Senate Bill No. 33
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
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[Introduced January 17, 1995; referred to the Committee
on Government Organization.]
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A BILL to amend and reenact article one, chapter five-b of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended, relating to recodifying the laws relating to the
tourism functions of the division of tourism and parks
subsequent to the transfer by executive order of state
parks, state recreation areas and wildlife recreation areas
to the division of natural resources; continuing in the
bureau of commerce the division of tourism, consisting of
those functions of the division of tourism and parks not so
transferred; creating a new tourism commission, composed of
both private-sector and public-sector members, to govern the
activities of the division of tourism; authorizing the formation of a nonprofit private corporation whose directors
may include members of the tourism commission; authorizing
the combining of public and private funds for use in the
promotion and development of tourism in West Virginia;
calling for the tourism commission to review the internal
organization of the division of tourism and to consider
various tourism initiatives and to make recommendations on
the same; and revising and recodifying the provisions of
said article to reflect the new organizational structure.
Be it enacted by the Legislature of West Virginia:
That article one, chapter five-b of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted, to read as follows:
ARTICLE 1. TOURISM DEVELOPMENT ACT OF 1995.
§5B-1-1. Short title.
This article shall be known and may be cited as "The Tourism
Development Act of 1995".
§5B-1-2. Legislative findings.
The Legislature finds that:
(a) Tourism is an important component of the state's economy
whose potential contribution to economic development, employment,
and state revenues has not been fully realized.
(b) Promotion and development of tourism can strengthen many
other forms of economic development in West Virginia by enhancing
the quality of life, and the state's reputation for natural
beauty, recreational opportunities and historical resources.
(c) The promotion and development of tourism in the state
should be consolidated under a single agency.
(d) Infrastructure development and improvement is important
for tourism, as it is for other forms of economic development.
Tourism promotion and development should therefore be coordinated
with the work of the West Virginia infrastructure and jobs
development council created in article fifteen-a of chapter
thirty-one of this code.
(e) Success in the promotion and development of tourism
calls for greater coordination and cooperation between the public
and private sectors, and increased emphasis on cooperation and
planning on a local and regional basis.
(f) Greater financial resources should be made available for
the state's tourism promotion and development efforts.
Coordination and cooperation among existing sources of funds
should be increased, and state, regional, local and private funds
should be pooled or used in coordination.
§5B-1-3. Construction.
This article shall be liberally construed to effectuate the
purposes set forth in section two of this article.
§5B-1-4. Division of tourism.
There is hereby continued in the bureau of commerce the
division of tourism, consisting of all those offices, powers and
functions of the former division of tourism and parks related to
tourism promotion and development, and which were not included in
the transfer, by executive order, to the division of natural
resources of those offices, powers and functions related to state
parks, state recreation areas and wildlife recreation areas.
§5B-1-5. West Virginia tourism commission created; members,
appointment and expenses; appointment and
compensation of director.
(a) There is hereby created within the West Virginia
division of tourism the West Virginia tourism commission, which
is a body corporate and politic, constituting a public
corporation and government instrumentality. Membership on the
council shall consist of eleven members:
(1) Nine members to be appointed by the governor, with the
advice and consent of the Senate, representing both public-sector
and private-sector participants in the state's tourism industry. Of the nine members so appointed, seven shall represent
private-sector participants in the state's tourism industry, and
two shall represent public-sector participants in the state's
tourism industry. Of the seven private sector members so
appointed, no more than three shall be from each congressional
district within the state, and shall be appointed to provide the
broadest geographic distribution which is feasible.
(2) One ex officio member to be appointed by the governor
from the membership of the West Virginia parkways, economic
development and tourism authority created in section three,
article sixteen-a, chapter seventeen of this code.
(3) One ex officio member to be appointed by the governor
from the membership of the West Virginia infrastructure and jobs
development council created in article fifteen-a of chapter
thirty-one of this code.
(b) Not later than the first day of July, one thousand nine
hundred ninety-five, the governor shall appoint the eleven
members of the commission to staggered terms. The terms of the
commission members first taking office on or after the effective
date of this legislation shall expire, as designated by the
governor, at the time of appointment or nomination, three at the end of the second year, three at the end of the third year, and
three at the end of the fourth year, after the first day of July,
one thousand nine hundred ninety-five. As these original
appointments expire, each subsequent appointment shall be for a
full four-year term. Any member whose term has expired shall
serve until his successor has been duly appointed and qualified.
Any person appointed to fill a vacancy shall serve only for the
unexpired term. Any member shall be eligible for reappointment.
In cases of any vacancy in the office of a member, such vacancy
shall be filled by the governor in the same manner as the
original appointment.
(c) Members of the commission shall not be entitled to
compensation for services performed as members. A majority of
the members shall constitute a quorum for the purpose of
conducting business. The governor shall appoint a chair for a
term to run concurrent with the term of office of the member
elected as chair. The chair is eligible for successive terms in
that position.
(d) The commission shall employ an executive director of the
division of tourism by reason of education and experience which
the council finds relevant to the duties of the position, to serve at the will and pleasure of the commission. This
individual shall also serve as the director of the division of
tourism, or its successor. The salary of the director shall be
fixed by the commission. The director shall have overall
management responsibility and administrative control and
supervision within the division of tourism. It is the intention
of the Legislature that the director shall provide professional
and technical expertise in the field of tourism promotion and
development in order to support the policy making functions of
the commission, but that the director is not a public officer,
agent, servant or contractor within the meaning of section
thirty-eight, article six of the Constitution of the state.
§5B-1-6. Powers and duties of tourism commission.
(a) The commission shall enhance the promotion and
development of tourism through the development of a comprehensive
tourism promotion and development strategy for West Virginia.
"Comprehensive tourism promotion and development strategy" means
a plan that outlines strategies and activities designed to
continue, diversify or expand the tourism base of the state as a
whole; create tourism jobs; develop a highly skilled tourism work
force; facilitate business access to capital for tourism; advertise and market the resources offered by the state with
respect to tourism promotion and development; facilitate
cooperation among local, regional and private tourism
enterprises; improve infrastructure on a state, regional, and
community level in order to facilitate tourism development;
improve the tourism business climate generally; and leverage
funding from sources other than the state, including local
federal and private sources.
(b) In developing its strategies, the commission shall
consider the following:
(1) Improvement and expansion of existing tourism marketing
and promotion activities;
(2) Promotion of cooperation among municipalities, counties,
and the West Virginia infrastructure and jobs development council
in funding physical infrastructure to enhance the potential for
tourism development;
(c) The tourism commission and the division of tourism shall
have all powers and duties specified in this article with regard
to the sections of tourism, advertising and promotion, and sales
and marketing, inasmuch as such powers and duties may be
exercised by the director of the division of tourism or the respective sections under the commission's supervision, or
directly by the commission. In addition, the commission and the
division of tourism shall also have the power and duty:
(1) To acquire for the state in the name of the commission
by purchase, lease or agreement, or accept or reject for the
state, in the name of the commission, gifts, donations,
contributions, bequests or devises of money, security or
property, both real and personal, and any interest in such
property, to effectuate or support the purposes of this article.
(2) To make recommendations to the governor and the
Legislature of any legislation deemed necessary to facilitate the
carrying out of any of the foregoing powers and duties, and to
exercise any other power that may be necessary or proper for the
orderly conduct of the business of the commission and the
effective discharge of the duties of the commission; and
(3) To cooperate and assist in the production of motion
pictures and television and other communications.
In addition, the commission shall have such powers as may be
necessary or appropriate to carry out the duties and programs
described in this article.
(d) The commission shall promulgate rules and regulations to carry out the purposes and programs of the division of tourism,
to include generally the programs available, and the procedure
and eligibility of applications relating to assistance under such
programs; these rules and regulations shall not be subject to the
provisions of chapter twenty-nine-a of this code, but shall be
filed with the secretary of state.
§5B-1-7. Public private partnerships.
(a) The commission is authorized to enter into contractual
or joint venture agreements with a nonprofit corporation
organized pursuant to the corporate laws of the state, organized
to permit qualification pursuant to section 501(c) of the
Internal Revenue Code and for purposes of the promotion and
development of tourism in West Virginia, and funded from sources
other than the state. Members of the commission are authorized
to sit on the board of directors of the private nonprofit
corporation.
(b) From time to time the commission may enter into joint
ventures wherein the division of tourism and the nonprofit
corporation share in the development and funding of tourism
promotion or development programs.
(c) All contracts and joint venture agreements must be approved by vote of the commission. Contracts entered into
pursuant to this section for longer than one fiscal year shall
contain, in substance, a provision that the contract shall be
considered canceled without further obligation on the part of the
state if the Legislature or, where appropriate, the federal
government, shall fail to appropriate sufficient funds therefor
or shall act to impair the contract or cause it to be canceled.
§5B-1-8. Tourism promotion fund created; use of funds; and
establishment of tourism promotion fund commission.
There is hereby created in the state treasury, a special
revenue fund to be known as the "tourism promotion fund." It
shall be expended by the West Virginia tourism commission in the
following manner:
(a) A minimum of five percent of the moneys deposited in the
fund each year shall be used solely for direct advertising for
West Virginia travel and tourism. Direct advertising means
advertising which is limited to television, radio, mailings,
newspaper, magazines and outdoor billboards, or any combination
thereof;
(b) The balance of the moneys deposited in the fund shall be
used for direct advertising within the state's travel regions as defined by the commission. The funds shall be made available to
these districts beginning the first day of July, one thousand
nine hundred ninety-five, according to rules promulgated by the
division of tourism, and
(c) All advertising expenditures over twenty-five thousand
dollars from the tourism promotion fund require prior approval of
the commission.
§5B-1-9. Sections continued.
(a) There are hereby continued within the division of
tourism:
(1) The section of tourism;
(2) The section of advertising and promotion; and
(3) The section of sales and marketing.
(b) Each section shall be under the control of an
administrator, to be appointed by the director, who shall be
qualified by reason of exceptional training and experience in the
field of activities of the respective section, and who shall
serve at the will and pleasure of the director. The tourism
commission shall have authority to establish such additional
sections as it may determine necessary to carry out the purposes
of this article.
§5B-1-10. Section of tourism; purpose; powers and duties
generally.
It shall be the duty of the section of tourism:
(a) To promote and enhance the tourism industry and improve
tourist facilities and attractions;
(b) To compile a list of all tourist facilities in this
state, and develop relative thereto a series of films,
videotapes, pamphlets, brochures and other advertising or
promotional media, and to distribute the same in such a manner as
to enhance the public's knowledge about West Virginia and its
many attractions;
(c) To develop a plan for tourist facility expansion and new
development, including financing;
(d) To develop a system, means and mechanism to distribute
the promotional media described in subdivision (b) of this
section, both nationally and internationally; and to make it
available to travel agents, tour groups, magazines, radio and
television stations, and the travel editors thereof; to develop,
in cooperation with the division of highways, a series of
information stations along interstate and other major highways of
this state, utilizing existing rest stop areas and other areas at or near the main points of egress and ingress of this state, for
the purpose of making the information available to the public at
large;
(e) To develop and implement a marketing strategy, employing
radio, television, magazine and newspaper advertising, or any
combination thereof, that would attract visitors nationally to
visit and enjoy the tourist facilities of this state;
(f) To encourage, cooperate with and participate in, any
group or organization, including regional travel councils, to
promote and advertise, or encourage the use of, tourist
facilities in West Virginia;
(g) To provide professional assistance, technical advice or
marketing strategies to any privately owned facility or
attraction which is open and available to the general public,
which has developed or is attempting to develop its own
advertising program;
(h) To assist tour groups, travel agencies, public carriers
and other similar entities in developing a program of preplanned
tours, visits or vacations in the state of West Virginia; and, in
conjunction therewith, to coordinate the activities of tour
groups, travel agencies, public carriers or other similar entities with the services offered by tourist facilities and to
encourage tourist facilities to offer special or discount rates
to any party traveling with tour groups, travel agencies, public
carriers or other similar entities;
(i) To cooperate with the division of highways in developing
a system of informational highway signing relating to the
recreational, scenic, historic and transportational facilities
and attractions of the state that comply with the current federal
and state regulations on outdoor advertising and signing as
required by the Manual of Uniform Traffic Control Devices; and
(j) To perform such other duties or functions, or to engage
in such other activities, as the director may from time to time
direct.
§5B-1-11. Section of advertising and promotion; purpose; powers
and duties generally.
It shall be the duty of the section of advertising and
promotion:
(a) To develop films, videotapes, computer software,
phonograph records, tape recordings, pamphlets, brochures,
booklets, information sheets, radio, television or newspaper
advertising, magazine inserts, advertisements or supplements, billboards or any other thing of like kind or nature which is, or
may be, likely to inform the public at large or any specifically
targeted group or industry about the benefits of living in,
investing in, producing in, buying from, contracting with, or in
any other way related to, the state of West Virginia or any
business, industry, agency, institution or other entity therein;
(b) To employ or contract with professional or technical
experts or consultants as may be necessary to create and produce
the items set forth in subdivision (a) of this section;
(c) To spend such sums of money as may be necessary, within
legislative appropriation therefor or as otherwise authorized
pursuant to section eight of this article, to purchase
advertising time or space in or upon any medium generally engaged
or employed for said purpose to distribute or disseminate the
items of advertising described in subdivision (d) of this
section;
(d) To use available resources to distribute the items of
advertising and promotion described in subdivision (a) of this
section, to such group or groups, audience or audiences,
corporations, partnerships, associations, including public and
private colleges and universities, and to individuals, who or which are, or may be, interested in some aspect of the state of
West Virginia;
(e) To engage in, participate in, promote or sponsor, trade
shows, fairs, informational seminars or symposiums, or other
similar events, including privately funded trade shows, fairs,
informational seminars or symposiums, or similar event or events
of like kind and nature, whether located within or without this
state, or beyond the borders of the United States, to promote
generally the state of West Virginia or to assist any business,
industry or other entity, whether public or private, in
promoting, advertising or advancing the reputation of the state
of West Virginia or any corporation, association, partnership,
institution, business, industry or other entity which is, or may
be, likely to produce additional employment or employment
opportunities or business or business opportunities in the state
of West Virginia; and
(f) To perform such other duties or functions, or to engage
in such other activities, as the director may from time to time
direct.
§5B-1-12. Section of sales and marketing; purpose; powers and
duties generally.
It shall be the duty of the section of sales and marketing:
(a) To develop programs necessary for the promotion and
marketing of the state's hospitality and tourism industry as well
as its arts, crafts and products, and to implement the programs
in this state, in the United States and in other countries;
(b) To design, develop and create, or to provide for the
design, development and creation of, such films, videotapes,
pamphlets, brochures, and other advertising and promotional
media, and to distribute the material in a manner that will
enhance the public's knowledge of the state's hospitality and
tourism industry as well as its arts, crafts and products;
(c) To sponsor or to participate in trade shows, trade fairs
or other events in order to display, sell, or increase public
awareness of, the state's hospitality and tourism industry as
well as its arts, crafts and products;
(d) To design and implement a program of direct marketing of
one hospitality and travel industry and direct sales of West
Virginia arts, crafts and products; and to provide for the
publication and distribution of a catalog which adequately
displays and describes the arts, crafts and products being
offered for sale, employing such direct mail or other means of distribution as the director deems appropriate;
(e) To cooperate with artists, craftsmen, guilds,
cooperatives, industry representatives, professional trade
associations and other organizations, to enhance or promote the
state's arts, crafts and products, and to assist these artists,
craftsmen, guilds, cooperatives, industry representatives,
professional trade associations and organizations in the
development of their own marketing programs;
(f) To develop markets in the state of West Virginia, other
states and other nations for arts, crafts and products by
employing persons who shall act as sales agents for said arts,
crafts and products;
(g) To cooperate with other governmental divisions, and with
other groups, guilds, cooperatives, industry representatives,
professional trade associations or other organizations, whether
public or private, to further enhance and promote the sale, use,
distribution or public knowledge of West Virginia arts, crafts
and products; and
(h) To perform such other duties or functions, or to engage
in such other activities, as the director may from time to time
direct.
§5B-1-13. Sunset provision.
Unless sooner terminated by law, the division of tourism
shall terminate on the first day of July, one thousand nine
hundred ninety-seven, in accordance with the provisions of
article ten, chapter four of this code.
NOTE: The purpose of this bill is to continue the Division
of Tourism in the Bureau of Commerce with those functions of the
Division of Tourism and Parks not transferred to the Division of
Natural Resources. A new Tourism Commission is created to govern
the activities of the division.
This article is completely rewritten; therefore,
strike-throughs and underscoring have been omitted.