Senate Journal

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-FIRST LEGISLATURE

REGULAR SESSION, 2013

SEVENTEENTH DAY

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Charleston, W. Va., Friday, March 1, 2013

    The Senate met at 11 a.m.

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

    Prayer was offered by the Reverend Tommy Bartlett, Assistant Pastor, Maranatha Baptist Church, Charleston, West Virginia.

    Greenbrier Academy for Girls Drum Ensemble, Pence Springs, West Virginia, proceeded in the playing of the traditional West African rhythms “Alfunga” and “Kuku”.

    Pending the reading of the Journal of Thursday, February 28, 2013,

    On motion of Senator Carmichael, 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.

    The Senate then 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 No. 2505--A Bill to amend and reenact §24B-4-6 of the Code of West Virginia, 1931, as amended, relating to civil penalties imposed by the Public Service Commission for pipeline safety violations; increasing civil penalties; providing that civil penalties collected by the Public Service Commission are submitted to the Treasurer for deposit in the General Revenue Fund; and prohibiting consideration of assessed penalties for rate increases.

    Referred to the Committee on Energy, Industry and Mining; and then to the Committee on the Judiciary.

    The Senate proceeded to the fourth order of business.

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

    Your Committee on the Judiciary has had under consideration

    Com. Sub. for Senate Bill No. 101 (originating in the Committee on Health and Human Resources), Relating to nursing home liability.

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

    Com. Sub. for Com. Sub. for Senate Bill No. 101 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §16-5C-15 of the Code of West Virginia, 1931, as amended, relating to clarifying that the Medical Professional Liability Act applies to nursing homes and their health care providers.

    With the recommendation that the committee substitute for committee substitute do pass.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    Senator Stollings, 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 No. 257, Authorizing DHHR promulgate legislative rule relating to regulation of opioid treatment programs.

    Senate Bill No. 260, Authorizing DHHR promulgate legislative rule relating to minimum licensing requirements for residential child care and treatment facilities for children and transitioning adults.

    Senate Bill No. 264, Authorizing DHHR promulgate legislative rule relating to general sanitation.

    Senate Bill No. 265, Authorizing DHHR promulgate legislative rule relating to Grade A pasturized milk.

    And,

    Senate Bill No. 268, Authorizing DHHR promulgate legislative rule relating to regulation of opioid treatment programs.

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

                             Respectfully submitted,

                               Ron Stollings,

                                 Chair.

    The bills, under the original double committee references, were then referred to the Committee on the Judiciary.

    Senator Stollings, 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 No. 259, Authorizing DHHR promulgate legislative rule relating to child care centers' licensing.

    And has amended same.

    And,

    Senate Bill No. 263, Authorizing DHHR promulgate legislative rule relating to pulse oximetry newborn testing.

    And has amended same.

    And reports the same back with the recommendation that they each do pass, as amended; but under the original double committee references first be referred to the Committee on the Judiciary.

                             Respectfully submitted,

                               Ron Stollings,

                                 Chair.

    The bills, under the original double committee references, were then referred to the Committee on the Judiciary, with amendments from the Committee on Health and Human Resources pending.

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

    Your Committee on Education has had under consideration

    Senate Bill No. 344, Requiring meeting of certain county board of education officials belonging to same regional educational service agency.

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

    Com. Sub. for Senate Bill No. 344 (originating in the Committee on Education)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2-26a, relating to regional meetings among certain officials of county boards of education; establishing purposes and limitation; requiring notice; setting forth the responsibilities of county and state education officials; soliciting input from organizations having an interest in education; requiring certain reports; and providing a process for approval of training.

    With the recommendation that the committee substitute do pass.

                             Respectfully submitted,

                               Robert H. Plymale,

                                 Chair.

    On motion of Senator Plymale, the bill (Com. Sub. for S. B. No. 344) contained in the foregoing report from the Committee on Education was 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 Senators Cookman, Stollings, Miller, Williams, Fitzsimmons, Green and Palumbo:

    Senate Bill No. 404--A Bill to amend and reenact §49-1-3 of the Code of West Virginia, 1931, as amended, relating generally to child abuse and neglect; and clarifying that a child who is physically healthy and presumed safe is a neglected child if the child is habitually absent from school without good cause.

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

    By Senators Cann, D. Hall, Prezioso, Sypolt and Carmichael:

    Senate Bill No. 405--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §9-2-11a, relating to preventing taxpayer subsidization of health insurance covering elective abortions; prohibiting all qualified health plans offered through a state exchange from including abortion coverage except to prevent the death of the mother; and preventing all other health plans, including health insurance contracts, plans or policies, offered outside of the exchange, but within the state, from providing coverage for elective abortions except by optional separate supplemental coverage for abortion.

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

    By Senators Jenkins, McCabe and Cann:

    Senate Bill No. 406--A Bill to amend and reenact §7-14D-2, §7-14D-7, §7-14D-9, §7-14D-16 and §7-14D-19 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §7-14D-7a, all relating to the Deputy Sheriff Retirement System Act; modifying the definition of “member” in said article; adding a definition for the terms “retire” and “retirement” to said article; correction of errors; clarifying that an estimation of benefits is provided prior to the submission of a retirement application from a member; and making technical corrections.

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

    By Senator Stollings:

    Senate Bill No. 407--A Bill to amend and reenact §48-18-132 of the Code of West Virginia, 1931, as amended, relating to locating parents for the purpose of establishing paternity, establishing or modifying a support order, enforcing support orders or distributing support; and information required from telephone and cellular telephone companies.

    Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.

    By Senators Unger and Prezioso:

    Senate Bill No. 408--A Bill to amend and reenact §61-7-14 of the Code of West Virginia, 1931, as amended, relating to only allowing a private owner, lessee or other person charged with the care, custody and control of real property to prohibit the carrying, openly or concealed, of any firearm or deadly weapon on private property under his or her domain.

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

    By Senators Stollings and Cann:

    Senate Bill No. 409--A Bill to amend and reenact §18-5-18b of the Code of West Virginia, 1931, as amended; and to amend and reenact §18-9A-8 of said code, all relating to modifying the funding ratio of school students to counselors; providing counties with the flexibility to set caseload standards so long as the standards equally distribute counselors to students at each academic level throughout the county; and providing protection for counties that currently exceed the proposed funding ratio.

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

    By Senators Tucker, Fitzsimmons, Laird, Miller, Snyder, Walters, Yost, D. Hall, Kessler (Mr. President) and Stollings:

    Senate Bill No. 410--A Bill to amend and reenact §33-17A-4 of the Code of West Virginia, 1931, as amended, relating to property insurance declination, termination and disclosure; providing that property insurance coverage policy in force for at least three years may not be denied renewal or canceled as a result of any claim arising from natural causes; and providing that an insured may not cancel or fail to renew a property insurance coverage policy solely because the insured inquires about coverage for a potentially covered loss.

    Referred to the Committee on Banking and Insurance.

    By Senator Stollings:

    Senate Bill No. 411--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto six new sections, designated §48-14-1101, §48-14-1102, §48-14-1103, §48-14-1104, §48-14-1105 and §48-14-1106, all relating to establishing a child support insurance match program that will assist the Bureau for Child Support Enforcement in determining whether a claimant has a child support obligation; requiring certain insurance companies to notify the bureau of nonrecurring insurance settlements; providing exemptions; setting forth additional information insurance companies must provide; setting forth the bureau’s and the insurance companies’ respective obligations; requiring health insurance companies to participate in a data matching program with the bureau to assist in determining the availability of sources of health care insurance or coverage for beneficiaries of the child support program; setting forth what information is to be supplied by the insurance companies and providing exceptions; exempting insurance companies from liability for providing the requested information; granting the bureau enforcement responsibilities; establishing monetary penalties; and authorizing rulemaking.

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

    By Senators Miller, Williams, Kessler (Mr. President) and Sypolt:

    Senate Bill No. 412--A Bill to amend and reenact §19-21A-7 of the Code of West Virginia, 1931, as amended, relating to removal of elected county conservation district supervisors from office.

    Referred to the Committee on Agriculture and Rural Development; and then to the Committee on the Judiciary.

    By Senators Laird, Kessler (Mr. President), Beach, Cann, Cookman, Edgell, Facemire, Jenkins, McCabe, Miller, Snyder, Tucker, Wells, Unger, Stollings, Prezioso and Plymale:

    Senate Bill No. 413--A Bill to repeal §3-12-17 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-1A-5 of said code; and to amend and reenact §3-12-1, §3-12-2, §3-12-3, §3-12-4, §3-12-6, §3-12-7, §3-12-9, §3-12-10, §3-12-11, §3-12-13, §3-12-14 and §3-12-16 of said code, all relating to making the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program a permanent program; providing an additional finding; modifying an existing definition; deleting a definition; providing that a candidate may not collect exploratory contributions after filing a declaration of intent; limiting the amounts an individual may contribute during certain periods; requiring all contributions to candidates participating in the program be collected by the candidate’s financial agent; increasing the amounts of financing certified candidates may receive in contested elections; removing provisions that permit the release of additional funds in certain circumstances; removing certain reporting requirements; and removing a provision permitting the doubling of civil penalties.

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

    By Senators Laird and Miller:

    Senate Bill No. 414--A Bill amend and reenact §20-2-32 of the Code of West Virginia, 1931, as amended, relating to issuing hunting and fishing licenses; and clarifying who are license-issuing authorities.

    Referred to the Committee on Natural Resources; and then to the Committee on Finance.

    By Senators Cookman, Stollings, Plymale and Palumbo:

    Senate Bill No. 415--A Bill to amend and reenact §49-5D-3 and §49-5D-3c of the Code of West Virginia, 1931, as amended, all relating generally to multidisciplinary team meetings for juveniles committed to the custody of the West Virginia Division of Juvenile Services; requiring such meetings be held quarterly; authorizing the directors of detention centers to call such meetings in certain circumstances; and requiring that team members be notified that they may participate in team meetings electronically.

    Referred to the Committee on Health and Human Resources; and then to the Committee on Government Organization.

    By Senators Laird, Jenkins, Stollings, Miller and Nohe:

    Senate Bill No. 416--A Bill to amend and reenact §25-1A-2 of the Code of West Virginia, 1931, as amended, relating to administrative remedies for prisoners generally; defining “administrative remedies”; bringing law into federal compliance; and requiring that a prisoner first exhaust such remedies prior to resorting to litigation.

    Referred to the Committee on the Judiciary.

    By Senators Chafin and Plymale:

    Senate Joint Resolution No. 7--Proposing an amendment to the Constitution of the State of West Virginia, amending article X thereof, by adding thereto a new section, designated section twelve, relating to reducing from sixty percent to a simple majority the number of votes required for approval of an excess levy, bond issue or incurring of indebtedness by a county, a municipality or a county board of education; allowing counties, cities, school districts and municipal corporations to approve, by a vote of the people, levies, excess levies, the incurring of indebtedness and bond issues by a majority of the votes cast for and against the same, notwithstanding any other provision of the Constitution to the contrary; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.

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

    Senators Cann, Barnes, Cookman, Facemire, McCabe, Tucker, Williams and Stollings offered the following resolution:

    Senate Concurrent Resolution No. 14--Requesting the Division of Highways to name a stretch of highway in Upshur County, West Virginia, on State Route 20 from mile post 26 at the intersection of State Route 20 and U. S. Route 33 to mile post 27, the “Thomas B. Dunn Memorial Highway”.

    Whereas, Thomas B. Dunn died April 24, 2012, at the Avow Hospice House in Naples, Florida. He was born January 22, 1943, in Washington, Pennsylvania, a son of the late James Lincoln and Lucille Babbitt Dunn. He married Carol Jean Campbell on July 11, 1964, and they had two daughters, Tracy Cunningham (husband Mark) and Jennifer Fluke (husband Eric) of Buckhannon. In addition to being survived by his widow and daughters, he is survived by two granddaughters, Carson Cunningham and Caroline Fluke, both of Buckhannon; two grandsons, Grant Cunningham and Bryson Fluke, both of Buckhannon; his precious Bichon, Lilly; one brother, Joseph L. Dunn of Washington, Pennsylvania; one sister, Ann Bridges and husband Cliff of Greensboro, North Carolina, and several nieces and nephews; and

    Whereas, Thomas B. Dunn was an exceptional leader and mentor to many in the community and oil and gas industry. He was respected and loved by many. Mr. Dunn graduated from Trinity High School, Washington, Pennsylvania, Class of 1960, and West Virginia Wesleyan College with a B. A. degree, Class of 1964. He was the third generation in the oil and gas business. In his early years he worked in the field for Union Drilling, Inc., a drilling contractor and producer in the Appalachian Basin. After graduation from college, he worked full time at Union Drilling, Inc., in Buckhannon, as Lease and Right-of-Way Agent, eventually working into the supervision of well completion. He became President of Union Drilling, Inc., in 1972, and held the position until 1987. He founded D-Aspen, Inc., in 1986 and served as president from 1986-1996. He founded Tuscany Gas, LLC, in 1996 and served as a member. He co-founded Phoenix Diversified Ventures, Inc., in 1987 and served as President. He co-founded Phoenix Energy Sales Company in 1995 and served as president; co-founded T and F Operating, Inc., in 1998 and served as President. He co-founded T and F Exploration, LP, in 1998 and served as Limited Partner. At the time of his death he held membership in: Independent Oil and Gas Association of WV (IOGA WV), Pennsylvania Independent Oil and Gas Association (PIOGA), Independent Petroleum Association of America (IPAA), Ohio Oil and Gas Association (OOGA), West Virginia Oil and Natural Gas Association (WVONGA) and the Society of Petroleum Engineers, Inc. He served IOGA WV as past president, as a member of the board of directors and a member of various committees. He served IPAA as Regional Governor, Director, Area Vice President, member of Executive Committee and member of the Board of Governors, Roustabout Club charter member. He served WVONGA as past president, and was a member of the board of directors. He was former Vice President of Virginia Oil and Gas Association; former member of New York State Oil Producers Association, Inc., and actively participated in other states' associations. Thomas B. Dunn served Appalachian Energy Group (AEG) as President for several terms. He was a member of Board of Directors of St. Joseph's Hospital Foundation and a former member of the Board of Trustees of West Virginia Wesleyan College. He was a founding member of Naples National Golf Club and The Old Collier Golf Club both in Naples, Florida. He was involved in Buckhannon/Upshur County, West Virginia, civic organizations, including one of the five who arranged initial broad community funding for the current Upshur County Development Authority. He was a former member of the West Virginia National Guard, Kappa Alpha Order Fraternity and was instrumental in the Buckhannon Parks and Recreational Complex. Thomas B. Dunn was recognized for his service to the industry by oil and gas associations and service to the community. He was the West Virginia Oil and Gas Man of the Year, 1982. He received the West Virginia Wesleyan College Alumni Award, 1982. He was the Buckhannon Business and Professional Women's Club Outstanding Employer of the Year, 1985. He was one of the two initial recipients of IOGA WV Distinguished Service Gunslinger Award, 1992. And he greeted President George W. Bush upon his arrival at Morgantown Municipal Airport, Morgantown, West Virginia, July 4, 2005; and

    Whereas, When Thomas B. Dunn died of cancer in Naples, Florida, in April, 2012, he left behind invaluable, often unknown contributions to the oil and gas industry, as well as to the Upshur County community. He was a man of boundless generosity, selfless, sacrificing and always smiling. Most of all, he was a wonderful and loving husband, father and grandfather who cherished his family more than anything. The contributions of this man to his community and industry should not go unnoticed; and

    Whereas, It is fitting to honor Thomas B. Dunn by naming a stretch of highway in Upshur County, West Virginia, on State Route 20 from mile post 26 at the intersection of State Route 20 and U. S. Route 33 to mile post 27 for Thomas B. Dunn; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Legislature hereby requests the Division of Highways to name a stretch of highway in Upshur County, West Virginia, on State Route 20 from mile post 26 at the intersection of State Route 20 and U. S. Route 33 to mile post 27, the “Thomas B. Dunn Memorial Highway”; and, be it

    Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the stretch of highway as the “Thomas B. Dunn Memorial Highway”; and, be it

    Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and to the surviving widow, children and relatives of Thomas B. Dunn.

    Which, under the rules, lies over one day.

    Senators Beach, D. Hall, Unger, Kessler (Mr. President), Stollings, Cann, Williams, Fitzsimmons, Prezioso, Plymale, McCabe, Wells and Miller offered the following resolution:

    Senate Resolution No. 23--Honoring the victims and survivors of the 1972 Blacksville Mine Fire.

    Whereas, On Saturday, July 22, 1972, at approximately 7:30 p.m., a mine fire broke out along the no. 3 North mains track of the Blacksville no. 1 mine, located in Monongalia County; and

    Whereas, The fire erupted when the continuous miner came into contact with a trolley wire while the mine was idled for routine maintenance and equipment moves; and

    Whereas, The immediate attempts of Glen Cale, motor operator, to extinguish the fire with a twenty-pound fire extinguisher were unsuccessful. Cale and fellow motorman Frank Strakal attempted to extinguish the fire with a one hundred fifty-pound fire extinguisher, but were forced to abandon their efforts by thick smoke; and

    Whereas, There were a total of forty-three miners underground at the time of the fire, but only thirty-four successfully escaped; and

    Whereas, The first rescue teams were not assembled and prepared to enter the mine until 12:40 a.m. on July 23, 1972, but roof falls restricted air flow causing the return airways to load up with methane and the rescue teams were ordered to evacuate the mine; and

    Whereas, There was an explosion at 2:42 p.m. on July 23, 1972, while rescue teams were evacuating the mine. All rescuers reached the surface by 3:00 p.m., but two additional explosions occurred leading to a determination to seal the mine; and

    Whereas, The seals were breached on January 2, 1973, and the bodies of the nine victims were recovered and taken to the surface, but before the mine could be totally recovered the fire rekindled and the immediate fire areas were resealed; and

    Whereas, A withdrawal order issued by the U. S. Bureau of Mines, prohibiting the removal of the seals without prior approval, remains in effect; and

    Whereas, Sadly, Terrance Stoneking of Mt. Morris, PA, perished in the mine at age twenty-nine leaving behind a wife and daughter; and

    Whereas, Sadly, Frederick Phillips of Mt. Morris, PA, perished in the mine at age forty-two leaving behind a wife, two daughters and two sons; and

    Whereas, Sadly, Conrad Belt of Morgantown, WV, perished in the mine at age thirty-four leaving behind a wife, two daughters and two sons; and

    Whereas, Sadly, Billy Murray of Morgantown, WV, perished in the mine at age thirty-seven leaving behind a wife and two daughters; and

    Whereas, Sadly, Roy Sisler of Morgantown, WV, perished in the mine at age twenty-four leaving behind a wife and son; and

    Whereas, Sadly, Roy Dalton of Morgantown, WV, perished in the mine at age forty-two leaving behind a wife, daughter and three sons; and

    Whereas, Sadly, Kenneth Haines of Westover, WV, perished in the mine at age twenty-one leaving behind a wife and son; and

    Whereas, Sadly, Robert Tressler of Westover, WV, perished in the mine at age thirty-two leaving behind a wife, daughter and son; and

    Whereas, Sadly, Justin Beach of Morgantown, WV, perished in the mine at age twenty-three leaving behind a wife and daughter; therefore, be it

    Resolved by the Senate:

    That the Senate hereby honors the victims and survivors of the 1972 Blacksville Mine Fire; and, be it

    Further Resolved, That the Senate hereby honors the memory of the nine miners who perished in the Blacksville mine fire on July 22, 1972; and, be it

    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Blacksville Mine Memorial Foundation.

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

    The Senate proceeded to the seventh order of business.

    Senate Concurrent Resolution No. 13, Requesting DOH name bridge in Lewis County "J. Cecil Jarvis 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 ninth order of business.

    Com. Sub. for Senate Bill No. 172, Relating to nonintoxicating beer distributor licensees.

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

    Senate Bill No. 197, Expiring funds from State Fund, General Revenue, and making supplementary appropriations to various accounts.

    On second reading, coming up in regular order, was read a second time and ordered to engrossment and 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 No. 47, Creating General Livestock Trespass Law.

    Senate Bill No. 194, Repealing code relating to Medicaid program contract procedure.

    Senate Bill No. 214, Eliminating interview requirement for certain medical licensee applicants.

    Com. Sub. for Senate Bill No. 335, Permitting certain hospitals exemption from certificate of need.

    And,

    Senate Bill No. 338, Relating to liability of possessor of real property for harm to trespasser.

    Pending announcement of meetings of standing committees of the Senate,

    On motion of Senator Unger, the Senate adjourned until Monday, March 4, 2013, at 1 p.m.

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