. B. 674, Relating to textbook sales at public institutions of higher
education; on third reading, coming up in regular order, with an amendment pending, was reported
by the Clerk.
An amendment, recommended by the Committee on Education, was reported by the Clerk
and adopted, amending the bill on page one, by striking out everything after the enacting section and
inserting in lieu thereof the following:
"ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-14. Bookstores.
(a) Each governing board may establish and operate a bookstore at the institutions under its
jurisdiction to sell books, stationery and other school and office supplies generally carried in college
bookstores.
(b) The prices to be charged may not be less than the prices fixed by any fair trade agreements and shall, in all cases, include in addition to the purchase price paid by the bookstore, a sufficient
handling charge to cover all expenses incurred for personal and other services, supplies and
equipment, storage and other operating expenses.
(c) Each governing board also shall ensure that bookstores operated at institutions under its
jurisdiction meet the additional objective of minimizing minimize the costs to students of purchasing
textbooks. by adopting policies The governing board may:
(1) which may Require the repurchase and resale of textbooks on an institutional or a
statewide basis; and
(2) Provide for the use of certain basic textbooks for a reasonable number of years.
(d) The Legislature recognizes that in two thousand four, the Congress of the United States
commissioned the United States Government Accountability Office to study the high prices of
college textbooks. Upon completion of the study the Legislative Oversight Commission on
Education Accountability shall obtain the results and any related reports produced by the Office.
(e) An employee of a governing board:
(1) May not:
(A) Receive a payment, loan, subscription, advance, deposit of money, service, benefit or
thing of value, present or promised, as an inducement for requiring students to purchase a specific
textbook for coursework or instruction; or
(B) Require for any course a textbook that includes his or her own writing or work if the
textbook incorporates either detachable worksheets or workbook-style pages intended to be written
on or removed from the textbook. This provision does not prohibit an employee from requiring as
a supplement to a textbook any workbook or similar material which is published independently from
the textbook; and
(2) May receive:
(A) Sample copies, instructor's copies and instructional material which are not to be sold;
and
(B) Royalties or other compensation from sales of textbooks that include the employee's own
writing or work.
(f) A governing board shall provide to students a listing of textbooks required or assigned
for any course offered at the institution.
(1) The listing shall be prominently posted:
(A) In a central location at the institution;
(B) In any campus bookstore; and
(C) On the institution's website.
(2) The list shall include for each textbook the International Standard Book Number (ISBN),
the edition number and any other relevant information.
(3) An institution shall post a book to the listing when the adoption process is complete and
the textbook is designated for order by the bookstore.
(d) (g) All moneys derived from the operation of the bookstore shall be paid into a special
revenue fund as provided in section two, article two, chapter twelve of this code. Subject to the
approval of the Governor, each governing board periodically shall change the amount of the
revolving fund necessary for the proper and efficient operation of each bookstore.
(e) (h) Moneys derived from the operation of the bookstore shall be used first to replenish
the stock of goods and to pay the costs of operating and maintaining the bookstore. Notwithstanding
any other provision of this section, any institution that has contracted with a private entity for
bookstore operation shall deposit into an appropriate account all revenue generated by the operation
and enuring to the benefit of the institution. The institution shall use the funds for nonathletic
scholarships.
(i) Each governing board shall promulgate a rule in accordance with the provisions of section
six, article one of this chapter to implement the provisions of this section.
(j) This section applies to textbook sales and bookstores supported by an institution's
auxiliary services and those operated by a private contractor."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 571),
and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Ellem.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 674) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 674 - "A Bill to amend and reenact §18B-10-14 of the Code of West
Virginia, 1931, as amended, relating to state institution of higher education bookstore operations and
textbook sales; minimizing costs to students; requiring Legislative Oversight Commission on
Education Accountability to obtain certain textbook study report; prohibiting institution employees
from receiving benefits for requiring specific textbooks and providing exceptions; requiring
institutions to post listing of required textbooks at certain campus locations; requiring institutions
to promulgate a rule governing textbook sales and bookstore operations; and application to
bookstores operated by private contractor and institutional auxiliary services."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 684, Relating to imposition of tax on privilege of severing natural gas or oil; on third
reading, coming up in regular order, with an amending pending, was reported by the Clerk.
On motion of Delegate Michael, the bill was amended on page two, following the enacting
clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §11-13A-3a, §11-13A-3b and §11-13A-3d of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended by adding thereto a new section,
designated §11-13A-5b, all to read as follows:
ARTICLE 13A. SEVERANCE TAXES.
§11-13A-3a. Imposition of tax on privilege of severing natural gas or oil; Tax Commissioner
to develop a uniform reporting form.
(a) Imposition of tax. -- For the privilege of engaging or continuing within this state in the
business of severing natural gas or oil for sale, profit or commercial use, there is hereby levied and shall be collected from every person exercising such privilege an annual privilege tax: Provided,
That effective for all taxable periods beginning on or after the first day of January, two thousand,
there is an exemption from the imposition of the tax provided for in this article on the following:
(1) Free natural gas provided to any surface owner; (2) natural gas produced from any well which
produced an average of less than five thousand cubic feet of natural gas per day during the calendar
year immediately preceding a given taxable period; (3) oil produced from any oil well which
produced an average of less than one-half barrel of oil per day during the calendar year immediately
preceding a given taxable period; and (4) for a maximum period of ten years, all natural gas or oil
produced from any well which has not produced marketable quantities of natural gas or oil for five
consecutive years immediately preceding the year in which a well is placed back into production and
thereafter produces marketable quantities of natural gas or oil.
(b) Rate and measure of tax. --
(1) The tax imposed in subsection (a) of this section shall be five percent of the gross value
of the natural gas or oil produced, as shown by the gross proceeds derived from the sale thereof by
the producer, except as otherwise provided in this article.
(2) With respect to natural gas produced from wells placed in service on or before the
thirtieth day of November, two thousand five, the tax imposed in subsection (a) of this section shall
be five percent of the gross value of the natural gas produced, as shown by the gross proceeds
derived from the sale thereof by the producer, except as otherwise provided in this article.
(3) With respect to natural gas produced from wells placed in service on or after the first day
of December, two thousand five, the tax imposed in subsection (a) of this section shall be four
percent of the gross value of the natural gas produced, as shown by the gross proceeds derived from
the sale thereof by the producer, except as otherwise provided in this article.
(c) Tax in addition to other taxes. -- The tax imposed by this section shall apply to all persons
severing gas or oil in this state, and shall be in addition to all other taxes imposed by law.
(d)(1) The Legislature finds that in addition to the production reports and financial records
which must be filed by oil and gas producers with the State Tax Commissioner in order to comply
with this section, oil and gas producers are required to file other production reports with other agencies, including, but not limited to, the office of oil and gas, the Public Service Commission and
county assessors. The reports required to be filed are largely duplicative, the compiling of the
information in different formats is unnecessarily time consuming and costly, and the filing of one
report or the sharing of information by agencies of government would reduce the cost of compliance
for oil and gas producers.
(2) On or before the first day of July, two thousand three, the Tax Commissioner shall design
a common form that may be used for each of the reports regarding production that are required to
be filed by oil and gas producers, which form shall readily permit a filing without financial
information when such information is unnecessary. The Commissioner shall also design such forms
so as to permit filings in different formats, including, but not limited to, electronic formats.
§11-13A-3b. Imposition of tax on privilege of severing timber.
(a) Imposition of tax. -- For the privilege of engaging or continuing within this state in the
business of severing timber for sale, profit or commercial use, there is hereby levied and shall be
collected from every person exercising such privilege an annual privilege tax.
(b) Rate and measure of tax. -- The tax imposed in subsection (a) of this section shall be
three and twenty-two hundredths percent of the gross value of the timber produced, as shown by the
gross proceeds derived from the sale thereof by the producer, except as otherwise provided in this
article: Provided, That the tax imposed in subsection (a) of this section on timber produced on or
after the first day of December, two thousand five, shall be one and twenty-two hundredths percent
of the gross value of the timber produced, as shown by the gross proceeds derived from the sale
thereof by the producer, except as otherwise provided in this article.
(c) Tax in addition to other taxes. -- The tax imposed by this section shall apply to all
persons severing timber in this state, and shall be in addition to all other taxes imposed by law.
(d) Effective date. -- This section, as amended in the year one thousand nine hundred
ninety-three, shall apply to gross proceeds derived after the thirty-first day of May of such year. The
language of section three of this article, as in effect on the first day of January of such year, shall
apply to gross proceeds derived prior to the first day of June of such year and, with respect to such
gross income, shall be fully and completely preserved.
§11-13A-3d. Imposition of tax on privilege of severing coalbed methane.
(a) The Legislature hereby finds and declares the following:
(1) That coalbed methane is underdeveloped and an under-utilized resource within this state
which, where practicable, should be captured and not be vented or wasted;
(2) The health and safety of persons engaged in coal mining is a paramount concern to the
state. The Legislature intends to preserve coal seams for future safe mining, to facilitate the
expeditious, safe evacuation of coalbed methane from the coalbeds of this state, and to ensure the
safety of miners by encouraging the advance removal of coalbed methane;
(3) The United States Environmental Protection Agency's Coalbed Methane Outreach
Program encourages United States coal mines in the United States to remove and use methane that
is otherwise wasted during mining. These projects have important economic benefits for the mines
and their local economies while they also reduce emissions of methane; and
(4) The initial costs of development of coalbed methane wells can be large in comparison to
conventional wells and deoxygenation and water removal increase development expenditures.
The Legislature, therefore, concludes that an incentive to coalbed methane development
should be implemented to encourage capture of methane gas that would otherwise be vented to the
atmosphere.
(b) Imposition of tax. -- In lieu of the annual privilege tax imposed on the severance of
natural gas or oil pursuant to section three-a, article thirteen-a, for the privilege of engaging or
continuing within this state in the business of severing coalbed methane for sale, profit or
commercial use, there is hereby levied and shall be collected from every person exercising such
privilege an annual privilege tax: Provided, That effective for taxable years beginning on or after
the first day of January, two thousand one, there is an exemption from the imposition of the tax
provided for in this article for a maximum period of five years for all coalbed methane produced
from any coalbed methane well placed in service after the first day of January, two thousand. For
purposes of this section, the terms "coalbed methane" and "coalbed methane well" have the meaning
ascribed to them in section two, article twenty-one, chapter twenty-two of this code. The exemption
from tax provided by this section is applicable to any coalbed methane well placed in service before
the first day of January, two thousand eleven December, two thousand five.
(c) Rate and measure of tax. -- The tax imposed on subsection (b) of this section is five
percent of the gross value of the coalbed methane produced, as shown by the gross proceeds derived
from the sale thereof by the producer, except as otherwise provided in this article: Provided, That
for tax years beginning on or after the first day of January, two thousand five, the tax imposed in
subsection (b) of this section is four percent of the gross value of the coalbed methane gas produced
on or after the first day of December, two thousand five, as shown by the gross proceeds derived
from the sale thereof by the producer, except as otherwise provided in this article.
(d) Tax in addition to other taxes. -- The tax imposed by this section applies to all persons
severing coalbed methane in this state, and is in addition to all other taxes imposed by law.
(e) Except as specifically provided in this section, application of the provisions of this article
apply to coalbed methane in the same manner and with like effect as the provisions apply to natural
gas.
§11-13A-5b. Dedication of ten percent of coalbed methane severance tax for benefit of
counties and municipalities; distribution of major portion of such
dedicated tax to coalbed methane producing counties; distribution of
minor portion of such dedicated tax to all counties and municipalities;
reports; rules; special funds in the office of state treasurer; methods
and formulae for distribution of such dedicated tax; expenditure of
funds by counties and municipalities for public purposes; and requiring
special county and municipal budgets and reports thereon.
(a) Effective the first day of December, two thousand five, ten percent of the tax attributable
to the severance of coalbed methane imposed by section three-d of this article is hereby dedicated
for the use and benefit of counties and municipalities within this state and shall be distributed to the
counties and municipalities as provided in this section.
(b) Seventy-five percent of this dedicated tax shall be distributed by the state treasurer in the
manner specified in this section to the various counties of this state in which the coalbed methane
upon which this additional tax is imposed was located at the time it was removed from the ground.
Those counties are referred to in this section as the "coalbed methane producing counties". The remaining twenty-five percent of the net proceeds of this additional tax on coalbed methane shall be
distributed among all the counties and municipalities of this state in the manner specified in this
section.
(c) The tax commissioner is hereby granted plenary power and authority to promulgate
reasonable rules requiring the furnishing by coalbed methane producers of such additional
information as may be necessary to compute the allocation required under the provisions of
subsection (f) of this section. The tax commissioner is also hereby granted plenary power and
authority to promulgate such other reasonable rules as may be necessary to implement the provisions
of this section.
(d) In order to provide a procedure for the distribution of seventy-five percent of the
dedicated tax on coalbed methane to the coalbed methane producing counties, a special fund known
as the "coalbed methane county revenue fund" is hereby established in the state treasurer`s office.
In order to provide a procedure for the distribution of the remaining twenty-five percent of the
dedicated tax on coalbed methane to all counties and municipalities of the state, without regard to
coalbed methane having been produced in those counties or municipalities, a special fund known
as the "all counties and municipalities coalbed methane revenue fund" is hereby established in the
state treasurer's office. Seventy-five percent of the dedicated tax on coalbed methane shall be
deposited in the "coalbed methane county revenue fund" and twenty-five percent of the dedicated
tax on coalbed methane shall be deposited in the "all counties and municipalities coalbed methane
revenue fund", from time to time, as the proceeds are received by the tax commissioner. The moneys
in the funds shall be distributed to the respective counties and municipalities entitled to the moneys
in the manner set forth in subsection (e) of this section.
(e) The moneys in the "coalbed methane county revenue fund" and the moneys in the "all
counties and municipalities coalbed methane revenue fund" shall be allocated among and distributed
annually to the counties and municipalities entitled to the moneys by the state treasurer in the manner
specified in this section. On or before each distribution date, the state treasurer shall determine the
total amount of moneys in each fund which will be available for distribution to the respective
counties and municipalities entitled to the moneys on that distribution date. The amount to which an coalbed methane producing county is entitled from the "coalbed methane county revenue fund"
shall be determined in accordance with subsection (f) of this section, and the amount to which every
county and municipality shall be entitled from the "all counties and municipalities coalbed methane
revenue fund" shall be determined in accordance with subsection (g) of this section. After
determining, as set forth in subsections (f) and (g) of this section, the amount each county and
municipality is entitled to receive from the respective fund or funds, a warrant of the state auditor
for the sum due to the county or municipality shall issue and a check drawn thereon making payment
of the sum shall thereafter be distributed to the county or municipality.
(f) The amount to which an coalbed methane producing county is entitled from the "coalbed
methane county revenue fund" shall be determined by dividing the total amount of moneys in the
fund derived from tax on the severance of coalbed methane then available for distribution by the total
volume of cubic feet of coalbed methane extracted in this state during the preceding year and
multiplying the quotient thus obtained by the number of cubic feet of coalbed methane taken from
the ground in the county during the preceding year.
(g) The amount to which each county and municipality is entitled from the "all counties and
municipalities coalbed methane revenue fund" shall be determined in accordance with the provisions
of this subsection. For purposes of this subsection "population" means the population as determined
by the most recent decennial census taken under the authority of the United States:
(1) The treasurer shall first apportion the total amount of moneys available in the "all
counties and municipalities coalbed methane revenue fund" by multiplying the total amount in the
fund by the percentage which the population of each county bears to the total population of the state.
The amount thus apportioned for each county is the county`s "base share".
(2) Each county`s "base share" shall then be subdivided into two portions. One portion is
determined by multiplying the "base share" by that percentage which the total population of all
unincorporated areas within the county bears to the total population of the county, and the other
portion is determined by multiplying the "base share" by that percentage which the total population
of all municipalities within the county bears to the total population of the county. The former portion
shall be paid to the county and the latter portion shall be the "municipalities` portion" of the county`s "base share". The percentage of the latter portion to which each municipality in the county is entitled
shall be determined by multiplying the total of the latter portion by the percentage which the
population of each municipality within the county bears to the total population of all municipalities
within the county.
(h) Moneys distributed to any county or municipality under the provisions of this section,
from either or both special funds, shall be deposited in the county or municipal general fund and may
be expended by the county commission or governing body of the municipality for such purposes as
the county commission or governing body shall determine to be in the best interest of its respective
county or municipality: Provided, That in counties with population in excess of two hundred
thousand, at least seventy-five percent of the funds received from the coalbed methane county
revenue fund shall be apportioned to and expended within the coalbed methane producing area or
areas of the county, the coalbed methane producing areas of each county to be determined generally
by the state tax commissioner: Provided, however, That the moneys distributed to any county or
municipality under the provisions of this section shall not be budgeted for personal services in an
amount to exceed one fourth of the total amount of the moneys.
(i) On or before the first day of November, two thousand five and each first day of November
thereafter, each county commission or governing body of a municipality receiving any such moneys
shall submit to the tax commissioner on forms provided by the tax commissioner a special budget,
detailing how the moneys are to be spent during the subsequent fiscal year. The budget shall be
followed in expending the moneys unless a subsequent budget is approved by the state tax
commissioner. All unexpended balances remaining in the county or municipality general fund at the
close of a fiscal year shall remain in the general fund and may be expended by the county or
municipality without restriction.
(j) On or before the fifteenth day of December, two thousand five, and each fifteenth day of
December thereafter, the tax commissioner shall deliver to the clerk of the Senate and the clerk of
the House of Delegates a consolidated report of the budgets, created by subsection (i) of this section,
for all county commissions and municipalities as of the fifteenth day of July of the current year.
(k) The state tax commissioner shall retain for the benefit of the state from the dedicated tax attributable to the severance of coalbed methane the amount of thirty-five thousand dollars annually
as a fee for the administration of the additional tax by the tax commissioner."
The bill was then read a third time.
Delegate Armstead requested to be excused from voting under the provisions of House Rule
49, and the Speaker refused to excuse the Gentleman from voting, stating that he was a member of
a class of person to possibly be affected by the passage of the bill.
The Speaker further stated that this ruling will stand as the judgment of the Chair and of the
House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as
established by our sovereign, non-reviewable Constitutional authority, and shall be binding in all
other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 572),
and there were--yeas 91, nays 8, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Browning, Caputo, Hunt, Longstreth, Louisos, Manchin, Porter and Staton.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 684) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 700, Creating Community Infrastructure Investment Program within
Department of Commerce; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 573),
and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Leggett and Romine.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 700) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 700 -- "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §22-28-1, §22-28-2, §22-28-3, §22-28-4, §22-28-5, §22-28-6, §22-
28-7, §22-28-8 and §22-28-9, all relating to the creation of a Community Infrastructure Investment
Program within the Department of Environmental Protection; legislative findings; definitions;
granting rule-making authority; authority to promulgate emergency rules; establishing process for
issuance of certificate of appropriateness; providing for community infrastructure investment
agreements; setting minimum terms; authority of Division of Health and Department of
Environmental Protection not affected; requiring report to Joint Committee on Government and
Finance; providing for administrative fees; establishing exemption from authority of Public Service
Commission; and setting time limits for approval."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 705, Delaying effective date of Municipal Sales and Service Tax and Municipal Use
Tax; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 574),
and there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Anderson, Hall, Trump and Wakim.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 705) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 575), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 705) 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.
S. B. 741, Exempting farming equipment and livestock from personal property tax; on third
reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
Delegate Michael offered the following amendment:
On page one, following the enacting section, by striking out the remainder of the bill and
inserting in lieu thereof the following:
"ARTICLE 3. ASSESSMENTS GENERALLY.
§11-3-9. Property exempt from taxation.
(a) All property, real and personal, described in this subsection, and to the extent herein
limited, is exempt from taxation:
(1) Property belonging to the United States, other than property permitted by the United
States to be taxed under state law;
(2) Property belonging exclusively to the state;
(3) Property belonging exclusively to any county, district, city, village or town in this state,
and used for public purposes;
(4) Property located in this state, belonging to any city, town, village, county or any other
political subdivision of another state, and used for public purposes;
(5) Property used exclusively for divine worship;
(6) Parsonages and the household goods and furniture pertaining thereto;
(7) Mortgages, bonds and other evidence of indebtedness in the hands of bona fide owners
and holders hereafter issued and sold by churches and religious societies for the purposes of securing
money to be used in the erection of church buildings used exclusively for divine worship, or for the
purpose of paying indebtedness thereon;
(8) Cemeteries;
(9) Property belonging to, or held in trust for, colleges, seminaries, academies and free
schools, if used for educational, literary or scientific purposes, including books, apparatus, annuities and furniture;
(10) Property belonging to, or held in trust for, colleges or universities located in West
Virginia, or any public or private nonprofit foundation or corporation which receives contributions
exclusively for such college or university, if the property or dividends, interest, rents or royalties
derived therefrom are used or devoted to educational purposes of such college or university;
(11) Public and family libraries;
(12) Property used for charitable purposes, and not held or leased out for profit;
(13) Property used for the public purposes of distributing water or natural gas, or providing
sewer service by a duly chartered nonprofit corporation when such property is not held, leased out
or used for profit;
(14) Property used for area economic development purposes by nonprofit corporations when
such property is not leased out for profit;
(15) All real estate not exceeding one acre in extent, and the buildings thereon, used
exclusively by any college or university society as a literary hall, or as a dormitory or clubroom, if
not used with a view to profit, including, but not limited to, property owned by a fraternity or sorority
organization affiliated with a university or college, or property owned by a nonprofit housing
corporation or similar entity on behalf of a fraternity or sorority organization affiliated with a
university or college, when the property is used as residential accommodations, or as a dormitory for
members of the organization;
(16) All property belonging to benevolent associations, not conducted for private profit;
(17) Property belonging to any public institution for the education of the deaf, dumb or blind,
or any hospital not held or leased out for profit;
(18) Houses of refuge and mental health facility or orphanage facilities or orphanages;
(19) Homes for children or for the aged, friendless or infirm, not conducted for private profit;
(20) Fire engines and implements for extinguishing fires, and property used exclusively for
the safekeeping thereof, and for the meeting of fire companies;
(21) All property on hand to be used in the subsistence of livestock on hand at the
commencement of the assessment year;
(22) Household goods to the value of two hundred dollars, whether or not held or used for
profit;
(23) Bank deposits and money;
(24) Household goods, which for purposes of this section means only personal property and
household goods commonly found within the house and items used to care for the house and its
surrounding property, when not held or used for profit;
(25) Personal effects, which for purposes of this section means only articles and items of
personal property commonly worn on or about the human body, or carried by a person and normally
thought to be associated with the person when not held or used for profit;
(26) Dead victuals laid away for family use;
(27) All property belonging to the state, any county, district, city, village, town or other
political subdivision, or any state college or university which is subject to a lease purchase agreement
and which provides that, during the term of the lease purchase agreement, title to the leased property
rests in the lessee so long as lessee is not in default or shall not have terminated the lease as to the
property; and
(28) Personal property, including livestock, employed exclusively in agriculture, as defined
in article ten, section one of the West Virginia Constitution, the products of agriculture, and while
owned by the producer; and
(28) (29) Any other property or security exempted by any other provision of law.
(b) Notwithstanding the provisions of subsection (a) of this section, no property is exempt
from taxation which has been purchased or procured for the purpose of evading taxation, whether
temporarily holding the same over the first day of the assessment year or otherwise.
(c) Real property which is exempt from taxation by subsection (a) of this section shall be
entered upon the assessor's books, together with the true and actual value thereof, but no taxes may
be levied upon the property or extended upon the assessor's books.
(d) Notwithstanding any other provisions of this section, this section does not exempt from
taxation any property owned by, or held in trust for, educational, literary, scientific, religious or other
charitable corporations or organizations, including any public or private nonprofit foundation or corporation existing for the support of any college or university located in West Virginia, unless such
property, or the dividends, interest, rents or royalties derived therefrom, is used primarily and
immediately for the purposes of the corporations or organizations.
(e) The Tax Commissioner shall, by issuance of rules, provide each assessor with guidelines
to ensure uniform assessment practices statewide to effect the intent of this section.
(f) Inasmuch as there is litigation pending regarding application of this section to property
held by fraternities and sororities, amendments to this section enacted in the year one thousand nine
hundred ninety-eight shall apply to all cases and controversies pending on the date of such
enactment.
(g) The amendment to subdivision (27), subsection (a) of this section, passed during the two
thousand five regular session of the Legislature, shall apply to all applicable lease purchase
agreements in existence upon the effective date of the amendment."
Delegate Louisos then moved to amend the amendment on page five, section nine, by
striking out lines seventy and seventy-one and inserting in lieu thereof the following:
"(22) All household goods and motor vehicles, whether or not held or used for profit."
Delegate Beach arose to a point of order as to germaneness of the amendment, which point
of order the Speaker ruled was well taken.
The amendment offered by Delegate Michael was then adopted.
The bill was then read a third time.
The Speaker stated that various members had requested rulings under the provisions of House
Rule 49 and he requested that all members who owned farms to stand, and they were:
Delegates Tucker, Stemple, Michael, Mahan, Susman, Crosier, Poling, Butcher, Paxton,
Tabb, Eldridge, Hrutkay, Proudfoot, Perdue, Williams, Hartman, Rick Thompson, Walters,
Hamilton, Azinger, Evans, Anderson, Border, Porter, Overington and Blair.
To those members, the Speaker ruled that they were members of a class of person to possibly
be affected by the passage of the bill and he refused to excuse them from voting thereon.
The Speaker further stated that this ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as
established by our sovereign, non-reviewable Constitutional authority, and shall be binding in all
other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 576),
and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being
as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 741) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 751, Making supplementary appropriation to Department of Transportation, Division
of Motor Vehicles; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 577), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 751) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 578), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 751) takes effect form its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Note From the Clerk of the House of Delegates: Due to the extreme volume in this Journal and the exceptionally late hour, the remainder of this day's Journal will be completed at a
later date.