Senate Journal

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-FIRST LEGISLATURE

REGULAR SESSION, 2013

NINTH DAY

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Charleston, W. Va., Thursday, February 21, 2013

    The Senate met at 11 a.m.

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

    Prayer was offered by the Reverend David W. Johns, Winfield Baptist Church, Winfield, West Virginia.

    Pending the reading of the Journal of Wednesday, February 20, 2013,

    On motion of Senator Cole, 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. House Bill No. 2434--A Bill to amend and reenact §50-1-3, §50-1-8, §50-1-9 and §50-1-9a of the Code of West Virginia, 1931, as amended, all relating generally to the magistrate court system; providing compensation for magistrates, magistrate assistants, magistrate court clerks and magistrate court deputy clerks; and authorizing judges to appoint magistrate court clerks in certain circumstances.

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

    The Senate proceeded to the fourth order of business.

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

    Your Committee on Government Organization has had under consideration

    Senate Bill No. 55, Exempting homeowners' association dues, fees and assessments from consumers sales and service tax.

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

    Com. Sub. for Senate Bill No. 55 (originating in the Committee on Government Organization)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-15-9o, relating generally to consumers sales and service tax liability of homeowners’ associations and their members; and exempting from consumers sales and service tax liability the dues, fees and assessments paid by members to homeowners’ associations which are to be used by the homeowners’ association acting in its representative capacity for all members to purchase for the members, rather than sell to the members, such goods and services.

    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,

                               Herb Snyder,

                                 Chair.

    The bill (Com. Sub. for S. B. No. 55), under the original double committee reference, was then referred to the Committee on Finance.

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

    Your Committee on the Judiciary has had under consideration

    Senate Bill No. 60, Providing publication of name change application follows filing of petition.

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

    Com. Sub. for Senate Bill No. 60 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §48-25-101 of the Code of West Virginia, 1931, as amended, relating to requiring the name-change notice to be published after the filing of the petition; requiring the notice published to include the name to which the petitioner’s name will be changed; and providing an exception to the inclusion of the name in the publication.

    And,

    Senate Bill No. 76, Conforming WV code to federal requirements relating to presidential election voting.

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

    Com. Sub. for Senate Bill No. 76 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §3-1-3a of the Code of West Virginia, 1931, as amended; and to amend and reenact §3-3-1 of said code, all relating to voting for President and Vice President; permitting voters who have moved from the state to vote for President and Vice President in certain circumstances; requiring voters who move from the state and vote for President and Vice President in the state to be removed from the voter rolls thereafter; allowing persons who move to the state to vote for President and Vice President in certain circumstances; and permitting voters to obtain an absentee ballot for President and Vice President only in certain circumstances.

    With the recommendation that the two committee substitutes do pass.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

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

    Your Committee on Government Organization has had under consideration

    Senate Bill No. 75, Increasing salaries of State Police civilian and forensic lab employees.

    And,

    Senate Bill No. 125, Permitting Monongalia County Commission to levy special district excise tax.

    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 Finance.

                             Respectfully submitted,

                               Herb Snyder,

                                 Chair.

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

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

    Your Committee on Government Organization has had under consideration

    Senate Bill No. 82, Requiring rate-paying residential customer on public service board.

    And reports the same back with the recommendation that it do pass.

                             Respectfully submitted,

                               Herb Snyder,

                                 Chair.

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

    Your Committee on Government Organization has had under consideration

    Senate Bill No. 85, Permitting filing of bond in escrow to cover mechanic's lien.

    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,

                               Herb Snyder,

                                 Chair.

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

    The Senate proceeded to the sixth order of business.

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

    By Senators Stollings, Wells, Plymale, Barnes, Beach, Unger, Palumbo, Kessler (Mr. President) and Jenkins:

    Senate Bill No. 336--A Bill to repeal §55-7-19 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §18-2-25a; to amend and reenact §29-12-5a of said code; and to amend and reenact §55-7-15 of said code, all relating to establishing protocols and protections to limit and treat injury to youth athletes and students; making findings with respect to concussions; defining certain terms requiring Secondary School Activities Commission promulgate rules addressing concussions and head injuries; specifying certain minimum provisions of rules; requiring inclusion of volunteer workers and student teachers under the professional and liability coverage provided to county school boards by Board of Risk and Insurance Management; including licensed health care professional within term “volunteer worker” with certain conditions and limiting civil liability; including medical assistance rendered by licensed medical professional without remuneration to youth athlete as equivalent to emergency care at scene of accident or medical emergency for protection from liability for civil damages; and including scheduled practices within term “event”.

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

    By Senators Palumbo, Beach, Fitzsimmons, Kirkendoll, Tucker, Williams and Nohe:

    Senate Bill No. 337--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §15-9B-1, §15-9B-2 and §15-9B-3, all relating to establishing a regulatory system for sexual assault forensic examinations; requiring the creation of the Sexual Assault Forensic Examination Commission; setting forth its powers and responsibilities; setting forth its membership; requiring county prosecutors to convene and chair local Sexual Assault Forensic Examination boards; and authorizing rulemaking.

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

    By Senators Palumbo, Beach, Kirkendoll, Tucker, Williams, Nohe and McCabe:

    Senate Bill No. 338--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-27, relating to the liability of a possessor of real property for harm to a trespasser.

    Referred to the Committee on the Judiciary.

    By Senator Beach:

    Senate Bill No. 339--A Bill to amend and reenact §29-22-18a of the Code of West Virginia, 1931, as amended, relating to requiring that a sum certain be deposited into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund to provide tuition and fees for PROMISE scholarships at public institutions for fiscal year 2014.

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

    By Senators Stollings, Kessler (Mr. President), Jenkins, Unger, Laird, Prezioso, Palumbo, Plymale, Beach, M. Hall, Nohe, Fitzsimmons, Miller, Tucker and McCabe:

    Senate Bill No. 340--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-5-22c, relating to allowing schools to voluntarily maintain and use epinephrine auto-injectors; providing for the administration of an auto-injector by a school nurse or other trained and authorized nonmedical school personnel for emergency care or treatment of anaphylactic reactions; allowing the issuance of standing orders and protocols by physicians to schools to obtain epinephrine auto-injectors; setting forth notice requirements; allowing students who self inject to use the school supply of epinephrine auto-injectors; setting forth immunity from liability for school nurses and trained and authorized nonmedical school personnel; allowing county school boards to participate in free or discounted manufacturer sponsored pharmaceutical programs to obtain epinephrine auto-injectors; providing for data collection and reporting requirements; and setting forth rule-making authority to effectuate the provisions of the section.

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

    By Senators Miller, Williams, Laird, Nohe and D. Hall:

    Senate Bill No. 341--A Bill to repeal §19-17-5, §19-17-6, §19-17-7, §19-17-8, §19-17-10 and §19-17-11 of the Code of West Virginia, 1931, as amended; and to amend and reenact §19-17-1, §19-17-2, §19-17-3 and §19-17-4 of said code, all relating to requiring livestock be enclosed by a fence; requiring adjoining landowners to pay for a just proportion of partition fences; encouraging adjoining landowners to have written agreements; requiring written notice to adjoining landowners before a fence may be constructed or repaired; providing an exception for emergencies; providing that an adjoining landowner may give a written response; providing that when a landowner does not respond he or she is responsible for a just proportion of the costs; permitting civil actions; and authorizing promulgation of rules and emergency rules.

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

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

    Senate Bill No. 342--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §31-21-1, §31-21-2, §31-21-3, §31-21-4, §31-21-5, §31-21-6, §31-21-7, §31-21-8, §31-21-9, §31-21-10, §31-21-11, §31-21-12, §31-21-13, §31-21-14, §31-21-15, §31-21-16, §31-21-17, §31-21-18, §31-21-19, §31-21-20 and §31-21-21, all relating to authorizing the creation of a public nonprofit corporation and governmental instrumentality under the provisions of article two, chapter thirty-one-e of said code, to collectively address several environmental and economic development programs established to promote the productive reuse of idled and underutilized commercial, industrial and mining properties, support more efficient use of existing public infrastructure and encourage increased job creation with living wages, renewed community vitality and tax revenue generation while protecting public health and our natural resources; providing short title; declaring policy and purpose of article; defining terms; creating West Virginia Land Stewardship Corporation; stating certain tax requirements; setting forth powers and limitations of West Virginia Land Stewardship Corporation; providing for board of directors and composition of same; providing for creation of voluntary land stewardship program; providing for underwriting review of land stewardship program applicants; authorizing establishment of state certified sites program; setting forth minimum standards for certification under state certified sites program; authorizing establishment of voluntary state land bank program; permitting land stewardship corporation to preserve property value of properties held by land stewardship corporation; providing requirements for handling of contaminated properties by land stewardship corporation; providing for liberal construction of article; exempting corporation from state and local taxes; requiring audits and biannual reports; providing procedure for dissolution of land stewardship corporation upon completion of purpose; providing provision for conflict of interest of land stewardship corporation officers, employees and board members; stating preservation of sovereign immunity; providing that obligations of land stewardship corporation are not obligations of the Department of Environmental Protection or the state; and providing for severability.

    Referred to the Committee on Economic Development; and then to the Committee on Government Organization.

    By Senators Williams, Fitzsimmons, Yost, Beach and Tucker:

    Senate Bill No. 343--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-13A-5b, relating to reallocating and dedicating three percent of oil and gas severance tax revenues up to $20 million annually to the oil- and gas-producing counties of origin and their respective municipalities; establishing state and local oil and gas county reallocated severance tax funds and providing for distribution of the moneys to the county commissions and governing bodies of the municipalities by the State Treasurer; establishing amounts each oil- and gas-producing county and their respective municipalities are to receive; requiring the creation of local funds into which moneys are to be deposited; requiring moneys be expended solely for economic development projects and infrastructure projects; providing definitions; providing restrictions on the expenditure of moneys; providing duties of State Tax Commissioner; requiring report of expenditures to Joint Committee on Government and Finance; providing audits of distributed funds when authorized by the Joint Committee on Government and Finance; and authorizing legislative and emergency rules.

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

    By Senator Plymale:

    Senate Bill No. 344--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2-26a, relating to requiring meetings among certain officials of county boards of education belonging to the same regional educational service agency; establishing what those meetings are to accomplish; requiring notice; setting forth the responsibilities of county and state education officials; permitting input from organizations having an interest in education; requiring reports; approving training; and providing a limitation.

    Referred to the Committee on Education.

    Senators Kirkendoll, Beach, Cann, Chafin, Cole, Edgell, D. Hall, Jenkins, McCabe, Miller, Plymale, Stollings, Kessler (Mr. President), Unger and Yost offered the following resolution:

    Senate Concurrent Resolution No. 6--Requesting the Division of Highways to name Brinkley Bridge, bridge number 50-152-30.81 on County Route 152 in Wayne County, the "Wayne County Veterans Memorial Bridge".

    Whereas, Countless numbers of proud residents of Wayne County have answered their country’s call to duty by serving in all branches of the military; and

    Whereas, These veterans have faithfully protected their country in military actions around the globe; and

    Whereas, Many of these veterans have made the ultimate sacrifice; and

    Whereas, Veterans have returned home to Wayne County where they continue to be valuable members of their communities; and

    Whereas, It is fitting to honor Wayne County veterans for their commitment, dedication and service to their country and state; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Division of Highways is hereby requested to name Brinkley Bridge, bridge number 50-152-30.81 on County Route 152 in Wayne County, the "Wayne County Veterans Memorial Bridge"; and, be it

    Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "Wayne County Veterans 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 Secretary of the Department of Transportation and Robert E. Pasley, President, Wayne County Commission.

    Which, under the rules, lies over one day.

    Senators Stollings, Kessler (Mr. President), Unger, Yost and Plymale offered the following resolution:

    Senate Resolution No. 16--Recognizing the Blue Ridge Chapter of the National Multiple Sclerosis Society and designating the week of March 11-17, 2013, as Multiple Sclerosis Awareness Week.

    Whereas, Multiple sclerosis is a chronic, often disabling disease of the central nervous system that affects approximately 4,000 people in West Virginia; and

    Whereas, Most people with multiple sclerosis are diagnosed between the ages of 15 and 50 but the unpredictable physical and emotional effects can be lifelong; and

    Whereas, Studies show that early and ongoing treatment with an FDA-approved therapy can reduce future disease activity and improve the quality of life for many people with multiple sclerosis; and

    Whereas, Multiple sclerosis is a disease that not only affects the person with the condition, but also greatly impacts family, friends and the community; and

    Whereas, The exact cause of multiple sclerosis is still unknown, and there is no known cure; and

    Whereas, The symptoms of multiple sclerosis may be mild such as numbness in the limbs, or severe, such as paralysis or loss of vision; and

    Whereas, Every hour of every day, someone is newly diagnosed with multiple sclerosis; and

    Whereas, The National Multiple Sclerosis Society envisions a world free of multiple sclerosis; and

    Whereas, The Blue Ridge Chapter of the National Multiple Sclerosis Society provides West Virginia residents with programs and services to address the challenges of everyone affected by multiple sclerosis; therefore, be it

    Resolved by the Senate:

    That the Senate hereby recognizes the Blue Ridge Chapter of the National Multiple Sclerosis Society and designates the week of March 11-17, 2013, as Multiple Sclerosis Awareness Week; and, be it

    Further Resolved, That the Senate extends its sincere appreciation to the members of the Blue Ridge Chapter of the National Multiple Sclerosis Society for its many contributions 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 appropriate representatives of the Blue Ridge Chapter of the National Multiple Sclerosis Society.

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

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

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

    Senators Plymale, Kessler (Mr. President), Unger, Yost, Stollings, Cole, Chafin and Jenkins offered the following resolution:

    Senate Resolution No. 17--Congratulating the Wayne High School football team for winning the 2012 West Virginia State AA Championship.

    Whereas, The Pioneers completed an amazing 2012 football season, finishing with a perfect record of 14-0 and winning their second consecutive Class AA state championship; and

    Whereas, The Pioneers are led by head coach Tom Harmon, and assistant coaches Ty Harmon, David Adkins, Wade Williamson, Shawn Ross, Nick Newell, Ted Williamson and Doug Shilot and trainer Jason Eaches; and

    Whereas, The Pioneers team consists of players Brandon Spurlock, Dustin Tombin, Mason Hodge, Zack Cassidy, Dwight Blankenship, Michael Perry, Kade Sebastian, Nathan Spurlock, Grant Ferguson, Brody Lunsford, Kyler Atkins, Nathan Adkins, John Osborne, Chandler Fry, Cody Stiltner, Marcus Webb, Kurt Langdon-Arthur, Michael Osborne, Logan Queen, Chris Darby, Ben Thompson, James Egnor, Brian Robertson, Taylor Maynard, Johnathan Adkins, Zach Damron, Tucker Watts, Brayden Baker, Marley Webb, Andrew Stamper, Caleb Lovejoy, Tyler Adkins, Seth Napier, Alex Jackson, Joey Williamson, MacKenzie Beckett, Tristen Nelson, Josh Mitts, Ryan Watts, Curtis Folioway, Yosef Finton, Anthony Bryant, John Ward, Brandon Mullett, Justin Crockett, J. C. Maynard, Matt Queen, Colin Kelly, Corey Ferguson, Matt Henderson, Alex Elkins, Dale Bryant, Paul Langdon, Jordan Clay, Randall Vance, Kevin Ramey, Justin Loving, Nick Harmon, Jacob Berry, Larry Meddings, Austin Hale, Austin Pyles, Jacob Maynard, Dustin Hatfield, Brett Justice, Colton Farley, Casey Brooks and Joel Mullins; and

    Whereas, The Pioneers displayed their strong will and determination for an entire season and will be remembered as one of the best teams ever assembled in West Virginia high school football history; therefore, be it

    Resolved by the Senate:

    That the Senate hereby congratulates the Wayne High School football team for winning the 2012 West Virginia State AA Championship; and, be it

    Further Resolved, That the Senate acknowledges the dedication and commitment of each individual coach and player, which resulted in the Pioneers winning their second consecutive West Virginia State AA Football Championship; and, be it

    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Wayne High School football team.

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

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

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

    Senators D. Hall, Green, Kessler (Mr. President), Unger, Yost, Stollings, Cole and Plymale offered the following resolution:

    Senate Resolution No. 18--Congratulating the Wyoming East Warriors baseball team for winning the 2012 West Virginia Class AA State Championship.

    Whereas, The Warriors had an amazing year, compiling a record of 29-5 during the regular season and winning the 2012 West Virginia Class AA State Championship; and

    Whereas, The Warriors closed the season in dominant fashion with eight straight wins, in route to winning the first ever baseball state championship for Wyoming County; and

    Whereas, The Warriors are coached by Ron “Chief” Mayhew and assistants Kevin Hedinger, Chris Mayhew and Jeff Simmons, and are supported by statistician Gwen Mayhew; and

    Whereas, The Warriors team consists of players Jarrett Caldwell, Travis McKinney, Brian Lusk, Derek Thornton, Zach Whitten, Austin Canada, Christian Hedinger, Derek Laxton, Josh Zeboskey, J. R. Haynes, Tyler Liddle, Devan Blankenship, Derek Browning, Michael Browning, Chase Presley, Jonathan Culcierto, Jacob Dulcie, David Powers, Hunter Simmons and Tristan Toler; and

    Whereas, The Warriors displayed their strong will and determination for an entire season and are a shining example of what can be accomplished through teamwork, dedication and commitment; therefore, be it

    Resolved by the Senate:

    That the Senate hereby congratulates the Wyoming East Warriors baseball team for winning the 2012 West Virginia Class AA State Championship; and, be it

    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Wyoming East Warriors baseball team.

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

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

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

    Senate Concurrent Resolution No. 3, Requesting DOH name bridge in Boone County "Army Sergeant Junior Elwood Dunlap Memorial Bridge".

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

    Senate Concurrent Resolution No. 4, Requesting DOH name bridge in Boone County "James 'Eddie' Mooney Memorial Bridge".

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

    Senate Concurrent Resolution No. 5, Requesting DOH name bridge in Wetzel County "Sgt. Norman R. Cunningham 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 tenth order of business.

    Com. Sub. for Senate Bill No. 71, Requiring descriptions of easements and rights-of-way include width in addition to centerline; exception.

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

    Com. Sub. for Senate Bill No. 145, Amending election complaint procedures.

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

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

    The Senate then proceeded to the thirteenth order of business.

    Senator Unger called attention to today being the birthday of the senator from Wayne and on behalf of the Senate extended felicitations and good wishes to Senator Plymale, with Senator Cole leading the members in singing "Happy Birthday".

    Pending announcement of meetings of standing committees of the Senate,

    On motion of Senator Unger, the Senate adjourned until tomorrow, Friday, February 22, 2013, at 11 a.m.

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