WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-SECOND LEGISLATURE

REGULAR SESSION, 2016

THIRTY-EIGHTH DAY

____________

Charleston, W. Va., Friday, February 19, 2016

The Senate met at 11 a.m.

(Senator Cole, Mr. President, in the Chair.)

Prayer was offered by the Reverend Gary Nelson, Cross Lanes United Methodist Church, Cross Lanes, West Virginia

The Senate was then led in recitation of the Pledge of Allegiance by the Honorable Jeffrey V. Kessler, a senator from the second district.

Pending the reading of the Journal of Thursday, February 18, 2016,

At the request of Senator Ferns, unanimous consent being granted, the Journal was approved and the further reading thereof dispensed with.

The Senate proceeded to the second order of business and the introduction of guests.

On motion of Senator Carmichael, the Senate recessed for five minutes to permit Kelli Chattin to address the Senate on behalf of the Frasure-Singleton Student Legislative Program.

Upon expiration of the recess, the Senate reconvened and proceeded to the third order of business.

A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of

Eng. Com. Sub. for House Bill 2904--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-2-4, to amend said code by adding thereto a new section, designated §7-1-3pp, and, to amend and reenact §7‑1‑7 of said Code, all relating to accessible county records; requiring county clerks to report certain county official information to the Secretary of State annually; requiring the Secretary of State to annually update a website of county information; requiring county commissions to maintain a website; and requiring the clerk of a county commission to maintain a county ordinance book.

Referred to the Committee on Government Organization.

A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of

Eng. Com. Sub. for House Bill 4174--A Bill to amend and reenact §20-2-58 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-6-23 of said code, all relating to indoor shooting ranges; exempting activity at indoor shooting ranges from the prohibition of shooting or discharging a firearm within five hundred feet of any church or dwelling house; amending the definition of "shooting range" to include an indoor range; exempting activity at indoor shooting ranges from criminal penalties for violations for shooting or discharging a firearm within five hundred feet of any church or dwelling house; and limiting nuisance actions against shooting ranges.

Referred to the Committee on the Judiciary.

A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of

Eng. Com. Sub. for House Bill 4467--A Bill to amend and reenact §18-2-7c of the Code of West Virginia, 1931, as amended, relating to including financial aid planning and completion of the Free Application for Federal Student Aid in secondary school instruction in personal finance; including building student familiarity with variety of additional free resources to plan, apply and pay for education and training beyond high school; making finding and declaration; and providing for development and availability of curriculum and instructional resources.

Referred to the Committee on Education.

The Senate proceeded to the fourth order of business.

Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Bill 48, Establishing Mental Health, Veteran and Service Members Court.

And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.

Respectfully submitted,

Charles S. Trump IV,

Chair.

The bill, under the original double committee reference, was then referred to the Committee on Finance.

Senator Sypolt, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration

Senate Bill 134, Establishing task force to study impact of any state 2- or 4-year campus closure.

And has amended same.

And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Government Organization.

Respectfully submitted,

Dave Sypolt,

Chair.

The bill, under the original double committee reference, was then referred to the Committee on Government Organization, with amendments from the Committee on Education pending.

Senator Boso, from the Committee on Energy, Industry and Mining, submitted the following report, which was received:

Your Committee on Energy, Industry and Mining has had under consideration

Senate Bill 180, DEP, Water and Waste Management rule relating to requirements governing water quality standards.

And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.

Respectfully submitted,

Gregory L. Boso,

Chair.

The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.

Senator Hall, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration

Senate Bill 420, Increasing tax rate on cigarette and tobacco products.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 420 (originating in the Committee on Finance)--A Bill to amend and reenact §11-17-3 and §11-17-4 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §11-17-4b, all relating to increasing tax rate on cigarettes and tobacco products; dedicating $1 million to tobacco cessation programs; dedicating a portion of the proceeds to Public Employees Insurance Agency; requiring a physical inventory of tax stamps and tobacco products and e-cigarette liquids upon the effective date of tax imposition or tax rate increase; applying tax rate changes to inventories; requiring a report of such inventory be filed sixty days after the effective date of the tax imposition or tax rate change; levying the excise tax on e-cigarette liquid; defining terms; providing for administration of the tax on e-cigarette liquid; specifying penalty for failure to file required reports; specifying criminal sanctions; and specifying effective date.

With the recommendation that the committee substitute do pass.

Respectfully submitted,

Mike Hall,

Chair.

Senator Ferns, from the Committee on Health and Human Resources, submitted the following report, which was received:

Your Committee on Health and Human Resources has had under consideration

Senate Bill 454, Requiring prescriptions for opioid antagonists be logged into Controlled Substances Monitoring Program.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 454 (originating in the Committee on Health and Human Resources)--A Bill to amend and reenact §60A-9-4, §60A-9-5, §60A-9-5a, §60A-9-7 and §60A-9-8 of the Code of West Virginia, 1931, as amended, all relating to the West Virginia Controlled Substances Monitoring Program database; requiring reporting when an opioid antagonist is dispensed by certain persons; clarifying code language related to seventy-two hour prescriptions; prohibiting licensing boards from issuing or reissuing licenses to practitioners who have not registered for the West Virginia Controlled Substances Monitoring Programs database; establishing a fine for failure to register for the West Virginia Controlled Substances Monitoring Program database; establishing a fine for failure to access the West Virginia Controlled Substances Monitoring Program as mandated by the code; providing exceptions to penalties; clarifying language related to the Fight Substance Abuse Fund; placing administrative authority over the Fight Substance Abuse Fund with the Bureau for Public Health; revising code language to use defined terms; and reorganizing existing code language.

With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.

Respectfully submitted,

Ryan J. Ferns,

Chair.

The bill (Com. Sub. for S. B. 454), under the original double committee reference, was then referred to the Committee on the Judiciary.

Senator Karnes, from the Committee on Natural Resources, submitted the following report, which was received:

Your Committee on Natural Resources has had under consideration

Senate Bill 485, Establishing regional recreation authorities and areas.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 485 (originating in the Committee on Natural Resources)--A Bill to amend and reenact §20-7-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §20-14A-1, §20-14A-2, §20-14A-3, §20-14A-4, §20-14A-5, §20-14A-6, §20-14A-7, §20-14A-8, §20-14A-9, §20-14A-10 and §20-14A-11; and to amend and reenact §20-15-1, §20-15-2, §20-15-3, §20-15-4 and §20-15-5 of said code, all relating to establishing regional recreation authorities and areas; establishing trails for off-highway recreational vehicle use; providing for reimbursement by authority for natural resources police officers or county sheriffs; authorizing creation of regional recreation authority as joint development entity formed by three or more contiguous counties; setting forth findings and definitions; establishing powers and composition of governing board; providing for financial review and oversight of public funds; prohibiting certain conduct in regional recreation area; establishing requirements for bidding and purchasing; prohibiting conflicts of interest; limiting liability; clarifying duties and responsibilities of participants to landowners and lessors in the regional recreation area; and establishing criminal penalties and civil remedies.

With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.

Respectfully submitted,

Robert Karnes,

Chair.

At the request of Senator Trump, as chair of the Committee on the Judiciary, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Natural Resources.

Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Bill 508, Relating to civil claims for private nuisance.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 508 (originating in the Committee on the Judiciary)–A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-30, relating generally to civil claims for private nuisance; establishing presuit notice and other requirements to bringing a civil claim for private nuisance; tolling the statute of limitations on private nuisance claims for sixty-one days after the required presuit notice is provided; establishing and defining a “permit shield” defense to claims for private nuisance; outlining the elements to that defense; providing for exceptions to that defense; and requiring an ownership or possessory interest to assert a claim for private nuisance.

With the recommendation that the committee substitute do pass.

Respectfully submitted,

Charles S. Trump IV,

Chair.

Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Bill 548, Relating to number of magistrates in certain counties.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 548 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §50-1-2 of the Code of West Virginia, 1931, as amended, relating to increasing the number of magistrates in Jefferson, Berkeley, Monongalia, Kanawha and Raleigh counties; and removing legislative findings and obsolete language regarding two studies.

With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.

Respectfully submitted,

Charles S. Trump IV,

Chair.

The bill (Com. Sub. for S. B. 548), under the original double committee reference, was then referred to the Committee on Finance.

Senator Boso, from the Committee on Energy, Industry and Mining, submitted the following report, which was received:

Your Committee on Energy, Industry and Mining has had under consideration

Senate Bill 565, Allowing well pad and road construction for oil and gas activities.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 565 (originating in the Committee on Energy, Industry and Mining)--A Bill to amend and reenact §22-6A-7 of the Code of West Virginia, 1931, as amended, relating to allowing well pad and road construction for oil and gas activities that are done pursuant to a storm water permit; clarifying that the requirements of the section apply only to well work permits and not storm water permits; and providing notice to property owners.

With the recommendation that the committee substitute do pass.

Respectfully submitted,

Gregory L. Boso,

Chair.

Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Bill 591, Relating to voter registration list maintenance and combined voter registration and driver licensing fund.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 591 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §3-2-4a and §3-2-12 of the Code of West Virginia, 1931, as amended, all relating to voter registration list maintenance and the Combined Voter Registration and Driver Licensing Fund; authorizing Secretary of State to enter into agreement with Division of Motor Vehicles for Division of Motor Vehicles to provide certain information; setting forth information to be provided by Division of Motor Vehicles; permitting Secretary of State to use information for voter registration list maintenance comparison through interstate data-sharing agreement as designated by Secretary of State; identifying additional permissible uses of funds in Combined Voter Registration and Driver Licensing Fund; and providing for periodic transfer of funds from that fund to Supreme Court of Appeals Public Campaign Financing Fund under certain circumstances.

With the recommendation that the committee substitute do pass.

Respectfully submitted,

Charles S. Trump IV,

Chair.

Senator Blair, from the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration

Senate Bill 617, Returning all salaried and hourly state employees to semimonthly payment schedule for wages.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 617 (originating in the Committee on Government Organization)--A Bill to amend and reenact §6-7-1 of the Code of West Virginia, 1931, as amended, relating to setting pay periods to a semi-monthly schedule for officers and employees of the state, state institutions of higher education and the Higher Education Policy Commission.

With the recommendation that the committee substitute do pass.

Respectfully submitted,

Craig Blair,

Chair.

On motion of Senator Blair, the bill (Com. Sub. for S. B. 617) contained in the foregoing report from the Committee on Government Organization was then referred to the Committee on Finance.

Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Joint Resolution 1, County Economic Development Amendment.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Joint Resolution 1 (originating in the Committee on the Judiciary)--Proposing an amendment to the Constitution of the State of West Virginia, amending article X thereof, by adding thereto a new section, designated section one-d, relating to authorizing the Legislature to, by general law, allocate a portion of ad valorem property taxes paid by owners of certain new manufacturing facilities and large capital additions to existing manufacturing facilities located in counties in which county commissions elect to fund infrastructure capital improvements, in whole or in part, using property taxes; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.

With the recommendation that the committee substitute be adopted; but under the original double committee reference first be referred to the Committee on Finance.

Respectfully submitted,

Charles S. Trump IV,

Chair.

The resolution (Com. Sub. for S. J. R. 1), under the original double committee reference, was then referred to the Committee on Finance.

The Senate proceeded to the sixth order of business.

On motions for leave, severally made, the following bills and joint resolution were introduced, read by their titles, and referred to the appropriate committees:

By Senator Snyder:

Senate Bill 633--A Bill to amend and reenact §24-2-1 and §24-2-2 of the Code of West Virginia, 1931, as amended, all relating generally to the Public Service Commission; clarifying certain responsibilities regarding those larger public service districts no longer under the commission’s control; and clarifying use of certain equitable rate-setting policies.

Referred to the Committee on Government Organization; and then to the Committee on Finance.

By Senators Cole (Mr. President) and Kessler (By Request of the Executive):

Senate Bill 634--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §17H-1-1, §17H-1-2, §17H-1-3, §17H-1-4, §17H-1-5, §17H-1-6, §17H-1-7, §17H-1-8 and §17H-1-9, all relating to the creation of the West Virginia Second Chance Driver’s License Act; short title; defining terms; providing legislative findings and purpose; directing the Director of the Division of Justice and Community Services to administer the program; setting eligibility requirements to become a program participant; requiring an accounting of all unpaid court costs; providing for development of a consolidated repayment schedule and monthly payment; requiring the Division of Justice and Community Services to collect and distribute unpaid court costs on a pro rata basis; establishing a moratorium on the collection of unpaid court fees by a court or its designee while a participant is in good standing with the program; providing standards for proof of compliance of good standing with the program; requiring the Division of Motor Vehicles to stay a driver’s license suspension with certain restrictions for a participant in good standing with the program; allowing the Division of Motor Vehicles to reinstate a suspension or revocation of a driver’s license under certain conditions; creating requirements for notice certification; creating a new account in the State Treasury; and providing legislative and emergency rule-making authority.

Referred to the Committee on the Judiciary.

By Senators Ashley, Carmichael and Gaunch:

Senate Bill 635--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-2-6b, relating to the limitation of action that applies to an action to recover the unpaid balance due upon a contract made by a consumer for the purchase of personal property containing terms of financing the purchase price.

Referred to the Committee on the Judiciary.

By Senators Plymale, Beach, Facemire, Kirkendoll, Prezioso, Romano, Stollings, Yost, Woelfel, Williams, Unger and Kessler:

Senate Bill 636--A Bill to amend and reenact §18A-4-2 of the Code of West Virginia, 1931, as amended, relating to increasing salaries for teachers through fiscal year 2020.

Referred to the Committee on Finance.

By Senators Trump and Gaunch:

Senate Bill 637--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §44-5B-1, §44-5B-2, §44-5B-3, §44-5B-4, §44-5B-5, §44-5B-6, §44-5B-7, §44-5B-8, §44-5B-9, §44-5B-10, §44-5B-11, §44-5B-12, §44-5B-13, §44-5B-14, §44-5B-15, §44-5B-16, §44-5B-17, §44-5B-18, §44-5B-19 and §44-5B-20, all relating to the West Virginia Uniform Fiduciary Access to Digital Assets Act of 2016; providing a short title; defining certain terms; setting forth to whom the article applies; providing for user direction for disclosure of assets; addressing terms of service agreements; setting forth a procedure for disclosing digital assets; providing for disclosure of the content of electronic communications of deceased users; providing for disclosure of content of electronic communications of a principal; addressing disclosure of digital assets of a principal; addressing disclosure of digital assets held in trust when the trustee is not the original owner or user; addressing disclosure of digital assets to a conservator of a protected person; setting forth a fiduciary’s duties and authority; providing for a custodian’s compliance and immunity; providing for the uniformity of the application and construction of the article; addressing the relation of the article to electronic signatures in global and national commerce act; providing for the severability of the article; and setting a date when the article takes effect.

Referred to the Committee on the Judiciary.

By Senators Walters, Mullins and Kessler:

Senate Bill 638--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-6-38, relating to defining certain key terms; prohibiting insurers, vision care plan or vision care discount plans from requiring vision care providers to provide discounts on noncovered services or materials; prohibiting eye care providers from charging more to enrollees for noncovered services than the normal and customary fee; providing that insurers, vision care plan or vision care discount plans may not provide for a nominal reimbursement in order to claim that a service or material is covered; prohibiting insurers, vision care plan or vision care discount plan from falsely representing benefits provided to sell coverage or communicate benefits to enrollees; prohibiting the requirement that eye care providers be credentialed through a designated vision plan; providing pay parity for optometrist and ophthalmologists; providing that optometrist and ophthalmologist be held to the same credentialing standards; prohibiting eye care providers from being required to accept all plans and discount plans offered by an insurer, vision care plan or vision care discount plan in order to be on a panel for the insurer, vision care plan or vision care discount plan; prohibiting the insurer, vision care plan or vision care discount plan from changing the terms of an agreement with an eye care provider without communication with and agreement from the eye care provider; permitting eye care providers to use any lab or supplier and notification of contract changes; creating a private right of action for eye care providers; placing limits on charge backs of administrative fees and other recoupments; providing that an insurer, vision care plan or vision care discount plan may not discriminate against a provider based on geographic location of the eye care provider; and authorizing suits for injunctions by persons aggrieved or by Insurance Commissioner and recovery of monetary damages, costs and attorney’s fees.

Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.

By Senators Plymale, Beach, Prezioso, Romano, Stollings, Yost, Williams and Unger:

Senate Joint Resolution 11--Proposing an amendment to the Constitution of the State of West Virginia, amending article X thereof by adding thereto a new section, designated section one-d, relating to homestead exemption increase; numbering and designating the proposed amendment; and providing a summarized statement of the purpose of the proposed amendment.

Referred to the Committee on the Judiciary; and then to the Committee on Finance.

Senators Miller, Plymale, Laird and Unger offered the following resolution:

Senate Concurrent Resolution 39—Requesting Division of Highways to name bridge numbered 13-60-41.35 (13A118), that intersects over Dry Creek, also known as the Dry Creek Bridge, located at latitude 37.79396, -80.30068 on Route 60, Main Street, in White Sulphur Springs, Greenbrier County, the “Clifford Family Memorial Bridge”.

Whereas, The Clifford family of Greenbrier County first settled in White Sulphur Springs in 1879 when John Joseph Clifford, then a railroad conductor, and his new bride, Mary Ann McDonough Clifford, arrived there to establish their residential home; and

Whereas, The Clifford family became prominent in White Sulphur Springs, where they built their home and raised their many children; and

Whereas, The Cliffords of Greenbrier County have a rich history of military service to this country, as two of John Joseph Clifford’s sons were recipients of the distinguished Silver Star; and

Whereas, Leo Michael Clifford, one of John Joseph Clifford’s sons, served in WWII in Meuse-Argonne, France, in the Argonne Forrest in the 116th Infantry, 29th Division and was wounded and received the Purple Heart for his distinguished and heroic service; and

Whereas, Both of Leo Michael Clifford’s sons, Leo Michael Clifford, Jr., and Thomas Rufus Clifford, served in the Korean War; Leo in the U. S. Army and Thomas in the U. S. Navy; and

Whereas, Many other members of the Clifford family played important and pivotal roles in shaping and contributing to the White Sulphur Springs community. In fact, three of John Joseph Clifford’s great grandchildren still reside in White Sulphur Springs with their respective families; and

Whereas, It is fitting to memorialize the importance of the Clifford family’s longstanding heritage and many civic contributions to the community of White Sulphur Springs in Greenbrier County and their distinguished service in the U. S. military by naming the aforementioned bridge in their cumulative honor; therefore, be it,

Resolved by the Legislature of West Virginia:

That the Division of Highways is hereby requested to name bridge numbered 13-60-41.35 (13A118), that intersects over Dry Creek, also known as the Dry Creek Bridge, located at latitude 37.79396, -80.30068 on Route 60, Main Street, in White Sulphur Springs, Greenbrier County, the “Clifford Family Memorial Bridge”; and, be it

Further Resolved, That the Commissioner of the Division of Highways is hereby requested to have made and be placed signs identifying the “Clifford Family Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways and to Gordon W. Lewis, Jr., of White Sulphur Springs, West Virginia.

Which, under the rules, lies over one day.

Senators Maynard, Cole (Mr. President), Ashley, Beach, Blair, Boley, Boso, Carmichael, Cline, Facemire, Ferns, Gaunch, Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Miller, Mullins, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel and Yost offered the following resolution:

Senate Resolution 41—Memorializing the life of the Honorable A. Keith Wagner, former member of the West Virginia Senate and dedicated public servant.

Whereas, The Honorable A. Keith Wagner was born in Bristol, Tennessee, on February 3, 1953, the son of Betty Washington Robinson Wagner and the late William H. “Bill” Wagner; and

Whereas, The Honorable A. Keith Wagner attended the public schools of McDowell County, West Virginia, and graduated from Big Creek High School in War, West Virginia; and

Whereas, The Honorable A. Keith Wagner was awarded a Bachelor of Arts Degree in Music Education at Bluefield State College and was an alumnus of West Virginia Institute of Technology, Marshall University and the West Virginia College of Graduate Studies; and

Whereas, The Honorable A. Keith Wagner served as the Director of the Pride of Iaeger High School’s Band of Gold, a band that was recognized throughout the southeastern United States. He also served River View High School in Bradshaw, West Virginia, as “The Voice of the Raiders”; and

Whereas, The Honorable A. Keith Wagner received one the greatest honors of his life, when he directed The Pride of West Virginia Mountaineer Marching Band at a performance at River View High School; and

Whereas, The Honorable A. Keith Wagner was elected to the West Virginia Senate in 1988 as a representative of the Sixth Senatorial District, where he served until 1996. During his tenure, he served as Chairman of the Committee on Government Organization, Chairman of the Committee on Interstate Cooperation, Chairman of the Committee on Transportation, Co-Chair of the Joint Committee on Government Operations; and as a member of the Committees on Banking and Insurance, Education, Judiciary, Labor and Energy, Industry and Mining; and

Whereas, The Honorable A. Keith Wagner went on to serve as the Deputy Commissioner of the West Virginia Alcohol Beverage Control Commission under the administrations of Governor Cecil H. Underwood, Governor Bob Wise and Governor Joe Manchin, III. During his time as Deputy Commissioner, he was vital in creating a drunk driving simulator program that traveled around the state to schools showing students the effects of drinking and driving; and

Whereas, The Honorable A. Keith Wagner was active in community and civic affairs. He served as the Charter President of the Tau Kappa Epsilon Chapter at West Virginia Institute of Technology, as a member of the War Kiwanis Club and was secretary of the Berwind Masonic Lodge 414; a long-time member of the Calvary Baptist Church in War, West Virginia; and a member of the Calvary Baptist Church in Iaeger, West Virginia; and

Whereas, The Honorable A. Keith Wagner was married to his beloved wife, Vickie, with whom he shared the joy of having two children: Adam and Afton; and

Whereas, Sadly, the Honorable A. Keith Wagner passed away on September 15, 2014, leaving behind a host of family and friends, all of whom miss him dearly; and

Whereas, It is fitting, that on this day, the Senate pay tribute to the life and legacy of the Honorable A. Keith Wagner; therefore, be it

Resolved by the Senate:

That the Senate hereby memorializes the life of the Honorable A. Keith Wagner, former member of the West Virginia Senate and dedicated public servant; and, be it

Further Resolved, That the Senate extends its most sincere and heart-felt condolences to the family of the Honorable A. Keith Wagner; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the family of the Honorable A. Keith Wagner.

At the request of Senator Maynard, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

On motion of Senator Carmichael, the Senate recessed for one minute.

Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.

Senators Williams, Beach, Prezioso, Kessler, Sypolt, Leonhardt, Stollings, Plymale, Yost and Unger offered the following resolution:

Senate Resolution 42—Designated February 19, 2016, as West Virginia University and West Virginia University Extension Service Day.

Whereas, West Virginia University is the state’s first and largest land-grant university, which is dedicated to serving the citizens of West Virginia; and

Whereas, In 1915, the world’s first 4-H camp, Camp Good Luck, was held in Randolph County and later evolved to include county, state, national and international camping opportunities for youths across the globe; and

Whereas, West Virginia University Extension Service’s 4-H Youth Development program, the state’s largest youth organization, now gives more than eighty thousand West Virginia youths the opportunity to expand their horizons through hands-on educational activities and allows them to acquire new skills through innovative technology; and

Whereas, The West Virginia University Extension Service, the primary outreach arm of West Virginia University, is the “front porch” of West Virginia University with an office in each of the state’s fifty-five counties, and has been providing trusted traditions and progressive solutions for the state of West Virginia for more than one hundred years; therefore, be it

Resolved by the Senate:

That the Senate hereby designates February 19, 2016, as West Virginia University and West Virginia University Extension Service Day; and, be it

Further Resolved, That the Senate recognizes the contributions that West Virginia University, West Virginia University Extension Service and its 4-H Youth Development program make to the state of West Virginia; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the President of West Virginia University E. Gordon Gee and to the West Virginia University Extension Service.

At the request of Senator Williams, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

Thereafter, at the request of Senator Beach, and by unanimous consent, the remarks by Senators Williams and Sypolt regarding the adoption of Senate Resolution 42 were ordered printed in the Appendix to the Journal.

On motion of Senator Carmichael, the Senate recessed for one minute.

Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.

Petitions

Senator Laird presented a petition from Linda Green and numerous West Virginia residents, supporting Engrossed Committee Substitute for House Bill 4012 (West Virginia Religious Freedom Restoration Act).

Referred to the Committee on the Judiciary.

Senator Miller presented a petition from the National Association for Gun Rights and numerous West Virginia residents, supporting Engrossed Committee Substitute for House Bill 4145 (Relating to carry or use of a handgun or deadly weapon).

Referred to the Committee on the Judiciary.

Senator Sypolt presented a petition from Megan Howell and numerous West Virginia residents, supporting Engrossed Committee Substitute for Senate Bill 105 (Creating Tim Tebow Act allowing nonpublic school student participate in SSAC member school athletics).

Referred to the Committee on Education.

The Senate proceeded to the seventh order of business.

Senate Concurrent Resolution 38, Army PFC Denver Holly Memorial Bridge.

On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.

The Senate proceeded to the eighth order of business.

Eng. Senate Bill 54, Altering how tax is collected on homeowners' associations.

On third reading, coming up in regular order, was read a third time and put upon its passage.

On the passage of the bill, the yeas were: Ashley, Beach, Blair, Boley, Boso, Carmichael, Cline, Facemire, Ferns, Gaunch, Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.

The nays were: None.

Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. 54) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. Com. Sub. for Senate Bill 293, Neighborhood Investment Program Act.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 293) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. Com. Sub. for Senate Bill 313, Relating to school calendar and allowing limited use of available accrued instructional time.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 313) passed.

On motion of Senator Mullins, the following amendment to the title of the bill was reported by the Clerk and adopted:

Eng. Com. Sub. for Senate Bill 313--A Bill to amend and reenact §18-5-45 of the Code of West Virginia, 1931, as amended, relating to school calendar; allowing unused accrued instructional time to count toward the one hundred eighty instructional day requirement when it’s not possible to complete one hundred eighty separate instructional days; requiring emergency rule if necessary; and removing obsolete effective date provision.

Senator Carmichael moved that the bill take effect July 1, 2016.

On this question, the yeas were: Ashley, Beach, Blair, Boley, Boso, Carmichael, Cline, Facemire, Ferns, Gaunch, Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 313) takes effect July 1, 2016.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. Com. Sub. for Senate Bill 434, Allowing home-based micro-processed foods sold at farmers markets.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 434) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. House Bill 4148, Updating the meaning of federal taxable income and certain other terms used in the West Virginia Corporation Net Income Tax Act.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. 4148) passed with its title.

Senator Carmichael moved that the bill take effect from passage.

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. 4148) takes effect from passage.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

Eng. Com. Sub. for House Bill 4158, Making a supplementary appropriation to the Department of Commerce, WorkForce West Virginia – Workforce Investment Act.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. 4158) passed with its title.

Senator Carmichael moved that the bill take effect from passage.

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. 4158) takes effect from passage.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

Eng. Com. Sub. for House Bill 4244, Eliminating the need for a public hearing when no objection is filed on an application from an out of state state-chartered credit union to establish a branch in West Virginia.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. 4244) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

Eng. Com. Sub. for House Bill 4245, Requiring the cashier or executive officer of a banking institution to provide shareholders with the institution’s most recent year-end audited financial statement.

On third reading, coming up in regular order, was read a third time and put upon its passage.

Senator Trump requested a ruling from the Chair as to whether he should be excused from voting under Senate Rule 43 as he is a director of state-chartered banking institution.

The Chair replied that any impact on Senator Trump would be as a member of a class of persons and that he would be required to vote.

The nays were: None.

Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. 4245) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

The Senate proceeded to the ninth order of business.

Com. Sub. for Com. Sub. for Senate Bill 259, Amending Unfair Trade Practices Act.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Senate Bill 352, Dedicating corporation net income tax proceeds to railways.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Senate Bill 431, Authorizing pharmacists and pharmacy interns dispense opioid antagonists.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Senate Bill 488, Requiring WV Secondary School Activities Commission manage hypertrophic cardiomyopathy.

On second reading, coming up in regular order, was read a second time.

The following amendments to the bill, from the Committee on Education, were reported by the Clerk, considered simultaneously, and adopted:

On page three, section twenty-five- b, lines fifty-seven and fifty-eight, by striking out all of paragraph (A) and inserting in lieu thereof a new paragraph, designated paragraph (A), to read as follows:

“(A) Two designated persons, with knowledge of the nearest available telephone, to notify first responders of an unresponsive interscholastic athlete;”;

And,

On page three, section twenty-five-b, line sixty-two, after the word “defibrillator” by changing the semicolon to a comma and inserting the words “if available;”.

The bill (S. B. 488), as amended, was then ordered to engrossment and third reading.

Senate Bill 552, Eliminating requirement sheriff pay jury costs to State Treasury.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Senate Bill 553, Merging purposes and provisions of Volunteer Fire Department Workers' Compensation Subsidy Program and Fund.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Senate Bill 573, Prohibiting municipal annexation which would result in unincorporated territory within municipality.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Senate Bill 579, Eliminating WV Port Authority.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Com. Sub. for Senate Bill 582, Providing refundable tax credit for motor fuel sold for use or consumed in railroad diesel locomotives.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Com. Sub. for Senate Bill 597, Relating to Health Care Authority.

On second reading, coming up in regular order, was read a second time.

On motions of Senators Ferns and Plymale, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:

On pages four through seven, lines one through sixty, by striking out all of section two-a;

On page twenty, section five, line two, by striking out the word “The” and inserting in lieu thereof the words: “Effective July 1, 2016, the”;

On page twenty, section five, line six, after the word “board.” by inserting the following: The members of the board in office as of January 1, 2016, shall continue to serve until their respective terms expire or until a successor has been appointed and qualified.;

On page thirty-nine, section twenty-six, after line six, by inserting the following:

It is the intention of the Legislature that this chapter shall also immunize cooperative agreements approved and supervised by the authority and activities conducted pursuant thereto from challenge or scrutiny under both state and federal antitrust law.;

On page forty-one, section twenty-eight, line forty-six, after the word “state” by inserting the words “and to achieve the goals hereinafter set forth”;

On page forty-two, section twenty-eight, line seventy-two, after the word “agreement” by striking out the remainder of the paragraph;

On page forty-two, section twenty-eight, lines seventy-five through eighty, by striking out all of paragraphs (B) and (C) and inserting in lieu thereof the following:

(B) In addition to a certificate of need, the authority may also require that an application for review of a cooperative agreement as provided in this section be submitted and approved prior to the finalization of the cooperative agreement. If the cooperative agreement involves the merger, consolidation or acquisition by a qualified hospital located within a distance of twenty-five highway miles of the main campus of the qualified hospital, and the authority shall have determined that combination is likely to produce anti-competitive effects due to a reduction of competition. Any such determination shall be communicated to the parties to the cooperative agreement within seven days from approval of a certificate of need for the project.

(C) In reviewing an application for cooperative agreement, the authority shall give deference to the policy statements of the Federal Trade Commission.;

On page forty-three, section twenty-eight, line one hundred eleven, after the word “decision” by inserting the word “within”;

On page forty-six, section twenty-eight, line one hundred sixty-seven, after the word “authority” by inserting a comma and the words “if the authority determines”;

And,

On page forty-nine, section twenty-eight, after line two hundred fifty-five, by inserting a new subdivision, designated subdivision (2), to read as follows:

(2) Until the promulgation of the emergency rules, the authority shall monitor and regulate cooperative agreements to ensure that their conduct is in the public interest and shall have the powers set forth in subdivision (1) of this subsection, including the power of enforcement set forth in paragraph (G), subdivision (1) of this subsection.

The bill (Com. Sub. for S. B. 597), as amended, was then ordered to engrossment and third reading.

Eng. Com. Sub. for House Bill 4145, Relating to carry or use of a handgun or deadly weapon.

On second reading, coming up in regular order, was read a second time.

Senator Carmichael requested unanimous consent that the bill be advanced to third reading with the unreported Judiciary committee amendment pending and the right for further amendments to be considered on that reading.

At the request of Senator Carmichael, and by unanimous consent, his foregoing request was withdrawn.

Thereafter, at the request of Senator Carmichael, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. 4145) was laid over one day, retaining its place on the calendar.

Eng. Com. Sub. for House Bill 4175, Relating generally to home schooling.

On second reading, coming up in regular order, was read a second time.

The following amendments to the bill, from the Committee on Education, were reported by the Clerk, considered simultaneously, and adopted:

On page three, section one, line forty-seven, by striking out the word “at”;

On page three, section one, after line forty-eight, by inserting a new paragraph, designated paragraph (B), to read as follows:

(B) The person or persons providing home instruction shall submit satisfactory evidence of a high school diploma or equivalent, or a post-secondary degree or certificate from a regionally accredited institution or from an institution of higher education that has been authorized to confer a post-secondary degree or certificate in West Virginia by the West Virginia Council for Community and Technical College Education or by the West Virginia Higher Education Policy Commission.;

And by relettering the remaining paragraphs;

On pages four and five, section one, lines seventy-three through eighty-two, by striking out all of subparagraph (iii) and inserting in lieu thereof a new subparagraph, designated subparagraph (iii), to read as follows:

“(iii) ~~The county superintendent is provided with a written narrative indicating that a~~ A portfolio of samples of the child’s work ~~has been~~ is reviewed ~~and that~~ by a certified teacher who determines whether the child’s academic progress for the year is in accordance with the child’s abilities. If the narrative indicates that the child’s academic progress for the year is in accordance with the child’s abilities, the child is considered to have made acceptable progress. This narrative shall be prepared by a certified teacher whose certification number shall be provided. The narrative shall include a statement The teacher shall provide a written narrative about the child’s progress in the areas of reading, language, mathematics, science and social studies and shall note any areas which, in the professional opinion of the reviewer, show need for improvement or remediation. If the narrative indicates that the child’s academic progress for the year is in accordance with the child’s abilities, the child is considered to have made acceptable progress; or”;

On page five, section one, line eighty-four, after the word “superintendent”, by changing the semicolon to a period;

On page five, section one, lines eighty-seven and eighty-eight, by striking out the words “as defined under the appropriate assessment option set forth in paragraph (B) of this subdivision”;

On page five, section one, lines ninety-three and ninety-four, by striking out the words “as defined under the appropriate assessment option set forth in paragraph (B) of this subdivision”;

And,

On page five, section one, line ninety-six, after the word “provided”, by changing the semicolon to a period and striking out the word “and”.

On motion of Senator Romano, the following amendment to the bill (Eng. Com. Sub. for H. B. 4175) was next reported by the Clerk:

On page five, section one, line ninety-eight, by striking out the words “at grade levels three, five, eight and eleven, as applicable” and inserting in lieu thereof the word “annually”.

Following discussion,

The question being on the adoption of Senator Romano=s amendment to the bill, the same was put.

The result of the voice vote being inconclusive, Senator Romano demanded a division of the vote.

A standing vote being taken, there were sixteen Ayeas@ and eighteen Anays@.

Whereupon, Senator Cole (Mr. President) declared Senator Romano=s amendment to the bill rejected.

The bill (Eng. Com. Sub. for H. B. 4175), as amended by the Committee on Education, was then ordered to third reading.

The Senate proceeded to the tenth order of business.

The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

Com. Sub. for Senate Bill 218, Division of Labor rule relating to minimum wage and maximum hours.

Com. Sub. for Senate Bill 339, Establishing Judicial Compensation Commission.

Senate Bill 478, Authorizing licensees who sell growlers to offer samples.

Com. Sub. for Senate Bill 481, Authorizing distillery operators to offer liquor for purchase and consumption on premises.

Com. Sub. for Senate Bill 500, Authorizing Superintendent of State Police hold training classes to use West Virginia Automated Police Network.

Senate Bill 505, Exempting certain uses of field gas from motor fuel excise taxes.

Com. Sub. for Senate Bill 520, Allowing PEIA ability to recover benefits or claims obtained through fraud.

Com. Sub. for Senate Bill 581, Eliminating sunset provision terminating pilot domestic violence court program.

And,

Eng. House Bill 4161, Relating to levies on classifications of property by the Board of Public Works.

The Senate proceeded to the twelfth order of business.

Remarks were made by Senator Gaunch.

Thereafter, at the request of Senator Blair, and by unanimous consent, the remarks by Senator Gaunch were ordered printed in the Appendix to the Journal.

The Senate proceeded to the thirteenth order of business.

At the request of Senator Plymale, the name of Senator Plymale was removed as a sponsor of Engrossed Committee Substitute for Senate Bill 529 (Making certain sport and educational fantasy games lawful).

Pending announcement of meetings of standing committees of the Senate, including majority and minority party caucuses,

On motion of Senator Carmichael, the Senate adjourned until tomorrow, Saturday, February 20, 2016, at 11 a.m.

____________